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Item #09 Orange County Belmere PD - First Reading of Ordinance Contact Name: Contact Number: AGENDA ITEM COVER SHEET Meeting Date: March 18, 2008 Item # 9 'PI t1. Michael Rumer 407 -905-3100 x 1018 Reviewed By: Department Director: City Manager: ~~,Jl Subject: Belmere PD - Parcel H Annexation Ordinance Project # AX-06-07 -09 Commission District 3 - Rusty Johnson Issue: Should the Honorable Mayor and City Commission Adopt the Ordinance to Annex Parcel H of the Belmere PO? Background Summary: Parcel Identification Number: Lot 1 - 31-22-28-5477-01-000, Lot 2 - 31-22-28-5477-02-000, Lot 3 - 31-22-28- 5477-03-000, and Tract A - 31-22-28-5477-00-001. General Location: The subject property is located on the southwest corner of the intersection of Roberson Road and Maguire Road. The applicant, Unicorp is requesting the annexation of four parcels totaling 26.64 :l: acres known as Parcel H and to retain the existing Orange County PO zoning. A substantial change to the Orange County PO Land Use Plan will be reviewed by this Commission on April 1, 2008. The table below references the future land uses, zoning classifications and existing land uses of the surrounding parcels: Direction Future land Use Zoning Classification Existing Use North Rural (Orange County) A-1 Agriculture Single-Family Residence / Vacant East Commercial/Low Density PUD Commercial / PUD Low Density Meadow Ridge PUD Residential Commercial/Single Family South Rural (Orange County) PD (Orange County) Single-Family Dwelling West Rural (Orange County) PO (Orange County) Single-Family Dwelling Actual land use and unique features of the subiect properties: The parcel is currently under development with a master stormwater pond and two retail commercial buildings under an Orange County development permit. The property does not contain wetlands and 100 year flood prone area. History: The subject property, Tract H is zoned Planned Development (PD) and is located within the Belmere PD in Orange County. The Belmere PD, which encompasses +/- 455 acres, was originally approved by the Orange County Board of County Commissioners on May 21, 1985 as the Lake Whitney PD. The northern portion of the PD was set aside as Tract G which consisted of 177 acres that was labeled as 'Future Development". In 1995 the PD Land Use Plan (LUP) was amended to permit 708 dwelling units in Tract G. A subsequent non substantial amendment in 1999 carved out Tract H from Tract G. Tract H is the property that is now owned by the Unicorp entities. The 1999 LUP delineates Tract H as (1) Commercial totaling 42,960 s.f. and 5 acres maximum (2) Multi-family totaling 180 units and (3) ACLF or ALF totaling 130 units. The LUP also explains how the multi-family and ACLF or ALF units can be converted to single-family units. The LUP states that one multi-family unit is to be counted as equal to one single-family unit and seven (7) ACLF or ALF units are to be counted equal to one single-family unit. The LUP also contains a note that any number of allowed 180 multi-family units or 130 ACLF or ALF units can be converted at the above ratios to single-family units on Tracts A-F. Any number of the unused single-family units on Tracts A-F can be transferred to Tract G or Tract H. On February 21, 2006, the Orange County Board of County Commissioners approved another Substantial Change to the LUP when it approved a conversion of 180 multi-family and 130 ACLF units approved in Tract H to 202 attached single-family dwelling units. The conditions of approval of this change included the following restriction; "Tract H shall be limited to a maximum of 202 attached or detached single-family residential units and 42,960 square feet of commercial use. Notwithstanding the notes on the previously approved LUP, no additional residential units will be permitted to be transferred form any other parcels of this PD to Tract H. Current Proposal: The developer is proposing to develop 216 multi-family units, 85 ACLF units and up to 42,960 sJ. of commercial on Tract H. In order to accommodate the developer's residential plans, the City will need to annex the property and amend the LUP for Tract H. More specifically, the 202 single-family units currently approved for Parcel H will need to be changed to 216 multi-family units and 85 ACLF or ALF units. This will be accomplished by (1) converting the 202 single-family units to 202 multi-family units using the land use conversion formula and (2) recapturing the equivalent of 26 residential units for conversion to 85 ACLF units and 2 multi-family units. CONSISTENCY WITH STATE & LOCAL REGULATIONS: Annexation: With respect to State annexation criteria, Chapter 171.044 of the Florida Statutes grants municipalities the authority to annex contiguous, compact, non-circuitous territory so long as it does not create an enclave. Annexation of the subject property will not create an enclave. The subject parcel is contiguous to the City limits on the east, and a portion on the north side therefore, the subject parcel is eligible for annexation. Joint Plan nino Area Aoreement: The subject property is located within the Ocoee-Orange County Joint Planning Area (JPA) and is being considered for annexation as outlined in the JPA Agreement. Orange County has been notified of this petition in accordance with Subsection 13-A of the City of Ocoee-Orange County Joint Planning Area Agreement and State Statute. Rezoninq: The applicant has requested to maintain the existing Orange County PO zoning. A substantial change to the Orange County PO is being proposed under a separate staff report. Comprehensive Plan: The annexation is consistent with the following Comprehensive Plan Policies: Future Land Use Element Policy 1.6 that states in part, "The City shall control strip commercial development through access limitations by restricting commercial land uses to the intersections of arterial and non-residential collector roads, along designated arterial and collector roads and within Planned Unit Developments.. ..." Future Land Use Element Policy 1.7 that states, The land development regulations shall promote innovative development in those cases where a public benefit can be realized and impact can be offset by the development, as follows: . Utilize Planned Unit Development zoning to allow for mixed uses and unconventional development designs in those cases where the developer can demonstrate improved living environments, protection of natural resources or increased effectiveness of service delivery; and . Provide development standards that create useable open spaces in new developments (9J-5.006 (3) (c) (5), FAC). Future Land Use Element Policy 1.15 that states in part, "The City may assign an initial zoning, after annexation, which is consistent with both the Future Land Use Map and the JPA Agreement..." Future Land Use Element Policy 2.3 that states, "The City shall require development to have adequate services and facilities available prior to or concurrent with the impacts of the development, consistent with adopted standards. Services and facilities include: potable water, sanitary sewer, drainage, solid waste, roads, and parks. This policy shall be implemented through the Concurrency Management System as defined in the Capital Improvements Element (9J-5.006 (3) (c) (3), FAC)." Future Land Use Element Policy 2.5 that states in part, "The City shall consider requests for voluntary annexation into the City when those lands are logical extensions of the existing City limits, when services can be properly provided, and when proposed uses are compatible with the City's Comprehensive Plan, the JPA Aqreement. and the City's Annexation Policy...." [Emphasis added]. Future Land Use Element Policy 2.7 that states, "The City shall require new developments to provide necessary services and facilities or to pay a fair share of the cost of those services and facilities. These services and facilities shall conform to the adopted level of service standards." Future Land Use Element Policy 7.1 that states in part, "The City shall enforce standards in the Land Development Code to promote compatibility of adjacent land uses by requiring buffer zones to protect new and established residential areas adjacent to new and established non-residential, uses. Buffer zones shall be defined within the Land Development Code, based on the following guidelines... ... (b) "Medium" buffers between retail commercial or high-rise (over two stories) office and any residential use, consisting of a minimum of twenty- five (25) feet of buffer area supplemented by walls, and/or fences, and landscaping...." Future Land Use Element Policy 7.2 that states, "The City shall permit only low intensity office and low intensity commercial development adjacent to residential areas except where well buffered." ~ DISCUSSION: Annexation Feasibilitv & Public Facilities Analvsis Report: Based upon the projected impacts of the proposed use and size of the parcels, Staff determined that urban services can be adequately provided to the subject properties. When the applicant develops the property in the future; they will be required to make certain improvements in accordance with the Land Development Code and the attached "Annexation and Development Agreement." Summary: The proposed annexation is a logical extension of the City limits, urban services can be provided, and the annexation meets state and local regulations. