HomeMy WebLinkAboutItem #02 Approval of Villages of Wesmere Phase 2 Plat ,S+pe Colter of Good Lit
AGENDA ITEM COVER SHEET
Meeting Date: May 17, 2011
Item #
Reviewed By:
Contact Name: David Wheeler, P.E. Department Director: 174,
Contact Number: (407) 905 -3100 ext. 1504 City Manager: Z /��/
Subject Villages of Wesmere Phase 2 Plat App - District 3, Commissioner Johnson
Background Summary:
This plat is for Villages of Wesmere Phase 2 which is a re -plat of Tract B and Tract D of the Villages
of Wesmere Plat. The project is located at the southeast corner of Tomyn Blvd. and Maguire Rd.
Phase 2 consists of a 96 single family homes and its associated amenities. With all new
developments, the city is requiring the Traffic Enforcement Agreement and Agreement for
Upgraded Street Lights to be placed into effect at the time of platting.
The Performance Surety Escrow Agreement has been submitted with a check to replace the
required performance bond which covers 115% or the remaining site improvements.
The third amendment to the declaration of covenants, conditions, and restrictions for Wesmere
Townhomes is included, because modification to the original document must be reviewed and
approved.
Issue:
The Engineering Department requests that the Mayor and City Commission approve the plat and
associated documents for Villages of Wesmere Phase 2 residential development.
Recommendations
City Staff recommends approval of the plat, Traffic Enforcement Agreement, Agreement for
Upgraded Street Lights, Performance Surety Escrow Agreement, and Third Amendment to
Declaration of Covenants, Conditions, and Restrictions for Villages of Wesmere Phase 2 as
submitted and authorize the Mayor and City Clerk to sign the plat and the documents.
Attachments:
1. Mylar Plat for Villages of Wesmere Phase 2
2. Traffic Enforcement Agreement
3. Agreement for Upgraded Street Lights
4. Surety Escrow Agreement
5. Third Amendment to Declaration of Covenants, Conditions, and Restrictions
Financial Impact:
The financial impact is the undeveloped land will be covered with residential homes and increase
the City's property tax base.
Type of Item:
❑ Public Hearing For Clerk's Dept Use:
❑ Ordinance First Reading ❑ Consent Agenda
❑ Ordinance First 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 ❑ N/A
Reviewed by Finance Dept. ❑ N/A
Reviewed by (Planning) ❑ N/A
TRAFFIC ENFORCEMENT AGREEMENT
(Villages of Wesmere)
THIS TRAFFIC ENFORCEMENT AGREEMENT ( "Agreement ") is made
and entered into as the _ day of , 2011, (the "Effective Date ") by and
between WESMERE TOWNHOME ASSOCIATION, INC., a Florida not for profit
corporation, whose mailing address is 6972 Lake Gloria Boulevard, Orlando, FL 32809
(hereinafter referred to as the "Association ") and the CITY OF OCOEE, a Florida
municipal corporation, whose mailing address is 150 North Lakeshore Drive, Florida
34761 (hereinafter referred to as the "City ").
WITNESSETH:
WHEREAS, the Association is a not - for - profit corporation existing pursuant to
and in accordance with Florida Statutes, Chapter 617, Corporations Not For Profit, §§
617.301 - 617.312; and
WHEREAS, the Association is a homeowners association organized pursuant to
Florida Statutes, Chapter 720, Homeowners' Association, General Provisions, §§
720.301- 720.313; and
WHEREAS, the Association owns and/or controls those private roads within the
Villages of Wesmere subdivision which is located in Orange County, Florida, and within
the corporate limits of the City of Ocoee, Florida, said private roads being those roads
within the Villages of Wesmere subdivision (hereinafter referred to as the "Private
Roads"); and
WHEREAS, Florida Statutes, Chapter 316, State Uniform Traffic Control §
316.006(2)(b) regarding jurisdiction authorizes the City, subject to certain provisions, to
enter into an agreement with the Association whereby the Association grants unto the
City traffic control jurisdiction over the Private Roads within the subdivision controlled
by the Association; and
WHEREAS, Florida Statutes, Chapter 316, State Uniform Traffic Control, §
316.640(3) regarding enforcement authorizes the City to require that the City police
department enforce the traffic laws of the State of Florida on any private roads pursuant
to a written agreement under Florida Statutes, § 316.006(2)(b); and
WHEREAS, the Association and the City desire to have the Association grant
unto the City traffic control jurisdiction over the Private Roads as authorized by Florida
Statutes § 316.006(2)(b) so that the City may enforce the traffic laws of the State of
Florida on the Private Roads; and
Revised August 18, 2010 1
ORLA_1723142.1
I i
WHEREAS, this Agreement has been duly approved and authorized by the
Association in accordance with its Articles of Incorporation, Bylaws, and other
applicable governing documents.
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 incorporate
herein by this reference.
Section 2. Traffic Control Jurisdiction. The Parties agree that the City shall
have traffic control jurisdiction over the Private Roads and that officers of the City police
department are authorized to enter upon the Private Roads for the purpose of enforcing
uniform traffic control laws on the Private Roads. The exercise of jurisdiction provided
for herein shall be in addition to jurisdictional authority presently exercised by the City
under law, and nothing in this Agreement shall be construed to limit or remove any such
jurisdictional authority. Such existing jurisdiction includes, but is not limited to, the
regulation of access to the Private Roads by security devices or personnel.
Section 3. Traffic Enforcement. The City hereby agrees that the police
department will enforce Florida Statutes, Chapter 316, State Uniform Traffic Control and
the Code of the City of Ocoee, Chapter 168, Vehicles and Traffic, on the Private Roads;
provided, however, that the foregoing shall not be construed to require any minimum
level of staffing or create any priority for traffic enforcement on the Private Roads vis -a-
vis public roadways or other private roads. All decisions regarding the level of traffic
enforcement on the Private Roads and staffing related thereto shall be within the sole
discretion of the City police department.
