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HomeMy WebLinkAboutItem #12bc Meadow Ridge (AKA Westridge) Final Subdivision Plan AGENDA ITEM COVER SHEET Meeting Date: March 7, 2006 12-6 ~ c Item # Contact Name: Contact Number: J. Antonio Fabre, AICP 905-3100 X1 019 Reviewed By: Department Director: City Manager: Subject: Meadow Ridge (FKA: Westridge) - Final Subdivision Plan Background Summary: The Meadow Ridge subdivision is located at the southeast quadrant of the intersection of Maguire Road and Moore Road. The Final Subdivision Plan proposes 152 single-family residential lots on approximately 49.7 acres. The approved PUD requires a minimum lot size of 60 feet by 105 feet with 20-foot front setback lines. The net residential density is 3.1 units per acre. There is an approximately 14.1 acre conservation (wetland) area with a 1.1 acre surrounding buffer area. The total site area for the subject subdivision is approximately 66 acres including roadways, conservation and buffer areas. Issue: Should the Honorable Mayor and City Commissioners approve the Final Subdivision Plan for Meadow Ridge? Recommendations: Based on the recommendation of the DRC and the Planning and Zoning Commission, Staff respectfully recommends that the Mayor and City Commissioners approve the Final Subdivision Plan for Meadow Ridge date stamped received by the City on February 20, 2006, subject to the additional condition that the areas adjacent to the proposed sidewalk along Maguire Road are sodded with Saint Augustine Grass, irrigated and ultimately maintained by the Home Owner Association; and further subject to execution of the attached Draft Third Amendment to Second Developer Agreement. Attachments: Location Map; Third Amendment to Second Developer Agreement; Meadow Ridge (FKA: Westridge) Final Subdivision Plan, date stamped February 20, 2006. Financial Impact: N/A Type of Item: o Public Hearing o Ordinance First Reading o Ordinance Second Reading o Resolution I:8J Commission Approval o Discussion & Direction For Clerk's Deof Use: o Consent Agenda o Public Hearing I:8J Regular Agenda o Original Document/Contract Attached for Execution by City Clerk o Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) o N/A ~ N/A o N/A Commissioners Gary Hood, District I . Scott Anderson, District 2 Rusty Johnson, District 3 Nancv 1. Parker. District 4 Mayor S. Scott Vandergrift City Manager Robert Frank STAFF REPORT TO: The Honorable Mayor and City Commissioners ~' FROM: J. Antonio Fabre, AICP, Senior Planner @) THROUGH: Russ Wagner, AICP, Community Development Director DATE: February 23, 2006 RE: Meadow Ridge (FKA: Westridge) - Final Subdivision Plan Project # LS-2005-011 Commission District # 3 - Rusty Johnson ISSUE: Should the Honorable Mayor and City Commissioners approve the Final Subdivision Plan for Meadow Ridge? BACKGROUND: The Meadow Ridge subdivision is located at the southeast quadrant of the intersection of Maguire Road and Moore Road. Otherwise known and preliminary approved as the "Westridge PUD." This PUD consisted of commercial and residential components. The Meadow Ridge Final Subdivision Plan (FSP) consists of the residential portion of the approved PUD. This residential portion of the property is currently undeveloped and is covered with rows of pine trees and scattered hardwoods. The surrounding land to the north has been developed as Plantation Groves PUD with commercial, multi-family, and single family residential uses; a commercial/high density residential PUD to the west is planned on vacant land in unincorporated Orange County; to the east is a single family residential subdivision and vacant land both of which are in unincorporated Orange County; and to the south is the Windsor Landing single family subdivision, Freedom Park and Thornbrooke Elementary School, zoned R 1-AA. The Future Land Use designation for the site is Low Density Residential. The property is zoned Medium Density "PUD" Planned Unit Development which permits development and construction of the proposed land use. Therefore, the requested use is consistent with directives of the Comprehensive Plan and the Land Development Code. The City Commission, on August 17, 2004, reviewed and approved the Preliminary Subdivision Plan for Westridge PUD with the condition that the Preliminary Subdivision Plan be revised to be consistent with the Land Use Plan and the Conditions of Approval as set forth in Ordinance No. 2004-19. Subsequently, the applicable conditions have been met with this Final Subdivision Plan submittal. DISCUSSION: The Final Subdivision Plan proposes 152 single-family residential lots on approximately 49.7 acres. The approved PUD requires a minimum lot size of 60 feet by 105 feet with 20-foot front setback lines. The net residential density is 3.1 units per acre. There is an approximately 14.1 acre conservation (wetland) area with a 1.1 acre surrounding buffer area. The total site area for the subject subdivision is approximately 66 acres including roadways, conservation and buffer areas. South of the future commercial portion of the PUD is the wetland area that will be preserved for conservation and open space with this FSP. The main entrance into Meadow Ridge subdivision is from Maguire Road which will also facilitate the future access to the commercial portion of the PUD. Additionally, there will be a residence-only entrance from ih Avenue into the subdivision. The subdivision will be a gated community. Orange County will be providing the water and sewer service while solid waste and reuse water service will be provided by the City. There will be three stormwater retention ponds, with one enhancing the community park that will include a cabana with community meeting room, pool, gazebo, tot lot and open play area. There will be a 6 to 7 -foot brick wall within a 10- foot wide landscape wall easement with appropriate landscaping along the full length of the south side of Moore Road, the south side of the property and along the west side of 7th Avenue fronting the proposed subdivision. Applicable conditions that have been incorporated into this FSP as part of the PSP approval are: . the brick wall along the southern part of the property to the wetlands; · additional buffering and landscaping adjoining the Commercial and Office site on the south side of the entry road; · the required tile roofs on all homes via a Condition of Approval (# 67); and, · the required developer's monetary contribution towards the construction of 7th Avenue. Additional right-of-way will be dedicated along Maguire and Moore Road for associated turn lanes as previously approved by the PUD. This will be granted by separate instrument. Please note, the required right-of-way for ih Avenue has already been granted to the City by the ApplicanUQwner. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The proposed Meadow Ridge Final Subdivision Plan was reviewed by the Development Review Committee (DRC) on February 8, 2006. There were a number of issues to be addressed from the Planning Division, the City Attorney and the Engineering Department that were identified verbally and in written staff comments. All of the issues in the staff reports were discussed and the developer agreed to make all changes. Some additional changes to the Plans were also agreed upon. Noteworthy issues that were agreed upon: · The applicant agreed to an additional 5 feet of right-of-way along Moore Road in order to facilitate relocation of the power transmission lines. This 5-foot together with the required 10-foot wide landscape/wall buffer will provide the necessary area for the relocation. Accordingly, the applicant will request a setback waiver from the rear setback (from 35 feet to 30 feet) requirement. Staff supports this waiver request. · The engineer of record will ensure that measures are taken to prevent any potential overflow from the wetland into Thornebrooke Avenue. This would be done by providing an additional 1-foot of freeboard elevation along Thornebrooke Avenue within the public right-of-way. · The developer/owner has agreed to do the actual construction of ih Avenue for the City and to cap the cost at $450,000. Furthermore, the developer had already committed $160,000 toward this goal and is contributing $100,000 in additional funds to assist the City with this public roadway improvement. Accordingly, an amendment to the existing development agreement will be presented to the City Commission for their formal review and approval with the FSP. When the discussion was finished, the DRC voted unanimously to recommend approval of the Final Subdivision Plan, subject to the developer making changes to the Plans as specified in the Staff Comments before the City Commission meeting. PLANNING AND ZONING COMMISSION RECOMMENDATION: On February 14, 2006, the Planning & Zoning Commission considered the proposed Final Subdivision Plan for Meadow Ridge. The City Staff and the Applicant of the project answered several questions regarding transmission lines placement, drainage and improvements on ih Avenue. Discussion also ensued about that measures will be taken to prevent any potential overflow from the wetland into Thornebrooke Avenue. This would be done by providing an additional 1-foot of freeboard elevation along Thornebrooke Avenue within the public right-of-way. After finishing its deliberations, the Planning & Zoning Commission voted unanimously to recommend approval of the Meadow Ridge Final Subdivision Plan, as date stamped by the City "Received January 13, 2006," subject to incorporating of the Staff comments into the plans prior to City Commission Meeting. The plans have now been revised to address all the comments that were outstanding. STAFF RECOMMENDATION: Based on the recommendation of the DRC and the Planning and Zoning Commission, Staff respectfully recommends that the Mayor and City Commissioners approve the Final Subdivision Plan for Meadow Ridge date stamped received by the City on February 20, 2006, subject to the additional condition that the areas adjacent to the proposed sidewalk along Maguire Road are sodded with Saint Augustine Grass, irrigated and ultimately maintained by the Home Owner Association; and further subject to execution of the attached Draft Third Amendment to Second Developer Agreement. Attachments: Location Map; Third Amendment to Second Developer Agreement; Meadow Ridge (FKA: Westridge) Final Subdivision Plan, date stamped February 20, 2006. r 1 - Meadow Ridge Location Map 1=~II~I~'~~~ '\ e ~IS",~~,--)1~ ,.--- 1 r \-- I K \.----' I;:: il- \- \--~ t= J= =\-- H I--- \--t=i I-- ~ l=i ~ \--\0 l- ~ H \\-nl ~~v ~ f-i ~ H~/\iihifR~I~ S2 1= \-- ,-]V~ 'Lot uH ~ i; '~'- 1";1::' ~- 1:: ~fnC;,\- I L 1~ >- ri?-- f---\-- If / ~",'n c:' r:::; I- '- z -;:.. Ii r s: T i::::<l!) 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FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 THIS INSTRUMENT SHOULD BE RETURNED TO: Beth Eikenberry, City Clerk City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 (407) 905-3100 ....or Rpt'orrlino PlIrnm,p" Onlv THIRD AMENDMENT TO SECOND DEVELOPER AGREEMENT (Meadow Ridge f/k/a Westridge PUD) THIS THIRD AMENDMENT TO SECOND DEVELOPER AGREEMENT (this "Third Amendment") is made and entered in this _ day of , 2006 by and between UNICORP a (the "Developer") and the CITY OF OCOEE, a Florida municipal corporation (the "City"). W ! T N E ~ ~ E T H: WHEREAS, Developer owns fee simple tItle to certain lands located in Orange County, Florida, said lands being more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Land"); and WHEREAS, the Land lies within the corporate limits of the City of Ocoee, Florida; and WHEREAS, the Land is currently zoned PUD by the City pursuant to City of Ocoee Ordinance No. 92-07 which approved a Revised Land Use Plan for the Westridge PUD (the "PUD Zoning Ordinance"); and WHEREAS, the Land constitutes all of the "Westridge PUD"; and WHEREAS, pursuant to the PUD Zoning Ordinance, Seller's predecessor-in-interest entered into that certain Second Developer Agreement by and between Jack Schiffman and the City dated September 7, 1993 and recorded September 14, 1993 in Official Records Book 4619, Page 2136 of the Public Records of Orange County, Florida (the "Second Developer Agreement"), as amended by; and WHEREAS, Developer's predecessor-in-title entered into that certain First Amendment to Second Developer Agreement by and among Devworth Properties, Inc., Glenmuir Properties, Ltd. and the City dated April 2, 2002 and recorded April 16, 2002 in Official Records Book 6503, Page 464, of the Public Records of Orange County, Florida (the "First Amendment"); and ORLA_ 403753.1 DUff WHEREAS, Developer's predecessor-in-interest entered into that certain Second Amendment to Second Developer Agreement by and among Devworth Properties, Inc., Glenmuir Properties, Ltd. and the City