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The Development Review Committee (DRC) met on February 28, 2008, to determine if the proposed annexation was consistent with the City's regulations and policies. The DRC discussed and the developer agreed to construct improvements to Roberson Road that will benefit future capacity since they will already be constructing turn lanes that were required from the previously approved PD LUP. The additional improvements will be a public benefit since the expansion and improvements to Roberson Road are not in the Orange County 5-Year CIP. The City of Ocoee will repay the developer from the estimated $1 million in impact fees that will be generated from the project. Based on the above analysis and subsequent discussions, the DRC recommended approval of the annexation subject to the execution of the annexation agreement and outstanding comments being resolved prior to the City Commission public hearing (The LUP plan for this Planning and Zoning meeting contains most of the outstanding comments, except some of the City Attorney's comments and a final apartment elevation that is architecturally cohesive with the ACLF.) PLANNING AND ZONING COMMISSION RECOMMENDATION: The proposed Annexation of Parcel H of the Belmere PO was reviewed at a Public Hearing by the Planning and Zoning Commission on March 11, 2008. Many Belmere residents spoke as did a few residents of Windsor Landing. Overall, the comments were related to the following issues: (1) the Belmere Residents not having an opportunity to work with the developer (2) the proposed apartments (3) the request to permit a height of 45 feet. The Planning & Zoning Commission voted unanimously to recommend approval of the Annexation and 26.64 parcel of land known as "Orange County Belmere PO Parcel H" with two conditions: (a) the developer work with the Planning staff to develop a landscape buffer that will provide adjoining residents with a significant visual buffer, and (b) the developer meet with the Belmere residents before the next City Commission meeting. STAFF RECOMMENDATION: Based on the recommendations of the DRC and Planning & Zoning Commission, staff recommends that Honorable Mayor and City Commissioners adopt the ordinance to annex the 26.64+/- acres of land known as the Belmere PO Parcel H with consideration of the Planning and Zoning Commission's conditions. ~ Type of Item: Public Hearing ..L Ordinance First Reading Ordinanee Seeond Reading Resolution Commission Approval Discussion & Direction For Clerk's Deaf Use: Consent Agenda Publie Hearing _ Regular Agenda Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) Attachments: Location Map FLU Map Zoning Map Aerial #1 Aerial#2 Annexation Feasibility Analysis Annexation Ordinance Draft Annexation and Development Agreement Approved Land Use Plan for Orange County Proposed Land Use Plan If Annexed into Ocoee Elevation for CVS Elevation for Apartments Elevation for ACLF Elevation for Retail Financial Impact: Impact Fees: Traffic Retail - $267,567.47 CVS - $127,627.36 Apartments - $593,872.56 ACLF - $75,785.15 Police Retail- $14,157 Apartment - $108,224.64 ACLF - $42,588.40 Fire Retail - $20,163 Apartment - $137,376 ACLF - $54,060 Recreation Apartments - $336,960 N/A N/A N/A Total: $1,778,381.50 in Impact fees not including any up charges for banks or restaurants. Estimated Taxes: $45-$50 Million Estimated Value x .0042919 = $200,000 :t Tract H Belmere PO Annexation Location Map . \~ M/_ II I I I I I ",,] n . 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'0 C 'u '(ii 0 '" <( c ro ro ro ro u. 0 <5 'E - c III '-= Qj I I 0> Qj c =:l '(ii "C (ii ro u. u. u. U. 0> '(ii ::J (ij U (ij 0> E 0> s::::: ..c ..Cl I I I I oI:l a. 2 III ..Cl E Qj Qj E 0 ::J 0 ,!,! III 15 Qj :J 0> 0> 0> 0> .l!! ..c E ro 0> 0> 0> 0> I +:l :.c OJ E E 'C ..c :c 13 0 CI) C 0> C III C 3: '" ..Cl C C C C C S 0 0 'Qj 0 0> 0> 0> 0 0> OJ ::J C C') (ii 0> ::J a:: 0 I N V t9 en U5 U5 U5 U5 0 ::2: :2: z (.) t9 0:: t9 (.) ...J :2: c.. =:l '" CI) (lj n n N ...J n n .... n ---I CITY OF OCOEE ANNEXATION FEASIBILITY ANALYSIS CASE NUMBER: ApPLICANT NAME: Uni Corp PROJECT NAME: ORANGE COUNTY BELMERE PO PARCEL H This form is used to evaluate annexation requests to determine the feasibility of providing urban services to individual properties. Each department has filled in the appropriate section and the findings are summarized below. II. PLANNING DEPARTMENT Michael Rumer I A. A IicantlOwner 1. Owner (if different from Applicant): B. Property Location 1. General Location: Southwest Corner of Maguire and Roberson Road 2. Parcel Identification Numbers: Lot 1 - 31-22-28-5477-01-000, Lot 1 - 31-22-28-5477- 02-000, Lot 1 - 31-22-28-5477-03-000,31-22-28- 5477 -00-001 3. Street Addresses: NA 4. Size of Parcels: 26.64:t Vacant Retail, Apartments, ACLF 42,900 s . ft. retail, 216 A artments, 85 Unit ACLF 740 Rural PO Low Oensit Residential N/A Yes Yes, as determined b II. FIRE DEPARTMENT Chief Richard Firstner 1. 2. 3. Page 1 of 4 -~ Applicant Name: UniCorp Project Name: Belmere Parcel H Annexation Case #: AX-06-07 -09/RZ-07 -06-10 r III. POLICE DEPARTMENT Chief Ron Reffett 1. Police Patrol Zone I Grid I Area: Zone3 I Grid 20 2. Estimated Resoonse Time: 1.5 Minutes 3. Distance to Prooertv: 11 Min 4, Average Travel Time 1.5 Minutes raiser Taxable Value: 6. Total Project Revenues: Michael Rumer $1,632,816 1,632,816 $26,768.88 Vacant Unknown Traffic Retail - $267,567.47 CVS - $127,627.36 Apartments - $593,872.56 ACLF - $75,785.15 Police Retail- $14,157 Apartment - $108,224.64 ACLF - $42,588.40 Fire Retail - $20,163 Apartment - $137,376 ACLF - $54,060 Recreation A artments - $336,960 $ 1,778,381.50 in Impact fees not including any up char es for banks or restaurants. Page 2 of 4 Applicant Name: UniCorp Project Name: Belmere Parcel H Annexation Case #: AX-06-07 -09/RZ-07 -06-10 BUILDING DEPARTMENT 1. Within the 100- ear Flood Plain: Michael Rumer No I VI. UTILITIES David Wheeler, P.E. I A, Potable Water 1. In Ocoee Service Area: No 2. City Capable of Servina Area: Yes 3. Extension Needed: No 4. Location and Size of N/A Nearest Water Main: I B. Sanitary Sewer 1. In Ocoee Service Area: No 2. City Capable of Servina Area: Yes 3. Extension Needed: No 4. Location and Size of N/A Nearest Force Main: 5. Annexation Aareement Needed: No I C, Other 1. Utility Easement Needed: N/A 2. Private Lift Station Needed: N/A 3. Well Protection Area Needed: No I VII. TRANSPORTATION Michael Rumer 1. Paved Access: Yes 2. ROW Dedication: Yes 3. Traffic Study: No 4. Traffic Analysis Zone: 627 Page 3 of 4 i I -~ Applicant Name: UniCorp Project Name: Belmere Parcel H Annexation Case #: AX-06-07-09/RZ-07-06-10 I VIII. PRELIMINARY CONCURRENCY EVALUATION Michael Rumer Vested in Orange County A. Transportation: Vested in Orange County B. Parks I Recreation: Vested in Orange County C. Water I Sewer: Vested in Orange County D. Stormwater: Vested in Orange County E. Solid Waste: F. Impact Fees: I IX. SITE SPECIFIC ISSUES All Departments I When developed, the property will consist of 216 Apartments, 85 Unit ACLF, and 42,900 S.F. of Retail. I X. CONSISTENCY WITH STATE REGULATIONS: Michael Rumer I These properties are contiguous with the City Limits, therefore this annexation is consistent with CH. 171.043 (1) & (2), Florida Statutes. Page 4 of 4 ORDINANCE NO. (Annexation Ordinance For Belmere PD, Parcel H) TAX PARCEL ID #s 31-22-28-5477-01-000; 31-22-28-5477-02-000 31-22-28-5477-03-000 31-22-28-5477-00-001 CASE NO. AX-06-07-09: Belmere Shoppes Property AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, ANNEXING INTO THE CORPORATE LIMITS OF THE CITY OF OCOEE, FLORIDA, CERTAIN REAL PROPERTY CONTAINING APPROXIMATELY 26.65 ACRES LOCATED WEST OF AND ADJACENT TO MAGUIRE ROAD AND SOUTH OF AND ADJACENT TO ROBERSON ROAD AT THE SOUTHWEST QUADRANT OF THE INTERSECTION OF MAGUI.RE ROAD AND ROBERSON ROAD; PURSUANT TO THE APPLICATION SUBMITTED BY THE PROPERTY OWNERS; ANNEXING ADJACENT PUBLIC ROAD RIGHT-OF-WAY TO THE CENTERLINE THEREOF; FINDING SAID ANNEXATION TO BE CONSISTENT WITH THE OCOEE COMPREHENSIVE PLAN, THE OCOEE CITY CODE, AND THE JOINT PLANNING AREA AGREEMENT; PROVIDING FOR AND AUTHORIZING THE UPDA TING OF OFFICIAL CITY MAPS; PROVIDING DIRECTION TO THE CITY CLERK; PROVIDING FOR SEVERABILITY; REPEALING INCONSISTENT ORDINANCES; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Section 171.044, Florida Statutes, the owner(s) of certain real property located in unincorporated Orange County, Florida, as hereinafter described, have petitioned the City Commission of the City of Ocoee, Florida (the "Ocoee City Commission") to annex said real property into the corporate limits of the City of Ocoee, Florida; and WHEREAS, the Ocoee City Commission has determined that said petition bears the signatures of all owners of the real property proposed to be annexed into the corporate limits of the City ofOcoee, Florida; and WHEREAS, notice of the proposed annexation has been published pursuant to the requirements of Section 171.044(2), Florida Statutes, and Section 5-9(E) of Article V of Chapter 180 of the Code of Ordinances of the City of Ocoee (the "Ocoee City Code"); and WHEREAS, on February 1 1, 1994, Orange County and the City of Ocoee entered into a Joint Planning Area Agreement (the "JP A Agreement") which affects the annexation of the real property hereinafter described; and ORLA_682763,1 WHEREAS, the Planning and Zoning Commission of the City of Ocoee, Florida, has reviewed the proposed annexation and found it to be consistent with the Ocoee Comprehensive Plan, to comply with all applicable requirements of the Ocoee City Code, to be consistent with the