Section 4. Traffic Control Signs and Markings. All traffic control signs and
markings within the subdivision shall be in compliance with the Manual on Uniform
Traffic Control Devices (MUTCD), and shall be installed and maintained by the
Association. The City shall have the right at any time to require installation, maintenance
and modification of traffic control signs and other traffic control apparatus as the City
may deem to be necessary for the enforcement of traffic laws on the Private Roads.
Section 5. Traffic Enforcement Fee. In consideration for the City exercising
traffic control jurisdiction over the Private Roads, the Association hereby agrees to pay to
the City an annual Traffic Enforcement Fee ( "Annual Fee "). The initial Annual Fee
under this Agreement will be set at $ 0.00. The parties hereby agree that the Annual Fee
is made as reimbursement for (i) the actual costs of traffic control and enforcement, and
(ii) the additional liability insurance costs incurred by the City as a result of this
Agreement.
Section 6. Indemnification. The Association hereby agrees to indemnify and
hold the City harmless from and against all losses, costs, expenses, claims, damages,
Revised August 18, 2010 2
ORLA_1723142.1
judgments, liabilities and causes of action whatsoever (collectively, "Claims ") including
reasonable attorneys' fees and paralegal fees, both at trial and at appellate levels, arising
out of or alleged to have arisen out of the City entering into this Agreement. Nothing
herein shall be construed to include within the foregoing indemnity and liability on the
part of the Association for Claims arising out of acts of negligence by the City. The City
shall use its best efforts to promptly notify the Association in writing of any Claims based
on this Agreement and shall provide the Association with information regarding the
Claims based on this Agreement as the Association may reasonably request, but the
failure to give such notice or provide such information shall not diminish the obligations
of the Association under this Section. No Claims whatsoever shall be made or asserted
against the City by the Association for or on account of anything done or as a result of
anything done or not done in connection with this Agreement.
Section 7. Term; Termination. The term of this Agreement shall be two (2)
years from the Effective Date (the "Term "); provided, however, that this Agreement may
be terminated by either party upon sixty (60) days written notice to the address first
appearing in this agreement. This Agreement will automatically renew for an additional
two -year term at the end of each two -year term unless the Agreement has been terminated
in accordance with this Section.
Section 8. Applicable Law. This Agreement and the provisions contained
herein shall be liberally construed and interpreted according to the laws of the State of
Florida.
Section 9. Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties, and supersedes all previous discussions, understanding
and agreements, with respect to the subject matter hereof. The parties shall make
amendments to and waivers of the provisions of this Agreement only in writing and by
formal amendment.
Section 10. Counterparts. This Agreement 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 11. Captions. Captions of the Sections and Subsections of this
Agreement are for convenience and reference only, and the words contained therein shall
in on way be held to explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Agreement.
Section 12. 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.
Revised August 18, 2010 3
ORLA_1723142.1
Section 13. Effective Date. The Effective Date of this Agreement shall be the
date first appearing in this Agreement and shall coincide with the date the Agreement is
executed by the City.
IN WITNESS WHEREOF, the Association and the City have caused this
instrument to be executed by their duly authorized officers as of the day and year first
above written.
ASSOCIATION:
Signed, sealed and delivered WESMERE TOWNHOME
In the presence of: ASSOCIATION, INC., a Florida not -for
profit corporation
< < By:
V- V
Print Name -si� Kevin Kramer
President
Executed on: Mc./ c k r '4-o l 1
I Print Name Pi v &. PQY t&J J
STATE OF FLORIDA
COUNTY OF D ro V___
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the State and County aforesaid to take acknowledgements, personally appeared and who
( personally known to me or ( produced
Identification and that he /she acknowledged executing the same in the presence of two
subscribing witnesses, on behalf of said corporation, freely and voluntarily, for the uses
and proposes therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid the
day of (V\ , a lp l k .
...-- C-- s---
Signature of Notary
l l." ° Notary Public State of Florida
Susan C Karst
. - i My Commission 008.44410
' '+of OF Expires 02/21/2013 Name of Notary (Typed, Printed, or Stamped)
Commission Number (if not legible on seal):
My Commission expires (if not legible on seal):
Revised August 18, 2010 4
ORLA_1723142.1
CITY:
Signed, sealed and delivered in the CITY OF OCOEE, FLORIDA
Presence of:
By:
Print Name S. Scott Vandergrift, Mayor
Attest:
Print Name Beth Eikenberry, City Clerk
(SEAL)
Executed on:
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY
BY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD
Approved as to form and legality ON , 20, UNDER
this day of , 20 AGENDA ITEM NO.
Foley & Lardner LLP
By:
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the Sate and County aforesaid to take acknowledgements, 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
l i 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 , 20 .
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):
Revised August 18, 2010 5
ORLA_1723142.1
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
For Recording Purposes Only
DEVELOPERS AND HOMEOWNERS ASSOCIATION AGREEMENT
FOR UPGRADED STREET LIGHTS
(Villages of Wesmere)
DEVELOPERS AND HOMEOWNERS ASSOCIATION AGREEMENT FOR
UPGRADED STREET LIGHTS (this "Agreement ") is made and entered into this day of
, 2011, by and between K. HOVNANIAN CAMBRIDGE HOMES, L.L.C., a Florida
limited liability company, (hereinafter referred to as the "Developer "); WESMERE TOWNHOME
ASSOCIATION, INC., a Florida not for profit corporation (hereinafter referred to as the "Association "),
and the CITY OF OCOEE (hereinafter referred to as the "City ").