dated December 7,2004 and recorded February 11,2005 in Official Records Book 7826, Page 3809, of the Public Records of Orange County, Florida (the "Second Amendment"); and WHEREAS, Developer is successor in title to Devworth Properties, Inc. and Glenmuir Properties, Ltd., who are collectively the successor in title to Jack Schiffman; and WHEREAS, pursuant to Section 4 of the Second Amendment, the City agreed to construct certain improvements to ih A venue; and WHEREAS, the parties have agreed that the Developer, and not the City, will be responsible for the construction of the improvements to ih A venue; and WHEREAS, the City has obtained from Professional Engineering Consultants, Inc. ("PEC") and provided to the City those certain plans and specifications prepared June, 2005 pursuant to City of Ocoee Bid No. B05-11 ("the Plans") that identify the improvements to 7th Avenue (the "ih A venue Improvements"); and WHEREAS, the Plans include the design, engineering, plans and specifications for the 7th A venue Improvements; and WHEREAS, the City has obtained the following permit for the construction of the ih Avenue Improvements: St. Johns River Water Management District Permit No. 42-095-98379-1, issued May 3, 2005 (the "Permit"); and WHEREAS, Developer is under contract to sell the residential portion of the Land to Pulte Homes Corporation (the "Homebuilder"); and WHEREAS, the Developer and the City have agreed that the Homebuilder will construct the ih Avenue Improvements as part of its development of the residential portion of the Westridge PUD; and WHEREAS, in order to set forth certain agreements between the parties the Developer and the City desire to enter into this Amendment. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration 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 are incorporated herein by reference. Section 2. Improvements to 7th Avenue. ORLA_ 403753.1 .lIIlirFf (A) Notwithstanding anything contained in the Second Developer Agreement, the First Amendment or the Second Amendment to the contrary, the Developer hereby agrees to construct or cause to be constructed the ih Avenue Improvements for the City in accordance with the Plans and Permit. The ih A venue Improvements will be constructed prior to or contemporaneously with the development of the residential portion of the Westridge PUD in accordance with a construction schedule approved by the City. (B) The Developer may enter into a construction contract or other agreement with Homebuilder or other contractor for the construction of the ih A venue Improvements. Any construction contract or other agreement between the Developer and Homebuilder or other contractor for the construction of the ih Avenue Improvements will be subject to the review and approval by the City. Any such contract shall provide that the City shall be an intended third party beneficiary of the performance obligations with respect to the construction of the ih Avenue Improvements. (C) The City hereby agrees to reimburse and pay to the Developer or Developer's assigns the total actual cost of construction of the ih Avenue Improvements not to exceed a total amount of FOUR HUNDRED FIFTY THOUSAND AND NOll 00 DOLLARS ($450,000.00) (the "Maximum Reimbursement Amount") in accordance with the terms hereof. The first ONE HUNDRED SIXTY THOUSAND AND NOll 00 DOLLARS ($160,000.00) of the Maximum Reimbursement Amount shall be paid from the Initial Developer Payment held by the City. Notwithstanding the forgoing, the Developer agrees to complete the construction of the ih Avenue Improvements regardless of cost, and pay, without reimbursement from the City, all costs related to the construction of the ih Avenue Improvements in excess of the Maximum Reimbursement Amount. (D) The Developer or Developer's assigns shall be reimbursed in accordance with properly submitted and approved monthly payment applications as hereinafter provided. The Developer or Developer's assigns shall submit to the City monthly payment applications in a form reasonably acceptable to the City not later than the tenth day after the end of each month for which payment is requested, which applications shall include, but not be limited to, documentation of actual construction costs incurred by Developer or Developer's assigns satisfactory to the City and waivers or releases from the Developer's contractor and others that provide goods, materials or services for the construction of the ih A venue Improvements. The City will make monthly progress payments to Developer or Developer's assigns in an amount equal to the total actual cost incurred by Developer or Developer's assigns subject to ten percent (10%) retainage of the amount of the progress payment. Within 30 days of completion of the 7th Avenue Improvements and acceptance thereof by the City, and provided all other obligations of the Developer herein are fulfilled, the City will make a final payment to Developer or Developer's assigns of the funds being retained by City pursuant to this paragraph. It is expressly agreed that the City may accept the ih Avenue Improvements prior to completion of the subdivision improvements for the residential portion of the Property. (E) The Developer shall at all times fully comply with the terms and requirements of Chapter 713, Florida Statutes so to assure that no liens or encumbrances are placed on the 7th A venue Improvements and shall not allow any liens to attach to the Property in connection therewith. ORLA_ 403753.1 (F) The Developer, at Developer's expense, will provide to the City, a maintenance bond for the 7th A venue Improvements in an amount and form acceptable to the City that will remain effective for two (2) years from the date on which the City accepts the 7th Avenue Improvements. (G) The parties agree that the provision of this Section 2 fully address the requirements of Condition of Approval No. 68 on Exhibit "B" to the Second Amendment. (H) To the extent the stormwat'~r run-off from the so-improved ih Avenue roadway is incorporated into the stormwater management system for the Westridge PUD, the "temporary pond," as detailed in the Plans, will not be required. Section 3. Amendment to Conditions of Approval. Exhibit "B" to the Second Amendment is revised as follows: (A) Condition of Approval No.6 is revised to read: 6. Private Residential Streets/Gated Community: Westridge shall be a private gated community with a mandatory