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Home My WebLink AboutItem #05 Villages of Wesmerethe Center of Good Lti.� O�0E. G AGENDA ITEM STAFF REPORT Meeting Date: November 16, 2010 Item # ` 1 j Reviewed By. Contact Name: Bobby Howell, MPA City Planner: Contact Number: 407 - 905 -3100, Ext. 1044 City Manager: Subject: Villages of Wesmere Rezoning to PUD, Land Use Plan Project # RZA 0 -07 -06 Commission District 3 — Rusty Johnson ISSUE: Should the Honorable Mayor and City Commissioners approve a request to rezone approximately 40.60 acres of property known as the Villages of Wesmere from R -3 (Multiple - Family Dwelling) to PUD (Planned Unit Development)? DISCUSSION The subject property is located on the southeast corner of the intersection of Maguire Road and Tomyn Boulevard. It is currently known as the Villages of Wesmere townhome community. It was approved by the City Commission in 2006 for 369 townhome units. The table below references the future land uses, zoning classifications and existing land uses of the surrounding parcels: Direction Future Land Use Zoning Classification Existing Land Use North Commercial General Commercial (C- Vacant - approved for Lake Butler 3 ) Professional Campus East Commercial General Commercial (C- Westbrooke Elementary School 3 South High Density R -3 (Multiple - family Villages of Wesmere townhomes Residential dwelling) West Low Density Residential R -1A (Single - family Single- family homes dwelling,R -1AAA Sin le -famil dwellin ) The Villages of Wesmere townhome development was approved by the City Commission in 2006. The development was approved for 369 townhome units on 49.48 acres at a density of 7.46 units per acre. Since the approval, demand has fallen considerably for townhome units and only a handful of the approved units have been constructed in the southern half of the development. Recently the City received a request to rezone the northern portion of the development, approximately 40.60 acres to PUD (Planned Unit Development) to allow the construction of 178 single - family detached units in place of a portion of the approved townhome units. The density of the single - family portion of the development is proposed at 4.38 units per acre. The maximum permitted density per the Comprehensive Plan is 16 units per acre. The overall density of the entire development will decrease from an approved density of 7.46 units per acre to 6.12 units per acre thus being consistent with the adopted Comprehensive Plan designation for the property. The Land Use Plan that was submitted proposes 40 -foot wide by 80 -foot deep (3,200 square foot) lots in a Traditional Neighborhood Design (TND) concept. The cornerstone of the TND concept is the inclusion of alleyways. During the review process, Staff suggested the applicant include alleyways as a way to enhance the 40 -foot wide lots that were proposed which would ultimately give the project a TND feel. The alleyways are proposed to be contained within 20 -foot wide tracts that will be owned and maintained by the homeowners association. The alleyway will be 12 -feet wide, which will only allow for one -way traffic. The remaining 8 -feet of the alley tract will be grassed. In addition to the alleyways being owned and maintained by the homeowners association, all internal roadways will continue to be private and owned and maintained by the homeowners association. Additionally, the development will continue to be gated. Areas of open space tracts that can serve many different types of recreational uses will be provided in the development. The setbacks for the front loaded and alley loaded lots will differ. For the front loaded units; a 20 -foot front setback, 5 -foot side setback, and 10 -foot rear setback will be provided. For the alley loaded units; a 10 -foot front setback, 5- foot side setback, and a 20 -foot rear setback will be provided. The rear setback will be used as the entry and the units will be accessed from the alley. The traffic statement that was included on the Land Use Plan indicates an increase of 274 daily trips to a total of 2,436 trips with the combined single - family and townhome configuration. The townhome development had an approved total of 2,162 trips. This increase in the amount of trips on the surrounding roadway network will require mitigation by the developer. A possible mitigation option may include a financial contribution to a right -turn lane leading from Maguire Road to Old Winter Garden Road. The final mitigation scenario will be detailed in a forthcoming Development Agreement that will be presented to the City Commission for final approval. According to Section 4 -5 A.6 of the Land Development Code, an acceptable use in the PUD zoning district is a Traditional Neighborhood Development. This is defined as a development of living environments which utilize neo- traditional design principles and are not possible with the strict application of minimum requirements of the City's other zoning regulations. Staff believes the Land Use Plan satisfies several key elements of TND design criteria; such as the inclusion of alleyways and open space areas which can be utilized for passive recreation; but feels it lacks other key TND elements such as neighborhood stores and civic spaces such as houses of worship within walking distance. After careful consideration staff feels that there are enough TND elements to allow the project to move forward for approval from the City Commission. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The Development Review Committee (DRC) met on October 6, 2010, and reviewed the applicant's request. The applicant was notified that there were several outstanding comments from the Legal Department that had not yet been resolved. No additional concerns were addressed, and the DRC voted unanimously to recommend approval of the rezoning of the northern portion of the Villages of Wesmere from R -3 (Multiple - Family Dwelling) to PUD (Planned Unit Development) subject to the satisfaction of the outstanding comments prior to the action being presented to the City Commission for final approval. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning & Zoning Commission met on October 12, 2010, to consider approval of the applicant's request. After deliberations, the Planning & Zoning Commission unanimously recommended approval of the rezoning of 40.60 acres of the Villages of Wesmere from R -3 (Multiple - Family Dwelling) to PUD (Planned Unit Development) subject to the execution of a Development Agreement, and the resolution of the outstanding comments from the Legal Department prior to the action being presented to the City Commission for final approval. STAFF RECOMMENDATION Staff recommends that the Honorable Mayor and City Commissioners approve the proposed rezoning of 40.60 acres of the Villages of Wesmere from R -3 (Multiple - Family Dwelling) to PUD (Planned Unit Development) subject to the execution of a Development Agreement, and the resolution of the outstanding comments from the Legal Department prior to the action being presented to the City Commission for final approval. ATTACHMENTS Location Map Future Land Use Map Zoning Map PUD Land Use Plan, Villages of Wesmere Sheet 4, approved Villages of Wesmere townhome development Final Subdivision Plan PUD Ordinance Development Agreement Legal Department comments FINANCIAL IMPACT: 0 "[ TYPE OF ITEM: (please mark with an "x") Public Hearing For Cleric's Dept Use: Ordinance First Reading Consent Agenda X Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) _ N/A X N/A N/A 3 • r r r r - • r r 1 ' • r ' r - 11�� 1 • WA POP �111111��11 /1111■ fl■ D■ :C i 1111111�1� ��. �■ ■ 1111111 % �,�;,�C1�1C1��7 ;� �� r IIIIIloll 0 ��IIII N m om � � ■fir ■L��:� �Q� ■ ■� �� ■ ■1� ■ ■■ rte■ ■ t�"��`�� •.,. ��■ A■ • ■ �� 11111111111111/ n ' , • .. 