WITNESSETH:
WHEREAS, the Association is the property owners association for the Villages of Wesmere
Subdivision located in the City of Ocoee, Orange County, Florida as described in the plat thereof recorded
I I; at Plat Book 70, Page 9 of the Public Records of Orange County, Florida (the "Subdivision "); and
WHEREAS, the Developer desires to develop certain real property within the Subdivision
pursuant to the approved Amended Preliminary/Final /Final Subdivision Plan of the Villages PP �Y es of Wesmere g
approved by the Ocoee City Commission on March 1, 2011 (the "Approved Plan "); and
WHEREAS, the Developer intends to develop the Property in accordance with the Approved
Plan, including certain specialized street lighting which shall include 100 Watt Sanibel type street lights
and sixteen foot decorative poles (the "Upgraded Lights "); and
WHEREAS, the costs associated with the rental, maintenance and fuel /energy charges for the
Upgraded Lights shall be in excess of the amount paid by the City for street lighting pursuant to the City's
agreement with Progress Energy; and
WHEREAS, the City is in agreement to allow this type of street lighting by the Developer for
use in the Subdivision provided that the additional cost thereof is paid for by the Developer and /or the
Association; and
WHEREAS, the Developer and Association desire to memorialize their intent to pay the
additional costs thereof.
NOW THEREFORE, the parties agree as follows:
ORLA_1722934.1
Developers and Homeowners Association
Agreement for Upgraded Street Lights
1. The Association shall be responsible for any costs associated with the rental, maintenance
and fuel/energy charges for the Upgraded Lights that are in excess of those otherwise paid by the City for
standard street lighting pursuant to the City's existing agreement with Progress Energy (the "Streetlight
Costs ") and shall reimburse the City for said Streetlight Costs plus an administrative charge equal to ten
(10) percent of the Streetlight Costs (together with the Streetlight Costs, the "Additional Costs ");
2. The Developer and/or the Association shall cause 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 amended (the "Declaration ") to
specifically provide that: (i) the Association shall be responsible for the Streetlight Costs; (ii) the
Association shall reimburse the City for the Additional Costs; (iii) that the Association shall have the
power and authority to assess each lot owner within the Subdivision for the Additional Costs , which
assessment shall be a lien upon each lot and shall be subject to foreclosure by the City or Association in
the event of non - payment; and (iv) that no termination of the Declaration shall void the duty of the
Association to reimburse the City for the Additional Costs unless specifically allowed in writing by the
City.
3. The Developer and/or the Association shall also cause the Declaration to be provide that
the Declaration shall not be amended as it relates to the provisions required by Sections 1 and 2 of this
Agreement without the consent of the City evidenced by a written joinder and consent recorded with any
such amendment.
4. The Developer shall pay to the City the cost of recording this Agreement in the Public
Records of Orange County, Florida.
5. This Agreement shall run with the Property and be binding upon, inure to and be for the
benefit and burden 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.
6. This Agreement shall first be executed by the Association and submitted to the City for
approval by the Ocoee City Commission. Upon approval by the Ocoee City Commission, this Agreement
shall be executed by the City. The Effective Date of this Agreement shall be the date of execution by the
City.
[SIGNATURES ON FOLLOWING PAGES]
2
ORLA_1722934.1
Developers and Homeowners Association
Agreement for Upgraded Street Lights
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as of the
date and year first above written.
Signed, sealed and delivered "CITY"
in the presence of:
CITY OF OCOEE, a Florida municipal
corporation
By:
Signature S. Scott Vandergrift, Mayor
Attest:
Print/Type Name Beth Eikenberry, City Clerk
(SEAL)
Signature
Print/Type Name
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE, FLORIDA. APPROVED
AS TO FORM AND LEGALITY this day
of , 2011.
FOLEY & LARDNER LLP APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
, 2011 UNDER AGENDA ITEM
By: NO.
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
l i 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 ,2011.
Notary Public
My Commission Expires:
3
ORLA_1722934.1
Developers and Homeowners Association
Agreement for Upgraded Street Lights
DEVELOPER:
K. HOVNANIAN CAMBRIDGE HOMES,
L.L.C., a Florida limited liability company
13y. Scott South
Witness Division President
�V1f7t� 1" 4.0,400 =-,
Witness
STATE OF
COUNTY OF Oro a
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and
County aforesaid to take acknowledgments, personally appeared Scott South, personally known to me, or
who provided as identification, as the Division President of K. Hovnanian
Cambridge Homes, L.L.C., and that he /she acknowledged executing the same freely and voluntarily under
authority duly vested in him/her.
WITNESS my hand and official seal in the County and State last aforesaid this day of
(Y` , 2011.
40 ° % Notary Public State of Florida
otary Public; Su san C Karst
v i n DD844410
M Commission Expires: c My c
ommiss o
s
y p ��' F� Iresozrzlizol
ora
P
4
ORLA_1722934.1
Developers and Homeowners Association
Agreement for Upgraded Street Lights
ASSOCIATION:
WESMERE TOWNHOME ASSOCIATION,
o S INC., a Florida not - for - profit corporation
9
Witness % Kevin Kramer
President
40 JAB AIL-
fitness I f
�', n, 1 4-t--
STATE OF
COUNTY OF 0 Caw
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and
County aforesaid to take acknowledgments, personally appeared Kevin Kramer, p ersonall y known to me,
or who produced as identification, as the President of Wesmere Townhome
Association, Inc., a Florida not for profit corporation, and that he /she acknowledged executing the same
freely and voluntarily under authority duly vested in him /her by said corporation and that the seal affixed
thereto is the true corporate seal of such corporation.
