HomeMy WebLinkAbout2004 10 11 Regular 501
CITY COMMISSION
AGENDA
ITEM 501
Consent
Information
Public Hearin
Re ular XX
October 11, 2004
Meeting
MGR. V /Dept. ~
REQUEST: The Community Development Department requests the City Commission approve
the first modification of the proposed Barclay Woods development agreement.
PURPOSE: The purpose of this agenda item is to approve the proposed development
agreement modification to expedite construction of model units on 7.45 acres
located along the north side of SR 434, west of Barrington Estates and Don King
Concrete.
APPLICABLE REGULATIONS
Chapter 166, Florida Statutes
Section 9-178 of City Code
CHRONOLOGY:
On December 8, 2003 - City Commission granted a conditional use for multi-
family development at this site, pursuant to Section 20-234 of the City Code.
December 9, 2003 - City received final subdivision plan application package.
April 6, 2004 - Applicant and staff address outstanding development agreement
and homeowner restrictive covenants issues.
April 7, 2004 - Planning and Zoning Board recommends approval, subject to
accommodating adequate parking.
April 30, 2004 - Applicant submits final engineering/subdivision plans, to address
engineering comments & P &Z concerns
October 11, 2004
Regular Item 501
Page 2
May 4, 2004 - Applicant submits amended development agreement and
homeowner restrictive covenants.
May 10, 2004 - City Commission deferred the final engineering/subdivision plan,
development agreement, and homeowner restrictive covenants
May 24,2004 - City Commission approved conceptual plan to provide 219
parking spaces with no on-street parking
June 14,2004 - City Commission approved the final engineering/site plan and
associated development agreement for Barclay Woods
September 20, 2004 - City Commission approved a similar provision for
expediting model unit construction with the Highlander annexation and pre-
development agreement
CONSIDERATIONS:
Section 9-178 of the City Code prohibits issuing building permits for or construction of any of
the units until a plat is recorded, water lines and fire hydrants are in operation, and the roadways
are adequately stabilized. The City Attorney has prepared language to allow the developer to
permit and construct a single building when the water lines and hydrants are operational and the
applicable section of roadway is adequately stabilized (health-safety issues), but before a plat is
recorded. The building will be treated as a single building - rather than a group of town homes -
and will remain under the common ownership ofthe builder or developer for use only for models
until after the plat is recorded, the models have been modified to town house units, and
certificates of occupancy have been issued for the individual units.
Similar language was provided in and approved with the Highlander annexation and pre-
development agreement.
FINDINGS:
1. The proposed modification is consistent with the Comprehensive Plan.
2. The proposed modification has precedent in the recently approved Highlander annexation and
pre-development agreement.
RECOMMENDATION:
Staff recommends the City Commission approve the proposed first modification to the existing
Barclay Woods development agreement.
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October 11, 2004
Regular Item 501
Page 3
ATTACHMENTS:
A. Development agreement
B. Proposed First Modification
CITY COMMISSION ACTION:
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A TT ACHMENT A ~ lWK IF CIRaJIT tooRT
BK 05428 PSS 0048-0056
CLERK'S * 20(~JZ6749
RECORDED 08110/2004 04127128 PM
RECORDING FEES 78.00'
RECORDED BY L Woodle,
tms INSTRUMENT WAS PREPARED BY:
Patrick K. Rinka, Esquire ,
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Bola Driv~
Post Office Box 2809.
, Orlando, FL 32802-2809, '
(407) 843-4600,
Cf]
, ,
AND SHOULD BE RETuRNED TO:
, Anthony Garganese, Esquire
Brown Salzman Weiss, & Garganese
225 E. Robinson St., Suite 660 '
Orlarido, FL 3280~ '
, (407) 425-956.6,
FOR RECORDING DEPARTMENT USE ONLY
I
DEVELOPER'S AGREEMENT
7-11> TillS nE~OPER'S AGREEMENT (the "Agreement") is made and executed this
. day, of Y . , 2004, by and between the CITY OF WINTER SPRINGS, a
Florida municipal corporation (the "City"), wpose address is 1126 East S.R. 434, Winter Springs,
Florida 32708, and BARCLAY WOODS, LLC, a Florida limited liability company ("Barclay
Woods"), whose address is 1085 West Morse Boulevard, Suite A, Winter Park, Florida 32789.