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O; •'$� Cm°nl 1MMPUk riaFLRR4ila -SLMNO CITY OF OCOEE, FLORIDA 0 t a °^°M„ °'+— — FOR: MORRISON HOMES o „, 1 III•_ W-- ...__.r.�...._�- .- ..r_ -. rs�ns»n -o+a it�iIEP �rK7�, u� - won■ =,rte -'" Yi I iAIP�1e:a - ir: ■a In WE = a In 1 �— IN If 1 4•• �I I ii•. J j, 1igigiN0 6 { E e5 E 4 i A � i g { j} r(�¶�{ R i ! e i '✓i 9 � a %F � � �� 3ia■ i3� � I S' �!!a & E��e�FSa � s ■� gsi! I ±d t. 's� aI�! a g € 3 6 t MILLER ILEGG THE VILLAGES OF WESMERE TOWNHOMES p ! O; •'$� Cm°nl 1MMPUk riaFLRR4ila -SLMNO CITY OF OCOEE, FLORIDA 0 t a °^°M„ °'+— — FOR: MORRISON HOMES o „, ORDINANCE NO. (Rezoning Ordinance for Villages of Wesmere PUD) CASE NO. RZ- 10- 07 -06: Villages of Wesmere PUD AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, CHANGING THE ZONING CLASSIFICATION FROM OCOEE "R -3" ZONING, MULTI FAMILY DWELLING DISTRICT, TO OCOEE "PUD" ZONING, PLANNED UNIT DEVELOPMENT, ON CERTAIN REAL PROPERTY CONTAINING APPROXIMATELY 40.60 ACRES LOCATED EAST OF AND ADJACENT TO MAGUIRE ROAD AND SOUTH OF AND ADJACENT TO TOMYN BOULEVARD, PURSUANT TO THE APPLICATION SUBMITTED BY THE PROPERTY OWNERS; FINDING SUCH ZONING TO BE CONSISTENT WITH THE OCOEE COMPREHENSIVE PLAN; PROVIDING FOR AND AUTHORIZING THE REVISION OF THE OFFICIAL CITY ZONING MAP; REPEALING INCONSISTENT ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the owner or owners (the "Applicant ") of certain real property located within the corporate limits of the City of Ocoee, Florida, as hereinafter described, have submitted an application to the City Commission of the City of Ocoee, Florida (the "Ocoee City Commission ") to rezone said real property (the "Rezoning "); and WHEREAS, the Applicant seeks to rezone certain real property containing approximately 40.60 acres, more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof, from Ocoee "R -3" zoning, Multi Family Dwelling District, to Ocoee "PUD" zoning, Planned Unit Development; and WHEREAS, pursuant to Section 5 -9(B) of Chapter 180 of the Code of Ordinances of the City of Ocoee, Florida (the "Ocoee City Code "), the Planning Manager has reviewed said Rezoning application and determined that the Rezoning requested by the Applicant is consistent with the 1991 City of Ocoee Comprehensive Plan as set forth in Ordinance #91 -28, adopted September 18, 1991, as amended (the "Ocoee Comprehensive Plan "); and WHEREAS, said Rezoning application was scheduled for study and recommendation by the Planning and Zoning Commission of the City of Ocoee, Florida (the "Planning and Zoning Commission "); and WHEREAS, on , 2010 the Planning and Zoning Commission held a public hearing and reviewed said Rezoning application for consistency with the Ocoee Comprehensive Plan and determined that the Rezoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan, and is in the best interest of the City and recommended to the Ocoee City Commission that the zoning classification of said real property be rezoned as ORLA 1643878.1 requested by the Applicant, and that the Ocoee City Commission finds that the Rezoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan; and WHEREAS, on , 2010 the Ocoee City Commission held a de novo advertised public hearing with respect to the proposed Rezoning of said real property and determined that the Rezoning is consistent with the Ocoee Comprehensive Plan; and WHEREAS, this Ordinance has been considered by the Ocoee City Commission in accordance with the procedures set forth in Section 166.041 (3)(a), Florida Statutes. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. AUTHORITY The Ocoee City Commission has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapters 163 and 166, Florida Statutes. SECTION 2. REZONING The zoning classification, as defined in the Ocoee City Code, of the Property described in Exhibit "A" containing approximately 40.60 acres located within the corporate limits of the City of Ocoee, Florida, is hereby changed from Ocoee R -3, Multi Family Dwelling District, to Ocoee PUD, "Planned Unit Development." A map of said land herein described which clearly shows the area of the Rezoning is attached hereto as Exhibit "B" and by this reference is made a part hereof. SECTION 3. LAND USE PLAN The following Land Use Plan for the Property described in Exhibit "A" to this Ordinance is hereby approved subject to the Conditions of Approval and Waiver(s), if any, from the Ocoee Land Development Code set forth thereon: That certain Land Use Plan for Villages of Wesmere PUD prepared by VHB Miller Sellen, date stamped received by the City on , 2010, with such additional revisions thereto, if any, as may be reflected in the minutes of the City Commission of the City of Ocoee meeting approving the same. The above described Land Use Plan is attached hereto as Exhibit "C" and by this reference made a part hereof. SECTION 4. COMPREHENSIVE PLAN The City Commission hereby finds the Rezoning of the lands described in this Ordinance to be consistent with the Ocoee Comprehensive Plan. SECTION 5. ZONING MAP The City Clerk is hereby authorized and directed to revise the Official Zoning Map of the City of Ocoee in order to incorporate the Rezoning enacted by this Ordinance and the Mayor and City Clerk are hereby authorized to execute said revised Official Zoning Map in accordance with the provisions of Section 5 -1(G) of Article V of Chapter 180 of the Ocoee City Code. SECTION 6. CONFLICTING ORDINANCES All ordinances or parts of ordinances in conflict herewith are hereby repealed and rescinded. 2 ORLA_1643878.1 SECTION 7. SEVERABILITY If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 8. EFFECTIVE DATE This Ordinance shall become effective ten (10) days after its passage and adoption. PASSED AND ADOPTED this day of ATTEST: Beth Eikenberry, City Clerk (SEAL) 2010. APPROVED: CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor ADVERTISED 9 2010 READ FIRST TIME , 2010. READ SECOND TIME AND ADOPTED 2010. L' FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 2010. FOLEY & LARDNER LLP City Attorney Under Agenda Item No. ORLA 1643878.1 EXHIBIT "A" (The "Property ") Tracts A, B, C, D, E, F, H, M and Lot 45 of Villages of Wesmere Plat as recorded in Official Records Book 70, Page 9 of the Public Records of Orange County. 4 ORLA_1643878.1 EXHIBIT "B" [INSERT MAP] Villa of - - - P Locati lffq � all mill 1 ■11111 ♦ Illlf I(III P = = IIII 10111111 111 milli 11��j1r fill! �• 1 ►, �_ ILG111 111111 J `�� ,� � Illlllllllllllllllllllllllllgllllll `��ii ��I► ��11111111= itc�[�. E111111I/ �INS�►��i► 11111111 �1111111�111� !