lP A Agreement, and to be in the best interest of the City of Ocoee and has recommended to the Ocoee City Commission that it approve said annexation petition; and WHEREAS, the Ocoee City Commission has the authority, pursuant to Section 171.044, Florida Statutes, to annex said real property into its corporate limits upon petition of the owners of said real property; and WHEREAS, the Ocoee City Commission is desirous of annexing and redefining the boundary lines of the City of Ocoee, Florida, to include said real property. NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. The Ocoee City Commission has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida, Chapters 166 and 171, Florida Statutes, and Section 7 of Article 1 of the Charter of the City ofOcoee, Florida. Section 2. The Ocoee City Commission hereby finds that the petition to annex certain lands, as hereinafter described, into the corporate limits of the City of Ocoee, Florida, bears the signatures of all owners of the real property proposed to be annexed into the corporate limits of the City of Ocoee, Florida. Section 3. The following described real property located in unincorporated Orange County, Florida, is hereby annexed into the corporate limits of the City of Ocoee, Florida: SEE EXHIBIT "A" (METES AND BOUNDS LEGAL DESCRIPTION ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF). Section 4. A map of said land herein described which clearly shows the annexed area is attached hereto and EXHIBIT "B" and by this reference is made a part hereof. Section 5. The land annexed pursuant to this Ordinance shall extend to the centerline of any public road right-of-way located adjacent to the real property described on Exhibit "A" attached hereto, provided, however, that the annexation of any such right-of-way shall not serve to transfer any construction, operation or maintenance responsibilities with respect thereto, except to the extent such responsibilities are expressly transferred to and accepted by the City pursuant to an interlocal agreement in accordance with Section 335.0415, Florida Statutes. Section 6. The Ocoee City Commission hereby finds that the annexation of said land herein described is consistent with the Ocoee Comprehensive Plan and the lP A Agreement and meets all of the requirements for annexation set forth in the Ocoee Comprehensive Plan, the lP A Agreement, and the Ocoee City Code. ORLA_682763.1 -2- Section 7. The corporate territorial limits of the City of Ocoee, Florida, are hereby redefined to include said land herein described and annexed. Section 8. The City Clerk is hereby authorized to update and supplement official City maps of the City of Ocoee, Florida, to include said land herein described and annexed. Section 9. The land herein described and future inhabitants of said land herein described shall be liable for all debts and obligations and be subject to all species of taxation, laws, ordinances, and regulations of the City of Ocoee, Florida, and be entitled to the same privileges and benefits as other areas of the City of Ocoee, Florida. Section 10. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 11. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 12. This Ordinance shall take effect upon passage and adoption. Thereafter the City Clerk is hereby directed to file a certified copy of this Ordinance with the Clerk of the Circuit Court and the Chief Administrative Officer of Orange County, Florida and with the Florida Department of State within seven (7) days from the date of adoption. PASSED AND ADOPTED this _ day of ,2008. ATTEST: APPROVED: CITY OF OCOEE, FLORIDA Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY THIS DA Y OF , 2008 ADVERTISED AND READ FIRST TIME ,2008. READ SECOND TIME AND ADOPTED ,UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney ORLA_682763,1 -3- J EXHIBIT "A" DESCRIPTION: That part of Section 31, Township 22 South, Range 28 East, Orange County, Florida, described as follows: Commence at the Northeast corner of the Southeast 1/4 of said Section 31; thence SOo021 '38"E along the East line of Southeast 1/4 of said Section 31 for as distance of 70.13 feet; thence leaving said East line S89038'22"W, 40.06 feet to the East line of Lands described in Official Records Book 7779, Page 640, of the Public Records of Orange County, Florida, and the POINT OF BEGINNING; thence run the following 15 (fifteen) courses and distances along the boundary of said lands: N45032'11 "W, 28.28 feet; S89026'50"W, 381.47 feet; thence NOo033'10"W, 20.00 feet; thence S89026'50"W, 356.38 feet; thence SOo021'38"E, 472.76 feet; thence S36055'16"W, 265.45 feet; thence S42014'20"W, 146.24 feet; thence S28050'11"E, 90.73 feet; thence S21023'16"E, 146.58 feet; thence S11005'16"E, 75.92 feet; thence S03039'27"E, 67.34 feet; thence S15003'23"W, 30.67 feet to a point on a non-tangent curve concave Southwesterly having a radius of 622.03 feet and a chord bearing of S66020'36"E; thence Southeasterly along the arc of said curve through a central angle of 17012'03" for a distance of 186.74 feet to a point on a non-tangent curve concave Northerly having a radius of 1380.62 feet and a chord bearing of S75004'24"E; thence Easterly along the arc of said curve through a central angle of 32014'55" for a distance of 777.07 feet to a non-tangent line; thence NOo015'51"W, 1420.03 feet to the POINT OF BEGINNING. Containing 26.647 acres more or less and being subject to any rights-of-way, restrictions and easements of record. ORLA_682763.1 -4- I Exhibit "B" Belmere PO Parcel H Annexation Location Map :::> (/) <( w a:: I- M 9 )~ THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Paul E. Rosenthal, Esq. FOLEY & LARDNER III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 AFTER RECORDING RETURN TO: For Recording Purposes Only Beth Eickenbeny, City Clerk CITY OF OCOEE 150 North Lakeshore Drive Ocoee, Florida 34761 Tax Parcel Identification Number(s): 31-22-28-5477-02-000 31-22-28-5477-00-001 31-22-28-5477-03-000 32-22-28-0000-00-065 31-22-28-5477-01-000 ANNEXATION AND DEVELOPMENT AGREEMENT (BELMERE PLANNED DEVELOPMENT) THIS ANNEXATION AND DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this _ day of , 2008, by and between the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City"), MAGUIRE SHOPPES II, LLC, a Florida limited liability company, whose mailing address is 7505 West Sand Lake Road, Orlando, Florida 32819 ("Shoppes"), and MAGUIRE ROBERSON, LLC, a Florida limited liability company, whose mailing address is 7505 West Sand Lake Road, Orlando, Florida 32819 ("Roberson") (Shoppes and Roberson are sometimes collectively referred to herein as the "Owner"). W!! N E ~ ~ E T H: WHEREAS, Shoppes owns certain real property located in unincorporated Orange County, Florida, having Tax Parcel Identification Numbers 31-22-28-5477-02-000, 31-22-28- 5477-00-001,31-22-28-5477-03-000 and 31-22-28-0000-00-065, and (the "Shoppes Parcel"); and THIS INSTRUMENT PREPARED BY WHEREAS, Roberson owns certain real property located in unincorporated Orange County, Florida, having Tax Parcel Identification Number 31-22-28-5477-01-000 (the "Roberson Parcel"); and WHEREAS, Shoppes Parcel and Roberson Parcel are sometimes hereinafter collectively referred to as the "Property." The Property is more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof; and WHEREAS, pursuant to Section 171.044, Florida Statutes, the Owner has petitioned the City Commission of the City (the "Ocoee City Commission") to voluntarily annex the Property into the corporate limits ofthe City (the "Annexation Petition"); and WHEREAS, the Owner has also petitioned the Ocoee City Commission to approve plans for a Substantial Change to the Orange County Belmere PD Land Use Plan date stamped as received by the City on , 2008 (hereinafter referred to as the "Land Use Plan") and, on , _, the Ocoee City Commission approved the petition pursuant to the adoption of Ordinance No. (the "Zoning Ordinance"); and WHEREAS, the Zoning Ordinance includes approval of the Conceptual Master Plan for the Property; and WHEREAS, the Owner and the City have agreed to enter into a development agreement incorporating all plans and conditions of approval by reference; and WHEREAS, the Planning and Zoning Commission has held a public hearing to review the Annexation Petition and at such hearing found the annexation of the Property to be consistent with the Ocoee Comprehensive Plan and Joint Planning Area Agreement between the City and Orange County, Florida, a charter county and political subdivision of the State of Florida (the "County"), and has recommended that the Ocoee City Commission annex the Property into the corporate limits of the City; and WHEREAS, the City has required that the Owner execute this Agreement as a condition precedent to the consideration of the Annexation Petition by the Ocoee City Commission; and WHEREAS, the Ocoee City Commission has reviewed the proposed annexation and found the proposed annexation to be consistent with the Ocoee Comprehensive Plan and the JP A Agreement; and WHEREAS, the City has determined that the execution of this Agreement is essential to the public health, safety and welfare and the ability of the City to plan for proper traffic circulation in the vicinity of the Property in accordance with the Ocoee Comprehensive Plan; and WHEREAS, the County has previously issued various permits with respect to Owner's development of the Property (the "County Approvals"); and THIS INSTRUMENT PREPARED BY -2- WHEREAS, pursuant to the County Approvals, Shoppes