homeowners association owning and maintaining the streets and drainage facilities to be built to City standards. Entryway gates shall be equipped with an Opticon Activated Override Device and Knox Key Secure System to allow emergency access to the subdivision by fire/rescue, police and other emergency response personnel. A perpetual non-exclusive access easement for the benefit of the City of Ocoee and other applicable authorities for fire, police, and other emergency services and a utility easement for the benefit of utility providers shall be granted over the Access Road tract. (B) Condition of Approval No. 20 is revised to read: 20. Finished Floor Elevations: Finished Floor Elevations shall be set a minimum of two ft. above the calculated post-development elevation generated by the 100- year/24-hour design storm. Section 4. Amendment to Waiver Table. Exhibit "C" to the Second Amendment is hereby deleted in its entirety and replaced with Exhibit "C" hereto. Section 5. Conflicts. In the event any conflicts between the Second Developer Agreement, as amended, and any other agreements with respect to the Land, it is agreed that the Second Developer Agreement, as amended, shall control. In the event of any conflict between the Second Developer Agreement, as amended and any future preliminary and final subdivision plan with respect to the Land, or any portion thereof, it is agreed that the Second Developer Agreement, as amended shall control. ORLA_ 403753.1 ID1MRl .. Section 6. Agreement. Notices. Notices to the City shall be as set forth in the Second Developer. Section 7. Limitations. Except as expressly amended hereby, the Second Developer Agreement, as amended, remains unchanged and in full force and effect, and each of the parties hereto hereby ratifies and confirms the terms and conditions of the Second Developer Agreement, as amended. All references herein to the Second Developer Agreement, as amended, shall refer to the Second Developer Agreement as amended by the First Amendment, Second Amendment and this Third Amendment unless the text or context indicates otherwise. All capitalized terms used herein shall be as defined in the Second Developer Agreement unless otherwise indicated or defined herein. Section 8. Effective Date. This Amendment shall become effective as of the date of the last execution by a party hereto. IN WITNESS WHEREOF, the Developer and the City have caused this instrument to be executed by their duly authorized elected officials, partners, and/or officers as of the day and year first above written. Signed, sealed and delivered in the presence of: DEVELOPER: Print Name By: Name: Title: Print Name (CORPORATE SEAL) ORLA_ 403753.1 STATE OF FLORIDA .\!Itlo, COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take as the of who ~ is personally known to me or LJ produced as identification, and that he/she acknowledged executing the same on behalf of said corporation 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 , 2006. 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_ 403753.1 Signed, sealed and delivered in the presence of: CITY: CITY OF OCOEE, FLORIDA II~ By: S. Scott Vandergrift, Mayor Print Name: Attest: Beth Eikenberry, City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2006. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2006 UNDER 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 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 , 2006. 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_ 403753.1 EXHIBIT "A" THE LAND That part of the North 1/2 ofthe Southwest 1/4 of Section 32, Township 22 East, Range 28 East, Orange County, Florida, described as follows: Commence at the Southwest corner of Section 32, Township 22 South, Range 28 East, and run N 00021'38" W along the West line of the Southwest 1/4 of said Section 32 for a distance of 1330.98 feet to the Southwest corner of the North 1/2 of the Southwest 1/4 of said Section 32; thence run N 89047'54" E along the South line of said North 1/2 of the Southwest 1/4 for a distance of 60.00 feet to a point on the East right-of-way line of Maguire Road (County Road 439), said point being the POINT OF BEGINNING; thence run N 00021'58" W along said right-of-way line for a distance of 1255.66 feet to the point of curvature of a curve concave Southeasterly having a radius of 35.00 feet and a central angle of 90017'33"; thence run Northeasterly along the arc of said curve for a distance of 55.16 feet to the point of tangency; thence run N 89055'55" E along the South right-of-way line of Moore Road as described in Official Records Book 4343, Page 4532, of said Public Records for a distance of2547.37 feet to a point on the East line of said North 1/2 of the Southwest 1/4; thence run S 00020'36" E along said line for a distance of 1284.83 feet to the Southeast corner thereof; thence run S 89047'54" W along the aforesaid South line of the North 1/2 of the Southwest 1/4 for a distance of 2582.14 feet to the POINT OF BEGINNING. Containing 76.339 acres more or less and being subject to any rights-of-way, restrictions and easements of record. ORLA_ 403753.1 ORLA_ 403753.1 EXHIBIT "C" -'&J/rf REVISED WAIVER TABLE f'r~=_ i""wll ,.., :"a ~'~1 ~tf'tn :'Yt : 01 _tlJcnl ~:."tIo1oltt ; 2. Xi u.; i~' .1,' .,t',.. 'dt. "...., 14 C'I1.C<-Mt. It.> o)'>~ '''1''9' (I. .~. It.. I'g,., rd I' .....u.:..: 1".:~1l)' . . ' J;.Iq'~ &.1\'.. \4 .... "" ~""';<l o' ;;~~.I:x,\Il'~:',;l ....11..</ ~.w'~U,., 1.4' _~~~Cl ~11.~t':ul ......:. t. :-1'". .~.. t"t1' 't"ft.J~QI"'" 't. ''''t,:'ocb' .. tit {<t"-C',."t .?:'t 'E~'~ -!,to': t?~ cr 0.-..,,_ ~lft)',.i +:d <It &~I;;;;~,t;~r I" . :." II..V'> 4- e..... u: '->>'~";;m -";,w, (CD.J...L: 'CR) WGI_ TGbI. (e-m..cd/OflI") -. ~_~;;;-_.,-- 0o<lo'$1...=", I ~'..- -- ! ~.IJr.'"_ ~ 00:1.... 4,rl~h'. -""- .s._. ...,......... ~.l..,. ......;;;;~;:nl..... ,,'I... I.........~'~ ....>\-0 ,,,p,,"- I., ~.dt.,'\ 4-lW('; I ~-t:. 'ro"r on. It, .".., i ..."., H'O-"t ~ cr.11 Ifhe': \f$l-'t ....,..J .t. ~'" u.~ u...........')1 I 1-/- ..lfd .\),1-11 +/~ ~.".f -II"" ..'" '''Ro.,. ~ lJv'IP\: 1t')~ft ~I r""" 'v'-......... ,,~) h", "'f'" I ""',,( ~...... o. " ~~u "vt-Q1-'WC., ..... ~n.:;,. fi, ".lnf:.... ,...,....,. -., . - ~~;; .1N_a\( tr"l ~vtt' ...... ....., .f ~h"" .., hf'.. :P.'~~('''' It''' ~U.... '-:l6o(l:{q) I....t.-ri-.I, : ""'~ry 'klllrl';t"1 ""-",,,., ..... --, ...... .--".-. ,-, ---- -- "'~. r. ~,' :D. ....:;v n:: '.:4tI C 1",.'".Hn." r:,l- " ').""'h, ,"'''iJI (I;; iU-l1"'_) 1~' "Sel ;~Uo"d t'O"'!