HomeMy WebLinkAbout2003 05 27 Regular B.2 Affordable Housing Apartments
COMMISSION AGENDA
May 27. 2003
Meeting
Consent
Information
Public Hearine
Reeular X
ITEM B.2
MGR, ~ept.
REQUEST:
Community Development Department requesting Commission approve a development agreement for a
multi-family development on an approximately IS-acre tract located on the north side ofSR 434,
between the Winter Springs Golf Club and the Golf Terrace Apartments.
PURPOSE:
The purpose of this Agenda Item is to request that the Commission approve a development agreement
addressing issues and concerns pertinent to developing approximately IS-acres of treed uplands and
wetlands, located on the north side of SR 434, into as many as 120 affordable housing apartments.
APPLICABLE LAW:
Section 166,021, Florida Statutes,
(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the government,
corporate, and proprietary powers to enable them to conduct municipal government, perform municipal
functions, and render municipal services, and may exercise any power for municipal purposes, except
when expressly prohibited by law.
(2) "Municipal purpose" means any activity or power which may be exercised by the state or its political
subdivisions.
1
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May 27,2003
Regular Item B
Page 2 of2
FINDINGS:
1. The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as
provided in s 2(b), Article VIII of the Florida Constitution and Chapter 166, Section 166.021, Florida
Statutes.
2. The development agreement is consistent with the City's Comprehensive Plan and Code of
Ordinances.
3. The development agreement provides for reasonable use of the subject property, while addressing
issues and concerns pertinent to the proposed use of the site.
4. On March 24, 2003, the City Commission granted a conditional use for multi-family
development of as many as 8.0 dwelling units per acre on the approximately IS acre site.
S. On March 31, 2003, the City Commission and Davis Heritage agreed to a mutually beneficial
financing agreement.
CONSIDERATIONS:
On March 24,2003, the City Commission granted a conditional use to allow multi-family development
on this site in the C-l zoning district (within the SR 434 Redevelopment District) at a density of as many
as 8.0 dwelling units to the acre (120 maximum units). At a special City Commission meeting, March
31, 2003, the City Commission and Davis Heritage agreed on a mutually beneficial financing program.
The City Attorney stated that a number of issues associated with the proposed development should be
addressed formally in a development agreement. A conceptual site plan has been provided, but no site
plan review (preliminary or final) has been requested, applied/paid for, or provided.
RECOMMENDATION:
Staff recommends that the City Commission approve the attached development agreement, subject to
payment of the $300 fee.
ATTACHMENTS:
A - Development Agreement, as drafted by the City Attorney.
B - Conceptual site plan with architectural renderings (11" x 17")
COMMISSION ACTION:
2
ATTACHMENT A
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Orl:mdo. Flol'ida 321101-.2f.l73
(407) 42S..!J566
CONCEPTUAL BINDING
DEVELOPMENT AGREEMENT
This CONCEPTUAL BINDING DEVELOPMENT AGREEMENT is made and entered into
as of this _ day of May, 2003 by and between the CITY OF WTNTER SPRiNGS, fLORIDA,
a Florida municipal corporation and CYPRESS POINTE AT WINTER SPRINGS, T.m ,a Florida
limited partnership.
RECITALS:
WHEREAS, this Agreement is entered into pursuant to the Florida Municipal Home Rule
Powers Act; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement between Big Cypress
Associates, Ltd., a Florida limited partnership, as sellers, and Cypress Pointe at Winter Springs, Ltd ,
a Florida limited partnership, as purchasers, dated March 13, 2003, Cypress Pointe is the contract
purchaser and will be the own'er and developer of approximately fifteen (15) acres ofland located in
the City of Winter Springs which is more particularly described herein; and
WHEREAS, on March 24, 2003, the City granted a c.onditional use permit for the Property
to allow the construction of multi-family units not to exceed eight (8) dwelling units per acre; and
WHEREAS, Cypress Pointe and the City desire to memorialize their understandings and
agreement regarding their respec.tive interests, expectations, and intentions contained in this
Agreement.
NOW THERE If ORE in consideration of the terms and conditions set forth in this
Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged
by the parties, the City Clnd Cypress Pointe agree to the following:
1,0 Incorporation of Recitals.
The foregoing recitals are true and correct and are hereby fully incorporated herein by this
reference as a material part of this Agreement.
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2,0, Definition~.
Unless the context dearly indicates otherwise, the following words and phrases when used
in this Agreement shall have the meaning ascribed below:
2. 1 "Big Cypress" shall mean Big Cypress Associates, Ltd., a Florida limited partnership.
2.2 "City" shall mean the City of Winter Springs, a Florida municipal corporation.
2.3 "Cypress Pointe" shall mean Cypress Pointe at Winter Springs, Ltd., a Florida
Limited Partnership.
2.4 "Property" shall mean the real properly subject to this Agreement and legally
described on Exhibit" A" which is attached hereto and fully incorporated herein by
this reference.
2.5 "Conceptual Site Plan" shall mean the conceptual site plan and preliminary building
elevations which Cypress Pointe agrees to permit and develop on the Property under
the terms and conditions of this Agreement and which is attached hereto as composite
F.xhibit "B" and n.Illy incorporated herein by this reference.
2.6 "Agreement" shall mean this Agreement made and entered into by and between the
City of Winter Springs, Florida, a Florida municipal corporation and Cypress Pointe
at Winter Springs, Ltd., a Florida limited partnership. including all exhibits and written
modifications thereto.
3,0 Conceptual Plan Approval.
3.1 The City hereby approves the Conceptual Site Plan, subject to the terms and
conditions of this Agreemt::nt.
3.2 Cypress Pointe acknowledges and agrees that the Conceptual Site Plan is only
conceptual and is subject to additional approvals and permits being granted by the
City and other governmental agencies. which mayor may not be granted. Cypress
Pointe also acknowledges and agrees that the City does not represent or guarantee
that the additional approvals and pennits will be granted and if said approvals or
permits are not granted, Cypress Pointe will not be able to permit and develop the
Conceptual Site Plan.
j 3 Notwithstanding the aforesaid, in consideration of the mutual promises and
considerations set forth in this Agreement, Cypress Pointe intends to use its best
efforts to permit and develop the Conceptual Site Plan on the Property subject to the
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terms and conditions stated herein. Further, if the final site plan, landscape plan, and
engineering plan are approved for the project by the City, said plans shall be in
substantial conformity with the Conceptual Site Plan unless otherwise approved by
the City during the City's development permit process.
4.0 purchase of Property.
Cypress Pointe will promptly use all reasonable and best eOorts to complete the acquisition
of the Property pursuant to its existing contract rights and provide written notice of the acquisition
to the Cily. However, in the event that Cypress Pointe does not acquire fee simple ownership of the
Cypress Pointe Property by the dosing date set forth under the terms of the existing purchase
contract, then this Agreement shall be automatically terminated and nullified, in which event the
parties' obligations under this Agreement shall be and become null and void and of no further effect.
Cypress Pointe shall promptly provide the City written notice if Cypress Pointe fails to close on the
Cypress Pointe Property.
5.0 l:ntrancew3'Y: Traffic: and Liehtine.
In addition to any requirements established by law, Cypress Painte agrees as follows:
5.1 The parties acknowledge that the entranceway depicted on the Conceptual Site Plan
is aligned with a three-way traffic signal located on State Road 434. Cypress Pointe
acknowledges and agrees that the traffic signal may be relocated as a result of
development plans currently ongoing within the City and City of Casselberry and that
Cypress Pointe will not object to said relucation.
5.2 Cypress Pointe shall be 'required to pay all costs incurred with the traffic signal
directly relating to the Conceptual Site Plan including, but not lircited to, converting
the traffic signal to a four-way signal.