� �, 1� ar r ,� �► ► ■ 01111111111 G]K111111�� Ills I UP, � 11/1► ■ a�� i L4■ ii • �i ■I1r� ■ +111►�� ■ ■ ■■ ■m ORLA_1643878.1 EXHIBIT "C" LAND USE PLAN [ATTACH LAND USE PLAN] ORLA_1643878.1 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Dorothy E. Watson, Esq. FOLEY & LARDNER LLP 1 I 1 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802 -2193 (407) 423 -7656 111aIt0 "No 11111 Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656 -2322 DEVELOPMENT AGREEMENT (Villaees of Wesmere PUD) THIS DEVELOPMENT AGREEMENT ( "this Agreement ") is made and entered into as of the _ day of by and between VILLAGES OF WESMERE PARTNERS, L.L.L.P. whose mailing address is (hereinafter referred to as the "Owner ") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761, Attention: City Manager (hereinafter referred to as the "City "). WITNESSETH: WHEREAS, the Owner owns fee simple title to certain lands located in Orange County, Florida, and within the corporate limits of the City of Ocoee, Florida, said lands being more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter referred to as the "Owner Property "); and WHEREAS, the Wesmere Townhome Association owns fee simple title to certain lands located in Orange County, Florida, and within the corporate limits of the City of Ocoee, Florida, said lands being more particularly described in Exhibit "B" attached hereto and by this reference made a part hereof (hereinafter referred to as the "Association Property" and together with the Owner Property, the "Property"); and WHEREAS, pursuant to the petition of the Owner, on the Ocoee City Commission approved Ordinance No. rezoning the Property as "PUD" under the Ocoee Land Development Code; and ORLA_1648124.4 WHEREAS, the City and Owner have determined that the development of the Property as proposed will generate 51 more trips per day than the previously approved use of the Property; and WHEREAS, Owner and the City have agreed to implement a strategy to accommodate or mitigate the additional traffic created by the Owner's proposed development; and WHEREAS, the provisions of Section 4 -5A(5) of Article IV of the Ocoee Land Development Code requires that the Owner and the City enter into a development agreement incorporating all plans and conditions of approval by reference; and WHEREAS, the Owner and the City desire to execute this Agreement in order to fully comply with the provisions of the Ocoee Land Development Code. NOW, THEREFORE, in consideration of the premises and other good and valuable considerations exchanged between the parties hereto, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Recitals The above recitals are true and correct and incorporated herein by this reference. Section 2. Development of the Property A. The Owner hereby agrees to develop the Property in accordance with that certain PUD Land Use Plan for Villages of Wesmere prepared by VHB MillerSellen date stamped as received by the City on , 2010 (hereinafter referred to as the "Land Use Plan"). The Land Use Plan is hereby incorporated herein by reference as if fully set forth herein. B. The Owner hereby agrees that the Property shall be developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "C" and by this reference made a part hereof (the "Conditions of Approval "). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "C" are the same as the Conditions of Approval set forth in the Land Use Plan. C. Except as otherwise expressly set forth in this Agreement and the Land Use Plan it is agreed that (1) the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, as it may from time to time be amended, and (2) all preliminary subdivision plans, final subdivision plans, and final site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements in effect at the time of approval of any such plans. In the event of any conflict between the provisions of the Ocoee Land Development Code, as it may from time to time be amended, and this Agreement, it is agreed that the provisions of this Agreement shall control. D. All capitalized terms not otherwise defined herein shall be as defined or described on the Land Use Plan, unless otherwise indicated. ORLA_1648124.4 -2- Section 3. Waivers from the Ocoee Land Development Code Pursuant to City of Ocoee Ordinance No. Owner has been granted waivers from the requirements of the Ocoee Land Development Code, said waivers being set forth in Exhibit "D" attached hereto and by this reference made a part hereof. Section 4. Amendment of Preliminary/Final Subdivision Plan. Owner and the City recognize that the Land Use Plan is inconsistent with the previously approved Preliminary/Final Subdivision Plan for the Villages of Wesmere. Owner shall act with due diligence to amend the Preliminary/Final Subdivision Plan for the Villages of Wesmere so as to be consistent with the Land Use Plan and shall subsequently re -plat the Property to be consistent with the Amended Preliminary /Final Subdivision Plan. Section 5. Off -Site Transportation Mitigation A. To mitigate transportation impacts associated with the Land Use Plan and to induce the City to thereafter issue a Final Certificate of Concurrency for the development of the Property, the Owner hereby agrees to pay to the City the sum of Twenty Three Thousand Four Hundred Dollars ($23,400) (the "Traffic Mitigation Payment "). The Traffic Mitigation Payment will be used by the City exclusively for (i) the payment of costs associated with the design, engineering, permitting and construction of the extension of a southbound left turn lane from Maguire Road onto Tomyn Boulevard, or (ii) the payment of costs associated with the construction of a project known as "Maguire Road Phase 5," or (iii) a combination of the foregoing. The Traffic Mitigation Payment shall be paid by the Owner in a lump sum upfront payment at the earlier of (i) the issuance of the first building permit for the construction of any vertical improvements on the Owner Property or (ii) three (3) years from the Effective Date. B. Neither the Owner nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the Turn Lane Improvements set forth above and the Owner's compliance with the requirements of this section. Section 6. Tomyn Road Right -of -Way Conveyance. A. Not later than the thirtieth (30) day after the Effective Date, Owner shall cause Wesmere Development, LLC to convey to the City certain parcels of land along Tomyn Road, more specifically described as: Tracts P and S, Villages of Wesmere, according to the plat thereof as recorded in Plat Book 70, Page 9, Public Records of Orange County, Florida (the " Tomyn Road Right -of- Way ") B. The Tomyn Road Right -of -Way shall be dedicated and conveyed by the Owner to the City by warranty deed free and clear of all liens and encumbrances except for those matters acceptable to the City. The form of the warranty deed shall be subject to the approval of the City. The Owner shall, contemporaneously with the dedication and conveyance of the ORLA_1648124.4 -3- Tomyn Road Right -of -Way to the City, provide to the City, a current attorney's opinion of title, or a current title commitment, to be followed by a policy of title insurance, evidencing that fee simple title to the Tomyn Road Right -of -Way is free and clear of all liens and encumbrances except for those matters acceptable to the City. The costs and expenses related to the conveyance and dedication of the Tomyn Road Right -of -Way, including the cost of title work, shall be borne solely by the Owner. Real property taxes on the Tomyn Road Right -of -Way shall be prorated as of the day before the City's acceptance of the dedication and conveyance of the same, and the prorated amount of such real property taxes attributable to the Owner shall be paid and escrowed by the Owner in accordance with the provisions of Section 196.295, Florida Statutes; provided, however, that if the conveyance occurs between November 1 and December 31, then the Owner shall be responsible for the real property taxes for the entire year. Section 7. Notice Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) (i) when hand delivered to the other party, (ii) upon receipt when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, or (iii) the next business day after being sent by nationally recognized overnight delivery service for next business day delivery, all addressed to the party at the address appearing on the first page of this Agreement, or such other person or address as the party shall have specified by written notice to the other party delivered in accordance