WITNESS my hand and official seal in the County and State last aforesaid this 7 day of
M 0. -> , 2011.
•
otary Public
My Commission Expires:
5
ORLA_1722934.1
PERFORMANCE SURETY ESCROW AGREEMENT
(Villages of Wesmere Re -Plat)
THIS PERFORMANCE SURETY ESCROW AGREEMENT (this "Agreement ") is
entered into this day of , 2011 by K. HOVNANIAN CAMBRIDGE
HOMES, L.L.C., a Florida limited liability company, whose address is 4767 New Broad Street,
Orlando, Florida 32814 (the "Developer "), and the CITY OF OCOEE, a Florida municipal
corporation whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City ").
WITNESSETH:
WHEREAS, the Developer intends to develop Phases 2 and 3 of the Villages of
Wesmere (the "Subdivision ") and, in connection therewith and with the approval of the City, will
install certain roads, streets, sewers, water systems, drainage works, and/or other improvements
(the "Improvements ") under the provisions, conditions, and requirements of the City's
Subdivision Regulations and the Amended Preliminary/Final Subdivision Plan for Villages of
Wesmere approved by the Ocoee City Commission on March 1, 2011 (the "Subdivision Plan");
and
WHEREAS, under Section 4 -4, Subdivision Review Process, of the City's Land
Development Code, the Developer is required to provide a surety for completion of the
Improvements for the Subdivision if platting is requested prior to the issuance of the Certificate
of Completion; and
WHEREAS, the Developer has requested platting of Phase 2 of the Subdivision prior to
the issuance of the Certificate of Completion; and
WHEREAS, Developer has elected to place in escrow with the City the sum of THREE
HUNDRED TWELVE THOUSAND SEVEN HUNDRED THIRTY SIX AND 00 /100
DOLLARS ($312,736) in order to so guaranty the completion of the Improvements within the
Phase 2 of the Subdivision as required by Section 4 -4, of the Land Development Code.
NOW THEREFORE, the parties agree as follows:
SECTION 1. Establishment of Escrow Fund.
The Developer does hereby establish an escrow fund (the "Escrow Fund ") with the City
in the amount of THREE HUNDRED TWELVE THOUSAND SEVEN HUNDRED THIRTY
1 1 SIX AND 00 /100 DOLLARS ($312,736) to guaranty the completion of the Improvements within
the Phase 2 of the Subdivision. This escrow fund shall be placed by the City in a non - interest
bearing account at a local financial institution and shall be disbursed only in accordance with the
terms of this Agreement. The Escrow Fund may be commingled with the other funds of the City
but shall be accounted for under a separate ledger and segregated for use only in accordance with
this Agreement.
ORLA_1722478.2
SECTION 2. Terms and Conditions for Return of Escrow Fund.
In the event the Developer complies with the terms and conditions of the approval of the
Subdivision Plan, these conditions being more specifically the completion of the Improvements
shown on the Subdivision Plan within Phase 2 and specifications in accordance with the
ordinances and regulations of the City of Ocoee, Florida, in regard to subdivision improvements
and according to the plans, specifications and schedules covering said work and such approved
additions, amendments or alterations as may be made in the plans, specifications and schedules
for such work as approved by the City and completes all said work on or before May 17, 2012
(the "Construction Deadline "), then the monies remaining in the Escrow Fund less all bank
charges with respect to the maintenance of the Escrow Fund and less reasonable administrative
expenses and attorneys' fees and costs incurred by the City in exercising or otherwise enforcing
its rights under this Agreement shall be returned to the Developer.
SECTION 3. City's Right to Draw on Escrow Fund.
Unless otherwise mutually agreed to by City and Developer, the Escrow Fund shall be
used by the City only (a) to complete the Improvements within the Phase 2 of the Subdivision
upon the failure or refusal of the Developer to complete the Improvements within the Phase 2 of
the Subdivision by the Construction Deadline, (b) to cure a breach by Developer of its
obligations under this Agreement, and/or (c) to pay for reasonable administrative expenses and
attorneys' fees and costs incurred by the City in exercising or otherwise enforcing its rights under
this Agreement.
If the Developer fails or refuses to complete the Improvements within the Phase 2 of the
Subdivision by the Construction Deadline, taking into account any extensions thereof which may
be granted by the City in writing in its sole discretion, then the City may, but shall not be
obligated to, complete the Improvements, the cost of which shall be paid for out of the Escrow
Fund without notice to the Developer. In the event the City undertakes completion of the
Improvements within the Phase 2 of the Subdivision, then the City shall also be entitled to retain
from the Escrow Fund an administrative fee in the amount of two percent (2 %) of the cost of
such completion and shall also be entitled to reimbursement of all costs and expenses incurred by
the City in undertaking such action, including but not limited to its legal fees and costs. The City
may use third party contractors to perform any actions undertaken pursuant to this Agreement.
SECTION 4. Right of Entry for Corrective Activities.
In the event the City undertakes to complete the Improvements within the Phase 2 of the
Subdivision, then in such event the Developer hereby grants to the City and its employees,
contractors and representatives, the right to enter upon the lands of the Subdivision and the
Improvements for the purpose of performing any such completion activities.
SECTION 5. No Obligation of City to Undertake Repairs or Advance Funds.
Nothing contained herein shall be construed to in any way obligate the City to (i) advance
City funds for any purpose on behalf of the Developer, or (ii) to undertake the completion of any
2
ORLA_1722478.2
Improvements. Further, the City shall have no liability to the Developer or any third parties with
respect to any such actions undertaken by the City.
SECTION 6. Excess Funds.