5.3 Cypress Pointe shall submit to the City, as part of the final site plan submittal, a traffic
study which shall address, at a minimum, traffic generation, A.M. and P.M. peak-hour
traffic numbers and movements, affected intersections, deceleration lanes, eastbound
left-turn lane, internal movements, off-site improvements, and traffic lights. Said
study shall be performed by a licensed engineer experienced in traffic management
after said e.ngineer coordinates the methodology of the study with the City's traffic
engineering consultant.
5.4 Cypress Pointe acknowledges and agrees that the City may require Cypress Pointe to
design, permit, and construct a deceleration lane to service the Property as part of the
tinal site plan approval.
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5.5 Cypress Pointe acknowledges and agrees that the maximum height of any and all
street and parking lights on the Property shall be limited to t wt:nly (20) feet in height.
The maximum off-site spillage shall be one-half (.5) foot candle unless the city
requires, at final site plan approval, less foot candle spillage along certain boundaries
of the Property to address the legitimate lighting concerns o[sun-ounding pn.lp~nies,
6.0 SR 434 Landscape Easement.
Cypress Pointc acknowledges and agrees that the City is currently implementing a landscape
redevelopment plan along State Road 434, Tn futherance of this plan, Cypress Pointe agrees to
attempt to arrange for Big Cypress to convey to the City 111andscape easement, ten (10) feet in width,
along the entire length of the Property abutting State Road 434, In the event Cypress Pointe is not
successful in arranging for Big Cypress to convey said easement, Cypress Pointe shall convey the
easement at such time Cypress Pointe receives title to the Property. The City shall bear the expense
related to installing and maintaining the landscape improvements located in the easement area. A
copy of the landscape easement is attached herelo and fully incorporated herein by tltis reference as
Exh ibit "c."
7,0 Dwelling Units Per Acre.
The Property shall be limited to a maximum of eight (8) dwelling units per aere
8.0 Periodic Review,
This Agreement shall be subject to periodic review by the parties, Periodically, the City and
Cypress Pointe agree to cooperate and meet in good faith to discuss the progress made under this
Agreement and whether any amendments should be made to this Agreement in funherance of each
others' mutua) interests,
9.0 Cooperation.
Cypress Pointe and the City shall cooperate fully with each other to effectuate the terms,
conditions and intentions of this Agreement. Tn connection with City development permit approvals
necessary to effectuate the Conceptual Site Plan, the City agrees to process Cypress Pointe's
development permit applications in good faith and in a prompt, diligent manner.
10.0 Authority.
Each party hereby represents and warrants to the other that they have full power and authority
to enter into this Agreement. Cypress Pointe also represents that it is duly authorized to bind the
Cypress Pointe Property to the terms and conditions contained in this Agreement. Cypress Pointe
also represents that all legal and equitable title to the Property will be vested in and held by Cypress
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Pointc upon closing of the ex.isting purchase contract for the Property. The City also represents that
all requirements and procedures, including public hearings, have been properly conducted so that the
execution hereof by the City shall constitute the final action of the City.
J 1.0 Notice".
Any notice required or allowed to be delivered hereunder shall be in writing and shall be
d~emed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) upon
receipt of such notice, when deposited in the United States mail, postage prepaid, certified or
registered mail) return receipt requested, or (c) one day after deposit with a nationally recognized
overnight courier service, e.g. Federal Express, PurolatOr, Airborne, Express Mail, etc., addressed
to a party at the other address as specified below or from time to time by written notice to the other
party delivered in accordance herewith:
Cypress Pointe:
With copy to:
City:
With copy to.
Ms. Lisa Stephens
Cypress Pointe at Winter Springs, Ltd.
20725 S.W. 46th Avenue
Newberry, Florida 32669
Phone: (352) 472-7773
.Fax: (352) 472-5969
Jim Stockman, Esquire
Attorney at Law
20725 S.W. 46th Avenue
Newberry, Florida 32669
Phone: (352) 472-9310
Fax: (352) 472-8083
Ronald W. McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Phone: (407) 327-5957
Fax: (407) 327-6686
Anthony A. Garganese, Esquire
City Attorney of Winter Springs
Brown, Salzman, Weiss & Garganese, P.A.
225 East Robinson Street, Suite 660
Orlando, Florida 32801
Phone: (407) 425-9566
Fax: (407) 425-9596
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12,0 Defaults.
Failure by either party to perform each and every one of its obligations hereunder, or any
violation of the City Code by Cypress Pointe or its contractors, shall constitute a default, entitling the
nondefaulting party to pursue whatever remedies are available to it under Florida law or equity
including.. without limitation, an aClion for specific performance and/or injum.1ive relief. Prior to any
party filing any action as a result of a default under this Agreement. the nondefaulting party shall first
provide the defaulting party with written notice of said default. Upon receipt of said notice, the
defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the
reasonable satisfaction of the nondefaulting party prior to filing said action. The cure period may be
extended by mutual agreement of the parties. The nondefaulting party shall have the right to
terminate this Agreement if the default is not timely cured and the detaulting party shall immediately
lose all rights and privileges granted hereunder. Furthermore, if the City declares a default under this
Agreement, the City shall have the right to suspend the issuance of any and all City pennits, or
construction occurring on the PropeT[y under this Agreement, until the default has been fully cured
by Cypress Pointe.
13,0 Successors and Assi1!n5,
This Agreement shall automatically be binding upon and shall inure to the benefit of the
successors and assigns of each of the parties.
14.0 Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State
of Florida.
15,0 Amendments.
This Agreement shall not be modified or amended except by written agreement duly executed
by both parties hereto.
16.0 Entire Agreement.
This Agreement supersedes any other agreement, oral or written, and contains the entire
agreement between the City and Cypress Pointe as to the subject matter hereof.
17,0 Severability,
If any provision of this Agrt:ement shall be hdd to be invalid or unenforceable to any extent
by a court of competent jurisdiction, the same shall not affect in any respect the validity or
enforceability ofthe remainder of this Agreement
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18.0 Effective :Date,
This Agreement shall become effective upon approval by the City Commission of Winter
Springs and execution of this Agreement by both parties (the "Eftective Date").
19.0 Recordation.
This Agreement shall be recorded in the public records of Seminole County, Florida, and shall
run with the Property. However, in the event Cypress Pointe determine!\, prior to closing on the
Property, that they no longer require the Property for the improvements described herein, the part.ies
agree to execute an appropriate instrument to terminate this Agreement. On termination of this
Agreement, any and all development rights for the Property granted by this Agreement shall expire.
20.0 Relationship uf the .Parties,
The relationship of the parties to this Agreement is contractual and Cypre!\s Pointe is an
independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint
venture or principal-agent relationship between the parties, and neither party is authorized to, nor
shall either party act toward third persons or the public in any manner which would indicate any such
relationship with the other.
21.0 SQ.Y~r.~~gg_tmm.~.ni!Y.:
Nothing contained in this Agreement shall be construed as a waiver of the City's right to
sovereign immunity under Section 76828, Florida Statute5, or any other limitation on the City's
potentialliahility under state and federal law.
22.0 City's Police Puwer,
The City hereby reserves all police powers granted to the City hy Jaw. Tn no way shall this
Agreement be construed as the City bargaining away or surrendering its police powers.
23.0 f.9.ICe Maieure,
The parties agree that in the event that the failure by either party to accomplish any action
required hereunder within a specified time period ("Time Period") constitutes a default under the
terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event
or condition beyond the control of such party, including, but not limited to. acts of God, acts of
government authority (other than the City's own acts), acts of public enemy or war, riots, civil
disturbances, power failure, shortages of labor or materials, injunction or other court proceedings
beyond the control of such party, or severe adverse weather c.onditions ("UnconLrollabl~ Ewnt"),
then, notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute
a default under this Agreement and any Time Period proscribed hereunder shall be extended by the
amount oftime that such party was unable to perfonl1 solely due to the Unconlrolli:lbl~ Event.