has commenced construction of a 12,900 sq. ft. retail shopping center and a 14,060 sq. ft. CVS drug store on the Shoppes Parcel; and WHEREAS, the County Approvals include, but are not limited to, (i) the platting of the Property pursuant to MAGUIRE SHOPPES II, according to the plat thereof recorded January 24, 2008, in Plat Book 71, Pages 54-56, Public Records of Orange County, Florida, and (ii) that certain Preliminary Subdivision Plan approval for a townhouse development on the Roberson Parcel approved by the Orange County Board of County Commissioners on , 200_; and WHEREAS, the Preliminary Subdivision Plan shall be deemed to be replaced and superseded by the Zoning Ordinance and by the execution of this Agreement; and WHEREAS, the City has determined that, subject to the terms, conditions and limitations hereinafter set forth, it is feasible to extend municipal services to the Property on the same terms and conditions afforded to all property owners within the City except to the extent set forth in this Agreement; and WHEREAS, the City has conducted an Annexation Feasibility & Public Facilities Analysis with respect to the annexation of the Property and determined that this Agreement and the annexation of the Property is consistent with the goals, objectives and policies of the Ocoee Comprehensive Plan; and WHEREAS, the City and Owner desire to address in this Agreement certain matters related to the terms and conditions related to the annexation and development of the Property. NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements set forth herein and other good and valuable consideration the receipt of which is hereby acknowledged and intending to be legally bound hereby, the parties hereto do hereby agree as follows: Section 1. Recitals. The Recitals set forth above are true and correct and by this reference are incorporated herein as part of this Agreement. Section 2. Annexation. Prior to the execution of this Agreement by the City, the Ocoee City Commission has adopted Ordinance No. 2008-_ for Case No. AX-06-07-09, thereby redefining the corporate territorial limits of the City to include the Property. Section 3. Development of the Property. A. The Owner hereby agrees to develop the Property in accordance with the Zoning Ordinance and this Agreement. The Land Use Plan is hereby incorporated herein by reference as if fully set forth herein. I THIS INSTRUMENT LPREPARED BY -3- B. The Owner hereby agrees that the Property shall be developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" are the same as the Conditions of Approval set forth in the Land Use Plan. C. Except as otherwise set forth or contained in this Agreement or on the Land Use Plan, it is agreed that (I) the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, as it may from time to time be amended, and (2) all preliminary subdivision plans, final subdivision plans, and final site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements in effect at the time of approval of any such plans. In the event of any conflict between the provisions of the Ocoee Land Development Code, as it may from time to time be amended, and this Agreement or the Land Use Plan, it is agreed that the provisions of this Agreement or the Land Use Plan, as the case may be, shall control. D. All capitalized terms not otherwise defined herein shall be as defined or described on the Land Use Plan, unless otherwise indicated. Section 4. Waivers from the Ocoee Land Development Code. Pursuant to the Zoning Ordinance, Owner has been granted waivers from the requirements of the Ocoee Land Development Code, said waivers being set forth in Exhibit "C" attached hereto and by this reference made a part hereof. Section 5. Conveyance of Rieht-of- Way and Grant of Easements. A. Roberson Road Right-of-Way Conveyance. Within sixty (60) days following receipt of written notice from the City requesting the same, but in no event later than the time of the issuance of the first Certificate of Occupancy for any building to be built on the Roberson Parcel, Roberson shall dedicate and convey the following to the City fee title in and to a 20'- wide strip of land located adjacent to Roberson Road and running the westerly 356.4' of the Roberson Parcel (the "Roberson Right-of-Way Land"). B. Roberson Sidewalk Easement. Within sixty (60) days following receipt of written notice from the City requesting the same, but in no event later than the time of the issuance of the first Certificate of Occupancy for any building to be built on the Roberson Parcel, Roberson shall grant the City a 5' sidewalk easement located adjacent to Roberson Road and running the entire east-west length of the Roberson Parcel (the "Roberson Sidewalk Easement"). C. Shoppes Sidewalk Easement. Within sixty (60) days following receipt of written notice from the City requesting the same, but in no event later than the time of the issuance of the first Certificate of Occupancy for any building to be built on the Shoppes Parcel, Shoppes shall grant the City: (i) a 5' sidewalk easement located adjacent to Roberson Road and running the entire east-west length of the Shoppes Parcel, and (ii) an 8' sidewalk easement located adjacent THIS INSTRUMENT PREPARED BY -4- to Maguire Road and running the entire north-south length of the Shoppes Parcel (collectively, the "Shoppes Sidewalk Easement"). The Roberson Sidewalk Easement and the Shoppes Sidewalk Easement shall sometimes be collectively referred to herein as the "Easements." D. Title. I. Roberson Right-of-Way Land. Fee title to the Roberson Right-of- Way Land shall be dedicated and conveyed by Roberson to the City by warranty deed free and clear of all liens and encumbrances except for the "Permitted Encumbrances" (defined below) and any other matters deemed acceptable by the City in its sole and absolute discretion. Prior to the conveyance of the Roberson Right-of-Way Land to the City, Roberson shall be solely responsible for the Roberson Right-of-Way Land, including but not limited to the maintenance thereof and the payment of all applicable taxes. The fonn of the warranty deed shall be subject to the approval of the City. Real property taxes on the Roberson Parcel shall be prorated as of the day before the City's acceptance of the dedication and conveyance of title to the Roberson Right-of-Way Land, and the prorated amount of such real property taxes attributable to Roberson shall be paid and escrowed by Roberson in accordance with the provisions of Section 196.295, Florida Statutes; provided, however, that if the conveyance occurs between November I and December 31, then Roberson shall be responsible for the real property taxes for the entire year. 2. Easements. The Easements shall be conveyed to the City free and clear of liens and encumbrances except for the Permitted Encumbrances and any other matters deemed acceptable by the City in its sole and absolute discretion. The form of the easement instruments shall be subject to the approval of the City. 3. Conveyance Procedures. Contemporaneously with the dedication and conveyance to the City of the Roberson Right-of-Way Land and the granting of the Easements, the respective conveying parties shall provide to the City a current attorney's opinion of title, or a current title commitment, to be followed by a policy of title insurance, evidencing that fee simple title to these lands is free and clear of all liens and encumbrances except for those matters acceptable to the City. The costs and expenses related to the conveyance and dedication of these lands, including the cost of title work, shall be borne solely by the conveying party. E. Impact Fee Credits for Conveyances. Neither the Owner, nor its successors and assigns, nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the required dedication and conveyance of either the Roberson Right-of-Way Land or the Easements to the City. THIS INSTRUMENT PREPARED BY -5- Section 6. Roberson Road Improvements. A. General. Owner and the City have agreed that Owner's road impact fees will be pipe-lined to pay for certain improvements to Roberson Road (the "Road Improvements"). The scope of the Road Improvements shall be consistent with, and shall not exceed, that which is depicted and described on Exhibit "D" attached hereto and incorporated herein. Certain improvements depicted on Exhibit "D" provide safe and efficient access to the Property and shall not be funded with road impact fees. These improvements are not included in the definition of Road Improvements and are distinguished on Exhibit "D" by shading. B. Design. Roberson shall design, engineer and permit the Road Improvements in connection with its preparation of the Preliminary Site PlanlFinal Site Plan for the Roberson Parcel. The plan set for said Preliminary Site Plan/Final Site Plan shall include the plans for the Road Improvements. The costs to design, engineer and permit the Road Improvements shall be referred to herein as the "DE&P Costs." The Road Improvements shall be the only off-site improvements that Owner shall be responsible to construct and, in this regard, no plan, permit or approval will be conditioned upon construction of any other off-site improvements except as may be specifically shown on the Land Use Plan. C. Construction. In connection with, and at the time of, Roberson's development of the Roberson Property, Roberson will construct the Road Improvements; provided, however, that Roberson's financial obligation shall be capped at the amount of road impact fees that Owner shall be responsible