herewith. Section 8. Covenant Running with the Land This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof. Section 9. Assignment of Agreement. This Agreement may be assigned to and assumed by a successor developer acquiring all of Owner's interest in and title to the Owner Property. Section 10. Recordation of Agreement The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner, execute and deliver letters affirming the status of this Agreement. Section 11. Applicable Law This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida. Section 12. Time of the Essence Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. Section 13. Agreement; Amendment This Agreement constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment which shall be recorded in the Public Records of Orange County, Florida at the Owner's expense. ORLA_1648124.4 -4- Section 14. Further Documentation The parties agree that at any time following a request therefor by the other party, each shall execute and deliver to the other party such further documents and instruments, in form and substance reasonably necessary to confirm and /or effectuate the obligations of either party hereunder. Section 15. Specific Performance Both the City and the Owner shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 16. Attorneys' Fees In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, legal assistants' fees and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings, without regard to whether any legal proceedings are commenced or whether or not such action is prosecuted to judgment. Section 17. Counterparts This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Section 18. Captions Captions of the Sections and Subsections of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction, or meaning of the provisions of this Agreement. Section 19. Severability If any sentence, phrase, paragraph, provision, or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereof. Section 20. Effective Date The Effective Date of this Agreement shall be the 10 day following the day and year first above written, such date being the effective date of the zoning ordinance referenced above. IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed by their duly authorized officers as of the day and year first above written. Signed, sealed and delivered in the OWNER: presence of VILLAGES OF WESMERE PARTNERS, L.L.L.P Print Name By :_ Name: ORLA_1648124.4 -5- Print N Its: By:_ Name: Its: ORLA_1648124.4 _� _ STATE OF FLORIDA COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared , who [] is personally known to me or " produced as identification, and that acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily, for the uses and purposes therein expressed. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2010. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal):_ My Commission Expires (if not legible on seal): ORLA_1648124.4 _ 7_ Signed, sealed and delivered in the presence of: Print Name: Print N FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2010. FOLEY & LARDNER LLP C City Attorney CITY: CITY OF OCOEE, FLORIDA Attest: S. Scott Vandergrift, Mayor Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON UNDER AGENDA ITEM NO. ORLA_1648124A -8- STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared S. SCOTT VANDERGRIFT and BETH EIKENBERRY, personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily under authority duly vested in them by said municipality. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2010 Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): ORLA_1648124.4 _C)_ JOINDER AND CONSENT The undersigned hereby certifies that it is the holder of an indenture of mortgage, dated the day of and recorded in Official Records Book , Page Public Records of Orange County, Florida, upon the above described property and the undersigned, for and in consideration of valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby join in and consent to the execution of the foregoing Development Agreement ( ) and agree that the lien of its mortgage described herein above shall be subordinated to the aforedescribed Development Agreement. Signed, sealed and delivered in the presence of: Print Name: Print Name: STATE OF _ COUNTY OF (Print name of Mortgage holder) By: Printed Name: Title: The foregoing instrument was acknowledged before me this day of 20_, by (Name of Officer) who is the (Title) of (Name) . He /she [�] is personally known to me, or �] has produced as identification. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): ORLA_1648124.4 -10- EXHIBIT " A " THE OWNER PROPERTY Tracts D, H, and Lot 45 of the Villages of Wesmere Plat as recorded in Plat Book 70, Page 9 of the Official Records of Orange County, Florida. ORLA 1648124.4 EXHIBIT "B" THE AssOCIATION PROPERTY Tracts A, B, C, E, F, and M of the Villages of Wesmere Plat as recorded in Plat Book 70, Page 9 of the Official Records of Orange County, Florida. ORLA_1648124.4 -12- EXHIBIT "C" CONDITIONS OF APPROVAL PUD CONDITIONS OF APPROVAL — Sheet P005 1. PER FIRM PANEL NO. 120179 0220 E. THE ENTIRE SITE LIES WITHIN FLOOD ZONE 'X', AREA OF MINIMAL FLOODING. 2. THERE SHALL BE NO ACCESS FROM THE PROJECT TO ANY PUBLIC ROADS EXCEPT AT THE APPROVED LOCATIONS SHOWN ON THE PLAN. 3. EXCEPT AS SPECIFICALLY NOTED ON THIS PLAN, DEVELOPMENT OF THIS PROPERTY SHALL BE CONSISTENT WITH THE REQUIREMENTS OF THE CITY OF OCOEE CODE. 4. A PERPETUAL, NON - EXCLUSIVE EASEMENT FOR ACCESS OVER ALL INTERNAL ROADWAYS AND PAVED AREAS SHALL BE GRANTED IN FAVOR OF THE CITY OF OCOEE AND OTHER APPLICABLE AUTHORITIES FOR LAW ENFORCEMENT, FIRE AND OTHER EMERGENCY SERVICES. THE CITY MAY REQUIRE THE OWNER TO EXECUTE AN EASEMENT IN RECORDABLE FOR WITH RESPECT TO THE FOREGOING. 5. ALL LEGAL INSTRUMENTS INCLUDING BUT NOT LIMITED TO THE DECLARATION OF EASEMENTS, COVENENANTS AND RESTRICTIONS, ASSOCIATION DOCUMENTS AND DEEDS CONVEYING PROPERTY TO A HOMEOWNERS ASSOCIATION OR PROPERTY OWNERS ASSOCIATION SHALL BE APPROVED BY THE CITY PRIOR TO PLAT APPROVAL AND SHALL COMPLY WITH ALL ORDINANCES OF THE CITY IN EFFECT AT THE TIME OF RECORDING OF ANY SUCH INSTRUMENT. 6. A MASTER HOMEOWNERS ASSOCIATION WILL BE CREATED FOR MAINTENANCE AND MANAGEMENT OF ALL COMMON AREAS AND FACILITIES UNLESS OTHERWISE NOTED AND SHALL COMPLY WITH ALL CITY ORDINANCES IN EFFECT AT THE TIME OF INSTRUMENT RECORDING. 7. ALL ROADS WILL BE PRIVATELY MAINTAINED BY THE HOMEOWNERS ASSOCIATION UNLESS OTHERWISE NOTED. 8. FINAL STREET NAMING WILL BE COORDINATED THROUGH THE CITY BUILDING DEPARTMENT AT TIME OF FINAL PLAT SUBMITTAL. 9. THE DEVELOPER SHALL CONSTRUCT APPROPRIATE CURB CUTS TO ENABLE THE CONSTRUCITON OF RAMPS AT ALL APPLICABLE RIGHT -OF -WAY ORLA_1648124.4 _] �_ INTERSECTIONS (AND OTHER AREAS AS REASONABLY REQUIRED) IN ORDER TO PROVIDE PHYSICALLY CHALLENGED PERSONS ACCESS TO SIDEWALKS AND STREETS. SIDEWALKS ABUTTING EACH PLATTED LOT SHALL BE CONSTRUCTED AT THE TIME A UNIT IS CONSTRUCTED ON THE LOT. WHEN SIDEWALKS ARE CONSTRUCTED ON CORNER LOTS AT CERTAIN LOCATIONS, THE WALKS WILL BE EXTENDED TO THE CURB AND THE APPROPRIATE RAMPS WILL THEN BE CONSTRUCTED. SIDEWALKS ADJACENT TO COMMON AREAS SHALL BE CONSTRUCTED AT THE TIME OF PERMANENT CONSTRUCTION OF ADJACENT COMMON AREAS. 10. IF ANY LIFT STATIONS ARE REQUIRED ON THE PROEPRTY, THEY WILL BE CONVEYED TO THE CITY AT THE TIME OF PLATTING. ALL SUCH LIFT STATIONS SHALL BE FENCED WITH BLACK VINYL CHAIN -LINK FENCE WITH POSTS AND RAILS PAINTED BLACK AND SHALL BE SET BACK NO LESS THAN 25' FROM ANY STREET. SUCH LIFT STATIONS SHALL ALSO BE SCREENED WITH HEDGE -TYPE SHRUBBERY SUCH AS VIBURNUM OR LIGUSTRUM. 