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HomeMy WebLinkAbout2006 12 11 Regular 305 Sonesta Pointe Phases I and II COMMISSION AGENDA ITEM 305 REGULAR December 11, 2006 Meeting REQUEST: The Community Development Department- Planning Division requests the Commission approve the Subdivision & Final Engineering Plans and associated Development Agreement with Tousa Homes, Inc. for Sonesta Pointe Phases I and II. PURPOSE: The purpose of this agenda item is to request the City Commission's approval of the final subdivision/engineering plans and Development Agreement with Tousa Homes, Inc. for Sonesta Pointe at the Winter Springs Town Center. Sonesta Pointe is an Engle Homes project consisting of 408 townhome units on a 40.0 acre site located on the east side of Tuskawilla Road, immediately south of the St. Johns Landing subdivision in the Winter Springs Town Center. APPLICABLE LAW AND PUBLIC POLICY: Chapter 166, Florida Statutes Comprehensive Plan City Code of Ordinances, particularly Chapter 9; Town Center District Code Sections 20-320 through 20-327; and Section 20-317. Application for construction. Schrimsher Development Agreement, executed June 26,2000 CHRONOLOGY: Aug. 9,2004- Concept Plan Approved by City Commission Sept. 27, 2004- Refined Concept Plan Approved by City Commission Aug. 28, 2006- Aesthetic Review Package Approved by City Commission Nov. 13,2006 - Early Work Permit Approved by the City Commission CONSIDERATIONS: This development is included within the properties described by the Schrimsher Development Agreement of June 26, 2000; however, the agreement also includes lands that are not within the geographic boundaries of this project. December 11,2006 Regular Agenda Item 305 The project consists of 408 rear loaded (garage entrances in the rear, with access from an alley) town house units, a recreation facility with a pool, park features, and two stormwater ponds that double as a park amenity features. The 408 units are divided into two phases, as shown on the final engineering plans, with 58 units in Phase I and 350 units in Phase II. A total of 1,114 parking spaces are provided onsite, consisting of 816 garage spaces (every townhome unit will has a two-car garage) and 298 on-street spaces, for an overall parking ratio of2.73 spaces per unit. An additional 18 parallel parking spaces are being constructed on Tuskawilla Road; however, consistent with policy on other projects, these spaces are considered to be offsite and are not counted towards meeting the onsite parking demand. Access to and from the development is provided along Tuskawilla Road through three entrance roadways. Access will also be available from Michael Blake Boulevard (formerly the Spine Road or Alderbrook Road), which will be a collector road (as identified in the Transportation Element of the Comprehensive Plan). The location of this road is in compliance with the Comprehensive Plan and with the Schrimsher Development Agreement. It will be constructed from S.R. 434 to the trail crossing as a part of the James Doran Town Center Phase II project and constructed from Tuskawilla Road to the trail crossing during Phase I of Sonesta Pointe. A traffic study was provided with the subdivision plan. The project is estimated to generate a daily traffic volume of 2,391 vehicles per day, with 180 AM peak hour trips and 212 PM peak hour trips. The primary offsite transportation improvement required for Sonesta Pointe is construction of Michael Blake Boulevard (Spine Road) from Tuskawilla Road to the trail crossing. When this road is complete and extended to S.R. 434 as a part of the JDC Phase II project, Michael Blake Blvd will provide relief to the Tuskawilla/S.R. 434 intersection and an alternate access point to and from S.R. 434. The traffic generation and distribution from Sonesta Pointe is consistent with the City's S.R. 434 Town Center Access Management Plan. Staff has reviewed and approved the traffic study. Stormwater from the subdivision is collected and routed to two onsite wet detention ponds. Each wet detention pond has an outfall that discharges into the existing wetlands to the west, which drain into Lake Jesup. A St. Johns River Water Management District permit has been obtained for the project. The onsite wet detention ponds have extensive littoral plantings, which improve water quality through nutrient uptake and habitat creation. A large number of specimen trees are required to be removed from the site to support the development, resulting in the loss of tree canopy to the City. As a result, the developer has agreed to contribute $39,000 to be used for purchase and installation of plant material within the Town Center. The landscape plan indicates that the following quantities of plant material will be installed on-site as part of the site development: 539 palms 1015 canopy trees 18,181 shrubs 16,000 littoral plantings (along the lake shoreline and the edge of wetlands) 2 December 11, 2006 Regular Agenda Item 305 The Schrimsher Development Agreement calls for a 50' buffer area adjacent to the St. John's Landing subdivision. The plans show a forty (40) foot area between the St. Johns Landing and Sonesta Pointe property lines, with an additional twelve (12) to thirteen (13) feet within the Sonesta Pointe subdivision that will include a privacy wall and landscaping as part of the required buffer. The project includes several deviations from the Code which are supported by Staff. These are as follows with the associated Code Sections referenced: 1. Town Center Code, Section 20-325( c) Squares, Parks and Streets Map depicts the location and Exhibit' A' in the current Schrimsher Development Agreement and depicts the location and acreage of certain parks and squares that are to be conveyed to the City at the time of development. These include the following: Wetland Park (22.33 acres min.) Small Neighborhood Square #2 (.45 acres) Small Neighborhood Square #3 (.44 acres) Small Neighborhood Square #4 (.42 acres) [within the geographic area of JDC Phase 2B] Small Neighborhood Square #5 (.44 acres) [within the geographic area of JDC Phase 2B] Lake Trail Park (.85 acres) Magnolia Park (.64 -.79 acres) [already conveyed to the City] (The associated acreages include the adjacent right-of-way around each space and are considered as a minimum acreage.) The