-o"-"'~) .)S SB ..OM( "l,il.t; I H' 21. ---..-- .....~. ,." l';'.)' "'l'.Ir9'!"l-.,t t7 'l 50<">:0' ..-~:~) (~)~( l..: c: l~ft : Qi:.\I'lt..,,'f rtrl'~r.;-... THIS INSTRUMENT PREPARED BY: Nicholas N. Palmer, Esq. FOLEY & LARDNER LLP 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 /) ~._, )? /J. .P~ .f THIS INSTRUMENT SHOULD BE RETURNED TO: Beth Eikenberry, City Clerk City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 (407) 905-3100 For Recording Purposes Only DRAFT THIRD AMENDMENT TO SECOND DEVELOPER AGREEMENT (Meadow Ridge f/k/a Westridge PUD) THIS THIRD AMENDMENT TO SECOND DEVELOPER AGREEMENT (this "Third Amendment") is made and entered in this _ day of March, 2006 by and between MAGUIRE ROBERSON, LLC, a Florida limited liability company (the "Developer"), and the CITY OF OCOEE, a Florida municipal corporation (the "City"). W!TNE~~ET H: WHEREAS, Developer owns fee simple title to certain lands located in Orange County, Florida, said lands being more particularly described in Exhibit" A" attached hereto and by this reference made a part hereof (the "Land"); and WHEREAS, the Land lies within the corporate limits of the City of Ocoee, Florida; and WHEREAS, the Land is currently zoned PUD by the City pursuant to City of Ocoee Ordinance No. 92-07 which approved a Revised Land Use Plan for the Westridge PUD (the "PUD Zoning Ordinance"); and WHEREAS, the Land constitutes all of the "Westridge PUD"; and WHEREAS, pursuant to the PUD Zoning Ordinance, Developer's predecessor-in- interest entered into that certain Second Developer Agreement by and between Jack Schiffman and the City dated September 7, 1993 and recorded September 14, 1993 in Official Records Book 4619, Page 2136 of the Public Records of Orange County, Florida (the "Second Developer Agreement"); and WHEREAS, Developer's predecessor-in-title entered into that certain First Amendment to Second Developer Agreement by and among Devworth Properties, Inc., Glenmuir Properties, ORLA_ 405064.1 Dl?/lpl' Ltd. and the City dated April 2, 2002 and recorded April 16, 2002 in Official Records Book 6503, Page 464, of the Public Records of Orange County, Florida (the "First Amendment"); and WHEREAS, Developer's predecessor-in-interest entered into that certain Second Amendment to Second Developer Agreement by and among Devworth Properties, Inc., Glenmuir Properties, Ltd. and the City dated December 7,2004 and recorded February 11,2005 in Official Records Book 7826, Page 3809, of the Public Records of Orange County, Florida (the "Second Amendment"); and WHEREAS, Developer is successor in title to Devworth Properties, Inc. and Glenmuir Properties, Ltd., who are collectively the successor in title to Jack Schiffman; and WHEREAS, pursuant to Section 4 of the Second Amendment, the City agreed to construct certain improvements to 7th A venue; and WHEREAS, due in part to substantial anticipated cost savings if the improvements to 7th Avenue are performed similar in time to the portion of the Land designated for residential development, the City has requested Developer to construct the improvements to 7th Avenue; and WHEREAS, the City has agreed to reimburse costs related to the construction of such improvements to 7th Avenue subject to a maximum reimbursement amount, all as more specifically set forth in this Third Amendment; and WHEREAS, the City has obtained from Professional Engineering Consultants, Inc. ("PEC") and provided to the City those certain plans and specifications prepared June, 2005 pursuant to City of Ocoee Bid No. B05-11 ("the Plans") that identify the improvements to 7th Avenue (the "7th Avenue Improvements"); and WHEREAS, the Plans include the design, engineering, plans and specifications for the 7th Avenue Improvements; and WHEREAS, the City has obtained the following permit for the construction of the 7th Avenue Improvements: St. Johns River Water Management District Permit No. 42-095-98379-1, issued May 3, 2005 (the "Permit"); and WHEREAS, Developer is under contract to sell the residential portion of the Land to Pulte Home Corporation, a Michigan corporation (the "Homebuilder"); and WHEREAS, the Developer and the City have agreed that Developer may assign all rights and obligations of the Developer pursuant to this Second Developer Agreement, as amended, to Homebuilder to construct the ih Avenue Improvements; and 2 ORLA_ 405064.1 l)./? ~Pl' WHEREAS, the City desires that certain overhead utilities be relocated, including but not limited to distribution and transmission power poles and power lines, presently between the south paved edge of Moore Road and north boundary of the Land; and WHEREAS, the Developer has agreed to dedicate to the City for public use the north 5' of the Land currently planned for residential development, identified as Tract P on that certain Final Subdivision Plan for Meadow Ridge (flkla Westridge) prepared by Donald W. McIntosh Associated, Inc. and stamped received by the City on (the "Final Subdivision Plan"); and WHEREAS, the dedication of said 5' will require a waiver of the previously approved minimum residential lot peripheral building setback applicable to those certain residential lots planned to be developed along the north boundary of the Land whose rear yards face north toward Moore Road; and WHEREAS, the type of landscaping required along the north boundary of the Land planned for residential development must be limited as a result of the City's planned relocation of the above-described power poles and power lines to minimize potential conflicts between the relocation of said poles and lines and of the height of landscaping to be installed; and WHEREAS, in order to set forth certain agreements between the parties the Developer and the City desire to enter into this Amendment. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration 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 are incorporated herein by reference. Section 2. Improvements to 7th Avenue. (A) Section 4(A) of the Second Amendment shall be amended by replacing in the first sentence the phrase "will design, engineer, permit and construct" with the phrase "has designed, engineered and permitted". Said Section 4(A) shall be amended further by adding to the end of Section 4(A): Notwithstanding anything contained in the Second Developer Agreement, the First Amendment or the Second Amendment to the contrary, the Developer hereby agrees to construct or cause to be constructed the 7th Avenue Improvements for the City in accordance with the Plans and Permit. The ih Avenue Improvements will be constructed in accordance with a construction schedule acceptable to Developer and approved by the City, which acceptance and approval shall not be unreasonably withheld. All construction management, inspections, certifications and approvals of said 7th Avenue Improvements shall be performed by the City at the City's sole cost and expense. None of the City's costs and expenses relating to said construction management, inspections, certifications and approvals shall be considered a Project Improvement Costs (as defined below), shall be paid from the Initial Developer Payment (as defined below) or shall be 3 ORLA_ 405064.1 Dl?<1.p included for purposes of calculating the Maximum Reimbursement Amount (as Iso defined below). The City, at no additional costs or expense to Developer, its successors and/or assigns, shall assign (and cause to be assigned, if applicable) the Plans and Permits to Developer, its successors and/or assigns, to enable Developer, its successors and/or assigns, to complete the 7th Avenue Improvements as contemplated in this Second Developer Agreement, as amended. (B) Section 4(B) of the Second Amendment is not being modified pursuant to this Third Amendment shall remain unchanged and in full force and effect. (C) Section 4(C) of the Second Amendment shall be amended by adding the following sentence to the end of Section 4(C): To the extent the stormwater run-off from the so-improved 7th Avenue roadway is incorporated into the stormwater management system for the Westridge PUD, the "temporary pond," as detailed in the Plans, will not be required. The City acknowledges delivery of the deed and temporary easement referenced in Section 4(C) to the City, both of which have been recorded in the Public Records of Orange County, Florida. (D) Section 4(D) of the Second Amendment is hereby deleted in its entirety and replaced with the following: Developer may assign all rights and obligations of Developer pursuant to this Second Developer Agreement, as amended, to construct the 7th Avenue Improvements to Homebuilder without any further approval of the City. The Developer or Homebuilder in the event Developer assigns its rights and obligations to construct the 7th A venue Improvements as stated, may enter into a construction contract or other agreement with a contractor for the construction of the 7th Avenue Improvements. Any construction contract or other agreement between the Developer and Homebuilder or other contractor for the construction of the ih Avenue Improvements will be subject to the review and approval by the City, which approval shall not be unreasonably withheld. Any such contract shall provide that the City shall be an intended third party beneficiary of the performance obligations with respect to the construction of the 7th Avenue Improvements. (E) Section 4(E) of the Second Amendment is hereby deleted in its entirety and replaced with the following: The total cost of the above-described Improvements shall, for the purposes of this Third Amendment, be constructing and bonding (performance only, not maintenance), of the Road Project (the "Project Improvement Costs"). The Project Improvement Costs shall include the costs of any discharge pipe (if provided for in the Road Project design) and temporary pond construction (if applicable), but shall not include any maintenance bonds. The City agrees to reimburse and pay to the Developer, or the Homebuilder in the event Developer assigns to the Homebuilder its rights and obligations to construct the 7th Avenue 4 ORLA_ 405064.1 /) l?~p l' Improvements as stated in this Third Amendment, the Project Improvement Costs up to and including Four Hundred Fifty Thousand and Noll OOths Dollars ($450,000.00) (the "Maximum Reimbursement Amount") in accordance with the terms hereof. The Developer has paid to the City the sum of One Hundred Sixty Thousand and No/100ths Dollars ($160,000.00) (the "Initial Developer Payment"), which the City is holding in accordance with normal City procedures. The first One Hundred Sixty Thousand and No/I00ths Dollars ($160,000.00) of the Maximum Reimbursement Amount shall be paid from the Initial Developer Payment held by the City. All remaining amounts of the Maximum Reimbursement Amount shall be paid by the City from funds of the City other than those Developer has paid or is required to pay pursuant to the Second Developer Agreement, as amended. Notwithstanding the foregoing, the Developer agrees to complete the construction of the 7th Avenue Improvements regardless of cost, and pay, without reimbursement from the City, all costs related to the construction of the 7th Avenue Improvements in excess of the Maximum Reimbursement Amount; provided nothing herein shall release the City from the obligation to reimburse the Developer (or Homebuilder, if applicable) for the Project Improvement Cost up to the Maximum Reimbursement Amount or shall waive, modify and/or release the City from the obligations expressed in this Section 2 with respect to performing and paying for the cost of all construction management, inspections, certifications, approvals and maintenance bonds. (F) Section 4(F) of the Second Amendment is hereby deleted in its entirety and replaced with the following: The Developer or Developer's assigns shall be reimbursed in accordance with properly submitted and approved monthly payment applications as hereinafter provided. The Developer or Developer's assigns shall submit to the City monthly payment applications in a form reasonably acceptable to the City not later than the tenth day after the end of each month for which payment is requested, which applications shall include, but not be limited to, documentation of actual construction costs incurred by Developer or Developer's assigns satisfactory to the City and partial and/or final (as applicable) waivers or releases of liens from the Developer's contractor and others that provide goods, materials or services for the construction of the 7th A venue Improvements. Within 30 days of the City receiving the payment applications as contemplated herein, the City will make monthly progress payments to Developer or Developer's assigns in an amount equal to the total actual cost incurred by Developer or Developer's