11. ALL UNDERGROUND UTILITIES SHALL COMPLY WITH ORDINANCE NO. 95 -17 WHICH REQUIRES PEDESTAL - MOUNTED UTILITY BOXES TO BE PLACED BACK OFF THE STREET, NO MORE THAN 5' FORWARD OF THE FRONT BUILDING SETBACK LINE. 12, SECURITY LIGHTING FOR INTERNAL STREETS, PARKING AREAS, DEVELOPMENT ENTRANCES, POOL /PAVILION /RESTROOM AREA AND KIOSK AREA SHALL BE INSTALLED BY THE DEVELOPER AT THE DEVELOPER'S SOLE COST AND EXPENSE PRIOR TO A CERTIFICATE OF COMPLETION BEING ISSUED. THE COST OF OPERATIONS WILL BE ASSUMED BY THE DEVELOPER IN ACCORDANCE WITH ORDINANCE NO. 95 -17. 13. PURSUANT TO ORDINANCE NO. 2001 -18, ALL SUBDIVISION SIGNAGE MUST BE CONSISTENT WITH THE LEGALLY ASSIGNED SUBDIVISION NAME. ANY SUBSEQUENT SUBDIVION NAME CHANGE MUST BE APPROVED BY THE CITY COMMISSION. 14. INTENTIONALLY DELETED. 15. ALL BUILDING PAD ELEVATIONS SHALL EXCEED THE 100 YEAR FLOOD ELEVATIONS BY A NINIMUM OF TWO FEET. 16. TRASH PICKUP WILL BE PROVIDED FOR EACH INDIVIDUAL UNIT. NO DUMPSTERS SHALL BE UTILIZED FOR WASTE DISPOSAL. 17. ALL ON -SITE UTILITIES INCLUDING ELECTRICAL, CABLE TV AND TELEPHONE SHALL BE PLACED BELOW GROUND. ORLA_1648124.4 -14- 18. ALL TRACTS WHICH ARE TO BE OWNED AND MAINTAINED BY THE HOMEOWNERS ASSOCIATION SHALL BE CONVEYED TO THE HOMEOWNERS ASSOCIATION BY WARRANTY DEED AT THE TIME OF PLATTING. 19. EACH FIRE HYDRANT SHALL BE OSHA YELLOW IN COLOR AND BLUE REFLECTIVE MARKER SHALL BE AFFIXED TO THE STREET IN THE CENTER OF THE LANE CLOSEST TO EACH HYDRANT. 20. THE PROJECT IS TO BE DEVLOPED AS A PRIVATE GATED COMMUNITY AND SHALL COMPLY WITH ALL APPLICABLE ORANGE COUNTY ORDINANCES AND RESOLUTIONS WITH RESPECT TO GATED COMMUNITIES, INCLUDING BUT NOT LIMITED TO ARTICLE VIII, CHAPTER 34 OF THE ORNAGE COUNTY CODE, AS WELL AS ANY AMENDMENTS TO THAT ARTICLE THAT MAY BE ENACTED THERETO. ALL REFERENCES IN SAID COUNTY CODE CHAPTER TO THE "COUNTY" SHALL BE DEEMED TO REFER TO THE "CITY" FOR PURPOSES OF THIS REQUIREMENT. IN THE EVENT THAT THE CITY ADOPTS AN ORDINANCE REGARDING GATED COMMUNITIES PRIOR TO PLAT APPROVAL FOR THIS PROJECT, THEN THE PROEJCT SHALL COMPLY WITH THIS ADOPTED ORDINANCE. 21. AN "OPTICOM" PRE - EMPTION DEVICE AS WELL AS A "KNOX BOX" WILL BE REQUIRED FOR BOTH ENTRANCE GATES. 22. ALL DECLARATIONS OF COVENANTS AND RESTRICTIONS AFFECTING THE PROEPRTY SHALL INCLUDE THE FOLLOWING PROVISIONS: a. PROVISION ALLOWING THE CITY TO LEVY, COLLECT, AND ENFORCE ASSESSMENTS FOR MAINTENANCE OF THE COMMON AREAS IF THE ASSOCIATION FAILS TO DO SO OR FAILS TO MAINTAIN ASSESSMENTS AT A LEVEL ALLOWING FOR ADEQUATE MAINTENANCE. b. PROVISION GRANTING THE CITY THE RIGHT, BUT NOT THE OBLIGATION, TO MAINTAIN /REPAIR THE SWMS AND OBTAIN REIMBURSEMENT FROM THE ASSOCIATION OR FROM THE DEVELOPER IF (1) TURNOVER OF CONTROL TO THE MEMBERS HAS NOT OCCURRED, OR (2) IF THE DEVELOPER IS STILL RESPONSBILE FOR MAINTENCE OF THE SWMS. c. PROVISION PROVIDING THAT THE SWMS WILL BE TRANSFERRED TO A RESPONSIBLE TINUE TO LEVY AND COLLECT ASSESSMENTS AND IMPOSE LIENS WITH RESPECT THERETO, NOTWITHSTANDING THE DISSOLUTION OF THE ASSOCIATION. d. PROVISION THAT THE ASSOCIATION SHALL AT ALL TIMES BE IN GOOD STANDING WITH THE FLORIDA SECRETARY OF STATE. e. PROVISION THAT AT THE TIME OF TURNOVER OF CONTROL OF THE ASSOCIATION TO THE MEMBERS, THE DECLARANT SHALL DELIVER TO THE BOARD OF DIRECTORS THE MAINTENACE PLAN FOR THE SWMS ACCOMPANIED BY AN ENGINEER'S CERTIFICATION THAT THE SWMS IS ORLA_1648124.4 -15- FUNCTIONING IN ACCORDANCE WITH ALL APPROVED PLANS AND PERMITS. TO THE EXTENT THAT ANY SUCH ENGINEER'S REPORT INDICATES ANY CORRECTIVE ACTION IS REQUIRED, THE DECLARANT SHALL BE REQUIRED TO DILIGENTLY UNDERTAKE ACTION SUCH CORRECTIVE ACTION AT THE DECLARANT'S EXPENSE AND TO POST A CASH BOND WITH THE ASSOCIATION FOR THE ESTIMATED COSTS OF SUCH CORRECTIVE ACTION. f. PROVISION THAT NO PROPERTY OWNED BY THE CITY OF ANY OTHER GOVERNMENTAL ENTITY SHALL BE SUBJECT TO ASSESSMENTS LEVIED BY THE ASSOCIATION. g. PROVISION THAT ANY AMENDMENT TO ANY PROVISION AFFECTING THE CITY REQUIRES THE CONSENT OF THE CITY IN AN INSTRUMENT RECORDED WITH THE AMENDMENT. h. THE ARTICLES OF INCORPORATION AND BYLAWS OF THE ASSOCIATION SHALL BE CONSISTENT WITH THE FORGOING PROVISIONS. 23. (SWMS), INCLUDING ALL STORMWATER RETENTION PONDS, UNTIL SUCH TIME AS (1) THE ENTIRE SWMS FOR THE PROJECT IS CONSTRUCTED AND APPROPRIATE CERTIFICATES OF COMPLETION ISSUED BY BOTH THE CITY AND SJRWMD, (II) THE STORMWATER RETENTION PONDS HAVE IN FACT BEEN CONVEYED TO THE HOMEOWNERS ASSOCIATION, (III) THE HOMEOWNERS ASSOCIATION IS DESIGNED AS THE MAINTENANCE ENTITY ON THE RECORDS OF THE SJRWMD AND ALL TRANSFER RECORDS REQUIRED BY SJRWMD HAVE BEEN EXECUTED AND ACCEPTED BY SJRWMD, (IV) THE CITY HAS BEEN PROVIDED WITH A COPY OF THE DEVELOPER'S PROPOSED MAINTENANCE PLAN WITH RESPECT TO THE SWMS, AND (V) THE CITY HAS BEEN PROVDED WITH A WRITTEN STATEMENT FROM THE HOMEOWNERS ASSOCIATION ACKNOWLEDGING RECEIPT OF THE DEVELOPER'S PROPOSED MAINTENANCE PLAN WITH RESPECT CONSTRUCTION METHOD FOR THE SIGNAL INSTALLATION. 23. THE CITY OF OCOEE IS SUBJECT TO THE TERMS, PROVISIONS AND RESTRICTIONS OF FLORIDA STATUTES CHAPTER 163 CONCERNING MORATORIA ON THE ISSUANCE OF BUILDING PERMITS UNDER CERTAIN CIRCUMSTANCES. THE CITY HAS NO LAWFUL AUTHORITY TO EXEMPT ANY PRIVATE ENTITY, OR ITSELF, FROM THE APPLICATION OF SUCH STATE LEGISLATION AND NOTHING HEREIN SHOULD BE CONSIDERED AS SUCH AS AN EXEMPTION. 24. ANY DAMAGE CAUSED TO ANY PUBLIC ROAD AS A RESULT OF THE CONSTRUCTION ACTIVITES RELATED TO THE PROJECT SHALL BE PROMPTLY REPAIRED BY THE DEVELOPER TO THE APPLICABLE GOVERNMENT STANDARDS AT THE DEVELOPER'S SOLE COST AND EXPENSE. ORLA_1648124.4 -16- 25. DEVELOPER SHALL COMPLY WITH ORDINANCE NO. 2001 -19. 26. RECREATION AMENITIES, INCLUDING A TOT LOT, POOL AND PAVILION ALL MEETING THE CITY'S LDC REQUIREMENTS SHALL BE PROVIDED. 27. NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE ANY PROVISION OF THE LAND DEVELOPMENT CODE EXCEPT TO THE EXTENT EXPRESSLY SET FORTH ON A WAIVER TABLE OR EXPLICITLY SET OUT ON THE PLAN. 29. ALL SCREEN WALLS, LANDSCAPE BUFFERS, ALL COMMON AREA LANDSCAPE IMPROVEMENTS AS WELL AS SIDEWALKS ALONG THE FUTURE LOCAL STREET AND ALONG ALL OTHER PERIMETER PROPERTY LINES SHALL BE COMPLETED PRIOR TO ISSUANCE OF THE CERTIFICATE OF COMPLETION. 30. STREET TREES SHALL BE PROVIDED BY THE HOME BUILDER AT A RATE OF THREE TREES PER SINGLE FAMILY TC-ANNIHOM€ UNIT PRIOR TO CERTIFICATE OF OCCUPANCY FOR EACH BUILDING. AT LEAST HALF OF THESE STREET TREES SHALL BE SHADE TREES WITH A MINIMUM OF Y -3.5" DBH AND 10' TALL AT INSTALLATION. THE REMAINING STREET TREES SHALL BE UNDERSTORY TREES AS DEFINED IN THE LAND DEVELOPMENT CODE. 31. THE of AN' SHOWS A VAILABE PAD SIZ€ FOR REFERENCE Gh" Y EACH INDIVIDUAL LOT, THE BUILDINGS SHALL NOT EXCEED 70% LOT COVERAGE AND THE TOTAL OF ALL IMPERVIOUS SURFACES SHALL NOT EXCEED 75% LOT COVERAGE. 32. THE DECLARATIONS OF COVENANTS AND RESTRICTIONS SHALL INCLUDE LANGUAGE REQUIRING THAT GARAGES MUST BE USED FOR PARKING CARS AND THAT PARKING WILL BE PROHIBITED ON THE PRIVATE STREETS, EXCEPT IN DESIGNATED OFF - STREET PARKING SPACES. 33. THE DECLARATIONS OF COVENANTS AND RESTRICTIONS SHALL INCLUDE LANGUAGE REQUIRING THAT IF TRASH CANS ARE USED AT INDIVIDUAL UNITS, THEY SHALL BE STORED IN THE GARAGE, BUT IF THEY ARE STORED OUTSDIE THE GARAGE THEY WILL BE SCREENED FROM VIEW WITH A DECORATIVE FENCE AND /OR LANDSCAPING. 34. THE VILLAGES OF WESMERE PUD SHALL COMPLY WITH ALL STANDARDS CONTAINED IN THE OCOEE LAND DEVELOPMENT CODE APPLICABLE TO SINGLE FAMILY HOMES IN AN R -3 ZONING DISTRICT EXCEPT AS SPECIFICALLY ORLA_1648124.4 -17- PROVIDED IN THE APPROVED LAND USE PLAN AND THE DEVELOPMENT AGREEMENT FOR THE VILLAGES OF WESMERE. 