WIT N E SSE T H:
wHEREAS, Barclay Woods is the fee simple owner of (or has the contractual right to
purchase) certain real property located within the City in Seminole County, Florida and more
particularly described in Exhibit "A", attached hereto and incorporated herein by this reference
(the "Property"); and,
WHEREAS, Barclay Woods intends to develop the Property as a single-family
residential (townhouse) community at a density of approximately ten (10) units per acre, (the
' '''Project''); and "
WHEREAS, pursuant to the approval of the City Coinmission on June 14,2004, Barclay
Woods desires to facilitate the orderly development of the Project on the Property as depicted in
, those certain Final Engineering Plans for Barclay Woods Townhomes - City of Winter Springs,
Florida prepared by Pecht-Evans Engineering, Inc. under Job No. 14201, dated December 2003
and approved by the City Commission on June 14,.2004 (the ','Engineering Plans") in compliance
with the laws and regulations of the City; and .: '
!
. . "
WHEREAS, the City Commission has reco~ended entering into this Agreement with
Barclay W oads for the development of the Project; apd ., .. :.:" '
0909516\103441\711854\10
.... J,
WHEREAS, in addition to' Barclay Woods' compliance with the City Land Development
Code (the "Code"), permitting and construction not in conflict herewith, the City and Barclay
Woods desire to set forth the following special terms and conditions with' respect to the
development and 'operation of the Proj ect.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree as follows: ' ' ,
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference.
2. Authoritv. This Agreement is entered into pursuant to, the Florida Municipal
Home Rule Powers Act.
3., Oblie:ations and Commitments. In consideration of the City and Barclay Woods
entering into' this Agreement, the City and!BarClay Woods hereby agree as follows:
(a) Formation of Homeowners' Association. Barclay Woods hereby'
aclmowledges and agrees. that it intends to form a mandatory homeowners' association
' (the "Homeowners' Association") for purposes of (i) maintaining any and all common
areas, landscaping, walls, fences and stormwater drainage facilities associated with the
Project, and (ii) satisfying the requirements for gated community status as hereinafter set
forth. A separate' Declaration of Covenants, Conditions and Restrictions (the
"Declaration") will be executed anqi recorded among the Public Records of Seminole
County, Florida to evidence the formation of the Homeowners' Association and establish
its rights, duties and obligations. '
(b) . Buffer Walls and Fences. Notwithstanding the requirements of Section
20-417 of the Code, Barclay Woods shall install (i) a six (6) foot tall masonry wall along
.the eastern boundary line of the Property, and (ii) a six (6) foot tall ahiminum fence along
the western boundary of the Property. The foregoing wall and fence shall each be erected
as soon as reasonably practical and prior to any permanent vertical construction for the
Project. The City hereby acknowledges that a masonry wall already exists along the
northern boundary line of the Property, therefore no additional wall or buffer shall be
required in such location, notwithstanding the requirements of Section 20-417 of the
Code to the contrary.
(c) Signage. The City hereby acknowledges and agrees that Barclay Woods '
shall have the right; upon the full execution of this Agreement, to erect construction
signs, marketing signs and temporary signs (including up to four (4) "banner" signs) as
described in Sections 20-470(10), 20-470(11) and 20-470(16) of the 'Code, in locations
reasonably acceptable to the City, which signs shall be permitted to remain for a period of
nine (9) months from the date hereof. Barclay Woods shall thereafter have the right to
erect permanent Project identification signage at the main entrance to the Project, which
shall consist of lettering attached to the two entrance walls spelling "Barclay Woods"
(total signage dimensions to be approximately 1 foot high and 11 feet wide). Any
construction signs or marketing signs erected on the Project shall not exceed sixty:-four
0909516\103441\711854\10
Developer's Agreement
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. . . I
(64) square feet in size. The City hereby acknowledges and agrees that the Project shall
not be subject to the fourteen (14) day limitation on the erection of temporary "banner"
signs as provided in Secclon-20:-470(16) of the Code. Barclay Woods and its successors
arid assigns shall maintain all of the signs erected pursuant to this Section 3(c) in a good
condition ,and, state, of repair.