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24.0 Interpretation,
The parties hereby agree and acknowledge that they have both participated equally in the
drafting ofthis Agreement and no party shall be favored or disfavored regarding the interpretation
of this Agreement in the event of a dispute between the parties.
25,0 Permits.
The failure of this Agreement to addre!\!\ any particular City, c.ounly, state, and federal permit,
condition, term, or restriction shall not relieve Cypress Pointe or the City of the necessity of
complying with the law governing said permitting requirements, conditions, terms, or restrictions.
26.0 Third Party Riehts,
This Agreement is not a third party beneficiary contract and shall not in any way whatsoever
create any rights on behalf of any third party.
27.0 Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
28,0 Declaration of the Cio' Commission of Winter Sprin~s
The City Commission of the City of Winter Springs hereby finds that this Agreement is
consistent with the City's Comprehen~ive Plan and land development regulations and is a legislative
act of the City Commission of the City. The City Commission further finds that this Agreement
promotes the public health, safety, and welfare and is consistent with, and an ex.ercise of, the City's
powers under the M unicipal Home Rule Powers Act, as provided in Section 2(b), Article VIII, of the
Florida Constitution and Chapter 166.021, Florida Statutes, and the City's police puw~r:s.
IN WITNESS WHEREOF, Cypre:ss Pointe and the City have executed this Agreement
in foml suffic.ient to bind them as of the day and year first above written.
WITNESSES:
CYPRESS POINTE AT WINTER SPRINGS. LTD.
By: Davis Heritage - Cypress Pointc, LLC, General Partner
By: Davis Heritage GP Holdings, LLC, Managing Member
a Florida limited liahility company
Print Name:
By:
Stefan M. Davis, Managing Member
Print Name:
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CITY OF WINTER SPRINGS,
a Florida Municipal Corporation
By:
John F. Bush, Mayor
Print Name:
-
Print Name:
STATE Of FLORIDA
COUNlY OF
The foregoing instrument was acknowledged before me this day of May, 2003 by Stefan M.
Davis, Managing Member of Davis Heritage GP Holdings, LLC, a Florida limited liahility company, who
cx&utKd the foregoing instrument and acknowledged before me that he executed the same for the uses and
purposes thereill expressed and who is [ ] personally known to me or who [ ] has produced
as identification and who did not take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Pnn\.cd Notary Name
NOlary Public-State of Florida
Commission No.:
My conunission expires
STATE OF FLORJDA
COUNTI' OF SEMINOLE
The foregoing instrument was acknowledged before me this _ day of May, 2003 by John F. Bush,
Mayor of the Clly of Winter Springs, 'who is personally kno'''TI to me and who did not take an oath.
(NOTARY SEAL)
Notar)" Public Signature
Typed or Printed Notary Name
Conunission No.:
My comnussion expires:
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JOTNDER
Big Cypress Associates, Ltd., a Florida Limited Partnership, as the current owner of the
Property hereby agrees to this consent and joinder for purposes of binding the Propeny to the
terms and conditions of this Agreement.
WITNESSES:
BIG CYPRESS ASSOCIATES, LTD.
a Florida limited partnership
Print Name:
By:
Its:
Print Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this ___ day of May, 2003 by
of Big Cypress Associates, Ltd., a Florida lunited partnership,
who executed the foregoing instrument and acknowledged before me that (s)hc executed the same for the uses
and purpost.:s thcrt.:in expressed and who is [ ) pcrsOllt."\lly mowl1 to me or who I I has produced
as identification and woo did not take an oath.
(NOTARY SEAL)
Notary Public Slgnalun:
Typed or Printed Notary Name
Commission No.,
My COllUllissjOIl expires:
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1.
Exhibit "A"
REVISED DRAFT 5.20-03
CONCEPTUAL BINDING
DEVELOPMENT AGREEMENT
EXHIBIT LIST
Legal Description
Conc.eptual Site Plan / Preliminary Building Elevations
S, R. 434 Landscape Beautification Easement
"f' Illm:"W'ly ,,[Winter Srri~\Davi, Heriugr'J),;:vc1Ul'mDnl ^ETo'm'<l1l1 wpd
ecru "Bed
2
Exhibit "E"
3.
Exhibit "e"
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Fax:904
Ma~ 20 2003 15:40
P.02
EXHIBIT "A"
LEGAL DEScRImON
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Sent By: BROWN,WARD,SALZMAN&WEISS,P.A,j EX
HIBIT "C"
May.15.03 5:27PMj
Page 16/21
Prrpared by:
City of Winter Springs
1126 Eust State Road 434
Winter SprinK8, }'L 32708
AUn: City MaDager
S,R. 434 LANJJSCAPE HEAUTIFICAI10N EASEMENT
THIS EASEMENT, made this day of ___ ____ . 2003 by
._' whose mailing address is
... . (hereinafter called "Grantor") in favor
ofthe CHY OFW iNTER SPRINGS, FLORIDA, a Florida Municipal Corporation, whose mailing
address is 1126 East State Road 434, Winter Springs, Fl 32708 (hereinafter called "Grantee").
WITNESSETH
WHEREAS, Grantor is the sole owner of certain real property located within the City of
Winter Springs along SR. 434; and
WHEREAS, Grantee is planning to construct and maintain a landscape beautitication project
along S.R. 434 within the City of Winter Springs: and
WHEREAS, Grantor desires to convey a perpetual easement over, under, and across a
portion of its real property, as legally described herein, for purposes of aU owing Gral1tc:~ tQ construct,
operate and maintain landscaping and irrigation improvements and other incidental appurtenances and
accessories ther~to along S.R. 434; and
WHEREAS, Grantor, as fee simple owner of the easement property, also agrees tn assist
Grantee in obtaining any local, stat\:, or federal permits required to construct said improvements and
any other incidental appurtenances and accessories thereto: and
NOW, THEREFORE, in consideration of the enumerated purposes stated herein, and
mutual covenants, terms and conditions and restrictions contained herein, together with Qther gQod
and valuable consideration, the receipt and sufficiency of which is acknowledged, Grantor provides
as follows:
1) Recitals, The foregoing recitals are hereby incorporated herein by this reference.
2) Grant of Easement, Grantor hereby voluntarily grants and conveys to Grantee, and
its successors, and assigns, subject to Bny previous duly recorded casements or grants
of record, a landscape improvements and maintenance easement over, under, and
across the parcels of real property described on Exhibit "A", which is attached hereto
and incorporated herein by this reference (hereinafter the "Property") of the nature
and character and to the extent hereinafter set forth. The granting of this Easement
will not affect the front, side, and rear setbacks applicable to the Property pursuant
EXHl.8l'l' ~~C"
~nt By: BROWN!WARD!SALZMAN&WEISS!P.A.; 407 425 9596;
May.15.03 5:28PM;
Page 17/21
to the City of Winter Springs Codl.":. If the Property is undeveloped at tbe time this
Easement is granted. Grantor shall be allowed to permit and construct, through the
casement area, a standard driveway for ingress and egress to the Property in
accordance with applicable law,
J) Purpose of Easement. This easement is granted for the express purpose of allowing
Grantee to use the Property to construct and maintain landscapt: improvements over.
under, and acros!> the Property, including, but not limited to, landscaping. irrigation
systems, and any other incidental appurtenances and accessories thereto. It is also the
express purpose of this easement to provide Grantee unconditional ingress and t:gn:ss
to, over, under and (rom the Property for the purposes stated herein.