for paying in connection with its development of the Property (the "Cap Amount"). Roberson shall have the affirmative obligation to execute a construction contract for the Road Improvements with a general contractor (the "Contractor") experienced in road construction projects (the "Construction Contract"). The City shall be named as a third party beneficiary in the Construction Contract. The Construction Contract shall provide for a subcontract for the installation of the utilities, the installation of electrical distribution facilities, the installation of landscaping and irrigation, and the installation of street lights in accordance with the approved engineering plans and specifications. Roberson shall provide the City with a copy of Construction Contract once it has been duly executed by Roberson and the Contractor selected to construct the Road Improvements. Thereafter, Roberson shall exercise good faith efforts to complete the construction of the Road Improvements in accordance with the approved engineering plans, specifications and permits and to obtain City inspection and approval of same. D. Road Impact Fees.Roberson will receive road impact fee credits for the DE&P Costs and the Construction Costs it incurs, up to the Cap Amount. For purposes of this Agreement, the term "Construction Costs" shall mean and refer to the cost of constructing the Road Improvements as reflected in the Construction Contract. If the sum of the DE&P Costs and the Construction Costs exceeds the Cap Amount, then Roberson shall fund the excess amount in order to complete the work. The excess amount shall accrue interest at a ten percent (I 0%) annual rate from the date that the Road Improvements are substantially complete as certified by the project engineer. The excess amount plus accrued interest shall be referred to herein as the "Overage." The City shall reimburse Roberson the Overage out of ad valorem property tax THIS INSTRUMENT PREPARED BY -6- receipts that it receives from the Property. The City shall not retain any of said property tax receipts until, and only after, it has fully reimbursed the Overage to Roberson. The City shall make payments to Roberson towards the payment of the Overage within fifteen days of its receipt of the property tax receipts. If the property tax receipts collected by the City in any given year are not sufficient to fully reimburse the Overage to Roberson, then interest shall continue accruing on the unpaid portion of the Overage and the City will continue collecting property tax receipts for payment to Roberson until the full amount of the Overage is paid. Road impact fees paid by the Owner to the City prior to Roberson's commencement of construction of the Road Improvements pursuant to the Construction Contract shall be held by the City in a separate account designated for payment of Construction Costs. Roberson shall tender copies of invoices received from the engineer for DE&P Costs, and from the Contractor for Construction Costs, whereupon the City shall release funds from the account to pay the Contractor. The City shall release funds to pay invoices within seven (7) days of receipt of said invoices from Roberson. If upon Roberson's completion of the Road Improvements, and the City's inspection and approval of same, impact fees remain in the separate account, then the City may close the account and utilize said remaining fees as it deems appropriate. Section 7. Preliminarv Site Plan/Final Site Plan. Prior to filing an application for the Preliminary Site Plan/Final Site Plan for development of the Roberson Parcel, Roberson shall contact the City to request a pre-application conference. The conference will be conducted within fourteen days of the City's receipt of the request. The conference will be conducted to promote a proper and efficient review of the application. After Roberson files an application, the City shall provide written notice of its review comments to Roberson within thirty days of receipt of the application. Comments and questions not referenced or included within the written notice and rendered to the applicant after the City's 30-day review period has expired may not be used as the basis for additional review questions or comments and may be answered at the applicant's discretion. Within five working days of the receipt of the statement the applicant shall provide written notice to the City that the requested information will be supplied, or will not be supplied, in whole or in part. Within 30 days after receipt of the requested information, the City shall review it and may only request any additional information needed to clarifY the information received or to answer new questions raised by, or directly related to, the information received. The City may request additional infonnation no more than twice, unless Roberson waives this limitation. If Roberson does not provide information requested by the City within 120 days of the City's request, or within a time agreed upon by Roberson and the City, the application shall be considered withdrawn. Roberson may request that the City arrange a conference with the appropriate City staff after Roberson has received the second round of review comments from the City and prior to the submission by the applicant of information in response to those comments. The purpose of such a conference is to resolve the City's informational needs. Section 8. Concurrency. The City acknowledges and agrees that the Property is vested for concurrency and that the development of the Property will not be subject to further concun-ency review under the City's Comprehensive Plan or Land Development Code, as same may be amended from time to time. THIS INSTRUMENT PREPARED BY -7- -~ Section 9. Grant of Easement to City for Emereencv Services. A perpetual, non- exclusive access easement over all internal roadways and other paved areas within the Property is hereby granted to the City and other applicable authorities for law enforcement, fire, and other emergency servIces. Section 10. Aereement Runs with the Land. The Owner and the City acknowledge and agree that this Agreement is irrevocable and, further, this Agreement and all other rights and obligations of the parties hereunder are intended to and shaIl run with the Property, and shaIl bind, and inure to the benefit of, the parties hereunder and their respective successors in title. Section 11. Representations bv Owner. Roberson hereby warrants and represents to the City that it currently owns fee title to the Roberson Parcel and has fuIl power and authority to enter into this Agreement and that the Roberson Parcel is free and clear of all liens and encumbrances, except for the lien of the mortgage referenced in the Joinder, Consent and Subordination attached hereto and those other encumbrances (the "Permitted Encumbrances") listed in Exhibit "E" attached hereto. Shoppes hereby warrants and represents to the City that the it currently owns fee title to the Shoppes Parcel and has fuIl power and authority to enter into this Agreement and that the Shoppes Parcel is free and clear of all liens and encumbrances, except for the lien of the mortgage referenced in the Joinder, Consent and Subordination attached hereto and to the Permitted Encumbrances. Section 12. Notices. Any notice required to be given hereunder shaIl be in writing and shaIl be delivered in person or by certified mail, postage paid, return receipt requested as foIlows. If such notice is to be given to the City, such shaIl be given at the address set forth above. If such notice is to be given to the Owner, such shaIl be given at the addresses set forth above. Any notice, direction or other communication delivered or mailed, as directed above shaIl be deemed to be delivered as of three (3) days after the date of mailing or, if delivered personally, when received. Shoppes: Maguire Shoppes II, LLC 7505 West Sand Lake Road Orlando, Florida 32819 Roberson: Maguire Roberson, LLC 7505 West Sand Lake Road Orlando, Florida 328] 9 City: City of Ocoee Attn: City Manager ] 50 North Lakeshore Drive Ocoee, Florida 3476] Section 13. Recordine. The Owner acknowledges and agrees that the City shall record this Agreement in the Public Records of Orange County, Florida, at the sole cost of the Owner. THIS INSTRUMENT PREPARED BY -8- Section 14. Further Documentation. The parties agree that at any time following a request therefore by the other party, each shall execute and deliver to the other party such further documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of either party hereunder. Section 15. Miscellaneous. A. ANY FUTURE OWNERS OF THE PROPERTY SHALL TAKE TITLE TO THE PROPERTY SUBJECT TO THIS AGREEMENT AND BY ACCEPTING A DEED OF CONVEYANCE TO THE PROPERTY, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. B. For all purposes of this Agreement, the Effective Date hereof shall mean the date when the last of the City or the Owner has executed the same, and that date shall be inserted at the top of the first page hereof. C. This Agreement may not be modified or amended, or any term or provision hereof waived or discharged except in writing, in recordable form, signed by the parties hereto, or their respective successors and assigns. Any such modification or amendment shall not be effective until recorded in the Public Records of Orange County, Florida. D. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Florida. E. All of the terms of this Agreement, whether so expressed or not, shall be binding upon the respective successors, assigns and legal representatives of the parties hereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns and legal representatives. F. The headings of this Agreement are for reference only and shall not limit or otherwise affect the meaning thereof. G. In the event the either party institutes a legal proceeding against the other party, to enforce the terms of this Agreement or for breach of any of the terms, conditions or covenants of this Agreement or in the event of any litigation between the parties which arises out of this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, paralegal fees and costs, both at the trial and appellate levels; provided, however, that notwithstanding the foregoing and without regard to the prevailing party, the Owner shall bear its own attorneys' fees and costs and shall reimburse the City for its attorneys' fees and costs in connection with any proceeding in which the Owner THIS INSTRUMENT PREPARED BY -9- seeks to challenge the validity or enforceability of any provision of this Agreement. H. In the event a third party institutes a legal proceeding against the City and/or the Owner, regarding the enforceability of this Agreement or any other matters arising out of or related to this Agreement or the provision of water and sewer service, the City shall have the right to decide in its sole and absolute discretion whether to defend same. If the City decides to defend same, then it shall bear all costs, fees, charges, and expenses of the City relative thereto, including but not limited to attorneys' fees and paralegal fees at both the trial and appellate levels. I. In addition to each and every remedy now or hereafter existing at law or in equity, the parties hereto expressly agree that City shall have the right to enforce this Agreement by an action for specific performance. J. This Agreement embodies and constitutes the entire understandings of the parties with respect to the subject matter hereof and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. K. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. L. 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. M. If any word, 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 so long as the purpose and intent of this Agreement can still be achieved. N. The attached Exhibits are part of this Agreement as though fully set forth in this Agreement. THIS INSTRUMENT PREPARED BY -10- IN WITNESS WHEREOF, the City has caused this Agreement to be executed as of the day and year first written above. "CITY" CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor Attest: Jean Grafton, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA APPROVED AS TO FORM AND LEGALITY This _ day of , 2008 APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2008 UNDER AGENDA ITEM NO. FOLEY & LARDNER 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 aforesaid and in the County aforesaid to take acknowledgments, personally appeared S. SCOTT VANDERGRIFT and JEAN GRAFTON, personally known to me to be the Mayor and City Clerk, respeetively, of the CITY OF OCOEE, a Florida municipal corporation, and that they severally acknowledged executing the same on behalf of said municipality 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 ,2008. Signature of Notary Name of Notary (Type, Printed or Stamped) THIS INSTRUMENT PREPARED BY -] ]- Commission Number (ifnot legible on seal): My Commission Expires (if not legible on seal): THIS INSTRUMENT PREPARED BY -12- IN WITNESS WHEREOF, the Owner has caused this Agreement to be duly executed the _ day of , 2008. "SHOPPES" Signed, sealed and delivered in the presence of: MAGUIRE SHOPPES II, LLC, a Florida limited liability company Signature By: Name: Title: PrintlType Name (CORPORATE SEAL) Signature Print/Type Name STATE OF 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 of MAGUIRE SHOPPES II, LLC, a Florida limited liability company, who [ ] is personally known to me or [ ] produced as identification, and that _he acknowledged executing the foregoing instrument on behalf of said corporation in the presence of two subscribing witnesses freely and voluntarily under authority duly vested in himlher by said corporation, and that the seal affixed hereto is the true corporate seal of said corporation. WITNESS my hand and official seal in the County and State last aforesaid this _ day of , 2008. Signature of Notary Name of Notary (Type, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): THIS INSTRUMENT PREPARED BY -13- "ROBERSON" Signed, sealed and delivered in the presence of: MAGUIRE ROBERSON, LLC, a Florida limited liability company Signature By: Name: Title: Print/Type Name Signature PrintlType Name STATE OF 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 of MAGUIRE ROBERSON, LLC, a Florida limited liability company, who [ ] is personally known to me or [ ] produced as identification, and that _he acknowledged executing the foregoing instrument in the presence of two subscribing witnesses freely and voluntarily. WITNESS my hand and official seal in the County and State last aforesaid this _ day of , 2008. Signature of Notary Name of Notary (Type, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): THIS INSTRUMENT PREPARED BY -14- JOINDER. CONSENT AND SUBORDINATION The undersigned hereby certifies that FIRST UNION NATIONAL BANK is the holder of a mortgage, lien or other encumbrance upon all or a portion of the above described Property, and that the undersigned hereby joins in and consents to the foregoing instrument and agrees that its mortgage, lien or other encumbrance, which is recorded, or evidence thereof recorded, in Official Records Book 6136, Page 2092; Book 6396, Page 4373; Book 6]36, Page 2108; Book 6396, Page 4377; Book 6136, Page 2] ] 6; Book 6396, Page 438] all of the Public Records of Orange County of Florida, shall be subordinated to the foregoing instrument. IN WITNESS WHEREOF, the undersigned has executed this Joinder, Consent and Subordination as of the _ day of ,2008. Signed, sealed and delivered in the presence of: FIRST UNION NATIONAL BANK Signature By: Print Name: Its: Print/Type Name Signature (CORPORA TE SEAL) Print/Type Name STATE OF COUNTY OF THIS IS TO CERTIFY, that on this _ day of ,2008, before me, an officer duly authorized to take acknowledgments in the State and County aforesaid, personally appeared , as of FIRST UNION NATIONAL BANK, who [ ] is personally known to me or [ ] produced as identification, and that who acknowledged that _he as the individual described in and who executed the foregoing instrument and acknowledged the execution thereof to be hislher free act and deed as such officer thereunto duly authorized, that the official seal of said corporation is duly affixed thereto. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the above date. Signature of Notary Name of Notary (Type, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): THIS INSTRUMENT PREPARED BY -15- JOINDER. CONSENT AND SUBORDINATION The undersigned hereby certifies that SUNTRUST BANK CENTRAL FLORIDA, NA TIONAL ASSOCIATION is the holder of a mortgage, lien or other encumbrance upon all or a portion of the above described Property, and that the undersigned hereby joins in and consents to the foregoing instrument and agrees that its mortgage, lien or other encumbrance, which is recorded, or evidence thereof recorded, in Official Records Book 5729, Page 2637; Book 5729, Page 2643; Book 6751, Page 2741; Book 6751, Page 2751; Book 6751, Page 2759; Book 6751, Page 2776; Book 6751, Page 2786, all of the Public Records of Orange County of Florida, shall be subordinated to the foregoing instrument. IN WITNESS WHEREOF, the undersigned has executed this Joinder, Consent and Subordination as of the _ day of ,2008. Signed, sealed and delivered in the presence of: SUNTRUST BANK CENTRAL FLORIDA, NA TIONAL ASSOCIATION Signature By: Print Name: Its: Print/Type Name Signature (CORPORA TE SEAL) Print/Type Name STATE OF COUNTY OF THIS IS TO CERTIFY, that on this _ day of , 2003, before me, an officer duly authorized to take acknowledgments in the State and County aforesaid, personally appeared , as of SUNTRUST BANK CENTRAL FLORIDA, NATIONAL ASSOCIATION, who [ ] is personally known to me or [ ] produced as identification, and that who acknowledged that _he as the individual described in and who executed the foregoing instrument and acknowledged the execution thereof to be hislher free act and deed as such officer thereunto duly authorized, that the official seal of said corporation is duly affixed thereto. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the above date. Signature of Notary Name of Notary (Type, Printed or Stamped) Commission Number (ifnot legible on seal): THIS INSTRUMENT PREPARED BY My Commission Expires (if no! legible on seal): THIS INSTRUMENT PREPARED BY -17- THIS INSTRUMENT PREPARED BY SHOPPES PARCEL: ROBERSON PARCEL: EXHIBIT "A" LEGAL DESCRIPTION Lots 2 and 3 of MAGUIRE SHOPPES II, according to the plat thereof recorded January 24, 2008, in Plat Book 71, Pages 54- 56, Public Records of Orange County, Florida. Lot 1 of MAGUIRE SHOPPES II, according to the plat thereof recorded January 24, 2008, in Plat Book 71, Pages 54-56, Public Records of Orange County, Florida -18- EXHIBIT "B" CONDITIONS OF APPROVAL 1. The City of Ocoee acknowledges that the Belmere PD/project has concurrency vesting for all public facilities and services pursuant to the terms of that certain Concurrency Vested Rights Certificate #92-000317 issued by Orange County, as amended. 