Schrimsher Development Agreement states that squares may be substituted by special exception granted by the City Commission, provided that the substituted Small Neighborhood Square is "of equal or better value than what is proposed in the Town Center District Code with respect to property value and design". "Lake Trail Park" has been relocated and substituted with "Grande Park." Grande Park is a central focal feature of the development and is a better value than what was initially proposed in the Town Center District Code with respect to both enhancing property value and the design of the development. Grande Park will be conveyed to the City as a public park but according to the Development Agreement will be maintained by the Homeowners Association. "Neighborhood Square 2" and "Neighborhood Square 3" as described in the Schrimsher Development Agreement have been relocated and substituted with private stormwater retention lakes surrounded by perimeter sidewalks and an overlook seating area. The Schrimsher Agreement calls for the conveyance of "Neighborhood Square 2" and "Neighborhood Square 3" to the City. In order for these spaces to meet the intent of the Schrimsher Development Agreement for "public" space, the sidewalks and overlook seating area also need to be dedicated for public use while maintained by the Homeowners Association. Staff believes that the proposed subdivision plan substantially adds value to the both the City and the development by the inclusion of open space and pedestrian corridors over that required by Code and the Schrimsher Agreement (as long as these areas are maintained in perpetuity for use by the general public and dedicated as such in the Development Agreement and on the plat. Accordingly, all sidewalks (except those within the private community's recreational area denoted as "parcel "B") are to remain in perpetuity for public use. 3 December 11, 2006 Regular Agenda Item 305 2. Two public access points are provided to the trail rather than the "Lake Trail Park" access. Full public access to and from the trail and Sonesta Pointe shall remain in perpetuity as a "public" ingress/egress point to the trail and is never be gated or locked. 3. The existing boundary, topographic and tree survey dated August 13, 2003, prepared by ASM Surveying, will be accepted by the City. (Sec. 5-6 (a-I) and Sec. 20-321 (b-3) of the City's Code of Ordinances) 4. Project identification signage will be allowed at Michael Blake Blvd. (formerly known as "Spine Road") and Loxton Boulevard, consisting of an 8'x8'x 16' bell tower. 5. Brick paver systems within public/private roadways shall be utilized at crosswalks and at the entranceway traffic circle and shall be the maintenance responsibility of the homeowners association. (Sec. 9 - 202.2) 6. All roadways shall be designed and constructed pursuant to the Town Center District Code, except for the following streets which vary from the standard street types included in the Code: These include the Entry Boulevard and the roundabout illustrated at Arrowwood Road/Fieldstone Street and Road "P" (Exhibit "E" of the Development Agreement). The following streets are Neighborhood Streets, with a 48' right of way: FallenleafLane Lynmar Drive and Calaveres Street The following street is an Edge Drive, with a 48' right of way: Michael Blake Blvd ("Spine Road") The following streets are Neighborhood Lanes, with a 50' right of way ("A" Section): Trinitas Street Icaria Avenue St. Francis Drive and Fieldstone Street The following street is a Neighborhood Lane, with a 66' right of way ("B" Section): Hawley Lane The revised road configuration is illustrated in Exhibit "F" of the Developers Agreement. "Spine Road" is the only collector road. Roads C, H, & L, shall be designated as a "modified neighborhood street hybrid" allowing for parking adjacent to the pond areas. (Sec. 20 - 325.12) The main road entrance, known as Loxton Boulevard, shall be designated a "modified urban boulevard." The median shall be 24 ft. wide. The ingress and egress drive lanes shall be 12 ft. wide for emergency traffic use in lieu of 10 feet wide as defined in Section 20-325 (c-9). The grass strips 4 December 11, 2006 Regular Agenda Item 305 on either side of the road shall be permitted to exceed the 6 ft. width of the standard urban boulevard requirements to off-set pedestrian movements from the traffic circle and to open a vista toward the Grande Park area. The right-of-way for this road will be extended in width to encompass the sidewalks on either side of said roadway. (Sec. 20 - 325.9) Calaveres Street shall be developed as a partial neighborhood street, with no parking or sidewalk on the east side of the roadway, to allow for the expansion to a full neighborhood street section if the Adjacent Property Development develops in a similar fashion to utilize the frontage of this public road. It is the City's intent that the sidewalk and parallel parking on the east side of Calaveres Street will be constructed concurrently with the adjacent property development. The sidewalk on the east side of Calaveres Street will be constructed concurrently with the adjacent property development in compliance with the Comprehensive Plan which requires sidewalks to be constructed on both sides of the street and with Sec. 20 - 325.12 of the Code. Lynmar Drive and Fieldstone Street are anticipated to extend to the south through the adjacent property in compliance with the Transportation Element of the Comprehensive Plan at such time as the adjacent property develops. 7. Due to the curvilinear road system and other site features, some buildings have a build-to line that exceeds 10' required by code. 8. Building separations greater than those enumerated in Section 20-325 and categorized by street type shall be allowed, as shown on the final engineering plans. 9. Balconies and porches shall have a length greater than 25% of the individual unit frontages in lieu of25% of the building front (Sec. 20-326b and Sec. 20-326d). 10. Deviations to landscape material listed in the recommended shrub pallet and recommended tree pallet referenced in Sec. 20-468, are included in the approved landscape plans and are supported by Staff. 