, ' (d) Reimbursement for Water LinelForce Main. Barclay Woods, or its
successors or assigns, shall be obligated to reimburse the City for a portion of the
' construction costs previously incurred in connectjon with the installation of the existing
water line and force main that will serve the Project (the "Utility Costs"). Barclay Woods'
pro rata share ,of the Utility Costs shall be calculated on the basis of the number of
r~sidential luiits approved for the Project .and shall be paid to the City prior to the
.issuance of a construction permit for the Project site work.
, . ( e) Gated Community. the City hereby agrees that in the event that Barclay
Woods provi~es reasonable evid~ce that the Ho~eowners' Assoc.iation has been duly..
,'formed and mcorporated underTfue laws of the State of Flonda asa mandatory
homeowners' association with the authority and obligation to levy and, collect regular and
. specIal assessments for the ongoing operation, maintenance and repair of any and all
'gates, recreational areas, streets and stormwater drainage systems, and any other common
areas located within the Project (hereinafter referred to as the "Private .Roadway
Improvements") and ,otherwise complies with the requirement~of Section 9-'157 of the
Code, the City shall grant gated community status for the Project. Barclay Woods
acknowledges, that the internal Pr~ject roadways comprising the Private Roadway
Improvements are designed at Barclay Woods' request and sole risk as twenty-two (22)
foot wide inverted crown sections and do not meet City design standards as set forth in
Sections 9-147 and 9-296 of the Code, therefore such roadways shall not become part of
the City roadway system (and must remain private) in the future. The Homeowners'
Association shall have the obligation, at its sole cost and expense, to maintain, repair and
replace (as necessary) th,e Private Roadway Improvements as described above, which
obligation shall run with title to the residential lots within the Project as evidenced in the
Declaration. The Declaration shall also establish such access and utility easement rights
in favor of the Homeowners' Association and residents of the Project as may be necessary
for the. orderly use and development of the Project. City and' other govemmentaJ
emergency, code enforcement,' public and utility service personnel and vehicles shall be
allowed access into the Project in accordance with Section 9-157(b) of the Code.fu
addition, Barclay Woods shall construct a stabilized twenty (20) foot emergency' access
roact, which road shall be constructed with recycled concrete fines and a top layer of
woodchips and shall also include a vegetative barrier. '
(f) Building Setbacks. The City hereby acknowledges and agrees that since
all streets and roadways within the Project will be private, the fifteen (15) foot building
setbacks normally required from publicly-dedicated rights-of-way (pursuant to Section
20-482 of the Code) shall not be required. Nevertheless, individual buildings within the
ProjeCt (including patios and privacy walls) shall be constructed no closer than tWenty
(20) feet from the back of the curb of the private streets and roadways as set forth in the
Engineering Plans; and no part of any residential building (including patios and privacy
0909516\103441\711854\10
Developer'S Agreement
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walls) shall be constructed in common areas. In addition, the City hereby agrees that the
rear setback requirement shall be reduced from ten (10) feet to seven (7) feet. '
(g) Sidewalks. The City hereby agrees that aU internal sidewalks within the
Project shall only be required to be four (4) feet in'width in accordance with Section 9-
, 221 of the Code. In addition, the Declaration shall establish easement rights in favor of
the Homeowners' Association to ,permit sidewalks to extend into individual townhouse
lots as depicted in the Engineering Plans. '
(h) Model Units/Sales Office. Upon the completion otthe first building on
the Property pursuant to the Engineering Plans (the "Model Building"), Barclay Woods
shall have the'right to utilize four (4) units within such building as "model" units for sales
.and marketing effqrts."In addition, Barclay Woods shall have the right to utilize one
garage in the Model Building as a temporary sales office. The Model Building shall meet
. ,all applicable handicap accessibt' 'ty requirements prior to being ope,ned for busines, s.