assigns subject to ten percent (10%) retainage of the amount of the progress payment. Failure to submit payment applications by the tenth day of the month shall not prohibit monthly reimbursements from the City, provided that the City shall not be required to make more than one progress payment per month. Within 30 days of completion of the 7th Avenue Improvements and acceptance thereof by the City, which acceptance shall not be unreasonably withheld, and provided all other obligations of the Developer herein are fulfilled, the City will make a final payment to Developer or Developer's assigns of the funds being retained by City pursuant to this paragraph. It is expressly agreed that the City may accept the 7th 5 ORLA_ 405064.1 bl( "1p ,I' Avenue Improvements prior to completion of the subdivision improvements for the residential portion of the Property. The Developer shall at all times fully comply with the terms and requirements of Chapter 713, Florida Statutes so to assure that no liens or encumbrances are placed on the 7th A venue Improvements and shall not allow any liens to attach to the Property in connection therewith. (G) Section 4(G) of the Second Amendment is modified by adding the words "certificates of completion," at the beginning of the third line immediately before the words "certificates of occupancy", deleting the word "City's" at the end of the third line and by deleting the last sentence. (H) Section 4(H) of the Second Amendment is not being modified by this Third Amendment and shall remain in full force and effect. (I) Developer shall not be required to provide a maintenance bond as to the th A venue Im~rovements, however, Developer warrants that all workmanship and materials related to the 7t Avenue Improvements shall be free of defects for a period of one (1) year from the date of final acceptance thereof by the City. Developer shall repair or replace at its own expense, as directed by the City, any defects in workmanship or materials which appear within one (1) year from the date of acceptance by the City, provided however, that any defect that is hidden or latent shall be repaired or replaced within one (1) year of the date when the City discovers such defect. Developer further warrants that all repair or replacement work performed to repair or replace defective work or materials shall also be warranted to be free of defects for a period of one (1) from the date such repair or replacement is accepted by the City. Developer shall commence and diligently pursue the correction of any defect not later than fifteen (15) days of receiving the City's written notice of such defect. If Developer does not commence or diligently pursue to repair or replace such defects in workmanship or materials within the fifteen (15) day period, then the City may repair or replace such defects and Developer shall reimburse the City for the costs thereof, including all interest, attorneys' fees and costs of collection. The Developer shall assign and/or transfer to the City all manufacturer's direct warranties, if any, for components or materials utilized in connection with the 7th Avenue Improvements. (J) The parties agree that the provision of this Section fully address the requirements of Condition of Approval No. 68 on Exhibit "B" to the Second Amendment. Section 3. Amendment to Conditions of Approval. Exhibit "B" to the Second Amendment is revised as follows: (A) The Min. Residential Lot Peripheral Building Setbacks in Condition of Approval No.1 applicable to Moore Road Right-of-Way is revised to be 30 ft. instead of 35 ft. (B) The first paragraph of Condition of Approval No. 6 IS deleted in its entirety and is replaced with the following: 6. Private Residential Streets/Gated Community: 6 ORLA_ 405064.1 Westridge shall be a private gated community with a mandatory homeowners association owning and maintaining the streets and drainage facilities to be built to City standards. Entryway gates shall be equipped with an Opticon Activated Override Device and Knox Key Secure System to allow emergency access to the subdivision by fire/rescue, police and other emergency response personnel. A perpetual non-exclusive access easement for the benefit of the City of Ocoee and other applicable authorities for fire, police, and other emergency services and a utility easement for the benefit of utility providers shall be granted over the Access Road tract. <>1( -i,p )> (C) Condition of Approval No. 20 is deleted in its entirety and is replaced with the following: 20. Finished Floor Elevations: Finished Floor Elevations shall be set a minimum of two ft. above the calculated post-development elevation generated by the 100-year/24-hour design storm. (D) Condition of Approval No. 41 is deleted in its entirety and is replaced with the following: 41. The 6' brick wall along Moore Road and 7th Street shall be constructed at least 5' back from the right-of-way line within the 10' wall and landscape easement. The right-of-way line along Moore Road shall be the right-of-way line as shown in the Second Revised Land Use Plan extended 5' south consistent with the dedication by the Developer of the northernmost 5' of the Land to be developed as a residential development for the relocation of existing power poles and power lines. Shade trees shall be planted on the outside of the walls every 50' along their entire length and shrubs shall be planted on the outside of the walls along their entire length; provided, however, all landscaping, including but not limited to shade trees and understory trees, along Moore Road shall be limited to those species approved by the power company owning and/or operating the power lines along the southern side of Moore Road. A 10' overhead utility easement will be dedicated by Plat to the City and applicable utility providers over the 10' wall and landscape easement located on Tracts 124- 148. (E) Condition of Approval 61 is amended by adding the following to the end of the condition as additional sentences: If required by the City, the design, engineering, construction, construction management and all inspections, certifications and approvals, of a continuous turn lane between the planned right turns into the commercial/office tracts from Maguire Road and planned right turns from the commercial/office tracts on to Moore Road shall be performed by the City at the City's sole cost and expense. 