11. The City will not require the entire Schrimsher Property to be platted. Developer will file a plat application for the Townhome Property, Wetland Park and 5 foot buffer strip adjacent to the St. John's Landing subdivision. (Sec. 9 - 2, Sec. 9 - 75a - 3 of the City's Code of Ordinances) 12. In compliance with Transportation Element Policy 1.6.2, a bus shelter will be designed and constructed along "Spine Road" on the Wetland Park parcel prior to Phase 2. FINDINGS: . The proposed development is located within the City of Winter Springs Town Center. . The subdivision will connect to City potable water and sanitary sewer. The City has adequate capacity for both. . A traffic study has been submitted and reviewed by Staff. All required transportation improvements are shown on the final engineering plans. 5 December 11, 2006 Regular Agenda Item 305 . Adequate parking is provided by the two-car garages and the 298 on-street parking spaces. . The proposed stormwater management system meets the City Code and a St. Johns River Water Management District permit has been obtained. . The attached development agreement and final engineering/subdivision plan are consistent with the Comprehensive Plan. · Deviations from the Code are addressed in the development agreement. · Staff supports the approval of the Subdivision and Final Engineering Plans and Development Agreement subject to the following conditions: CONDITIONS OF SUBDIVISION/FINAL ENGINEERING APPROVAL: 1. Revise the handicapped parallel parking spaces to meet all applicable codes. 2. Sheet 14. Remove the dead end sign and move the barricade closer to the curb return. Specify the number of object markers and provide a WI-6 sign per the referenced FDOT detail. 3. Sheet 16. Revise the wall opening to be 6' to match the typical sidewalk width in the community, and as indicated on sheet 7, and add note that the access point is to remain in perpetuity as a "public" ingress/egress point to the trail and is never be gated or locked. 4. Sheet 21. Revise the trail access sidewalk to 6' to match the typical sidewalk width in the community and add note that the access point is to remain in perpetuity as a "public" ingress/egress point to the trail and is never be gated or locked. 5. Sheets 25/26. At the outfalls, provide verification that there are positive slopes downstream of the discharge points. 6. Show the locations of all meter boxes (domestic and fire). 7. Sheet 35. At the lift station water service, specify an RPZ backflow preventer instead of a double check valve. 8. Sheet 35. Delete "megalug" from the valve pit detail. 9. The site plan (sheets 7 & 8) designates parcel "D" as "public pedestrian access". However sidewalks around the stormwater ponds are included in the private open space. Revise to indicate that all sidewalks (except those within the private community's recreational area denoted as "parcel "B") are to remain in perpetuity for public ingress/egress. CONDITIONS OF DEVELOPMENT AGREEMENT APPROVAL: 10. The two access points to the trail depicted on the plans are to remain in perpetuity as "public" ingress/egress points and are never be gated or locked. 11. All sidewalks (except those within the private community's recreational area denoted as "parcel "B") are to remain in perpetuity for public ingress/egress. 12. Internal sidewalks and the overlook seating area are to remain in perpetuity for public use and as such will be dedicated on the plat, but will be maintained by the Homeowners Association. 13. Lynmar Drive and Fieldstone Street are to be extended to the south through the adjacent property in compliance with the Transportation Element of the Comprehensive Plan at such time as the adjacent property develops. RECOMMENDATION: Staff recommends that the City Commission approve the Subdivision & Final Engineering Plans and Development Agreement for Sonesta Pointe subject to the aforementioned conditions of approval. 6 December 11, 2006 Regular Agenda Item 305 ATTACHMENTS: A Schrimsher Development Agreement, Exhibit 'A' B Sonesta Pointe Development Agreement C Sonesta Pointe Subdivision & Final Engineering Plans CITY COMMISSION ACTION: 7 ATTACHMENT A EXHIBIT A ATTACHMENT B ,200_, by and between LO LAND ASSETS, LP, a Delaware limited p rtner ("OWNER") and the CITY OF WINTER SPRINGS, a municipal corporation existing the laws of the State of Florida ("CITY"). DEVELOPER'S AGREEMENT (Sonesta Pointe) THIS DEVELOPER'S AGREEMENT is made and entered into this RECITALS A. WHEREAS, the CITY has completed a comprehensive planning study in connection with the requirements of Chapter 163, Florida Statutes, resulting in the adoption of the Winter Springs Town Center Plan ("Town Center Plan"); and B. WHEREAS, OWNER is the owner of certain real property located within the boundaries of Winter Springs Town Center on which it intends to develop townhomes and related amenities, which real property is more particularly described on Exhibit "A" attached hereto and by reference incorporated herein (the "Townhomes" or "Townhome Property"); and C. WHEREAS, the Townhome Property is subject to the terms of that certain Agreement dated June 26, 2000 by and between the CITY and prior owners of the Townhome Property (the "Original Agreement"); and D. WHEREAS, the terms of the Original Agreement obligated the CITY to commence construction of a certain City collector road called Spine Road (further defined herein) within a certain time period which has expired; and E. WHEREAS, the CITY desires to modify the terms of the Original Agreement to allow OWNER to construct Spine Road in exchange for impact fee credits; and F. WHEREAS, the CITY desires to modify the terms of the Original Agreement to allow OWNER to construct on-site stormwater drainage, all in accordance to an approved site- plan attached hereto and by reference incorporated herein as Exhibit "B" ( the "Approved Site Plan"); and G. WHEREAS, CITY and OWNER desire to clarify certain other development obligations with respect to the Townhome Property including, without limitation, the CITY's agreement to allow certain deviations from the Original Agreement, the Town Center Plan, and the City Code of the City of Winter Springs ("Code"); and H. WHEREAS, OWNER and the CITY intend, for the terms of this Agreement, to memorialize their understanding and agreement regarding their respective interest, expectations, and intentions regarding the development of the Townhomes within the Winter