4) Rig.hts of Grantee, To accomplish the purposes stated above, and at Grantee's
expense, the following rights are conveyed to the Grantee by this easement:
a. To use the Property to construct, operate, and maintain improvements over,
under, and across the Property including, but not limited to, trees, shmbs,
f1ow~rs! ground cover (mulch! rocks, grass, ete), irrigation systems and any
other incidental landscaping appurtenances and accessories thereto;
b. To pr~yt:nt any activity on or use of the Property that is inconsistent with the
purpose of the easement, and to require the restoration of areas or features of
the Property that may be damaged by an inconsistent activity or use;
c. To use this easement for ingress and egress to the defIned improvements;
d. To cut, trim, and keep clear such trees, brush, and undergrowth that might
hinder or prohibit the use of the Property for the purposes set forth herein;
and
e. To take any civil action deemed necessary, at the Grantee's sole and absolute
discretion, to protect and preserve the easement granted hereunder.
5) Permits. The parties acknowledge that certain local, state, and federal permits may
be required from time to time for purposes of constructing, operating, and maintaining
the improvements and other incidental appurtenances and accessory structures
referred to herein. Grantor as fee simple owner of the Property, hereby agrees to
allow Grantee to make application for said permits and also agrees to join in any said
permit (as signatory or otherwise) when required by any permitting agency for
issuance of the permit.
Page 2 of 6
~nt By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-15-03 5:28PM;
Page 18/21
Notwithstanding, Grantee shall be solely responsible and liable for complying with any
local. state, or federal pennit requirements, obligations. and duties (if any) related to
the construction, operation, and maintenance of the improvements and other
incidental appurtenances and accessories thereto,
. 6) Easements~ Run with the Land. This easement shall remain a charge against the
Property, Therefore, this easement shall "run with the land" and be automatically
assigned by any deed or olher conveyance conveying a portion of the Property
relating to this easement, cvcn though conveyance makes no reference to this
easement as such.
7) Attorney's Fees. In the event of any legal action arising under this easement between
'the parties, each party shall bear their own attorney's fees. eourt costs, and expenses,
through all appellate proceedings.
8) Recordation. Grantee shall record this instrument in a timely fashion in the Official
Records of Seminole County, Florida and may fe-record it at any time as may be
required (0 preserve its rights in this easement.
9) Successors. The covenants, tenus, conditions, rights~ and restrictions of this
casement shall be binding upon, and inure to the benefit of the parties hereto and their
resp~~tive personal representatives, heirs, successors, and assigns and shall continue
as a servitude running with the Property.
10) Grantors Repre!eotations and Warranties, Grantor hereby agrees and makes the
following representations and warr~tics to Grantee:
a. Grantor is lawfully seized of said Property in fee simple and has fun and lawful
authority to ex.ecute this easement, convey the easement to Grantee, and bind
the Property as set forth herein.
b. The Property is free of any and all encumbrances. except zoning restrictions
and prohibitions and other requirements imposed by government authority and
other encumbrances which are recorded in the public records of Seminole
County, florida. .
c. Grantor shall pay any and all taxes that are levied on the Property, from time
to time, as said taxes and assessments come due. The improvements
contemplated to be made on this easement are tor a Public purpose and
therefore not considered as being subject to taxation. If said public
improvements are assessed taxes, Grantee will be re$ponsibl~ for the payment
Page 3 of6
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May.15-03 5:29PM;
Page 19/21
of taxes attributed specifically to the public improvements.
d. Grantor hereby warrants the title to the easement grant~d her~under over,
under, and across the Property and will defend the same against lawful claims
of all persons whomever.
t 1) Grantee's Riot to Seek Equitable Relief. Grantor agrees, acknowledges and
recognizes that any breach of this easement by Grantor would result in irreparable
harm to Grilnt~, and accordingly, Grantor agrees that in addition to and not in lieu
of all legal and equitable remedies available to Grantee by reason of such breach,
Grantee shall be entitled to equitable relief (including, without limitation, specitic
performance and injunctive relief) to enjoin the occurrence and continuation of the
breach.
12) Entire Agreement. This easement constitutes the full and entire agreement
between the partics hereto and supercedes any oral or written prior communications
between the parties related to the subject matter contained in this easement. The
easement shall be governed by the laws of Florida.
13) Sovereign Immunity_ Nothing contained in this casement shall be construed as a
waiver of the Grantee's right to sovereign immunity under Section 768.28, Florida
Stah-ltes, Qr other limitatiQn$ imposed on t.he lTTantee's potential liability under state
or federal law.
J 4) Modifications, This easement shall only be modified by a written instrument
execuLed by Lhe parLies hereto or any successor, assigns heirs, or representatives
thereto.
15) Grantors Duty of Noninterference, Grantor agrees not to interfere or allow
others under Grantor's control to interfere with Grantee's rights to use the Property
as specifically set forth herein. Grantor agrees not to permit or allow the construction
or erection of any building or structure on the Property without prior written consent
of the Grantee.
16) Termination, The parties agree that this easement is intended to be perpetual.
However, in the event the Grantee determines, at its sole discretion, that it no longer
requires the property for improvements described herein, Grantee, at Grantor's written
request, agrees to execute an appropriate written instrument to terminate this
easement. Upon termination of the easement by the Grantee, Grantee, upon request
made within five (5) days of termination by Grantor, will remove the improvements
and restore the Property to its original condition, less reasonable wear and tear.
17) R~iJ)rotallndtmnifitation. To the elltent permitted by law, each party hereto
Page 4 of6
lent By: BROWN,WARD,SALZMAN&WEISS,P.A,; 407 425 9596;
May.15-03 5:30PM;
Pa~e 20/21
agrees to indemnify and hold harmless the other party hereto and th~ other party's
employees and officers from and against all claims, losses. damages, personal injuries
(including but not limited to death), or liability (including reasonable attorney's fees
through all appeals). directly or indirectly arising from, or out of the indemnifYing
party's acts, errors, or omissjon~, intentional or otherwise, resulting from this
easement and Agreement.
IN WITNESS WHEJlEQF. Grantor and Grantee set their respective hands on the day and
year above written.
Witfle.~.'1es:
GRANTOR:
Print Name:
Hy:
Its
Print Name:
WitTle.'1','te.'1','
GRANTEE:
CI1Y OF WINTER SPRINGS. a Florida
municipal cOI'poration,
Print Name:
By:
Print Name:
RONALDW. McLEMORE
Its City Manager
Page 5 of6
,ent By: BROWN,WARD,SALZMAN&WEISS,P,A,;
407 425 9596;
May.15.03 5:30PM;
Page 21/21
STATE OF FLORIDA
COUNTY OF ~EMINOLt:::
The foregoing instrument was acknowledged and sworn to before me this __.__ day of .. . 2003 by
___............... __,....,.,......,..__. ? who is perso1Jally known \0 me, or
7 who has produced liS idenlilication.
NOTARY PUBLIC
My Commission Expires
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instTllfnenl wa.s acknowledged and sworn to before me this _ day of _, 2003 by
RONALD W. McLEMORE. City Manager of the City of Wimer Springs Florida? who is personally known to me,
or ? who has produced __. as identification.
NOTARY PUBLIC
My Ct,lInmission Expires:
1'\)),,,,.\<::iI7 ,,(Wullel S....~\AfJ-ccmcl\t~\SR434 ..L&od!t&t'e~'l\Ii1irftll"n EMnnml 3.7.X.(l3.WflII
Page 6 or6
'!'".
Prepared by and return to:
Anthony A. Garganese, Esquire
Brown, Salzman, Weiss & Garganese, P.A.
Pnst Office Bnx 2873
Orlando, }'lorida 32802-2873
(407) 425-9566
CONCEPTUAL BINDING
DEVELOPMENT AGREEMENT
This CONCEPTUAL BINDING DEVELOP:MENT AGREE.MENT is made and entered into
as of this _ day of May, 2003 by and between the CITY OF WINTER SPRINGS, FLORIDA,
a Florida municipal corporation and CYPRESS POINTE AT WINTER SPRINGS, LTD" a Florida
limited partnership.