35. STORMWATER MANAGEMENT FOR THIS DEVELOPMENT WILL BE CONTAINED IN TRACT 3, WET RETENTION POND OF THE WESMERE PROPERTY PSP. THIS POND WILL BE CONSTRUCTED AND APPROVED BY THE CITY OF OCOEE PRIOR TO OR CONCURRENT WITH THE CONSTRUCTION OF THIS PROJECT. 36. THE LANDSCAPE BUFFER TRACTS ALONG THE FUTURE LOCAL STREET SHALL HAVE, AT A MINIMUM, SHADE TREES PLANTED EVERY 30 FEET AND SHRUBS PLANTED ALONG AT LEAST 25% OF THE LENGTH OF THE WALL. THE BUFFER WALL SHALL BE CONSTRUCTED AT LEAST 5 FEET BACK FROM THE ROAD RIGHT -OF -WAY LINE. 37. IF ANY FENCE ENCLOSURES ARE CONSTRUCTED IN THE REAR YARD OF ANY UNIT, THERE WILL BE A GATE OPENING INTO AN OPEN SPACE BEHIND THE UNIT. 3& A MINIMUM 30 FOOT SEPARATION MUST BE MAINTAINED WHEN THE REAR OF A UNIT FACES THE SIDE OF AN ADJACENT UNIT. gErei I C C OF IS REQU I REMENT , SCREENED ENCLOSURES WILL NOT BE PE RM I TT ED AT THE RE F A O UNITS as AND 4 A S DESIGNATED ON THE SITE PLAN N SUBDIVISION LOTTING PLAN. rcvrm —m UN � r� v —vv 6 I — r� �� v� i s� rQ � c r 39. DRAINAGE EASEMENTS BETWEEN LOTS ARE SHOWN FOR LOCATION ONLY. FINAL EASEMENT DIMENSIONS (WIDTHS) WILL BE SHOWN ON THE FINAL SUBDIVISION PLAN AND WILL BE SIZED TO MEET CITY REQUIREMENTS. 40. UNLESS OTHERWISE NOTED, A 5' UTILITY AND DRAINAGE EASEMENT WILL BE PLATTED ALONG ALL SIDE LOT LINES BETWEEN BUILDINGS, AND A 10' UTILITY AND DRAINAGE EASEMENT ADJACENT TO THE STREET RIGHT -OF -WAY. 41. ANY LIFT STATION SHALL BE CONVEYED TO THE CITY OF OCOEE BY WARRANTY DEED FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES PRIOR TO OR AT THE TIME OF PLATTING. 42. ALL DRAINAGE, UTILITY AND MAINTENANCE EASEMENTS SHALL BE FOR THE BENEFIT OF THE HOMEOWNERS ASSOCIATION. THE LAND BURDENED BY SUCH EASEMENTS SHALL BE OWNED BY THE INDIVIDUAL LOT OWNERS. THE DRAINAGE OF UTILITY EASEMENTS SHALL BE DEDICATED TO THE PERPETUAL USE OF THE PUBLIC AT THE TIME OF PLATTING. 43. THIS SUBDIVISION WILL RECEIVE WATER SERVICE FROM THE CITY OF OCOEE. ORLA_1648124.4 -18- 44. ALL BUILDING AND SITE SIGNAGE SHALL COMPLY WITH CODE OF THE CITY OF OCOEE. 45. TRACTS 370 -379 & TRACT 381 WILL BE OWNED AND MAINTAINED BY THE HOMEOWNERS ASSOCIATION AND CONVEYED TO THE ASSOCIATION BY DEED AT THE TIME OF PLATTING. 46, THE PROJECT IS A PRIVATE COMMUNITY WITH A MANDATORY HOMEOWNERS ASSOCIATION OWNING AND MAINTAINING THE PRIVATE STREETS AND DRAINAGE FACILITIES. PRIOR TO, OR AT THE TIME OF PLATTING, AN EASEMENT WILL BE GRANTED TO ALL UTILITY SUPPLIERS FOR INGRESS AND EGRESS OVER THE PRIVATE STREET TRACTS FOR ACCESS AND MAINTENANCE OF THEIR UTILITIES AND TO THE CITY OF OCOEE LAW ENFORCEMENT AND EMERGENCY PERSONNEL FOR INGRESS AND EGRESS TO THE PROPERTY. 47. THE HOMEOWNERS ASSOCIATION WILL BE RESPONSIBLE FOR THE CONTINUED MAINTENANCE OF ALL STREETS AND SIDEWALKS IN ACCORDANCE WITH ALL ADA REQUIREMENTS THAT MAY NOW OR HERINAFTER BE APPLICABLE TO THE PROJECT. 48. ALL LANDSCAPE AREAS WILL BE IRRIGATED AND HAVE AN AUTOMATIC RAIN SENSOR. 49. OPEN SPACE BETWEEN - T-OWNH JME 'moo WHICH IS NOT PART OF AN INDIVIDUAL LOT, SHALL BE OWNED AND MAINTAINED BY THE HOMEOWNERS ASSOCIATION. 50. THE DECLARATION FOR THE SUBDIVISION SHALL CONTAIN A PROVISION GRANTING THE CITY OF OCOEE THE RIGHT, BUT NOT THE OBLIGATION, TO REPAIR AND MAINTAIN THE STORMWATER SYSTEM SHOULD THE HOMEOWNERS ASSOCIATION FAIL TO DO SO AND SEEK REIMBURSEMENT FROM THE HOMEOWNERS ASSOCIATION, OR FROM THE DEVELOPER IF (1) TURNOVER OF CONTROL OF THE MEMBERS HAS NOT OCCURRED, OR (II) IF THE DEVELOPER IS STILL RESPONSIBLE FOR THE MAINTENANCE OF THE STORMWATER SYSTEM. THESE RIGHTS WILL BE CONSISTENT WITH AND LIMITED TO RIGHTS GRANTED WITH ARTICLE VII, CHAPTER 34 OF THE ORANGE COUNTY CODE. 51. SHORT TERM RENTALS (RENTAL TERM LESS THAN 6 MONTHS) SHALL BE PROHIBITED. THIS RESTRICTION SHALL BE INCORPORATED INTO THE DECLARATION FOR THE SUBDIVISION AND SHALL PROVIDE THAT THE PROVISION MAY BE ENFORCED BY THE CITY. ORLA_1648124.4 -19- 52. THE DECLARATION FOR THE SUBDIVISION SHALL PROHIBIT RV AND BOAT PARKING WITHIN THE SUBDIVISION. 53. THE DECLARATION FOR THE SUBDIVISION SHALL PROVIDE THAT NOTWITHSTANDING THE CONVEYANCE OF THE STORMWATER RETENTION PONDS TO THE HOMEOWNERS ASSOCIATION, OR ANY PROVISION TO THE CONTRARY CONTAINED IN THESE CONDITIONS OF APPROVAL, THE DEVELOPER SHALL REMAIN RESPONSIBLE FOR THE MAINTENANCE OF THE PROJECT'S STORMWATER MANAGEMENT SYSTEM (SWMS), INCLUDING ALL STORMWATER RETENTION PONDS, UNTIL SUCH TIME AS (1) THE ENTIRE SWMS FOR THE PROJECT IS CONSTRUCTED AND APPROPRIATE CERTIFICATES OF COMPLETION ISSUED BY BOTH THE CITY AND SJRWMD, (II) THE STORMWATER RETENTION PONDS HAVE IN FACT BEEN CONVEYED TO THE HOMEOWNERS ASSOCIATION, (III) THE HOMEOWNERS ASSOCIATION IS DESIGNED AS THE MAINTENANCE ENTITY ON THE RECORDS OF THE SJRWMD AND ALL TRANSFER RECORDS REQUIRED BY SJRWMD HAVE BEEN EXECUTED AND ACCEPTED BY SJRWMD, (IV) THE CITY HAS BEEN PROVIDED WITH A COPY OF THE DEVELOPER'S PROPOSED MAINTENANCE PLAN WITH RESPECT TO THE SWMS, AND (V) THE CITY HAS BEEN PROVDED WITH A WRITTEN STATEMENT FROM THE HOMEOWNERS ASSOCIATION ACKNOWLEDGING RECEIPT OF THE DEVELOPER'S PROPOSED MAINTENANCE PLAN WITH RESPECT TO THE SWMS AND THAT THE HOMEOWNERS ASSOCIATION IS RESPONSIBLE FOR MAINTENANCE OF THE SWMS. 54. THE DECLARATION FOR THE SUBDIVISION WILL INCLUDE LANGUAGE REQUIRING A 6' PRIVACY FENCE ON ALL THREE SIDES OF ANY LOT WITH AN ACCESSORY STRUCTURE, PER SECTION 5 -613 OF THE CITY OF OCOEE LAND DEVELOPMENT CODE. 55. THE DECLARATION FOR THE SUBDIVISION WILL INCLUDE LANGUAGE REQUIRING LIMITATIONS ON THE SIZE AND PLACEMENT OF ACCESSORY STRUCTURES AND FENCES IN CERTAIN REAR YARDS. 57. BIKE RACKS, SEATING BENCHES AND TRASH CONTAINERS SHALL BE PROVIDED WITHIN COMMON RECREATION AREAS PER CITY CODE. 58. ENTRANCE GATES SHALL BE EQUIPPED WITH REMOTE ACCESS DEVICE FOR EMERGENCY VEHICLE ACCESS PER CITY CODE. 59. ALL SITE LIGHT FIXTURES SHALL DIRECT LIGHT DOWNWARD TO MINIMIZE SPILLOVER LIGHTING, PER CITY OF OCOEE CODE SECTION 6- 14(0)2. ORLA_1648124.4 _20- 61. PROJECT TO BE CONSTRUCTED IN ONE PHASE. 62. DEVELOPER TO INSTALL FOUNTAIN WITHIN MAGUIRE ROAD STORMWATER PONDS PURSUANT TO THE PREVIOUSLY APPROVED PSP /FSP FOR VILLAGES OF WESMERE. . -i zz�sv� -��.r n�vr ■ __V"a ;��- 1�_nrr i>R.i�.rs -1n � -rz� . . . . .. 64. INTERNAL CROSSWALK STRIPING IS TO BE PROVIDED AT FINAL CONSTRUCTION. 65. HANDICAP RAMPS SHALL BE PROVIDED AT ALL STREET CROSSINGS. 66. ALL SINGLE - FAMILY RESIDENTIAL DWELLING UNITS SHALL BE IN A PRIVATE, GATED COMMUNITY WITH PRIVATE ROADS, SIDEWALKS AND RELATED FACILITIES. EACH SUBDIVISION PLAT (OR SEPARATE DOCUMENT) SHALL INCLUDE AN EASEMENT FOR PEDESTRIAN AND BICYCLE - RIDING PURPOSES OVER THE PAVED STREETS AND SIDEWALKS IN FAVOR OF ALL STUDENTS AND THEIR PARENTS /SUPERVISORS TRAVELING TO AND FROM SCHOOLS. THE EASEMENTS SHALL RESTRICT ACCESS TO THE TIME IN WHICH PUBLIC SCHOOLS ARE OPEN FOR USE BY STUDENTS (AND 90 MINUTES BEFORE, AND 90 MINUTES AFTER THE SCHOOLS ARE OPEN FOR USE BY STUDENTS). AT ALL OTHER TIMES, THERE SHALL BE NO SUCH EASEMENT FOR PEDESTRIAN AND BICYCLE ACCESS. NO OTHER FACILITIES SHALL BE USED BY THE ASSOCIATION IS DESIGNATED AS THE MAINTENANCE ENTITY ON THE RECORDS OF THE BENEFICIARIES OF THE EASEMENT, SUCH AS, WITHOUT LIMITATION, COMMON AREAS AND RECREATIONAL FACILITIES. ALL COMMON AREAS AND RECREATIONAL FACILITIES SHALL BE TOTALLY FOR THE BENEFIT OF THE RESIDENTS OF THE SUBJECT PROPERTY, THE RESTRICTIVE CONVENANTS SHALL BE SET FORTH THE PROCEDURES FOR ASSURING THE ABILITY TO UTILIZE THE FOREGOING EASEMENT. ORLA_1648124.4 _-) I - 69. SIDEWALKS ON THE SOUTH SIDE OF STREET `I', BETWEEN STREET `J' AND STREET `G', AT THE TOT LOT, SHALL BE INCREASED TO SIX (6) FEET WIDE. 70. SINGLE FAMILY TO1AFPd1 OME1 ROOFS WILL BE CONSTRUCTED WITH TILE OR A TILE -LIKE PRODUCT UNLESS THE DEVELOPER DEMONSTRATES TO THE CITY THAT THERE IS A SUPPLY ISSUE PREVENTING THAT TYPE OF ROOFING PRODUCT. 