Springs Town Center (the "Town Center"), and, specifically; that the terms hereof shall amend, modify, and 1. INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are fully incorporated herein by reference as a material part of this Agreement. further define the terms of the Original Agreement as it applies to the Townho. r9Ji:":. NOW THEREFORE, in consideration of the terms and conditions s;fo agreement, and other good and valuable consideration, the receipt of which acknowledged, the CITY and OWNER agree as follows: 2. SPINE ROAD. The proposed location of "Spine Road" is generally depicted in the site plan attached hereto as Exhibit "B", which is fully incorporated herein by reference (the "Approved Site Plan"). OWNER hereby agrees to construct "Spine Road," and related water and sewer utilities, at its expense, in accordance with design standards to be provided by the CITY, in exchange for an award from the CITY of transportation impact fee credits and/or U.S. funds as determined by the CITY as provided for in Winter Springs City Code Sections 9-386 through 9- 390 in an amount not to exceed One Million One Hundred Fourteen Thousand Two Hundred and No/100 Dollars DOLLARS ($1,114,200.00). Said amount is based on a length of 1,857 feet at a cost of Six Hundred and No/1 00 Dollars ($600.00) per lineal foot for the reasonable costs of designing, engineering, permitting, surveying, and constructing "Spine Road." The impact fee credits shall be applied to development of the Townhome Property. The construction costs shall specifically include a water main within the "Spine Road" right of way to serve the Townhome Property, sized and located according to CITY requirements. Should the CITY request additional water mains or an over-sized water main (either of which intended to provide more capacity than is required for the Townhome Property), the CITY shall reimburse OWNER for the additional cost differentiated with additional impact fee credits. OWNER shall obtain not less than three (3) bids for the construction of "Spine Road" from engineers and construction companies qualified and experienced in roadway construction. The firm chosen by OWNER to construct "Spine Road" must be mutually acceptable to the CITY. OWNER shall convey "Spine Road" improvements to the CITY at such time as construction is completed. Expenditures eligible for transportation impact fee credits and/or U.S. funds must be approved in advance by the CITY with documentation ofthe expenditure. Prior to the effective date of this Developer's Agreement, project expenditures eligible for reimbursement shall be based on the actual invoiced costs that are reasonable and supported by documentation acceptable to the CITY. 3. LIFT STATION. OWNER, at its own expense, will design and construct a lift station upon the Townhome Property, in the general location as depicted on the Site Plan, sized with a capacity to serve all planned units of the Townhome Property, in accordance with design standards to be provided by the CITY. To the extent any utilities are oversized for the property known as the "Adjacent Property Developments", the CITY agrees to reimburse OWNER for same. Should the CITY request a larger force main (whether or not the increased force main size is associated with increasing the size of the lift station), the CITY will reimburse OWNER in cash for the difference in the cost for the force main between what is needed to serve the Townhome Property and what is required by the CITY's request. 4. STORMWATER DRAINAGE. OWNER, at its own expense, agrees to construct 2 a stormwater drainage system to serve the Townhome Property, to include t~~ ( . ~:':t, ,t~~ generally depicted on the Modified Site Plan, with the capacity to serve all of the Tow j.. qje ~ J Property, in accordance with design standards and guidelines of the CITY and in accordance w'T'th 1/ the Master Stormwater Permit from the St. Johns River Water Management District, previously obtained by the OWNER. 5. SALES TRAILER: MODEL HOME BUILDING. The CITY agrees to allow OWNER to place both a sales trailer and a model home building on the Townhome Property, to be used for the customary marketing and sales activities of OWNER or their successors or assigns, for so long as any unit of the Townhomes has not been sold to an individual purchaser. The location of the sales trailer and model home building shall be shown on the final engineering plans for the Townhome Property and such location must be approved by the CITY. The CITY represents that such marketing and sales activities are not prohibited or otherwise limited under the Town Center Plan or any other city ordinance, regulation, or rule. 6. CONSTRUCTION ACCESS. Construction access to the Townhome Property shall be from State Road 434 as shown on the final engineering plans, subject to the agreement with the CITY and adjacent property owner. 7. REPRESENT A TIONS OF THE CITY. The CITY hereby represents the following: (a) that the Townhome Property is connected to the CITY sewer and water system and OWNER shall pay all standard connection fees; (b) that the capacity of said CITY sewer and water system for the Townhome Property is sufficient for the requirements of a 408 townhome development; (c) that the OWNER has obtained a Master Stormwater Permit from the St. John's River Water Management District for the Town Center which applies to the Townhome Property and that OWNER has no obligation with respect to obtaining said permit; (d) that the CITY has designated both Spine Road and Tuskawilla Road (that portion between SR 434 and Spine Road) as a CITY collector road by proper City Comprehensive Plan Amendment; and (e) that Wetlands Park, as referred to in the Town Center Plan, shall be conveyed to the CITY, as stipulated in the Original Agreement. 