7 ORLA_ 405064.1 -DJ? <1 j," l' Construction and completion of said continuous turn lane, if ever required, shall not be a condition of Developer being able to obtain building permits and certificates of completion for the commercial/office development or residential development. This condition of approval relates to additional construction work requested by the City that is not contemplated as part of the Final Subdivision Plan, and not to any road improvements contemplated by and depicted on the Final Subdivision Plan that Developer is required to construct. (F) The following is added as Condition of Approval No. 69 and shall read: 69. Developer shall dedicate to the City for the perpetual use of the public the northernmost 5' of the that portion of the Land designated as a residential development abutting Moore Road, being labeled as Tract P on the Final Subdivision Plan, at the time said Land is platted. Said 5' shall be used for relocating utilities, including but not limited to the poles supporting transmission power lines presently existing along the south side of Moore Road north of the Land and adding to said poles once relocated distribution power lines currently hung on wooden power poles in the same general area. Thereafter, the wooden power poles shall be removed. Developer shall have no obligation to relocate said utilities, including but not limited to power poles and/or power lines, and shall never be responsible for the cost of relocating and/or removing the same. Said utilities, including but not limited to power poles and lines, shall be relocated, if at all, at the sole cost and expense of the City or others besides Developer, its successors and/or assigns. (G) The Conditions of Approval revised, modified and/or added herein shall be deemed to similarly revise, modify and/or add to the Conditions of Approval on the Second Revised Land Use Plan and all preliminary subdivision plans without the necessity of any further change and/or approval to said Second Revised Land Use Plan or preliminary subdivision plans. Section 4. Amendment to Waiver Table. Exhibit "C" to the Second Amendment is hereby deleted in its entirety and replaced with Exhibit "C" hereto. Section 5. Conflicts. In the event any conflicts between the Second Developer Agreement, as amended, and any other agreements with respect to the Land, it is agreed that the Second Developer Agreement, as amended, shall control. In the event of any conflict between the Second Developer Agreement, as amended and any future preliminary and final subdivision plan with respect to the Land, or any portion thereof, it is agreed that the Second Developer Agreement, as amended shall control. Section 6. Notices. Notices to the City shall be as set forth in the Second Developer Agreement. Section 7. Limitations. Except as expressly amended hereby, the Second Developer Agreement, as amended, remains unchanged and in full force and effect, and each of the parties hereto hereby ratifies and confirms the terms and conditions of the Second Developer 8 ORLA_ 405064.1 .Db ~\ ,<'I '1. p_. ./' Agreement, as amended. All references herein to the Second Developer Agreement, as amended, shall refer to the Second 1;)eveloper Agreement as amended by the First Amendment, Second Amendment and this Third Amendment unless the text or context indicates otherwise. All capitalized terms used herein shall be as defined in the Second Developer Agreement unless otherwise indicated or defined herein. Section 8. Effective Date. This Amendment shall become effective as of the date of the last execution by a party hereto. IN WITNESS WHEREOF, the Developer and the City have caused this instrument to be executed by their duly authorized elected officials, partners, and/or officers as of the day and year first above written. Signed, sealed and delivered in the presence of: DEVELOPER: MAGUIRE ROBERSON, LLC, a Florida limited liability company Print Name By: Name: Title: Print Name (CORPORATE SEAL) 9 ORLA_ 405064.1 STATE OF FLORIDA lJi( <1p l' 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 as the of MAGUIRE ROBERSON, LLC, a Florida limited liability company, who LJ is personally known to me or LJ produced as identification, and that he/she acknowledged executing the same on behalf of said corporation 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 , 2006. 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): 10 ORLA_ 405064.1 bh ~\. .,1 <'1 )-." .'r ], Signed, sealed and delivered in the presence of: CITY: CITY OF OCOEE, FLORIDA By: Print Name: S. Scott Vandergrift, Mayor Attest: Print Name: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2006. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON ,2006 UNDER 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 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 , 2006. 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): 11 ORLA_ 405064.1 EXHIBIT" A" blf l<1 PI' THE LAND That part of the North 1/2 of the Southwest 1/4 of Section 32, Township 22 East, Range 28 East, Orange County, Florida, described as follows: Commence at the Southwest corner of Section 32, Township 22 South, Range 28 East, and run N 00021'38" W along the West line of the Southwest 1/4 of said Section 32 for a distance of 1330.98 feet to the Southwest corner of the North 1/2 of the Southwest 1/4 of said Section 32; thence run N 89047'54" E along the South line of said North 1/2 of the Southwest 1/4 for a distance of 60.00 feet to a point on the East right-of-way line of Maguire Road (County Road 439), said point being the POINT OF BEGINNING; thence run N 00021'58" W along said right- of-way line for a distance of 1255.66 feet to the point of curvature of a curve concave Southeasterly having a radius of 35.00 feet and a central angle of 90017'33"; thence run Northeasterly along the arc of said curve for a distance of 55.16 feet to the point of tangency; thence run N 89055'55" E along the South right-of-way line of Moore Road as described in Official Records Book 4343, Page 4532, of said Public Records for a distance of 2547.37 feet to a point on the East line of said North 1/2 of the Southwest 1/4; thence run S 00020'36" E along said line for a distance of 1284.83 feet to the Southeast corner thereof; thence run S 89047'54" W along the aforesaid South line of the North 1/2 of the Southwest 1/4 for a distance of 2582.14 feet to the POINT OF BEGINNING. 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