RECITALS:
WHEREAS, this Agreement is entered into pursuant to the Florida Municipal Home Rule
Powers Act; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement between Big Cypress
Associates, Ltd" a Florida limited partnership, as sellers, and Cypress Pointe at Winter Springs, Ltd.,
a Florida limited partnership, as purchasers, dated March 13, 2003, Cypress Pointe is the contract
purchaser and will be the owner and developer of approximately fifteen (15) acres ofland located in
the City of Winter Springs which is more particularly described herein; and
WHEREAS, on March 24,2003, the City granted a conditional use permit for the Property
to allow the construction of multi-family units not to exceed eight (8) dwelling units per acre; and
WHEREAS, Cypress Pointe and the City desire to memorialize their understandings and
agreement regarding their respective interests, expectations, and intentions contained in this
Agreement.
NOW THEREFORE in consideration of the terms and conditions set forth in this
Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged
by the parties, the City and Cypress Pointe agree to the following:
1.0 Incorporation of Recitals,
The foregoing recitals are true and correct and are hereby fully incorporated herein by this
reference as a material part of this Agreement.
Conceptual Binding Development Agreement
Page 1 of 11
"
2,0, Definitions,
Unless the context clearly indicates otherwise, the following words and phrases when used
in this Agreement shall have the meaning ascribed below:
2.1 "Big Cypress" shall mean Big Cypress Associates, Ltd., aFlorida limited partnership.
2.2 "City" shall mean the City of Winter Springs, a Florida municipal corporation.
2.3 "Cypress Pointe" shall mean Cypress Pointe at Winter Springs, Ltd., a Florida
Limited Partnership.
2.4 "Property" shall mean the real property subject to this Agreement and legally
described on Exhibit" A" which is attached hereto and fully incorporated herein by
this reference.
2,5 "Conceptual Site Plan" shall mean the conceptual site plan and preliminary building
elevations which Cypress Pointe agrees to permit and develop on the Property under
the terms and conditions of this Agreement and which is attached hereto as composite
Exhibit "B" and fully incorporated herein by this reference.
2.6 "Agreement" shall mean this Agreement made and entered into by and between the
City of Winter Springs, Florida, a Florida municipal corporation and Cypress Pointe
at Winter Springs, Ltd., a Florida limited partnership, including all exhibits and written
modifications thereto.
3,0 Conceptual Plan Approval.
3.1 The City hereby approves the Conceptual Site Plan, subject to the terms and
conditions of this Agreement.
3.2 Cypress Pointe acknowledges and agrees that the Conceptual Site Plan is only
conceptual and is subject to additional approvals and permits being granted by the
City and other governmental agencies, which mayor may not be granted. Cypress
Pointe also acknowledges and agrees that the City does not represent or guarantee
that the additional approvals and permits will be granted and if said approvals or
permits are not granted, Cypress Pointe will not be able to permit and develop the
Conceptual Site Plan.
3.3 Notwithstanding the aforesaid, in consideration of the mutual promises and
considerations set forth in this Agreement, Cypress Pointe intends to use its best
efforts to permit and develop the Conceptual Site Plan on the Property subject to the
Conceptual Binding Development Agreement
Page 2 of 11
terms and conditions stated herein. Further, if the final site plan, landscape plan, and
engineering plan are approved for the project by the City, said plans shall be in
substantial conformity with the Conceptual Site Plan unless otherwise approved by
the City during the City's development permit process.
4,0 Purchase of Property.
Cypress Pointe will promptly use all reasonable and best efforts to complete the acquisition
of the Property pursuant to its existing contract rights and provide written notice of the acquisition
to the City. However, in the event that Cypress Pointe does not acquire fee simple ownership of the
Cypress Pointe Property by the closing date set forth under the terms of the existing purchase
contract, then this Agreement shall be automatically terminated and nullified, in which event the
parties' obligations under this Agreement shall be and become null and void and of no further effect.
Cypress Pointe shall promptly provide the City written notice if Cypress Pointe fails to close on the
Cypress Pointe Property.
5.0 Entranceway: Traffic: and Lighting,
In addition to any requirements established by law, Cypress Pointe agrees as follows:
5. 1 The parties acknowledge that the entranceway depicted on the Conceptual Site Plan
is aligned with a three-way traffic signal located on State Road 434. Cypress Pointe
acknowledges and agrees that the traffic signal may be relocated as a result of
development plans currently ongoing within the City and City of Casselberry and that
Cypress Pointe will not object to said relocation.
5.2 Cypress Pointe shall be required to pay all costs incurred with the traffic signal
directly relating to the Conceptual Site Plan including, but not limited to, converting
the traffic signal to a four-way signal.
5.3 Cypress Pointe shall submit to the City, as part of the final site plan submittal, a traffic
study which shall address, at a minimum, traffic generation, A.M. and P.M. peak-hour
traffic numbers and movements, affected intersections, deceleration lanes, eastbound
left-turn lane, internal movements, off-site improvements, and traffic lights. Said
study shall be performed by a licensed engineer experienced in traffic management
after said engineer coordinates the methodology of the study with the City's traffic
engineering consultant.
5.4 Cypress Pointe acknowledges and agrees that the City may require Cypress Pointe to
design, permit, and construct a deceleration lane to service the Property as part of the
final site plan approval.
Conceptual Binding Development Agreement
Page 3 of 11
5,5 Cypress Pointe acknowledges and agrees that the maximum height of any and all
street and parking lights on the Property shall be limited to twenty (20) feet in height.
The maximum off-site spillage shall be one-half (.5) foot candle unless the city
requires, at final site plan approval, less foot candle spillage along certain boundaries
of the Property to address the legitimate lighting concerns of surrounding properties,
6,0 SR 434 Landscape Easement.
Cypress Pointe acknowledges and agrees that the City is currently implementing a landscape
redevelopment plan along State Road 434, In furtherance of this plan, Cypress Pointe agrees to
attempt to arrange for Big Cypress to convey to the City a landscape easement, ten (10) feet in width,
along the entire length of the Property abutting State Road 434, In the event Cypress Pointe is not
successful in arranging for Big Cypress to convey said easement, Cypress Pointe shall convey the
easement at such time Cypress Pointe receives title to the Property, The City shall bear the expense
related to installing and maintaining the landscape improvements located in the easement area. A
copy of the landscape easement is attached hereto and fully incorporated herein by this reference as
Exhibit "C,"
7,0 Dwelling Units Per Acre: Affordable Housing,
7.1 The Property shall be limited to a maximum of eight (8) dwelling units per acre,
7.2 A maximum of seventy percent (70%) of the total units may be used for "affordable
housing." AIl units not set aside for affordable housing (minimum 30%) shall be made
available at the prevailing market rate for apartment units in the City of Winter
Springs and the surrounding area. In the event, Cypress Pointe is unable to set aside
a minimum of thirty percent (30%) of the units at market rate, either party shall have
the right to terminate this Agreement by providing written notice to the other party
prior to final site plan approval.
8,0 Periodic Review.
This Agreement shall be subject to periodic review by the parties, Periodically, the City and
Cypress Pointe agree to cooperate and meet in good faith to discuss the progress made under this
Agreement and whether any amendments should be made to this Agreement in furtherance of each
others' mutual interests,
9,0 Cooperation,
Cypress Pointe and the City shall cooperate fully with each other to effectuate the terms,
conditions and intentions of this Agreement. In connection with City development permit approvals
necessary to effectuate the Conceptual Site Plan, the City agrees to process Cypress Pointe's
development permit applications in good faith and in a prompt, diligent manner,
Conceptual Binding Development Agreement
Page 4 of 11
10,0 Authority,
Each party hereby represents and warrants to the other that they have full power and authority
to enter into this Agreement. Cypress Pointe also represents that it is duly authorized to bind the
Cypress Pointe Property to the terms and conditions contained in this Agreement. Cypress Pointe
also represents that all legal and equitable title to the Property will be vested in and held by Cypress
Pointe upon closing of the existing purchase contract for the Property. The City also represents that
all requirements and procedures, including public hearings, have been properly conducted so that the
execution hereof by the City shall constitute the final action of the City.