8. REPRESENTATIONS OF OWNER. OWNER represents that it will construct a public Park known as the "Grande Park" consisting of open grass area, large caliper trees and gazebo with pedestrian access (the "Park") within a designated Tract of the Preliminary Plat, in the proposed location as depicted on the Site Plan, in accordance with the design standards of the CITY and also in accordance with all requirements of the Town Center Plan. The Park will be dedicated as The Grande Park on the final plat to be recorded for the Townhome Property. Grande Park shall be maintained in perpetuity as fully accessible to the general public. Installation and ongoing maintenance of the trees in Grande Park shall be to the CITY'S satisfaction, and such trees shall be subject to replacement if they diminish in condition. OWNER shall provide and maintain a one story community building and recreation area as depicted on the Site Plan. 9. CONVEYANCE OF EASEMENTS. OWNER shall convey to the CITY any 3 easements including trail, conservation, wildlife crossing, drainage and ut" CITY's final acceptance of the improvements. to l{~'''1il- 4'f)""~ /:-/ fd' ; ';'~'\'Y'iY 1 O. CONVEYANCE OF STREETS AND ROADS. OWNER shall convey t Ie CITY all streets and roads, excluding passes/alleys, located on the Townhome Property as depicted on the Site Plan, along with all related improvements. The conveyance, which shall be acceptable to the CITY's attorney, shall be by a recorded Plat and free and clear of all liens. The homeowners association shall be responsible for maintenance of all landscaping, hardscaping and other decorative features on Loxton Boulevard, the roundabout and Grande Park. In addition, the homeowners association shall be responsible for the maintenance of all decorative brick pavers in the public streets of the Townhome Property that do not conform to the City's regulations. The obligations referenced in this Paragraph 10 shall be referenced in the Declaration of Covenants and Restrictions to be recorded for the Townhome Property. 11. PARKING SPACES. OWNER shall provide a general parking ratio of 2.73 parking spaces per Townhome unit within the Townhome Property. In addition, non designated on-street parking will be permitted on the neighborhood lanes known as Arrowhead Road and Armida Drive. 12. TRASH/REFUSE PICK-UP. No trash dumpster shall be located within the Townhome Property. Trash and refuse service by individual container pickup shall be provided by the CITY'S waste hauler for the clubhouse and to each individual Townhome unit from its rear alley access. 13. DECORATIVE REGULATORY SIGNAGE AND LIGHTING. The mandatory homeowner's association, to be established, shall be required to pay any cost differential between maintaining standard street lights and signs and the decorative street lighting and design requirements of the Town Center Plan. OWNER acknowledges that prior to turning the homeowner's association over to its members, OWNER will require the homeowner's association to execute an agreement memorializing this requirement and that said agreement shall be substantially in conformance with the standard decorative street light and signage form agreement that was previously approved by the City Commission to be utilized on a citywide basis. 14. BUS.SHELTER. In compliance with the Transportation Element.Policy 1.6.2, OWNER will design and construct a bus shelter along "Spine Road"in.a location desirable to the CITY, prior. to the issuance of the first building permit in construction of Phase 2.'. of the Townhome Property as depicted on the final engineeringplansapprovedinconiunction with this Development Agreement. The final design and location of the bus. shelter willbeapprovedbv the City and Owner follow the style of architecture illustrated on Exhibit "C." CITY.shall grant to OWNER a temporary construction easement to build the bus shelter on the. Wetland Park parcel. 15. LANDSCAPE PLANS. Landscaping shall be installed and maintained III 4 '. ',; 'll:V i>l 1). ,~~ .f, acc~rdan.ce with the landscape plans approved by the. ~ity commission, as part of~h~t2l:t#l~,4 .; engmeenng plans for the To.w~ome Property. In addition t~ the standard Arbor Permit ~e, iJ i/ OWNER shall make a contnbutlOn to the CITY'S tree bank m the amount of THIRTY-NINE iii THOUSAND AND NO/lOO DOLLARS ($39,000.00) to partially offset the loss of tree canopy value to the CITY caused by the removal of existing trees located on the Townhome Property. Said contribution shall be used to purchase and install trees and landscape material within the Town Center. No additional funds for specimen tree removal shall be required at issuance of an early work permit or site development permit, whichever occurs first. ."~~\~/'r';'\.".".)J~' -"i'1' 16. DEVIATIONS FROM TOWN CENTER PLAN AND CODE. OWNER and CITY have hereby agreed and the CITY approves the following deviations from the Town Center Plan and the Code, respectively: (See Exhibit "D" attached hereto and by reference made a part hereof). 17. EFFECT. CITY and OWNER agree that the terms of this Agreement are intended to amend, modify, and further define the terms of the Original Agreement as it applies to the Townhome Property. Except as specifically set forth herein, the Original Agreement shall remain in full force and effect. OWNER assumes no obligation for any improvements or construction not specifically located within the Townhome Property. The CITY hereby accepts and approves the Approved Site Plan as it applies to the Townhome Property. 18. COOPERATION. OWNER and the CITY shall cooperate fully with each other to effectuate the terms, conditions and intentions of this Agreement. 19. AUTHORITY. Each party hereby represents and warrants to the other that they have full power and authority to enter into this Agreement. OWNER also represents that all legal and equitable title to the Townhome Property is currently vested in and held by OWNER and OWNER is duly authorized to bind the Townhome Property to the terms and conditions contained in this Agreement. 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. 20. 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. OWNER: LO Land Assets, LP 2020 Main Street, Suite 1150 Irvine, California 92614 ATTN: Susan D. Vavak 5 With a copy to: City: With a copy to: Phone: (949)724-1515 Fax: (949)724-1919 (~~J:'Y;'I;.ri.''''',.'.r..;t;7'_ "!;..'" l .k I!. Cox, Castle & Nicholson LLP 2049 Century Park East, Suite 2800 Los Angeles, California 90067 ATTN: David S. Rosenberg Phone: (310)284-2251 Fax: (310)277-7889 Ronald W. McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: 407/327/5957 Fax: 407/327/4753 Anthony A. Garganese Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32802-2873 Phone: (407)425-9566 Fax: (407)425-9596 21. DEFAULTS. Failure by either party to perform each and every one of its obligations hereunder 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 prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorney's fees and costs, whether incurred at trial or appeal. 