If the City completes the Improvements with the Escrowed Fund pursuant to the terms of
this Agreement, then any funds reaming in the Escrow Fund shall be returned to the Developer
after any and all of the Improvements within the Phase 2 of the Subdivision have been completed
to the satisfaction of the City and after payment from the escrow fund of all obligations of the
Developer under this Agreement.
SECTION 7. Continued Applicability of Subdivision Regulations.
This Agreement shall not be construed to relieve or release the Developer from any of its
obligations under the City Subdivision Regulations with respect to the Improvements.
SECTION 8. Construction.
This Agreement shall be construed in accordance with the laws of the State of Florida.
[Signature Page Follows]
3
ORLA_1722478.2
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as
of the date and year first above written.
DEVELOPER:
K. HOVNANIAN CAMBRIDGE HOMES,
L.L.C., a Florida limited liability company
By:
Scott South
Division President
CITY:
ATTEST: CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By: B
Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
FOR THE USE AND RELIANCE BY THE APPROVED BY THE OCOEE CITY
CITY OF OCOEE ONLY. APPROVED COMMISSION AT A MEETING
AS TO FORM AND LEGALITY HELD ON , 2011
this day of UNDER AGENDA ITEM NO.
, 2011.
FOLEY & LARDNER LLP
By:
City Attorney
II �
4
ORLA 1722478.2
This instrument prepared by and
after recording return to:
Robert M. Poppell, Esq.
Akerman, Senterfitt & Eidson, P.A.
420 South Orange Avenue, Suite 1200
Orlando, Florida 32801
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
THIRD AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS FOR WESMERE TOWNHOME ASSOCIATION
THIS THIRD AMENDMENT TO DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS FOR WESMERE TOWNHOME ASSOCIATION
( "Third Amendment ") is made this day of , 2011, by K. HOVNANIAN
CAMBRIDGE HOMES, L.L.C., a Florida limited liability company, whose mailing address is
4767 New Broad Street, Orlando, Florida 32814 ( "Hovnanian ").
RECITALS:
A. By virtue of that certain Assignment of Declarant's Rights, dated December 30,
2010, recorded at Official Records Book 10153, Page 8204, Public Records or Orange County,
Florida, Hovnanian is the "Declarant" under that certain 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 ( "Original Declaration "), as
amended by (i) that certain First Amendment to Declaration of Covenants, Conditions and
Restrictions for Wesmere Townhome Association, recorded in Official Records Book 9715,
Page 2328, of the Public Records of Orange County, Florida ( "First Amendment ") and (ii) that
certain Second Amendment to Declaration of Covenants, Conditions and Restrictions for
Wesmere Townhome Association, recorded in Official Records Book 10157, Page 8933, Public
Records of Orange County, Florida ( "Second Amendment ") (the Original Declaration, as
amended by the First Amendment, collectively, "Declaration ").
B. All capitalized terms used in this Third Amendment shall have the same meanings
given to such terms in the Declaration, unless otherwise indicated to the contrary in this Third
Amendment.
C. In connection with its processing for of approval of final Plans for development of
the SFR Property (as such term is modified in this Third Amendment), the City has, pursuant to
its Additional PUD Conditions of Approval imposed in connection with its approval of that
certain (i) Rezoning ordinance 2010 -036, including the Land Use Plan for the Villages of
Wesmere stamped received by the City of Ocoee on November 8, 2010 referenced therein, and
(ii) Development Agreement between Villages of Wesmere Partners, L.L.L.P and the City of
Ocoee dated November 16, 2010, each approved by the City at a meeting of its City Commission
held on November 16, 2010, has required various additional amendments to the Declaration.
101648097;51
D. Pursuant to Article XIII, Section 13.4 of the Original Declaration, Declarant has
reserved to itself the right to amend the Declaration without the joinder or consent of any person
or parties whomsoever, and desires to make certain revisions to the Declaration, all as more
specifically set forth in the following provisions of this Third Amendment.
NOW, THEREFORE, Declarant, for itself and its successors and assigns, does hereby
declare that the Declaration shall be amended as provided herein, effective upon execution and
the recording of this Third Amendment in the Public Records of Orange County, Florida.:
1. Recitals. The recitals stated above are true and correct, and hereby incorporated
herein by this reference.
2. SFR Property. Notwithstanding anything to the contrary contained in the Second
Amendment, the "SFR Property" is intended to encompass all Lots that are developed, by
Declarant or otherwise, as single family detached housing, regardless of whether such Lots were
located in Tracts D and H of the plat of the Villages of Wesmere, recorded at Plat Book 70,
Pages 9 through 17, or elsewhere on such plat, including specifically Lots 401 through 578,
inclusive, as depicted in that certain Amended Preliminary/Final Subdivision Plan for Villages of
Wesmere approved by the City at a meeting of its City Commission held on March 1, 2011.
3. Additional Covenants, Conditions and Restrictions. The following covenants,
conditions and restrictions are in addition to any of the covenants, conditions and restrictions set
forth in the Original Declaration, First Amendment and Second Amendment, and, except as
specifically identified to the contrary below, shall be applicable to the entirety of the Property.
To the extent that any of the following covenants, conditions or restrictions are inconsistent with
any of the covenants, conditions or restrictions set forth in the Original Declaration, First
Amendment or Second Amendment, the covenants, conditions and restrictions set forth in the
following provisions of this Section 3 shall control.
(a) Maintenance of Common Areas, Including the Surface Water
Management System and Sewer and Reuse/Reclaimed Water Improvements. For clarification,
the Association's Maintenance obligations under Section 2.6 of the Original Declaration extend
to all Common Areas and all Improvements and utilities or other facilities located therein,
including, but not limited to, the Surface Water Management System and the "Sewer
Improvements" and "Reuse Improvements" defined in Section 3(b) below, and the Association
shall operate, maintain and repair same in compliance with all applicable laws, ordinances, rules,
or regulations of any applicable governmental or quasi - governmental authority. In no event shall
the City be responsible for the operation, repair, maintenance or condition of the Common Areas
or Improvements and utilities or other facilities located therein, including, but not limited to, the
Surface Water Management System, the Sewer Improvements or Reuse Improvements.