The Model Building shall be con erted.to permanent residential units at such time as the
, Project development is completed , " ',..' ,
(i) Construction Trailer. During the period from the date hereof through and
until the completion of the construction of the Project, Barclay Woods shall have the right
to maintain one (1) trailer on the Property for use by its contractors and construction
workers~
(j) Trash/Refuse Service. / The City hereby agrees that trash and refuse pickup
will be provided for each individual residential unit, therefore no Project dumpsters will
be located on the Property as otherwise required pursuant to Section 9-280 of the Code. '
(k), Platting. Barclay Woods shall be required to plat the Property, in
accordance with Section 9-75 of the Code. Barclay Woods shall submit a'-proposed
'lighting plan to the City contemporaneously with Its submittal of the proposed plat.
, ,
(1) On Street Parking. Parking shall not be permitted along the internal
Project roadways. Barclay Woods will provide sepani.te remote parking areas to
accommodate visitors and guests.
(m) Patios. The residential units within the Project are intended to include
covered patios. Barclay Woods hereby acknowledges and agrees that no covered patio
area or any screened enclosure is to be enclosed in any manner whatsoever so as to
become a part of the' living area of any attached single-family residence.
(n) Recreational Area. Barclay Woods shall be required, to provide a
recreational area within the Project in accordance with the Engineering Plans.
(0) Stormwater Pond Maintenance Berm. The City hereby agrees that Barclay
Woods shall only be required to maintain a six (6) foot maintenance berm around the
Project retention pond rather than a ten (10) foot berm as required pursuant to Section 9- ,
241 (d)(3) of the Code.
0909516\103441\711854\10
Developer's Agreement
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"
4~ Representations of the Parties. The City and Barclay Woods hereby each
' ',represent and warrant to the other that it has the power and authority to execute, deliver and
perfoim' the terms and provisions of. this Agreement and has taken all necessary action to
authorize, the execution, delivery and performance of this Agreement. This Agreement will,
when duly-, executed, and delivered by the City and Barclay Woods and recorded in the Public
'Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable
, against the parties hereto' and . the Property in accordance with the terms and conditions of this
'Agreement. ' Barclay Woods represents that it has voluntarily and willfully executed this
· Agreement for purposes of binding the Property to the terms and conditions set forth in this
Agreenlent.
': 5. Successors and Asshms. This Agreement shall automatically be binding upon
and ,shall inure to thepeneiit of the City and Barclay Woods and their respective successors and
assigns. The terms and conditions of this Agreement similarly shall be binding upon the
Prope)iy and ~hal1 run with title to the s~e. " '
.' 6. Applicable 'Law. This IAgreementshall be governed by and construed III
aCcordance with the laws of the State of Florida.
'T. Amendments. This Agreement shall not be modified or amended except by
'written agreement duly executed by both parties hereto (or their successors or assigns) and
.approved by the City Commission,
8.' Entire Agreement. This Apeement supersedes any other agreement, oral or
written, and contains the entire agreement between the City.-and Barclay Woods as to the subject
matter hereof.
9, Severability. If any provision of this Agreement shall beheld to be invaiid or
' unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in ally
respect the validitt or enforceability of the remainder of this Agreement.
10. Effective Date. This Agreement shall become effective upon approval by the
City Commission: and execution of this Agreement by both parties hereto.
II: Recordation. This Agreement shall be recorded in the Public Records of
Seminole County, Florida. .
12. Relationship of the Parties. The relationship of the parties to this Agreement is '
contrac!ual and Barclay Woods 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.
13. 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 the state and federal law.
0909516\103441\711854\10
Developer's Agreement
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14. City's Police Power. Barclay Woods agrees and acknowledges'that 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.
15. Interpretation. The parties hereby agree and acknowledge that they have both
participated equally in the draftfug of this Agreement and 'no party shall be favored or disfavored
regarding the interpretation to this Agreement in the, event of a dispute between the parties.
16. . Permits. The failure of this Agreement to address any particular City, ,C()1.inty,
state, and/or federal permit, condition, term, or restriction shall not relieve Barclay.Woods or the '
City of, the necessity of complying with the law governing said permitting requirements,
conditions, term, or restriction.
17. . Third-Party Ri2hts. This Agreement is not a third-party beneficiaryc~ntract and
shall not in any way whatsoever create any rights on behalf of any third party.
18. Specific Performance. Strict compliance shall be required with each and every
provision of this Agreement. The parties agree that failure to perform the obligations provided'
by this Agreement shall result in irreparable damage and that specific performance of these
obligations may be obtained bya suit in equity.