22. 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. 23. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 24. 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. 6 26. ENTIRE AGREEMENT. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the CITY and OWNER as to the subject matter hereof. 27. 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. 28. EFFECTIVE DATE. This Agreement shall become effective upon approval by the City Commission of Winter Springs and execution of this Agreement by both parties. 29. RECORDATION. Within sixty (60) days following the effective date hereof, a short form memorandum of this Agreement signed by both the CITY and OWNER shall be recorded in the public records of Seminole County, Florida and shall run with the Townhome Property. The memorandum shall include the legal description of the real property described in Exhibit A (the "Townhome Property") and shall otherwise be in a form mutually acceptable to the CITY and OWNER. 30. RELATIONSHIP OF THE PARTIES. The relationship of the parties to this Agreement is contractual and OWNER 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. 31. 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. 32. 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 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 conditions ("Uncontrollable Event"), 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 of time that such party was unable to perform solely due to the Uncontrollable Event. 7 33. INTERPRETATION. The parties hereby agree and ac~o~l,~dg~~tJt t~1h'W~t"', b?th participated .equally. in the dr~fting o~ this Agreem~nt and no p<i~ siall ~~v9tedr'?r""4~~1,\'?~ dIsf~vored regardmg the mterpretatiOn of thIS Agreement m the event of a dISPui~t~?e, tool. (" partIes. fg 1/ ? 34. PERMITS. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve OWNER or the CITY of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. 35. 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. 36. COUNTERP ARTS. 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. IN WITNESS WHEREOF, OWNER and the CITY have executed this Agreement in form sufficient to bind them as of the day and year first above written. Signed and sealed in the presence of: CITY OF WINTER SPRINGS, a Florida municipal corporation By: Print Name: Title: Print Name: Print Name: OWNER: LO LAND ASSETS, LP, a Delaware limited partnership By: LE LAND ASSETS, LLC, a Delaware limited liability company Print Name: By: Susan D. Vavak, Vice-President Print Name: 8 F:\USERS\2\AGREE\Engle-Schrirnsher Development Agreement v8 (clean).wpd Exhibit "A" Legal Description Exhibit "B" Site Plan of Spine Road 11 Exhibit "C" Final DeSign and location to be approved by City and Owner, to coincide with permit ne4pnd ,,Ii construction schedule. ',. 12 Exhibit "D" Deviations from City Code (Code Sections are referenced) 1. "Lake Trail Park" has been relocated and replaced with "Grande Park." Two access points are provided to the trail rather than the "Lake Trail Park" access. Full public access from the trail to Sonesta Pointe shall be maintained in perpetuity. 2. "Neighborhood Square 2" and "Neighborhood Square 3" are replaced with the "Open Space A" and "Open Space B" which include the stormwater retention lakes as well as a lake perimeter trail and overlook seating area. 3. A separation of greater than 10 feet between face of building and back of walk shall be allowed due to curvilinear roadway frontages, building facade recesses and additional setback area to accommodate parking at the community building. Separations greater than those enumerated in Section 20-325 of the City's Code of Ordinances and categorized by street type shall be allowed, as shown on the final engineering plans. (Sec. 20 - 325.09 through 20 - 325.14 of the City's Code of Ordinances) 4. Brick paver systems within public/private roadways shall be utilized at crosswalks and at the entranceway traffic circle and shall be the maintenance responsibility of the homeowners association. (Sec. 9 - 202.2 ofthe City's Code of Ordinances) 5. Balconies shall have a length greater than 25% of the individual unit frontages in lieu of 25% of the building front. (Sec. 20 - 326b of the City's Code of Ordinances) 6. The City will not require the entire Schrimsher Property to be platted. Developer will file a plat application for the Townhome Property, Wetland Park and 5 foot buffer strip adjacent to the St. John's Landing subdivision. (Sec. 9 - 2, Sec. 9 - 75a - 3 of the City's Code of Ordinances) 7. The existing boundary, topographic and tree survey dated August 13,2003, prepared by ASM Surveying, will be accepted by the City. (Sec. 5-6 (a-I) and Sec. 20-321 (b-3) of the City's Code of Ordinances) 8. Porches shall be permitted to have a greater length than 25% of the individual unit frontages. (Sec. 20 - 326.d of the City's Code of Ordinances) 9. All roadways shall be designed and constructed pursuant to the Town Center District Code, except for the following streets which vary from the standard street types included 13 in the Code. These include the Entry Boulevard and the roundabout illustratet{at t~,f/,,{;:' /,; Arrowwood Road/Fieldstone Street and Road "P" (Exhibit "E"). The following ~t~ts";" ". are Neighborhood Streets, with a 48' right of way: FallenleafLane, Lynmar Drive and K.i ii' Calaveres Street. The following street is an Edge Drive, with a 48' right of way: "Spine Road." The following streets are Neighborhood Lanes, with a 50' right of way ("A" Section): Trinitas Street, Icaria Avenue, St. Francis Drive and Fieldstone Street. The following street is a Neighborhood Lane, with a 66' right of way ("B" Section): Hawley Lane. The revised road configuration is illustrated in Exhibit"F." "Spine Road" is the only collector road. Roads C, H, & L, shall be designated as a "modified neighborhood street hybrid" allowing for parking adjacent to the pond areas. (Sec. 20 - 325.12 of the City's Code of Ordinances) 10. The CITY accepts the deviations to landscape material listed in the recommended shrub pallet and recommended tree pallet referenced in Sec. 20-468, which have been included in the approved landscape plans. 