2. The City of Ocoee acknowledges that the Belmere PD/project is vested for the so-called "Martinez Initiative" as a result of the Orange County Board of County Commissioners having approved the Belmere PD prior to the County's implementation of the initiative on March 29, 2000. 3. The City of Ocoee is subject to the terms, provisions and restrictions of Florida Statutes, Chapter 163, concerning moratoria on the issuance of building permits under certain circumstances. The City has no lawful authority to exempt any private entity or itself from the application of such state legislation and nothing herein shall be construed as such an exemption. 4. To the extent any Condition of Approval contained herein conflicts with any Condition of Approval imposed in connection with any prior Orange County approval related to the Belmere PD, the Condition of Approval contained herein shall control and supersede the prior conflicting Condition of Approval. 5. This project may be developed in as many as 5 phases. 6. Each phase of the project will stand on its own with respect to public services (sewer, water, stormwater management, access and other related services). 7. Except as specifically noted on this Plan, development of this project shall be consistent with the requirements of the City of Ocoee Code. 8. Nothing herein shall be construed to waive any prOVISIOn of the Ocoee Land Development Code except to the extent expressly set forth on a waiver table or explicitly set out on this Plan. 9. To the extent the Plan and these Conditions of Approval conflict with the City of Ocoee Land Development Code, the provisions of this Plan and these Conditions of Approval shall control. 10. This project shall comply with, adhere to, and not deviate from or otherwise conflict with any verbal or written promise or representation made by the Owner/Applicant (or authorized agent thereof) to the City Commission at any public hearing where this project was considered for approval, where such promise or representation, whether oral or written, was relied upon by the City Commission in approving the project, could have THIS INSTRUMENT PREPARED BY -19- reasonably been expected to have been relied upon by the City Commission in approving the project, or could have reasonably induced or otherwise influenced the City Commission to approve the project. For purposes of this Condition of Approval, a "promise" or "representation" shall be deemed to have been made to the City Commission by the Owner/Applicant (or authorized agent thereof) if it was expressly made to the City Commission at a public hearing where the project was considered for approval. 11. There shall be no access from the project to any public roads except at the approved locations shown on the Plan. All access rights to all public roads, except at approved locations shown on the Plan, shall be dedicated to the City of Ocoee at the time of platting. 12. Any damage caused to any public roads as a result of the construction activities related to the project or any portion thereof shall be promptly repaired to the applicable government standards at the sole cost and expense of the owner of the portion of the project being developed in connection with such construction activities. 13. A property owners association (the "Association") will be created for maintenance and management of all common areas, unless otherwise noted. All tracts owned by the City shall be exempt from assessments by, or participation in, the Association unless otherwise agreed to by the City. Notwithstanding the foregoing, the City on its own may elect to participate on the Board for the Association formed and/or retain voting rights for tracts owned by the City. 14. All tracts, which are to be owned and maintained by the Association, shall be conveyed to the Association by warranty deed at the time of platting. 15. All common area improvements including entry features, walls, landscaping and sidewalks along all roads, as well as landscaping around the retention pond tracts and lift station tracts shall be completed prior to issuance of the Certificate of Completion for those corresponding phases. 16. Street lights, security lights and lighting for common areas meeting current code requirements shall be installed by the Developer, prior to a Certificate of Completion being issued, and the cost of operations will be assumed by the Developer in accordance with Section 6-8(0) of the Ocoee Land Development Code. If applicable, the Developer and the Association will be required to complete and execute a City of Ocoee Developers and Homeowners Association Agreement for Upgraded Street Lights, as found in the Ocoee Land Development Code, Form 12. 17. Unless otherwise noted, a 5' utility and drainage easement will be platted along all side lot lines and a 10' utility, drainage and sidewalk easement will be platted adjacent to all street rights-of-way. Sidewalks will only be placed in this easement if necessary to run them around existing protected trees to be preserved. THIS INSTRUMENT PREPARED BY -20- 18. All utilities to be placed within the 10' easement adjacent to all street rights-of-way will be placed around existing protected trees to be preserved. 19. All drainage, utility and maintenance easements shall be for the benefit of the property owners association or other designated maintenance entities. The drainage and utility easements shall be dedicated to the perpetual use of the public at the time of platting. 20. Drainage easements between lots are shown for location only. Final easement dimensions will be shown on the Amended Preliminary Plan and will be sized to meet City requirements. 21. An emergency access easement to the retention ponds and over all drainage easements shown hereon shall be dedicated to the City for emergency maintenance purposes at the time of platting. The emergency access easement will not impose any obligation, burden, responsibility or liability upon the City, to enter upon any property it does not own or take any action to repair or maintain the drainage system on the property. 22. A perpetual, non-exclusive easement for access over all internal roadways and paved areas shall be granted in favor of the City and other applicable authorities for law enforcement, fire, and other emergency services. 23. Existing trees 8' or larger (other than citrus trees or 'trash' trees) located along proposed locations of buffer walls or road right-of-way lines will be preserved if at all possible, the buffer walls and roads will be designed around those trees to incorporate them into required landscape buffers and as street trees. 24. The existing grades on individual lots containing protected trees will be maintained as much as possible to preserve existing protected trees. For lots containing protected trees, there will be no grading or other construction on individual lots except as specified in the Amended Preliminary Plan, until building permits are issued for those lots. 25. Removal of existing protected trees will be limited to clearing road right-of-way and retention areas as detailed in the Amended Preliminary Plan. All existing protected trees on individual lots will be evaluated at the time a building permit is issued for that lot, to determine whether or not each tree needs to be removed. 26. In order to insure that as many existing trees as possible will be preserved, all road rights- of-way and retention areas will be flagged for review by the City prior to any tree removal. No clearing permits will be issued for site work or building construction until the trees to be preserved have been clearly marked with tree protection barriers. 27. No person shall undertake land clearing or the removal of any protected trees without first obtaining a permit from the Building Department. The removal of protected trees shall be minimized to the maximum extent possible and no authorization shall be granted THIS INSTRUMENT PREPARED BY -21- to remove a tree if the Developer has failed to take reasonable measures to preserve the trees on site. 28. The Amended Preliminary Plan will preserve existing grades on individual lots containing protected trees as much as possible. 29. Stormwater management shall be provided consistent with the requirements of the Ocoee Land Development Code and the St. Johns River Water Management District. 30. The development of the project will incorporate the stormwater needs of all public roads within the project. 3 I . The stonnwater system, including all pipes, inlets, manholes and structures, together in Tract H (retention ponds), will be owned, operated and maintained by the Association. 