19. Attorney's Fees. In connection with any arbitration or litigation arising out of
this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and
costs through all appeals to the extent permitted by law,
20. Development Permits. Nothing herein shall limit the City's authority to grant or
deny any development permit applications or requests subsequent to the effective date of this
Agreement. The failure of this Agreement to address any particular City, County, State and/or
Federal permit, condition, term or restriction shall not relieve Barclay Woods or the City of the
necessity of complying with the law governing said permitting requirement, condition, term or
restriction.
[SIGNATURES FOLLOW ON NEXT PAGE]
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Developer's Agreement
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IN WlTNESS WHEREOF, the parties have hereunto set their hands and seal on the
. . 'date first above written..
By:-.
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0909516\103441\711854\10
Developer's Agreement
CITY. OF WINTER SPRINGS
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I
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
Dated:
- 7 -
, "Signed, se'aled and delivered in the
prese:riceofthe following witnesses:
:/~~~
Signature of Witness
1*:r~CK ,K. RI'(/KA ,
Printed N~me ,of Witness
BARCLAY WOODS, LLC, a Florida limited
liability company
By: ~ cB-----
Printed Name:~....f. C,,, k~r ~
TItle: \N'\~t'\... ';.... C:\.r \" .....~.r--
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'STATE OFFLO)pDA
,COUNTY OF (JtoJJjL ,
'''J' 'lThe foregoing instrument was ackno~ledged before' me this
. U _~ ' , 2004, by Ih 0 r I:e ' , as t "-
of B CLAY WOODS, LLC, a limited li~bili company, on behalf of s id ompany.
personally known to me or produced I as identification.
-- ..
, ""'''''''''' , -Amy M Holden '
If'tf/,ItY''f': MY COMMISSION # 00205102 EXPIRES
''''. , .Y; - '121 2007
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"''.f.:P... ..H/:'$' BONDED THRU T1!OY FAIN I~SURANCf.IN~
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(Notary Plibli ignat r
(Print Name)
Notary Public, State of
Commission No.:
My Comniission Expires:
(NOTARY SEAL)
0909516\103441\711854\10
Developer's Agreement
- 8 -
,. .'
EXHIBIT" A"
Legal Description
The West 2/5 of the East 5/8 of the North 1/4 of the Southeast 1/4 (LESS the East 165 feet) of
Section 4, Township 21 South, Range 31 East, St;:minole County, Florida; less that part lying
within the right-of-way of State Road 434.
0909516\103441\711854\10
Developer's Agreement
- 9 -
ATTACHMENT B
First Modification to Development
Agreement
Will be provided by City Attorney
THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony Garganese
City Attorney of Winter Springs
Brown Garganese, Weiss & D' Agresta, P.A.
225 E. Robinson St., Suite 660
Orlando, FL 32801
(407) 425-9566
FIRST MODIFICATION OF DEVELOPMENT AGREEMENT
THIS FIRST MODIFICA TION OF DEVELOPMENT AGREEMENT (the
"Agreement") is made and executed this day of September, 2004, by and
between the City of Winter Springs, a Florida Municipal Corporation (the "City"), whose
address is 1126 East S.R. 434, Winter Springs, Florida 32708, and Barclay Woods, LLC,
a Florida limited liability company ("Barclay Woods"), whose address is 1085 West
Morse Boulevard, Suite A, Winter Park, Florida 32789.
WITNESSETH:
WHEREAS, Barclay Woods and the City previously entered into a binding development
agreement which is recorded in the Public Records of Seminole County, Florida at
Official Record Book 05418, Pages 0048-0056 (the "Development Agreement"); and
WHEREAS, Barclay Woods has requested an amendment to the Development
Agreement in order to enhance the sale and marketing efforts of the development Project;
and
WHEREAS, in furtherance of this request, the parties desire to amend the Development
Agreement to permit Barclay Woods to commence construction of a limited number of
model townhouse units prior to the recordation of the final plat for the development
Project under the terms and conditions contained herein; and
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree to amend the Development Agreement as follows:
Section 1.