(b) Association Ownership of Sewer and Reuse/Reclaimed Water
Improvements. The Association shall own all sewer improvements within the Property
extending from manhole EX -1 identified on Sheet C4 -01 of the approved Final Subdivision Plan
for the Property and extending to and throughout the Property ( "Sewer Improvements ") and all
reuse /reclaimed water improvements within the Property ( "Reuse Improvements "), and the
Sewer Improvements and Reuse Improvements shall be included within the Common Area, with
the result that the Association shall be responsible for the proper operation, maintenance and
repair of the Sewer Improvements and the Reuse Improvements as set forth in Section 3(a) of
{01648097,5} 2
this Third Amendment and Section 2.6 of the Original Declaration. The Sewer Improvements
and the Reuse Improvements shall not be dedicated or conveyed to the City and the City shall
have no obligation to pay for the maintenance, repair or replacement of the Sewer Improvements
or the Reuse Improvements.
(c) City Discretionary Maintenance of Common Areas. Notwithstanding
anything to the contrary in the foregoing or elsewhere in the Declaration, in the event that the
Association fails to properly perform the operation, maintenance or repair obligations described
above, after written notice of such failure by the City and the Association's failure to cure same
within fifteen (15) days following the Association's receipt of such written notice (provided that
no such notice shall be required in an emergency situation, as determined by the City in its
reasonable discretion), then the City shall have the right, but not the obligation, to itself perform
any operation, maintenance or repair obligations of the Association and any cost or expense
incurred by the City in connection therewith shall become a debt of the Association and the
Owners, jointly and severally, and shall be immediately due and payable upon the City's delivery
to the Association of an invoice for said costs or expenses. In the event that Assessments
collected and available to the Association to satisfy such debt to the City are not sufficient to pay
such obligation, then it shall be mandatory that the Association make and collect from the
Owners an Assessment to pay for the deficiency and remit all such monies to the City in
satisfaction of the amounts owed to the City. In the event that the Association does not fully
satisfy the debt owed to the City within forty five (45) days following, delivery of the City's
invoice, the City shall have the authority and power under this Declaration to itself levy and
collect Assessments directly from the Owners, and shall have all rights and remedies with
respect to such Assessments as are provided elsewhere in the Declaration in favor of the
Association. In furtherance of the foregoing grant of rights in favor of the City, there is hereby
created, declared and ranted to the City perpetual, non - exclusive easement over, across and
g Y a p rp
upon the Property as may be reasonably necessary to permit the City to carry out and discharge
its operation, maintenance and repair rights under this Section 3(c) of this Third Amendment. In
addition to the foregoing, and for so long as the Declarant remains responsible for maintenance
of the Surface Water Management System as provided in Section 2.5 of the Original Declaration,
the City shall also have the right to collect from Declarant any cost or expense incurred by the
City in connection with the operation, maintenance or repair of the Surface Water Management
System.
(d) Damage to City Sewer System. In addition to the rights of the City to
maintain the Common Areas as set forth in Section 3(c) above, in the event that the Association's
failure to properly operate, maintain or repair the Sewer Improvements results in any damage to
the City sanitary sewer system, any costs and expenses incurred by the City for any repairs that
are necessitated by the Association's failure to properly operate, maintain or repair the Sewer
Improvements shall become a debt of the Association and the Owners, jointly and severally, and
shall become immediately due and payable upon the City's delivery to the Association of an
invoice for said costs and expenses, and the Association shall have same obligation to levy
Assessments to pay such debt, and the City shall have the same rights to levy Assessment under
the Declaration to collect such debt, as are set forth in Section 3(c) above with respect to costs or
expenses incurred by the City to maintain Common Areas.
(e) Turnover of Administration and Maintenance of Surface Water
Management System. As provided in Section 2.5 of the Original Declaration, in the event of a
{01648097;5} 3
dissolution or termination of the Association the administration and maintenance of the Surface
Water Management System must be transferred to another not - for - profit entity or dedicated to an
appropriate governmental agency agreeing to accept such conveyance or dedication. In the event
of any such conveyance or dedication, the entity or agency accepting such conveyance or
dedication shall have the authority and power under this Declaration to levy and collect, as
Assessments, directly from the Owners, all costs and expenses incurred by such entity or agency
in connection with the administration and maintenance of the Surface Water Management
System, and such entity or agency shall have all rights and remedies with respect to the
collection of such Assessments as are provided elsewhere in the Declaration in favor of the
Association.
(f) Fences. Section 3.11 of the Original Declaration and Section 4(d) of the
Second Amendment are hereby amended to provide that all fences installed within the Property
shall be tan in color, with the intent of matching as closely as possible, as determined by the
ARC, the color of fences existing in the Wesmere community as of the date of this Third
Amendment.
(g) Trash Containers. Pursuant to Section 3.8 of the Original Declaration all
trash, garbage or other waste materials kept outside the interior of the improvements on a Lot
shall be "in sanitary containers concealed from view ". Pursuant to this Section 3(g), it is hereby
established that the proper concealment of such containers shall be by way of decorative fence or
landscaping, and any such fencing shall consist of vinyl or pvc material, shall be tan in color and
shall be no more than four feet (4') in height, and any such containers may be no taller than the
fence or landscaping concealing such container (with reasonable allowance provided, in the
discretion of the Association, for growth of such landscaping).