72. UNCOVERED PATIO STRUCTURES CAN EXTEND PAST THE BUILDING SETBACK LINE ALONG THE PERIMETER OF THE PROPERTY. ORLA_1648124.4 _'> I - ORLA_1648124.4 _� �_ EXHIBIT "D" WAIVERS Code Requirement Standard Proposed Justification Section 4.5 L (5)(b) Building Setbacks from 10 -foot front These setbacks street rights -of -ways setback (rear implement TND shall at a minimum loaded) design principals, meet the following 20 -foot front which is allowed requirements: Local setback (front within a PUD Street — 25 -feet loaded) zoning, per Section 4 -5 A(6 Section 4.5 L (5)(b) Building Setbacks from 5 -foot side street These setbacks street rights -of -ways setback implement TND shall at a minimum design principals, meet the following which is allowed requirements: Local within a PUD Street — 25 -feet zoning, per Section 4 -5 A(6) Section 4.5 L (3) Open Space shall be 8.21 acres (20- This amount of open provided at a rate of at percent) space allows for least 25- percent of the implementation of gross land area. TND design principals, which is allowed within a PUD zoning, per Section 4 -5 A(6). With the effective space included in the proposal, the project provides 13.16 acres, 32- percent of the gross land area. ORLA_1648124.4 -24- FO L E Y ATTORNEYS AT LAW 111 NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FL 32801 -2386 F O L E Y& L A R D N E R L L P ORLANDO, FL 32802 -2193 407.423.7656 407.648.1743 WWW.FOLEY.COM MEMORANDUM CLIENT - MATTER NUMBER 020377/0932 TO: Sherry Seaver, Development Review Coordinator FROM: Dorothy E. Watson, Assistant City Attorney CC: Paul E. Rosenthal, City Attorney DATE: November 5, 2010 RE: Villages of Wesmere Rezoning to PUD /Land Use Plan Project No.: RZ- 10 -07 -06 (Third Review) In connection with the above - referenced project, we have reviewed the following documents: 1. PUD Land Use Plan for Villages of Wesmere prepared by Vanasse, Hangen & Brustlin, Inc. stamped received October 7, 2010 (the "Plan"). This memorandum supersedes our previous memorandum dated Jul 27, 2010. Based on our review of the documents noted above and pursuant to the Land Development Code, we have the following comments: I. Repeat Comments The following comments were included in the City Attorney's prior memorandum regarding the Plan, however, they were not fully addressed as part of the Applicant's current submittal. 1. [Repeat Comment] We note that a boundary survey was not provided with the Application. Please provide three signed, sealed boundary surveys referencing the legal description for the parcel with your next submittal. Please describe the parcel by reference to platted lots and tracts rather than providing a metes and bounds legal description. We note that a proposed Legal Description was provided in lieu of a boundary survey. However, we note that the proposed Legal Description is inconsistent with the parcels to be rezoned as depicted on the Plan. Please note that the City must have an accurate legal description of the property to be rezoned for inclusion in the rezoning ordinance. ORLA_1648117.1 FOLEY FOLEY 8 LARDNER LLP 2. [Repeat Comment] We note that the Application indicates that the property to be rezoned is Tracts D and H of Village of Wesmere. However, the legal description provided on the Plan and the property boundaries depicted on the Plan do not appear to correlate to the boundaries of only Tracts D and H of Villages of Wesmere. Please revise the Plan and /or the Application to ensure that the legal description and property boundaries reflect only those portions of the property to which the rezoning application. Please ensure that the legal descriptions are described consistently throughout by reference to the lots and/or tracts of the platted subdivision. Further, please revise the Plan and the Application to include Parcel ID numbers for all parcels being rezoned. Please note that to the extent that parcels to be rezoned include parcels not currently owned by Villages at Wesmere Partners L.L.L.P. (for example, tracts owned by the property owners association), the Application and the Plan should be revised to reflect the names of these additional property owners. Owner's Affidavits should also be provided for each additional owner. We note that the Plan has been revised to reflect that Tracts B, C, D, H and a portion of Tract E are to be rezoned. Please revise the Application to reflect all parcels to be rezoned. Please also revise the Application and the Plan to include parcel ID numbers for all parcels being rezoned. In addition, we note that certain parcels (Tracts B, C, and E) to be rezoned are owned by the Wesmere Townhome Association, Inc. Accordingly, please reference the association as a property owner throughout the Application and provide an Owners Affidavit executed by the Wesmere Townhome Association, Inc. 3. Resolved. 4. Resolved. 5. Resolved. 6. Resolved. 7. [Repeat Comment] Tracts D and H are currently subject to the Declaration of Covenants, Conditions and Restrictions for Wesmere Townhome Association recorded in Official Records Book 9422, Page 3762 of the Public Records of Orange County, Florida, as has been amended from time to time. However, the Plan indicates that the Property will now be subject to the Declaration for the Villages of Wesmere Homeowners Association. Please schedule a conference call with the City Attorney to discuss the implications of such a change. Please note that additional conditions of approval or revisions to the Plan may be required based upon the results of this discussion. We note that a general note was added to Sheet P003 indicating that the Declaration for the property owner's association would be amended at the time of platting. In addition, please revise Sheet P006 to include the following Additional Condition of Approval: At the time of recording of the first re -plat of any portion of the PUD, the owner shall record an amendment to the Declaration of Covenants, Conditions and Restrictions for the Wesmere Townhome Association, which amendment shall be subject to the prior review and approval of the City. ORLA_1648117.1 FOLEY FOLEY & LARDNER LLP 8. Resolved. 9. [Repeat Comment] Please revise the Plan to include a sheet entitled "Conditions of Approval." On this sheet, please include a subheading entitled "Approved PSP/FSP Conditions of Approval- approved by the Ocoee City Commission on March 7, 2006." Under this subheading, please include the Conditions of Approval appearing on the Preliminary/Final Subdivision Plan for Villages at Wesmere approved by the Ocoee City Commission on March 7, 2006. However, please replace COA #14 with "Intentionally Deleted." In addition, include a subheading entitled, "Additional Conditions of Approval." Under this subheading, please include the Conditions of Approval listed on the attached list. Please revise the Index of Sheets on the Cover Sheet of the Plan to reflect this additional page. Please note that the attached list is preliminary in nature and subject to review and comment by City Staff. We note that conditions of approval were added to the Plan as requested and that the applicant marked conditions of approval for revision or deletion on Sheet P005 of the Plan. Please see our comments to the proposed revisions and deletions at comment # 29 below. In addition, please revise the title of Sheet C004 to read "Approved PSP/FSP Conditions of Approval" and change the page header for Sheet C004 to read "Approved PSP/FSP Conditions of Approval — approved by the Ocoee City Commission on March 7, 2006." 10. Resolved. 11. Resolved. 12. Resolved. 13. Resolved. 