The following paragraph is added to the Development Agreement:
21. Construction and Use of Model Homes. Prior to the recording
of the final plat, the City agrees to permit Barclay Woods to construct model
townhouse units under the following conditions:
First Modification to Developer's Agreement
City of Winter Springs and Barclay Woods, LLC
- 1 -
(1) The model townhouse units shall be contained in a single building
and shall not exceed eight (8) individual units.
(2) The model townhouses shall remain under Barclay Woods's
ownership and control until such time as the final plat is recorded by the City and
a final certificate of occupancy for each unit is issued under the conditions set
forth below. In other words, Barclay Woods shall not contract for sale, sell, or
lease any of the individual model townhouse units until such time as the City
approves and records the final plat for the Project and issues a final certificate of
occupancy for each unit.
(3) The model townhouse units shall be located in close proximity to
the entrance of the Project.
(4) Prior to construction, the model townhouses shall be duly
permitted by the City in accordance with all City Codes. As part of the building
permit application, Barclay Woods shall submit, along with all construction plans
for the townhouse units, a duly certified boundary survey which shall depict the
location and legal description of the model townhouse site and each individual
model townhouse lot. Barclay Woods acknowledges and agrees that this legal
description is intended to coincide with the eventual location of the townhouse
lots as depicted and legally described on the final plat. Barclay Woods assumes
full and complete responsibility and liability in the event that said legal
descriptions do not conform to the lot lines required by the City in final plat.
(5) At such time the Building Official completes and approves a final
inspection of the model townhouse units, the City will issue a temporary
certificate of occupancy. Said temporary certificate of occupancy shall be issued
for the model townhouse building as a whole, not by individual units. Occupancy
of the townhouse units shall be limited to the sale and marketing efforts for the
Project. In addition, Barclay Woods shall have the right to utilize one garage in
the model townhouse building as a temporary sales office.
(6) At the request of Barclay Woods or at such time the Project
development is completed, whichever occurs sooner, the model townhouse units
shall be converted into permanent residential units and the City shall issue
individual certificates of occupancy for each model townhouse unit; provided,
however, the final plat is approved and recorded by the City and the Building
Official determines that the units are suitable for permanent residential occupancy
and in compliance with the City Code.
Section 2. All other terms and conditions of the Development Agreement, not in
conflict with this First Modification, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on
the date first above written.
First Modification to Developer's Agreement
City of Winter Springs and Barclay Woods, LLC
- 2-
CITY OF WINTER SPRINGS
By:
John F. Bush, Mayor
ATTEST:
By:
Andrea Lorenzo Luaces, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
CITY SEAL
Dated:
By:
Anthony Garganese, City Attorney for
the City of Winter Springs, Florida
First Modification to Developer's Agreement
City of Winter Springs and Barclay Woods, LLC
- 3 -
Signed, sealed and delivered in the
presence of the following witnesses:
BARCLAY WOODS, LTD., a Florida limited
partnership
Signature of Witness
By:
Printed Name:
Title:
Printed Name of Witness
Signature of Witness
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2004, by as
of BARCLAY WOODS, LTD., a Florida limited
partnership, on behalf of said partnership. He is personally known to me or produced
as identification.
(NOTARY SEAL)
(Notary Public Signature)
(Print Name)
Notary Public, State of
Commission No.:
My Commission Expires:
First Modification to Developer's Agreement
City of Winter Springs and Barclay Woods, LLC
- 4 -
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I'..' .. II. II ..111 ..111 11111 I" 1111111111 11111 III. 11111 1111.
THIS INSTRUMENT WAS PREPARED BY:
'patrick K. Rinka, Esquire
'Lowndes, Drosdick, Doster, Kantor & Reed, PA
215 North Eola Drive
Post Office Box 2809
Orlando, FL 32802-2809
(407) 843-4600
MARYANNE MORSE, CLERK OF CIRCUIT COURT
SEMINOLE COUNTY
BK 05677 PGS 1396-1400
CLERK#S , 2005057171
RECORDED 04/07/2005 11:32:01 AM
RECORDING FtES 44.00
RECORDED BY G Harford
;i
~
AND SHOULD BE RETURNED TO:
Anthony Garganese
City Attorney of Winter Springs
Brown, Garganese, Weiss & D'Agresta, P.A.