(h) Irrigation. All irrigation sources serving the Lots will be provided through
a master meter controlling the flow of such irrigation to the entire Property, and dispersing same
to the Lots, and all expenses incurred in connection with the provision of such irrigation services
shall be charged to the Association, and all costs or expenses incurred by the Association for
such irrigation service shall be allocated equally to the Lots and deemed Common Expenses of
the Association.
(i) Short Term Rentals. Pursuant to Section 3.24 of the Original Declaration
various constraints are imposed on rentals of Residences within the Property. Pursuant to this
Section 3(i), it is hereby established that the City shall have the right itself to enforce the
provisions of Section 3.24 of the Original Declaration and shall have all rights and remedies with
respect to thereto as are provided elsewhere in the Declaration in favor of the Association.
(j) Streets. Notwithstanding anything to the contrary in the Original
Declaration,
(i) the definition of Streets set forth in Section 1.1(u) of the Original
Declaration shall hereinafter mean the areas designated for vehicular traffic on the Plan,
which area is not included in a Lot; and
(ii) all references to Tract "A" in Article VI shall be deleted and
hereinafter replaced with Streets.
(01648097;5} 4
(iii)Consistent with the final Plans for the development of the Property
approved by the City, the City has approved the use of certain specialized street lighting
which shall include 100 Watt Sanibel type street lights and sixteen foot decorative poles
( "Upgraded Lights "). Pursuant that certain Developers and Homeowners Association
Agreement for Upgraded Street Lights to be executed by Hovnanian, the Association and
the City as a condition of approval and use of the Upgraded Lights, the City has required
that the Declaration be amended, and the Declaration is hereby so amended, to provide
that: (A) the Association shall be responsible for any costs associated with the rental,
maintenance and fuel/energy charges for the Upgraded Lights that are in excess of those
otherwise paid by the City for standard street lighting pursuant to the City's existing
agreement with Progress Energy ( "Streetlight Costs ") and shall reimburse the City for
said Streetlight Costs plus an administrative charge equal to ten percent (10 %) of the
Streetlight Costs (together with the Streetlight Costs, the "Additional Costs "), (B) the
Additional Costs shall be Common Expenses under the Declaration and the Association
shall have the power and authority to assess the Additional Costs against the Property and
each Owner, and the Association shall have all powers, rights and authority to collect said
Assessments for Additional Costs the same as any other Assessments levied under the
Declaration, including that such Assessment for Additional Costs shall be a continuing
lien against the Lots, subject to foreclosure and all other remedies available to the
Association under Section 5.12 of the Original Declaration, (C) in the event the
Association fails to make, collect and enforce the Assessments for the Additional Costs
and pay same to the City as required above, the City shall have the authority and power
under this Declaration to itself levy and collect such Assessments directly from the
Owners, and shall have all rights and remedies with respect to such Assessments as are
provided in the Declaration in favor of the Association, including, but not limited to, the
ability to foreclose on the lien against the Lots securing payment of said Assessments,
(D) the termination of the Declaration shall not relieve the Association nor the Owners of
the duty to reimburse the City for the Additional Costs unless specifically allowed in
writing by the City and (E) the Declaration may not be amended as it relates to the
requirements of this Section 3(j)(iii) without the consent of the City evidenced by a
written joinder and consent recorded with any such amendment.
(k) Parking.
(i) The first two sentences of Section 6.2 of the Original Declaration
are hereby deleted in their entirety and replaced by the following: "All vehicles must be
parked in garages or driveways located on a Lot. However, vehicles may be parked on
the Street provided such vehicles are parked in designated parking spaces (designated by
the Association) that are outside the traffic lanes of the Street ". The remaining sentences
of Section 6.2 of the Original Declaration are unchanged and remain in full force and
effect. The provisions of Section 6.2 of the Original Declaration pertain to the entirety of
the Property, except as is modified by Section 4(k) of the Second Amendment pertaining
to the SFR Property.
(ii) Section 4(k) of the Second Amendment is hereby amended to
clarify that the only Streets (or portions thereof) ( "Permitted Street Parking Areas ")
upon which may be parked vehicles belonging to Owners of Lots within the SFR
Property, or belonging to such Owner's guests or invitees, are (i) those portions of
{01648097;5} 5
Leather Fern Drive, Bent Grass Avenue, and Water Tupelo Way lying north of Spruce
Pine Road, (ii) that portion of Spruce Pine Road lying west of Water Tupelo Way, (iii)
the north side, only, of that portion of Spruce Pine Road lying between Water Tupelo
Way and Leather Fern Drive (no parking shall be permitted on the south side of such
portion of Spruce Pine Road), and (iv) all of Chickasaw Berry Road, Fishtail Fern Way
and Resurrection Fern Way. The Permitted Parking Areas are also depicted in Exhibit
"A" attached to this Second Amendment and by this reference hereby incorporated
herein.
(iii)No parking is allowed in any of the alleys located within the
Property.
4. Conflict of Terms/No Further Amendments. In the event of any inconsistencies
between the terms and provisions of this Third Amendment and the terms and provisions of the
Declaration, the terms and provisions of this Third Amendment shall control. Otherwise the
Declaration is unmodified and remains in full force and effect. From and after the date of
execution and recording of this Third Amendment, any and all references to the Declaration shall
be deemed to refer to the Declaration as amended by this Third Amendment.
[Remainder of Page Intentionally Blank — Signatures Begin on Page 7]
{01648097;5} 6
IN WITNESS WHEREOF, Declarant has caused this Third Amendment to the
Declaration to be executed as of the day and year first above written.
Signed, sealed and delivered in the K. HOVNANIAN CAMBRIDGE HOMES,
presence of: L.L.C., a Florida limited liability company
' Y
Print Name: .Lt V--, --u.� Name: Scott South
11111,11.1%,,, Title: Division President
EL Date:
Print Name: AVL, Javloti z d. .