11,0 Notices.
Any notice required or allowed to be delivered hereunder shall be in writing and shall be
deemed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) upon
receipt of such notice, when deposited in the United States mail, postage prepaid, certified or
registered mail, return receipt requested, or (c) one day after deposit with a nationally recognized
overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail, etc., addressed
to a party at the other address as specified below or from time to time by written notice to the other
party delivered in accordance herewith:
Cypress Pointe:
Ms. Lisa Stephens
Cypress Pointe at Winter Springs, Ltd.
20725 S.W. 46th Avenue
Newberry, Florida 32669
Phone: (352) 472-7773
Fax: (352) 472-5969
With copy to:
Jim Stockman, Esquire
Attorney at Law
20725 S,W. 46th Avenue
Newberry, Florida 32669
Phone: (352) 472-9310
Fax: (352) 472-8083
City:
Ronald W. McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Phone: (407) 327-5957
Fax: (407) 327-6686
Conceptual Binding Development Agreement
Page 5 of 11
With copy to:
Anthony A. Garganese, Esquire
City Attorney of Winter Springs
Brown, Salzman, Weiss & Garganese, P.A.
225 East Robinson Street, Suite 660
Orlando, Florida 32801
Phone: (407) 425-9566
Fax: (407) 425-9596
12.0 Defaults,
Failure by either party to perform each and every one of its obligations hereunder, or any
violation of the City Code by Cypress Pointe or its contractors, shall constitute a default, entitling the
nondefaulting party to pursue whatever remedies are available to it under Florida law or equity
including, without limitation, an action for specific performance and/or injunctive relief Prior to any
party filing any action as a result of a default under this Agreement, the nondefaulting party shall first
provide the defaulting. party with written notice of said default, Upon receipt of said notice, the
defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the
reasonable satisfaction of the nondefaulting party prior to filing said action. The cure period may be
extended by mutual agreement of the parties. The nondefaulting party shall have the right to
terminate this Agreement if the default is not timely cured and the defaulting party shall immediately
lose all rights and privileges granted hereunder, Furthermore, if the City declares a default under this
Agreement, the City shall have the right to suspend the issuance of any and all City permits, or
construction occurring on the Property under this Agreement, until the default has been fully cured
by Cypress Pointe.
13.0 Successors and Assigns,
This Agreement shall automatically be binding upon and shall inure to the benefit of the
successors and assigns of each of the parties.
14.0 Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State
of Florida.
15.0 Amendments,
This Agreement shall not be modified or amended except by written agreement duly executed
by both parties hereto.
16.0 Entire Agreement.
This Agreement supersedes any other agreement, oral or written, and contains the entire
agreement between the City and Cypress Pointe as to the subject matter hereof
Conceptual Binding Development Agreement
Page 6 of 11
17 ,0 Severability,
If any provision of this Agreement shall be held to be invalid or unenforceable to any extent
by a court of competent jurisdiction, the same shall not affect in any respect the validity or
enforceability of the remainder of this Agreement.
18,0 Effective Date.
This Agreement shall become effective upon approval by the City Commission of Winter
Springs and execution of this Agreement by both parties (the "Effective Date").
19,0 Recordation,
This Agreement shall be recorded in the public records of Seminole County, Florida, and shall
run with the Property. However, in the event Cypress Pointe determines, prior to closing on the
Property, that they no longer require the Property for the improvements described herein, the parties
agree to execute an appropriate instrument to terminate this Agreement. On termination of this
Agreement, any and all development rights for the Property granted by this Agreement shall expire.
20,0 Relationship of the Parties.
The relationship of the parties to this Agreement is contractual and Cypress Pointe is an
independent contractor and not an agent of the City. Nothing herein shall be deemed to create ajoint
venture or principal-agent relationship between the parties, and neither party is authorized to, nor
shall either party act toward third persons or the public in any manner which would indicate any such
relationship with the other.
21.0 Sovereign Immunity,
Nothing contained in this Agreement shall be construed as a waiver of the City's right to
sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's
potential liability under state and federal law.
22.0 City's Police Power,
The City hereby reserves all police powers granted to the City by law, In no way shall this
Agreement be construed as the City bargaining away or surrendering its police powers.
23,0 Force Majeure,
The parties agree that in the event that the failure by either party to accomplish any action
required hereunder within a specified time period ("Time Period") constitutes a default under the
terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event
or condition beyond the control of such party, including, but not limited to, acts of God, acts of
Conceptual Binding Development Agreement
Page 7 of 11
government authority (other than the City's own acts), acts of public enemy or war, riots, civil
disturbances, power failure, shortages of labor or materials, injunction or other court proceedings
beyond the cotitrol of such party, or severe adverse weather conditions ("Uncontrollable Event"),
then, notwithstanding any provision ofthis Agreement to the contrary, that failure shall not constitute
a default under this Agreement and any Time Period proscribed hereunder shall be extended by the
amount of time that such party was unable to perform solely due to the Uncontrollable Event.
24,0 Interpretation.
The parties hereby agree and acknowledge that they have both participated equally in the
drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation
of this Agreement in the event of a dispute between the parties.
25.0 Permits.
The failure ofthis Agreement to address any particular City, county, state, and federal permit,
condition, term, or restriction shall not relieve Cypress Pointe or the City of the necessity of
complying with the law governing said permitting requirements, conditions, terms, or restrictions.
26,0 Third Party Rights,
This Agreement is not a third party beneficiary contract and shall not in any way whatsoever
create any rights on behalf of any third party.
27,0 Counterparts,
This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
28,0 Declaration of the City Commission of Winter Springs
The City Commission of the City of Winter Springs hereby finds that this Agreement is
consistent with the City's Comprehensive Plan and land development regulations and is a legislative
act of the City Commission of the City. The City Commission further finds that this Agreement
promotes the public health, safety, and welfare and is consistent with, and an exercise of, the City's
powers under the Municipal Home Rule Powers Act, as provided in Section 2(b), Article VIII, of the
Florida Constitution and Chapter 166,021, Florida Statutes, and the City's police powers,
[Signature Page Follows]
Conceptual Binding Development Agreement
Page 8 of 11
IN WITNESS WHEREOF, Cypress Pointe and the City have executed this Agreement
in form sufficient to bind them as of the day and year first above written.
Print Name:}d....~ ~~
WITNESSES:
CYPRESS POINTE AT WINTER SPRINGS, LTD.
By: Davis Heritage - Cypress Pointe, LLC, General Partner
By: Davis Heritage GP Holdings, LLC, Managing Member
a Florida limited liability company
CITY OF WINTER SPRINGS" '.
a Florida Municipal Corporati?11 ..' .
By ~7.~
Jo . Bush, Mayor '. .' ".
STATE OF FLORIDA
COUNTY OF ~
Q JUI\Q. ~ ~tU;)
The foregoing instrument was acknowledged before me this ~ day ofMey, 2003 by Stefan M.
Davis, Managing Member of Davis Heritage GP Holdings, LLC, a Florida limited liability company, who
executed the foregoing instrument and acknowledged before me that he executed the same for the uses and
purposes therein expressed and who is [XI personally known to me or who [ ] has produced
as identification and who did not take an oath.
(NOTARY SEAL
KIMBERLY A, MA1T~4
Q) MY COMMISSION ti CC
EXPIRES: Dee 8, 2()()4
serviOll & BOnding, Inc.
NOTARY FL NOtarY
1-800-3-
~~ Q. tf1~
MZ Public Signature
. ~r- ~ A ' r)\o.. -H-a.l rz,..
Typed or Printed Notary Name
Notary Public-State of Florida
Commission No.:
My commission expires:
Conceptual Binding Development Agreement
Page 9 of 11
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was &,:knowledged before me this qt- day 7~2003 by John F. Bush,
Mayor of the City of Winter Springs, who is personally kno to me d who did not take an oath.