225 E. Robinson St., Suite 660
Orlando, FL 32801
(407) 425-9566
FOR RECORDING DEPARTMENT USE ONLY
FIRST MODIFICATION OF DEVELOPMENT AGREEMENT
TIDS FIRST MODIFICATION OF DEVELOPMENT AGREEMENT (the
"Agreement") is made and executed this Jf~ day of M ,,"(""Co ~ , 2005, by and
between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "Cityll),
whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and ASHTON
ORLANDO RESIDENTIAL, L.L.C., a Nevada limited liability company ("Ashton"), whose
address is 341 North Maitland Avenue, Suite 100, Maitland, Florida 32751.
WITNESSETH:
WHEREAS, Barclay Woods, LLC, a Florida limited liability company ("Barclay
Woods"), and the City previously entered into a binding Development Agreement dated July 7,
2004 and recorded August 10, 2004 in Official Records Book 05418, Pages 0048-0056 of the
Public Records of Seminole County, Florida (the "Development Agreement"), relating to certain
real property located in Seminole County, Florida and more particularly described therein (the
"Property"); and
WHEREAS, Ashton purchased the Property from Barclay Woods and is the current fee
simple owner of the Property; and
WHEREAS, Ashton has requested an amendment to the Development Agreement in
order to modify certain setback requirements and to enhance the sale and marketing efforts of the
development Project; and
WHEREAS, in furtherance of this request, the parties desire to amend the Development
Agreement to (i) modify certain setback requirements, (ii) permit certain setback encroachments,
and (iii) permit Ashton to commence construction of a limited number of model townhouse units
First Modification to Developer's Agreement
City of Winter Springs and Ashton Orlando Residential, L.L.C.
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prior to the recordation of the fmal plat for the development Project, all under the terms and
conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree to amend the Development Agreement as follows:
I. The recitals set forth above are true and correct and are incorporated herein by this
reference. Unless otherwise set forth herein, all capitalized terms utilized herein shall have the
same meaning as set forth in the Development Agreement.
2. Section 3(t) of the Development Agreement is hereby deleted in its entirety, and the
following new Section 3(t) is hereby inserted in lieu, in place and instead thereof, to wit:
(t) Building Setbacks. The City hereby acknowledges and agrees that since all
streets and roadways within the Project will be private, the fifteen (15) foot
building setbacks normally required from publicly-dedicated rights-of-way
(pursuant to Section 20-482 of the Code) shall not be required. Nevertheless, (i)
individual buildings within the Project (including patios and privacy walls) shall
be constructed no closer than eighteen (18) feet from the back of the curb of the
private streets and roadways as set forth in the Engineering Plans, (ii) garage
doors shall be constructed no closer than twenty (20) feet from the back of the
curb of the private streets and roadways as set forth in the Engineering Plans, and
(iii) except for a portion of buildings 3, 4 and 5 as depicted on Ashton's Final
Engineering Plans, no part of any residential building (including patios and
privacy walls) shall be constructed in common areas. In addition, the City hereby
agrees that the rear setback requirement shall be reduced from ten (10) feet to six
feet eight inches (6'8"). Upon completion of construction of the foundations for
buildings 3, 4 and 5 of the Project, Ashton shall prepare and submit to the City an
"as-built" drawing showing the improvements and the actual rear setbacks to
confirm compliance with the requirements hereof.
3. Section 3(h) of the Development Agreement is hereby deleted in its entirety. The
following new Section 21 is hereby added to the Development Agreement, to wit:
21. Construction and Use of Model Townhouse Units. Prior to the recording
of the final plat, the City agrees to permit Ashton to construct model townhouse units
under the following conditions:
(a) The model townhouse units shall be contained in a single building and
shall not exceed eight (8) individual units.
(b) The model townhouse units shall remain under Ashton's ownership and
control until such time as the final plat is recorded by the City and a final certificate of
occupancy for each unit is issued under the conditions set forth below. In other words,
Ashton shall not contract for sale, sell, or lease any of the individual model townhouse
First Modification to Developer's Agreement
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units until such time as the City approves and records the fmal plat for the Project and
issues a final certificate of occupancy for each unit.
(c) The model townhouse units shall be located in close proximity to the
entrance of the Project.