11. The main road entrance, known as Loxton Boulevard, shall be designated a "modified urban boulevard." The median shall be 24 ft. wide. The ingress and egress drive lanes shall be 12 ft. wide for emergency traffic use in lieu of 10 feet wide as defined in Section 20-325 (c-9) of the City's Code of Ordinances. The grass strips on either side of the road shall be permitted to exceed the 6 ft. width of the standard urban boulevard requirements to off-set pedestrian movements from the traffic circle and to open a vista toward the Grande Park area. The right-of-way for this road will be extended in width to encompass the sidewalks on either side of said roadway. (Sec. 20 - 325.9 of the City's Code of Ordinances) 12. Calaveres Street shall be developed as a partial neighborhood street, with no parking or sidewalk on the east side of the roadway, to allow for the expansion to a full neighborhood street section if the Adjacent Property Development develops in a similar fashion to utilize the frontage of this public road. It is the CITY's intent that the sidewalk and parallel parking on the east side of Calaveres Street will be constructed concurrently with the Adjacent Property Development. The sidewalk on the east side ofCalaveres Street will be constructed concurrently with the Adjacent Property Development. (Sec. 20 - 325.12 of the City's Code of Ordinances) 12. The City will allow a permanent project identification sign at the main entrance at "SpineRoad" and Loxton Boulevard which shall consist of an 8'x8'x 16' bell tower. The project identification sign at the main entrance shall be subject to a discretionary aesthetic appropriateness review by the Development Review Committee of the City of Winter Springs for consistency and harmony with the Winter Springs Town Center. (Sec. 20- 327 fofthe City's Code of Ordinances) 14 Exhibit "E" (Illustration of Entry Boulevard and Round About) 15 Exhibit "F" (Revised Road Configuration) 16 I SONESTA POINTE AT TOWN CENTER FINAL SUBDIVISION CONSTRUCTION PLANS FOR TOUSA HOMES INC FRONT PAGE SONESTA POINTE FINAL SUBDIVISION PLANS GENERAL NOTES SONESTA POINTE PAGE 3 SONESTA POINTE SHEET 4 SONESTA POINTE SHEET 5 SONESTA POINTE SHEET 6 SONESTA POINTE SHEET 7 SONESTA POINTE SHEET 8 SONESTA POINTE SHEET 9 SONESTA POINTE SHEET 10 SONESTA POINTE SHEET 11 SONESTA POINTE SHEET 12 SONESTA POINTE SHEET 13 SONESTA POINTE SHEET 14 SONESTA POINTE SHEET 15 SONESTA POINTE SHEET 16 SONESTA POINTE SHEET 17 SONESTA POINTE SHEET 18 SONESTA POINTE SHEET 19 SONESTA POINTE SHEET 20 SONESTA POINTE SHEET 21 SONESTA POINTE SHEET 22 SONESTA POINTE SHEET 23 SONESTA POINTE SHEET 24 SONESTA POINTE SHEET 25 SONESTA POINTE SHEET 26 SONESTA POINTE SHEET 27 SONESTA POINTE SHEET 28 SONESTA POINTE SHEET 29 SONESTA POINTE SHEET 30 SONESTA POINTE SHEET 31 SONESTA POINTE SHEET 32 SONESTA POINTE SHEET 33 SONESTA POINTE SHEET 34 SONESTA POINTE SHEET 35 SONESTA POINTE SHEET 36 SONESTA POINTE SHEET 37 SONESTA POINTE SHEET 38 SONESTA POINTE SHEET 39 SONESTA POINTE SHEET 40 SONESTA POINTE SHEET 41 SONESTA POINTE SHEET 42 SONESTA POINTE SHEET 43 SONESTA POINTE SHEET 44 SONESTA POINTE SHEET 45 SONESTA POINTE SHEET 46 SONESTA POINTE SHEET 47 SONESTA POINTE SHEET 48 SONESTA POINTE SHEET 49 SONESTA POINTE SHEET 50 SONESTA POINTE SHEET 51 SONESTA POINTE SHEET 52 SONESTA POINTE SHEET 53 SONESTA POINTE SHEET 54 SONESTA POINTE SHEET 55 SONESTA POINTE SHEET 56 SONESTA POINTE SHEET 57 SONESTA POINTE SHEET 58 SONESTA POINTE SHEET 59 SONESTA POINTE SHEET 60 SONESTA POINTE SHEET 61 SONESTA POINTE SHEET 62 SONESTA POINTE SHEET 63 SONESTA POINTE SHEET 64 SONESTA POINTE SHEET 65 SONESTA POINTE SHEET 66 SONESTA POINTE SHEET 67 SONESTA POINTE SHEET 68 Date: December 11, 2006 The attached was distributed during Regular Agenda Item "305" at the December 11, 2006 City Commission Regular Meeting. .' DEVELOPER'S AGREEMENT (Sonesta Pointe) TIDS DEVELOPER'S AGREEMENT is made and entered into this day of , 2006, by and between LO LAND ASSETS, LP, a Delaware limited partnership ("OWNER") and the CITY OF WINTER SPRINGS, a municipal corporation existing under the laws of the State of Florida ("CITY"). RECITALS A. WHEREAS, the CITY has completed a comprehensive planning study in connection with the requirements of Chapter 163, Florida Statutes, resulting in the adoption of the Winter Springs Town Center Plan ("Town Center Plan"); and B. WHEREAS, OWNER is the owner of certain real property located within the boundaries of Winter Springs Town Center on which it intends to develop townhomes and related amenities, which real property is more particularly described on Exhibit "A" attached hereto and by reference incorporated herein (the "Townhomes" or "Townhome Property"); and C. WHEREAS, the Townhome Property is subject to the terms of that certain Agreement dated June 26, 2000 by and between the CITY and prior owners of the Townhome Property (the "Original Agreement"); and D. WHEREAS, the terms of the Original Agreement obligated the CITY to commence construction of a certain City collector road called Spine Road (further defined herein) within a certain time period which has expired; and E. WHEREAS, the CITY desires to modify the terms of the Original Agreement to allow OWNER to construct Spine Road in exchange for impact fee credits; and F. WHEREAS, the CITY desires to modify the terms of the Original Agreement to allow OWNER to construct on-site stormwater drainage, all in accordance to an approved site- plan attached hereto and by reference incorporated herein as Exhibit "B" ( the "Approved Site Plan"); and G. WHEREAS, CITY and OWNER desire to clarify certain other development obligations with respect to the Townhome Property including, without limitation, the CITY's agreement to allow certain deviations from the Original Agreement, the Town Center Plan, and the City Code of the City of Winter Springs ("Code"); and H. WHEREAS, OWNER and the CITY intend, for the terms of this Agreement, to memorialize their understanding and agreement regarding their respective interest, expectations, and intentions regarding the development of the Townhomes within the Winter Springs Town Center (the "Town Center"), and, specifically, that the terms hereof shall amend, modify, and further define the terms of the Original Agreement as it applies to the Townhome Property. 