. (NOJ!'N .&~luaces
. 'i.. -; Moj Commission 00209870
. '\ cw...cf' Expires May 09. 2007
f'---...... ...----=
Notary c Signature _ p
--M'6\l0l ~ ~~
Typed or Printed Notary Name
Commission No.:
My commission expires:
JOINDER
Big Cypress Associates, Ltd., a Florida Limited Partnership, as the current owner of the
Property hereby agreesto this consent and joinder for purposes of binding the Property to the'
terms and conditions of this Agreement.
WITNESSES:
BIG CYPRESS ASSOCIATES, LTD.
a Florida limited partnership
Print Name:
By:
Its:
Print Name:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of May, 2003 by
of Big Cypress Associates, Ltd" a Florida limited partnership,
who executed the foregoing instrument.and acknowledged before me that (s)he executed the same for the uses
and purposes therein expressed and who is [ ] personally known to me or who [ ] has produced
as identification and who did not take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Printed Notary Name
Commission No.:
My commission expires:
Conceptual Binding Development Agreement
Page 10 of 11
1.
Exhibit "A"
CONCEPTUAL BINDING
DEVELOPMENT AGREEMENT
EXHIBIT LIST
Legal Description
Conceptual Site Plan / Preliminary Building Elevations
S. R. 434 Landscape Beautification Easement
F:IDocs\City of Winter SpringsIDavis Heritage\Conceptual_ Cypress]ointe.wpd
2.
Exhibit "B"
3.
Exhibit "C"
Conceptual Binding Development Agreement
Page 11 of 11
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SECTION 33, TOWNSHIP 20 SOUTH. RANGE
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THE PUBUC RECORDS OF' SEMINOLE COUfHY, FlORIDA, DESCRIBED AS fOLLOWS:
BEGI'" A T THE SOUTl-H\'EST CORNER OF AfORESAID TRACT ",", SAID SOUTIiWES T CORNER BEING ON THE NORrHERlY RIGHT-Of-WAY
OF THE lONGWOflO-WAGNF.R ROAD (STATE ROAD 434); THENCE N.JI'49'JO"[' AlO'''G rHE EAST LINE or: SAID TRACT ",", i192.46 .
F"H'T; THENCE S.78"O'30"['., 103.67 FEEr; THENCE S.04-'4S"8"W.; 444-. '7 FEET; THfNCr 5.43'17'52"f.. 12.3.07 FEET; THE'NCf 5.07'
50'42"W.. 73.65 F"[[T; THENCE 5.32'53'13"[., 72.'9 FEET; THENCE S.6I'03'27"E'., 181.93 rEEf; THEHCE 5.4-8"27'52-[., 170.96 F-EEr;
THENCE 5.65'10'55"(.. '22.27 FEET; THENCE N.86"2'20NE., 521.26 FEET; THENCE S.OO"49'?J"f" 338.07 FEET; THENCE '..t.89'59'.34"~.,
7 35.75 FEET TO THE ArORESA'O NORfHERL Y RIGHT -OF" -WA Y; THENCE N.82'5.3'3'''W., 614.65 FEET AtONG SAID RIGHT -Of -WA Y Wolf
1"0 THE PO'N f OF" 8EGINNINC. .
CONTAINING '4.761 ACRES MORE OR lfSS.
PARCEt "B"
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THA T PORTION or lOT 57, BlOCI(. D, DR. M'TCHELl'S SURVEY OF THE lEVY GRAtH AS RECORDED 'N PLAT BOOI< " PAGE 5;. PUBUC
'RECORDS OF SEMINOLE COUfHY, FlORlOA lYING NORTH OF STATE ROAD: 434 AND WEST OF THf FlORIDA POWER CORPORA nON
EASEMENT. .
COfoolrAl'olING 0.229 ACRES MORE OR lESS.
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All THE ABOVE DESCRIBED CONTAINING 14.99' ACRES. MORE OR LESS.
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SURVEYOR'S NorES:
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Prepared by:
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
Attn: City Manager
S,R. 434 LANDSCAPE BEAUTIFICATION EASEMENT
THIS EASEMENT, made this day of , 2003 by
whose mailing address is
(hereinafter called "Grantor") in favor
of the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, whose mailing
address is 1126 East State Road 434, Winter Springs, FI 32708 (hereinafter called "Grantee").
WITNESSETH
WHEREAS, Grantor is the sole owner of certain real property located within the City of
Winter Springs along S.R. 434; and
WHEREAS, Grantee is planning to construct and maintain a landscape beautification project
along S.R. 434 within the City of Winter Springs; and
WHEREAS, Grantor desires to convey a perpetual easement over, under, and across a
portion of its real. property, as legally described herein, for purposes of allowing Grantee to construct,
operate and maintain landscaping and irrigation improvements and other incidental appurtenances and
accessories thereto along S.R. 434; and
WHEREAS, Grantor, as fee simple owner of the easement property, also agrees to assist
Grantee in obtaining any local, state, or federal permits required to construct said improvements and
any other incidental appurtenances and accessories thereto: and
NOW, THEREFORE, in consideration of the enumerated purposes stated herein, and
mutual covenants, terms and conditions and restrictions contained herein, together with other good
and valuable consideration, the receipt and sufficiency of which is acknowledged, Grantor provides
as follows:
1) Recitals, The foregoing recitals are hereby incorporated herein by this reference.
2) Grant of Easement, Grantor hereby voluntarily grants and conveys to Grantee, and
its successors, and assigns, subject to any previous duly recorded easements or grants
of record, a landscape improvements and maintenance easement over, under, and
across the parcels of real property described on Exhibit" A", which is attached hereto
and incorporated herein by this reference (hereinafter the "Property") of the nature
and character and to the extent hereinafter set forth. The granting of this Easement
will not affect the front, side, and rear setbacks applicable to the Property pursuant
EXHmIT "C"
to the City of Winter Springs Code. If the Property is undeveloped at the time this
Easement is granted, Grantor shall be allowed to permit and construct, through the
easement area, a standard driveway for ingress and egress to the Property in
accordance with applicable law.
3) Purpose of Easement. This easement is granted for the express purpose of allowing
Grantee to use the Property to construct and maintain landscape improvements over,
under, and across the Property, including, but not limited to, landscaping, irrigation
systems, and any other incidental appurtenances and accessories thereto. It is also the
express purpose of this easement to provide Grantee unconditional ingress and egress
to, over, under and from the Property for the purposes stated herein.
4) Rights of Grantee. To accomplish the purposes stated above, and at Grantee's
expense, the following rights are conveyed to the Grantee by this easement:
a. To use the Property to construct, operate, and maintain improvements over,
under, and across the Property including, but not limited to, trees, shrubs,
flowers, ground cover (mulch, rocks, grass, etc.), irrigation systems and any
other incidental landscaping appurtenances and accessories thereto;
b, To prevent any activity on or use of the Property that is inconsistent with the
purpose of the easement, and to require the restoration of areas or features of
the Property that may be damaged by an inconsistent activity or use;
c, To use this easement for ingress and egress to the defined improvements;
d. To cut, trim, and keep clear such trees, brush, and undergrowth that might
hinder or prohibit the use of the Property for the purposes set forth herein;
and
e. To take any civil action deemed necessary, at the Grantee's sole and absolute
discretion, to protect and preserve the easement granted hereunder.
5) Permits, The parties acknowledge that certain local, state, and federal permits may
be required from time to time for purposes of constructing, operating, and maintaining
the improvements and other incidental appurtenances and accessory structures
referred to herein. Grantor as fee simple owner of the Property, hereby agrees to
allow Grantee to make application for said permits and also agrees to join in any said
permit (as signatory or otherwise) when required by any permitting agency for
issuance of the permit.