32. All storm water management ponds will be unfenced with maximum 5:1 side slopes to 2 feet below the control (normal) water level and then maximum 2: I side slopes to the bottom of the pond. 33. Notwithstanding the conveyance of the storm water retention ponds to the property owners association, or any provision to the contrary contained in these conditions of approval (the "Association"), then the Developer shall remain responsible for the maintenance of the project's master stormwater management system ("SWMS"), including all master stormwater retention ponds, until such time as: (i) the SWMS for the project is constructed and appropriate certificates of completion issued by both the City and the SJR WMD, (ii) the master storm water retention ponds intended to be conveyed to the Association have in fact been conveyed to the Association, (iii) the Association is designated as the maintenance entity on the records of the SJR WMD and all transfer records required by SJRWMD have been executed and accepted by SJRWMD, (iv) the City has been provided with a copy of the Developer's proposed maintenance plan with respect to the SWMS, and (v) the City has been provided with a written statement from the Association acknowledging receipt of the Developer's proposed maintenance plan with respect to the SWMS and that the Association is responsible for the maintenance of the SWMS. 34. All Declaration of Covenants and Restrictions affecting the property shall include the following provisions: a. Provision allowing the City to levy, collect, enforce assessments for maintenance of common areas if the Association fails to do so or fails to maintain assessments at a level allowing for adequate maintenance. b. Provision granting the City the right, but not the obligation, to maintain/repair the SWMS and obtain reimbursement from the Association, or from the THIS INSTRUMENT PREPARED BY -22- Developer if (i) turnover of control to the members has not occurred, or (ii) if the Developer is still responsible for maintenance of the SWMS. c. Provision providing that the SWMS will be transferred to a responsible operation/maintenance entity acceptable to the City in the event of dissolution and that if dissolution occurs without such approval then the City may continue to levy and collect assessments and impose liens with respect thereto notwithstanding the dissolution of the Association. d. Provision that the Association shall at all times be in good standing with the Florida Secretary of State. e. Provision that at the time of turnover of control of the Association to the members, the Declarant shall deliver to the new Board of Directors the maintenance plan for the SWMS accompanied by an engineer's certification that the SWMS is functioning in accordance with all approved plans and permits. To the extent that any such engineer's report indicates any corrective action is required the Declarant shall be required to diligently undertake such corrective action at the Declarant's expense and to post a cash bond with the Association for the estimated costs of such corrective action. f. Provision that no property owned by the City or any other governmental entity shall be subject to assessments levied by the Association. g. Provision that any amendment to any provision affecting the City requires the consent of the City in an instrument recorded with the amendment. The Articles of Incorporation and Bylaws of the Association shall be consistent with the foregoing provisions. 35. All landscape areas will be irrigated and have automatic rain sensors. 36. Reclaimed water will be used for irrigation purposes, if available. A master irrigation system will be installed to service all common areas and residential lots. This master system will be owned and maintained by the Association. 37. The Developer shall be responsible for installing reuse lines along with the other subdivision infrastructure. At such time as reuse water is available to the property, the Developer shall be responsible for connection to the reuse system lines. 38. All on-site utilities including electrical, cable TV and telephone shall be placed underground. 39. All existing structures (including buildings, power lines, eXIstIng aerial and utility facilities) and Progress Energy easements will be removed and/or terminated prior to or during construction of the development replacing those uses. THIS INSTRUMENT PREPARED BY -23- 40. To the extent any lift stations are required on the property they will be conveyed to Orange County at the time of platting. All such lift stations shall be fenced with black metal decorative fence and shall be set back no less than 25' from any street. Such lift stations shall also be screened with hedge-type shrubbery, such as viburnum or ligustrum. 41. Each fire hydrant shall be OSHA Yellow in color and a blue reflective marker shall be affixed to the street in the center of the lane closest to each hydrant. 42. The Developer shall construct appropriate curb cuts to enable access ramps at all rights- of-way intersections (and other areas as reasonably required) in order to accommodate access to sidewalks and streets for persons who are in wheelchairs and other persons who are physically challenged, and otherwise comply with all Americans with Disabilities Act ("ADA") requirements. When sidewalks are constructed on corner lots at certain locations, the sidewalks will be extended to the curb and the appropriate ramps will then be constructed. The property owners association will be responsible for the continued maintenance of all streets and sidewalks in accordance will all ADA requirements that may now or hereinafter be applicable to the project. 43. All commercial Lots will be a minimum of one (1) acre in size. 44. The Amended Preliminary Plan for the property shall include Master Architectural, Signage, Lighting and Landscape Package Plans, which will be subject to the review and approval by the City. All commercial Lot uses shall conform to the Master Architectural, Signage, Lighting and Landscape Package Plans. 45. All cross access, utility and drainage easements shall be provided prior to or at the time of platting. 46. All legal instruments, including but not limited to articles of incorporation, bylaws, and declaration of covenants and restrictions for the Association, deeds in favor of the Association or the City, and easement documents shall be provided to the City for review and approval prior to or at the time of platting all or a portion of the property. 47. All tracts to be conveyed to the City wi 11 be conveyed by Warranty Deed at the time of platting, unless otherwise noted. Notwithstanding the conveyance of any tract to the City, until such time as any improvements contemplated for said tract are commenced, the Developer shall be responsible for the maintenance of the tract. 48. All roads that are public will be dedicated to the public unless otherwise noted. It is anticipated that all roads will be private. 49. Parking for individual lots or dwelling units shall be provided in accordance with the City of Ocoee Land Development Code. THIS INSTRUMENT PREPARED BY -24- 50. Pursuant to Section 4-4(G)(7) of the Ocoee Land Development Code, all subdivision signage must be consistent with the legally assigned name of the subdivision. Any subsequent change to the name of the subdivision must be approved by the City Commission. 51. Final street naming will be coordinated through the City Building Department at the time of final plat submittal. 52. All building pad elevations shall exceed the 100-year flood elevation by a minimum of two (2) feet. 53. All multifamily residential buildings comprised of three or more dwelling units, regardless of square footage or number of stories, will include automatic fire protection systems. 54. The residential portion of the development will comply with section 6-15 of the Ocoee Land Development Code regarding multi-family development standards. 55. No Condition of Approval set forth herein shall modify, nullify, alter, affect or amend in any way any Orange County permits or approvals issued or granted prior to the City Commission's approval of this Substantial Change to the Orange County Belmere PD Land Use Plan (the "Plan"). Such County permits and approvals shall include, but not be limited to, the following: a. Orange County Site work permit number B0790 1 054. b. Orange County Mass Grading/Excavation number "XXXXXXXX"( forthcoming). c. Belmere Planned Development - Parcel H/The Villas at Belmere Preliminary Subdivision Plan, as approved by the Orange County Board of County Commissioners on January 30, 2007 (the "Approved Preliminary Plan"). d. Plat of Maguire Shoppes II, recorded in Plat Book 7 I, Page 54, Publ ic Records of Orange County, Florida (the "Orange County Plat"). Orange County building permits issued pursuant to application #' s B0790 15 I 8 and B07901260 for the CVS and for the Retail/Bank building on Maguire Road, respectively. FDEP Water and Sewer Permits and (if desired) SJR WMD Permit . (if desired) THIS INSTRUMENT PREPARED BY -25- 56. The Approved Preliminary Plan remains in full force and effect until such time that it may be amended by the City to be consistent with this Plan. The Developer shall submit to the City an Amended Belmere Planned Development - Parcel H/The Villas at Belmere Preliminary Subdivision Plan (the "Amended Preliminary Plan") that is consistent with this Plan. The Amended Preliminary Plan sha1l be subject to the review and approval of the City in accordance with the applicable provisions of the Ocoee Land Development Code. 57. Prior to the issuance of any building permits for Lot I of the Orange County Plat, such Lot wi1l be replatted in the City in accordance with the applicable provisions of the Ocoee Land Development Code. THIS INSTRUMENT PREPARED BY -26- ITEM CODE ISSUE EXHIBIT "C" WAIVERS STANDARD PROPOSED JUSTIFICATION & PUBLIC BENEFIT THIS INSTRUMENT PREPARED BY Proposed Right-of Way dedication Article V Building Height 35 feet max. 45 feet max, for ACLF and Section 5 MF Residential Table 2 ..... ~ "" ~ -27- EXHIBIT "D" ROBERSON ROAD IMPROVEMENTS - SCOPE THIS INSTRUMENT PREPARED BY -28- EXHIBIT "E" PERMITTED ENCUMBRANCES THIS INSTRUMENT PREPARED BY -29- .lat~....,:.:.I)t; u,cr 'ellt",;.,..... dLPI\fI \.i.ItOU Y'1lY.' ~~'III co~~ I~ I S~CA:d\hnS S~:;"'Nvlc ~~-;)Nl:>Nl ':IN' '~31"""'''~S'' HS01NP1'4 '11. 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