STATE OF FLORIDA
COUNTY OF Oca,.1..s X
The foregoing instrument was acknowledged before me this day of / ' ! Q
2011, by Scott South, as Division President of K. HOVNANIAN AMBRIDGE HOMES,
L.L.C., a Florida limited liability company, on behalf of the company. He {select appropriate box}
i-ils personally known to me or [ 1 has produced as
identification.
Notary Public State of Florida � — -
Susan C Karst ame:
• My Commission DD844410
0 ,0 Expires02/21 /2013 Title: Notary Public
(NOTARY S - • My Commission Expires:
{01648097;5} 7
JOINDER AND CONSENT
The CITY OF OCOEE, a Florida municipal corporation, pursuant to Section 13.4 of
that certain 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 ( "Original Declaration "), as amended by (i) that certain First
Amendment to Declaration of Covenants, Conditions and Restrictions for Wesmere Townhome
Association, recorded in Official Records Book 9715, Page 2328, of the Public Records of
Orange County, Florida ( "First Amendment ") and (ii) that certain Second Amendment to
Declaration of Covenants, Conditions and Restrictions for Wesmere Townhome Association,
recorded in Official Records Book 10157, Page 8933, Public Records of Orange County, Florida
( "Second Amendment ") (the Original Declaration, as amended by the First Amendment,
collectively, "Declaration "), hereby joins in and consents to the Second Amendment and the
foregoing Third Amendment to Declaration of Covenants, Conditions and Restrictions for
Wesmere Townhome Association to which this Joinder and Consent is attached for the sole
purpose of acknowledging its consent to the amendments set forth therein.
CITY:
Signed, sealed and delivered in the presence of:
CITY OF OCOEE, FLORIDA
By:
Print Name: S. Scott Vandergrift, Mayor
Attest:
Beth Eikenberry, City Clerk
Print Name: (SEAL)
FOR USE AND RELIANCE ONLY BY THE APPROVED BY THE OCOEE CITY
CITY OF OCOEE, FLORIDA. Approved as COMMISSION AT A MEETING HELD ON
to form and legality this day of UNDER AGENDA ITEM NO.
, 2011.
FOLEY & LARDNER LLP
By:
City Attorney
{01648097;5}
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 , 2011.
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):
{01648097;5}
EXHIBIT "A"
(Graphic Depiction of Permitted Parking Areas Associated With SFR Property)
res. ft.; 4.4-t A PcwV:" A reekS
. 1 1
i
q
, j: 1 •
l
_ A 1 A _
T i0 IA Y12. 0 a] t ta a V:c5 R •t7 r 5 —�-
lamfn- Noulelard- - 4` - . ' -. .
`4 I NI 407 403 N4 446 441 N) 101 1 ' 4, �' 41714
�'Na .. 7ry
' - 1
1,°4 107 le 111 • al' a 1N • • 4q N/ � �
! •.
, - t ' 1,4._ _ N/ _ NI •
NI yW^N4 / 314: :A.'', e , • .
•
1 rid '.
I ' 411 474 411 �._ ellIMI1
sN LIM2 A eo1 .(,
I f 411 41/ 434 , M
4 471 473 474 474 4m 470 430 , 4N I[4 __. k!
I ( , j NI _ NI I� ell /'•. �. :,
I ' ��• N! i - ~t 477 4m I1m /N 4411 s_ 5 1441 344 04) U4134/
T,, 441 "3 I _ � _ __ 441 s41 .. � — � ma --i;
.. 413 ! •
• — - _ — -- - TNAGT.t1 =_�°'. _.
1�.. ' 1RA iI I _ / _. ey
471 N I 441 1 I N/ I; �1 j ;
i
I t' ; 1441' 447 163 10341 3441
t• •% Oa 103 I 4N N31 w 034 j 4851 4R ! • ' 6441 I !00 I
-,11 -- _ 51) i
TACT ._.. • -
•
0 , :. L I N N 417 I , 447 430 111 4410 4 » 414 N) ! N5 I 445 . 4' NI I. 366 634 en 4111' 561: 503 544: 343i, ..
f
1 1 1 ! I I 03 l I 1 I /4314
I i ^ /ee �A41ELIW .__E.•._ — aro
'w 631 456 4,7 I 4 ; an . -
� ! I 4415 4H 110 433 I ! N 403 14M 4 317 a
66 ms b)/ Na 1)3 . ��_. 4
� � 413 1 ;
i TRACT 043 .
, i . � TRAM TRA
�i 1 112'1717 N111 4N 1 �� = ', \� � ( Li= &um!, ;l
l Ilk-Now ®, ma 1 _ • WILT 00
1 l mum mu �1.'
it i,1:
._. ; 11 l 11574 , • •4W� San ; R�`'N_ e vary •
1 'a_ ,TIHLxh- l 1L1cE,CJULEPea� g1 �1�5t■ 6, L . OPE
• - ® ... t x ' � x � ,3 ` � 1 " - I . olui - TMR .
� r LW 1,1 IMO LIIIII WI
i r,
1 1)f411q 3)OWltlq : , �. .. _. ... \ . I , .. i t ` 1 '_ 1 '1 11111111111111111111 -1 ' 1 I111� • > 1 l
l ��'
Waa 5[3CRI64 ' f •..• IRACTA I .. ...
fa NN 44 3)+U .. 1"- wire no4nVQI) ZAXI? - TRACTA • _ • 1 0 \ , 8\ \ • 0 \ � g ! 1 & g
1
' 1• ( . TRACT DC tier no wL3W
{01648097;5}