Page 2 of6
Notwithstanding, Grantee shall be solely responsible and liable for complying with any
local, state, or federal permit requirements, obligations, and duties (if any) related to
the construction, operation, and maintenance of the improvements and other
incidental appurtenances and accessories thereto.
6) Easements. Run with the Land. This easement shall remain a charge against the
Property. Therefore, this easement shall "run with the land" and be automatically
assigned by any deed or other conveyance conveying a portion of the Property
relating to this easement, even though conveyance makes no reference to this
easement as such.
7) Attorney's Fees, In the event of any legal action arising under this easement between
the parties, each party shall bear their own attorney's fees, court costs, and. expenses,
through all appellate proceedings.
8) Recordation, Grantee shall record this instrument in a timely fashion in the Official
Records of Seminole County, Florida and may re-record it at any time as may be
required to preserve its rights in this easement.
9) Successors, The covenants, terms, conditions, rights, .and restnctions of this
easement shall be binding upon, and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue
as a servitude running with the Property.
10) Grantors Representations and Warranties, Grantor hereby agrees and makes the
following representations and warranties to Grantee:
a. Grantor is lawfully seized of said Property in fee simple and has full and lawful
authority to execute this easement, convey the easement to Grantee, and bind
the Property as set forth herein.
b. The Property is free of any and all encumbrances, except zoning restrictions
and prohibitions and other requirements imposed by government authority and
other encumbrances which are recorded in the public records of Seminole
County, Florida,
c. Grantor shall pay any and all taxes that are levied on the Property, from time
to time, as said taxes and assessments come due. The improvements
contemplated to be made on this easement are for a Public purpose and
therefore not considered as being subject to taxation. If said public
improvements are assessed taxes, Grantee will be responsible for the payment
Page 3 of6
of taxes attributed specifically to the public improvements.
d. Grantor hereby warrants the title to the easement granted hereunder over,
under, and across the Property and will defend the same against lawful claims
of all persons whomever.
11) Grantee's Right to Seek Equitable Relief, Grantor agrees, acknowledges and
recognizes that any breach of this easement by Grantor would result in irreparable
harm to Grantee, and accordingly, Grantor agrees that in addition to and not in lieu
of all legal and equitable remedies available to Grantee by reason of such breach,
Grantee shall be entitled to equitable relief (including, without limitation, specific
performance and injunctive relief) to enjoin the occurrence and continuation of the
breach.
12) Entire Agreement, This easement constitutes the full and entire agreement
between the parties hereto and supercedes any oral or written prior communications
between the parties related to the subject matter contained in this easement. The
easement shall be governed by the laws of Florida.
13) Sovereign Immunity, Nothing contained in this easement shall be construed as a
waiver of the Grantee's right to sovereign immunity under Section 768.28, Florida
Statutes, or other limitations imposed on the Grantee's potential liability under state
or federal law,
14) Modifications, This easement shall only be modified by a written iristrument
executed by the parties hereto or any successor, assigns heirs, or representatives
thereto,
15) Grantors Duty ofN oninterference, Grantor agrees not to interfere or allow
others under Grantor's control to interfere with Grantee's rights to use the Property
as specifically set forth herein. Grantor agrees not to permit or allow the construction
or erection of any building or structure on the Property without prior written consent
of the Grantee.
16) Termination, The parties agree that this easement is intended to be perpetual.
However, in the event the Grantee determines, at its sole discretion, that it no longer
requires the property for improvements described herein, Grantee, at Grantor's written
request, agrees to execute an appropriate written instrument to terminate this
easement. Upon termination of the easement by the Grantee, Grantee, upon request
made within five (5) days of termination by Grantor, will remove the improvements
and restore the Property to its original condition, less reasonable wear and tear.
17) Reciprocal Indemnification, To the extent permitted by law, each party hereto
Page 4 of6
'.
agrees to indemnify and hold harmless the other party hereto and the other party's
employees and officers from and against all claims, losses, damages, personal injuries
(including but not limited to death), or liability (including reasonable attorney's fees
through all appeals), directly or indirectly arising from, or out of the indemnifying
party's acts, errors, or omissions, intentional or otherwise, resulting from this
easement and Agreement.
IN WITNESS WHEREOF. Grantor and Grantee set their respective hands on the day and
year above written.
Witnesses:
GRANTOR:
Print Name:
By:
Its
Print Name:
Witnesses:
GRANTEE:
CITY OF WINTER SPRINGS, a Florida
municipal corporation,
Print Name:
Print Name:
Page 5 of6
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged and sworn to before me this _ day of _, 2003 by
, ? who is personally known to me, or
? who has produced
as identification.
NOTARY PUBLIC
My Commission Expires
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged and sworn to before me this _ day of _, 2003 by
RONALD W, McLEMORE, City Manager of the City of Winter Springs Florida? who is personally known to me,
or ? who has produced as identification.
NOTARY PUBLIC
My Commission Expires:
F :\Docs\City of Winter Springs\Agreements\SR _ 434\SR434 _Landscape_Beautification _Easement _3-28.03. wpd
Page 6 of6
LOCAL GOVERNMENT VERIFICATION OF STATUS OF
SITE PLAN AFPROV AL FOR MUL TlFAMIL Y DEVELOPMENTS
Name of Development: Cypress Poi nte Apartments
SR ~34J Interseotion of SR 434 & Timberlane Trail
Address of Development Site: Wi nter Spri ngs. Fl od cia 32708
Size of Development Site (include unit of measure):
Zoning Designation: C-l
Mark the applicable statement:
L 0 The above-referenced'Development is new construction or rehabilitation with new
construction and the final site plan was approved by action of the
on (Legally Authorized Body~)
(Date)
2, l:J The above-referenced Development is new constroction or rehabilitation with new
construction and the preliminary or conceptual site plan was approved by action of
the City of Winter Springs -el't by Conceptual Binding Development Agreement
(Legally Authorized Body") ,(Date) .
3, 0 The above-referenced Development is ne~ construction or rehabilitation with new
construction and requires site plan approval for the now constrUction work, However,
.this jurisdiction does not provide preliminary/conceptual site plan approval or other
similar process prior to issuing final site plan approval. The preliminary or
conceptual site plan has been reviewed by on
(Legally Authori2ed Body.) (Date)
4, 0 The above-referenced Development is rehabilitation without any new construction
and does not require additional site plan approval or similar process..
14,99 Acres
... "Legally Authorized Body" is not an individual. Applicant must state the name of the Cily Council, County
Commission, Board, Department, Division, ctc" with authority over such matters.
CERTIFICATION
I certify that the City/County of Winter Springs has vested in me the authority
:, . (Name of City Dt CounM
to verify status' of site plan approval as specified above and 1 further certify tha.t the
in,fi 'onstated ~bO is true and corrlc~t
" ~ tj'f 03 JaJ#; f. 73tf<;~ HAY(J-<-
. " .
Si Date Print or Type Name and Title
. .
This certification must be sig~ed by the applicable City's or County's Direc:tor of Planning and Zonin&, chief IlPpolnted
official (staff) {cspoosible rof detennination of issues rela.ted to comprehensivll planning and UlninS, City Manager. or
County Mall4&er/AdmilJI~trll'lor/Coordinator. Signatu~ from toea! eleeted officials are not aoc:cptablo, nor Are otner
signatori~5. If this certifloatioc is applicable 10 this Development.and it Is inspproprialely signed, the Application will fail
threshold, )
If thi! certification contains corrections or 'white-out', or if it is scanned, imllg~ aherod, or retyped, the Application will
fa.il to meet threshold and will be rejected, The certification may be photooopied .
UAI016 (Rev, 4~3)
Exhibit 26
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P~Y!S
FIeritage, Ltd.
Kevin J. Bzoch
Acquisition / Development
20725 SW 46 th Ave . Newberry, Florida 32669
352.472.7773 . fax 352.472.5969 . cell 352,870.0876
KevinB@DavisandSons.com
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