14. Resolved. 15. Resolved. 16. Resolved. 17. Resolved. 18. Resolved. 19. [Repeat Comment] Please note that a Development Agreement will be required in connection with this project. Attached is our template of the City's form Development Agreement for your review. Please note that a revised form of Development Agreement will be provided under separate cover. 20. [Repeat Comment] Please provide a title opinion or title certification (the "Title Report") showing the record title holder of the property and listing all encumbrances of record. Please note that the title report must be less than six months old at the time of commission approval of the rezoning and must be addressed or certified to the City of Ocoee. Please include with the Title Report copies of all exception documents identified therein. Please note that ORLA_16481171 FOLEY FOLEY & LARDNER LLP joinders to the Development Agreement will be required from all mortgage holders. We note that the Title Report provided does not apply to all of the property to be rezoned. Please provide a revised Title Report which applies to all properties to be subject to the PUD. Please note that this title report must also be certified to the City of Ocoee. We note that based on the Title Report provided it appears joinders will be required. Draft joinders will accompany the revised draft Development Agreement under separate cover. 21. Resolved. 22. [Repeat Comment] Please revise Sheets SV 1 -4 to label each page with the appropriate page number. In addition, please revise the identifying information on the sheets to refer to the Rezoning of Tracts as opposed to re- platting as currently indicated. 23. [Revised Comment] We note that the tract table on Sheet P003 of the Plan lists the land use of Tract E as "Open Space." However, the approved plat lists the land use for this tract as "Amenity Open Space." Accordingly , please revise the Plan to list the land use for this tract as "Amenity Open Space." 24. Resolved. 25. Resolved. 26. Resolved. 27. Resolved. 28. Resolved. 29. [Revised Comment] We note that Sheet P005 shows changes to the existing conditions of approval by bubble and blackline. Please continue to show modified conditions with bubble and blackline for future submittals. In addition, please revise Sheet C005 as follows: a. Resolved. b. Resolved. C. Please revise Condition of Approval #30 to read: Street trees shall be provided at a rate of three trees per lot in accordance with the Land Development Code. d. Resolved. e. Resolved. f. Resolved. ORLA_1648117.1 FOLEY FOLEY & LARDNER LLP g. Resolved. h. Resolved. i. Resolved. j. Resolved. k. Resolved. 1. Resolved. M. Resolved. n. Please strike through the remainder o the text in COA #71. 30. [Repeat Comment] We note that the Applicant and the City discussed the collection of garbage from the alleyways at the August 12 project meeting. Please advise whether the proposal to direct trucks the wrong way down one -way alleys has been confirmed with the Sanitation department. 31. [Repeat Comment] We note that at the August 12 meeting, the City raised concerns regarding the turning radius for garbage collection trucks on Tract CC. Please advise how this concern is proposed to be addressed. 32. Resolved. 33. Resolved. 34. Resolved. 35. Resolved. 36. [Revised Comment] Please revise the boundary of the area to be rezoned as depicted on Sheet P003 to exclude all areas not subject to rezoning. In particular please show Tract U as being outside of the area to be rezoned. 37. Resolved. 38. [Revised Comment] Please revise Sheet P003 of the Plan to include plat recording information for all existing tracts shown thereon. In addition, please revise the Plan to include recording information for the City Stormwater Management Areas. 39. Resolved. ORLA_1648117.1 FOLEY FOLEY & LARDNER LLP 40. [Revised Comment] Please revise Sheet C003 of the Plan to reflect the right -of- way at the north east corner of the project that was previously conveyed to the City of Ocoee in connection with the Plat. Please label this area consistent as a tract with the Plat. 41. [Repeat Comment]Please add an Additional Condition of Approval addressing the timing for construction of amenities and describing the specific amenities to be built. Please also revise Sheet C003 to show the amenities depicted on Sheet 002 the Plan (the approved PSP/FSP) and to describe in which tracts other amenities will be constructed. II. Comments in Response to New Plan The following comments are based on changes made to the Plan since the Applicant's prior submittal or relate to new information or documents that have been provided since Applicant's prior submittal. 42. Please revise the Plan to show Tract E as a new tract (double letter) as we understand that it will be reconfigured to include a portion of Lot 45. Please do not hesitate to contact me should you have any questions. ORLA_1648117.1 Copy of Advertisement (that ran in the print media) Date Published and Media Name E;) Advertisement or Article CITY OF OCOEE NOTICE OF PUBLIC HEARING FOR VILLAGES OF WESMERE REZONING TD PUD /lANO USE PLAN CASE NUMBER: RZ- 1f1 -o7 -O6 NOTICE IS HEREBY GIVEN, pursuant to Sub- section 1 -10 and 5 -9 E of the City of Ocoee Land Development Code, that on TUESDAY, NOVEMBER 16, 2010 AT 715 P.M. or as soon thereafter as practical the OCOEE CITY COMMISSION will hold a PIIBUC HEARING at the City of Ocoee Commis- sion Chambers, 150 North Lakeshore Drive, Ocoee, Florida, to consider the rezoning /land use plan of 40.6 acres of F from R -3 (Multi - family dwell- ing) to PUD (Planned Unit Develop- ment) located east of Maguire Road and south of Tomyn Boulevard. CASE NO. RZ- 10- 07 -D6: Villages of Wesmere PUB AN ORDINANCE OF THE CITY OF OCOEE, FLORI- FHGM "Il 3 ZONING, MULTI DWELLING DISTRICT, TO OCOEE'PUD' ZONING, BEAN PROPERTY CONTAINING N AOPROXIMATE Y 40.60 ACRES LOCATED EAST OF AND ADJACENT TO MAGUIRE ROAD AND SOUTH OF AND AD- JACENT TO TOMYN BOULEVARD PURSUANT TO THE APPLICATION SUBMITtED BY THE PROPERTY OWNERS FINDING SUCH ZONING TO BE CONSISTENT WITH THE OCOEE COMPRE- HENSIVE PLAN PROVIDING FOR AND AUTHOR - IZING THE REVISION OF THE OFFICIAL CITY ZONING MAP REPEALING INCONSISTENT ORDI- NANCES PROVIDING FOR SEVERABILITY; PRO- , VIDING kOR AN EFFECTIVE DATE. Interested parties may appear at the Public hearing and be heard with re- spect to the proposed rezoning. The complete case file, including a com- Plete legal description by metes and bounds, may be Inspected at the Ocoee Development Services Department/ Planning Division located at 150 North Lakeshore Drive, Ocoee, Florida be- tween the hours of 8:00 a.m. and 5'W_ p m., Monday through Friday + -ene6l legal holidays. The City Commission may continue the Public hearing to other dates and times, as it deems necessary. Any In- terest ed Party shall be advised of the dates, times, and places of any contin- uation of these or continued Public hearings shall be announced during the hearing and no further notices re- arding these matters will be pub - !shed. You are advised that any per- son who desires to appeal any decision made at the Public hearings will need a record of the Proceedings and for this purpose may need to ensure that a verbatim record of the Proceedings is made which includes the testimony and evidence upon which the appeal is based. In accordance with the Ameri- cans with Disabilities Act, persons needing a special accommodation or an interppreter to participate In this proceeding should contact the City Clerk's Office 48 hours in advance of the meeting at (407) 905 -3105. Beth Eikenberry, City Clerk Publish Date: November 4, 2010 CO R1097074 11/04/2010