(d) Prior to construction, the model townhouse units shall be duly permitted
by the City in accordance with all City Codes. As part of the building permit application,
Barclay Woods shall 'submit, along with all construction plans for the townhouse units, a
duly certified boundary survey which shall depict the location and legal description of the
model townhouse site and each individual model townhouse lot. Ashton acknowledges
and agrees that this legal description is intended to coincide with the eventual location of
the townhouse lots as depicted and legally described on the final plat. Ashton assumes
full and complete responsibility and liability in the event that said legal descriptions do
not conform to the lot lines required by the City in final plat.
(e) At such time the Building Official completes and approves a fmal
inspection of the model townhouse units, the City will issue a temporary certificate of
occupancy. Said temporary certificate of occupancy shall be issued for the model
townhouse building as a whole, not by individual units. Occupancy of the model
townhouse units shall be limited to the sale and marketing efforts for the Project. In
addition, Ashton shall have the right to utilize one garage in the model townhouse
building as a temporary sales office.
(f) At the request of Ashton or at such time the Project development is
completed, whichever occurs sooner, the model townhouse units shall be converted into
permanent residential units and the City shall issue individual certificates of occupancy
for each model townhouse unit; provided, however, the final plat is approved and
recorded by the City and the Building Official determines that the units are suitable for
permanent residential occupancy and in compliance with the City Code.
4. All other terms and conditions of the Development Agreement, not in conflict with this
First Modification, shall remain in full force and effect.
[SIGNATURE BLOCKS BEGIN ON NEXT PAGE]
First Modification to Developer's Agreement
City of Winter Springs and Ashton Orlando Residential, L.L.C.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the ate
first above written.
CITY OF WINTER SPRINGS
ATTEST:
By:Jf1tk~H
Andrea Lorenzo Luaces, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
CITY SEAL
Date:
By:
~ony ese, City Attome r the
City of Win er Springs, Florida
STATE OF FLORIDA
COUNTY OF SEMINOLE
Personally appeared before me, the undersigned authority, John F. Bush and Andrea
Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of
Winter Springs, Florida, and acknowledged before me that they executed the foregoing
instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were
duly authorized to do so.
Witness my hand and official seal this.) f#day of M III U0 , 2005.
(NOTARY SEAL)
~~
. Notary Public
My comm.ission expires:
,~1\ DtbrI C. FlInIdIn
. ~ j My CommIIIIon D02V2I71
~ Of,.1 Expires Februafy 22, 2008
First Modification to Developer's Agreement
City of Winter Springs and Ashton Orlando Residential, L.L.C.
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0909S 16\103441\7<J737SU
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Signed, sealed and delivered in the
presence of the following witnesses:
ASHTON ORLANDO RESIDENTIAL, L.L.C.,
a Nevada limited liability company
&~<~t2t~
J1;1:Ji~A 4(~
Printed Name of Witness '
By: ASHTON WOODS USA, L.L.C., a Nevada
limited liability company, its managing
member
~ vW1.L ~~~
Si~~fWitness ,
de' rtAL( IJ(~/
Printed Name of Witness
By:
Name:
Title:
~g /O~
/
Date:
STATE OF ~~
COUNTY OF ')
J1J. The foregoing instnnnent was ~owledged before me this Zg- day of
tJJ(cJt , 2005, by JDhn ~ ' as J),V;5}m Prtt;,'bj.of Ashton
Woods USA, L.L.C., a Nevada limited liability ompany its managmg member of ASHTON
ORLANDO RESIDENTIAL, L.L.C., a Nevada limited liability company, on behalf of said
company. He is personally known to me or produced as
identification.
(NOTARY SEAL)
~~~,~
(Notary Public Signature)
~\\'~';A~f1J.""
[:f~' .~~ M Patricia Altman
l~:. M YCOMM/SS/ON # DD223759 EXPIRES
-1,'}" ....R>~.. August 23 2007
"',9r.tfll~\\' BONDED THRU TROY FA"N INS
URANCf, INc.
(Print Name)
Notary Public, State of
Commission No.:
My Commission Expires:
First Modification to Developer's Agreement
City of Winter Springs and Ashton Orlando Residential, L.L.C.
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