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, the CITY and OWNER agree as follows: 1. INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are fully incorporated herein by reference as a material part of this Agreement. 2. SPINE ROAD. The proposed location of "Spine Road" is generally depicted in the site plan attached hereto as Exhibit "B", which is fully incorporated herein by reference (the "Approved Site Plan"). OWNER hereby agrees to construct "Spine Road," and related water and sewer utilities, at its expense, in accordance with design standards to be provided by the CITY, in exchange for an award from the CITY of transportation impact fee credits and/or U.S. funds as determined by the CITY as provided for in Winter Springs City Code Sections 9-386 in an amount not to exceed One Million One Hundred Fourteen Thousand Two Hundred and No/lOO Dollars DOLLARS ($1,114,200.00). Said amount is based on a length of 1,857 feet at a cost of Six Hundred and Noll 00 Dollars ($600.00) per lineal foot for the reasonable costs of designing, engineering, permitting, surveying, and constructing "Spine Road." The impact fee credits shall be applied to development of the Townhome Property. The construction costs shall specifically include a water main within the "Spine Road" right of way to serve the Townhome Property, sized and located according to CITY requirements. Should the CITY request additional water mains or an over-sized water main (either of which are intended to provide more capacity than is required for the Townhome Property), the CITY shall reimburse OWNER for the additional cost differentiated with additional impact fee credits. OWNER shall obtain not less than three (3) bids for the construction of "Spine Road" from engineers and construction companies qualified and experienced in roadway construction. The bidding documents shall be submitted to the City for review and approval. Iri addition, each bid shall be submitted to the CITY for review and approval prior to OWNER entering into any contract for the design, permitting and construction of the infrastructure. OWNER shall be required to accept the lowest and most qualified bidder unless otherwise approved by the CITY. OWNER further agrees that at the time reimbursement for any infrastructure costs is requested, OWNER shall provide the CITY with a copy of all applicable invoices, receipts, warranties, maintenance bonds, and documentation, including all change orders, which shall clearly evidence each reimbursable expenditure. The CITY shall not be responsible for reimbursing any infrastructure cost which can not be properly and reasonably documented in writing. The project expenditures eligible for reimbursement shall consist of the design, permitting, and construction of the associated with the construction of Spine Road. OWNER shall convey "Spine Road" improvements to the CITY at such time as construction is completed unless otherwise required by the CITY. Expenditures eligible for transportation impact fee credits and/or U.S. funds must be approved in advance by the CITY. Prior to the effective date of this Developer's Agreement, project expenditures eligible for reimbursement shall be based on the reasonableness of actual invoiced costs and supported by documentation acceptable to the CITY. 3. LIFT STATION. OWNER, at its own expense, will design and construct a lift 2 station upon the Townhome Property, in the general location as depicted on the Site Plan, sized with a capacity to serve all planned units of the Townhome Property, in accordance with design standards to be provided by the CITY. To the extent any utilities are oversized for the property known as the "Adjacent Property Developments", the CITY agrees to reimburse OWNER for same. Should the CITY request a larger force main (whether or not the increased force main size is associated with increasing the size of the lift station), the CITY will reimburse OWNER in U.S. funds for the difference in the cost for the force main between what is needed to serve the Townhome Property and what is required by the CITY's request. 4. STORMWATER DRAINAGE. OWNER, at its own expense, agrees to construct a stormwater drainage system to serve the Townhome Property, to include two (2) ponds as generally depicted on the Modified Site Plan, with the capacity to serve all of the Townhome Property, in accordance with design standards and guidelines of the CITY and in accordance with the Master Stormwater Permit from the St. Johns River Water Management District, previously obtained by the OWNER. 5. SALES TRAILER: MODEL HOME BUILDING. The CITY agrees to allow OWNER to place both a sales trailer and a model home building on the Townhome Property, to be used for the customary marketing and sales activities of OWNER or their successors or assigns, for so long as any unit of the Townhomes has not been sold to an individual purchaser. The location of the sales trailer and model home building shall be shown on the final engineering plans for the Townhome Property and such location must be approved by the CITY. The CITY agrees to permit OWNER to construct model townhouse units under the following conditions: (a) The model townhome units shall be contained in a maximum of two buildings (the "Model Building") and shall not exceed ten (10) individual units. (b) The model townhome units shall remain under OWNERS' 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, OWNER shall not contract for sale, sell, or lease any of the individual model townhome 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. (c) The model townhome units shall be constructed in a location reasonably acceptable to the CITY. Vertical construction shall not commence until stabilized access and fire protection is available. (d) Prior to the model townhome construction, the model townhome units shall be duly permitted by the CITY in accordance with all City Codes. As part of the building permit application, OWNER 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 townhome site and each individual model townhome lot if OWNER desires to construct the townhouse units prior to 3 recording the final plat. OWNER acknowledges and agrees that this legal description is intended to coincide with the eventual location of the townhome lots as depicted and legally described on the final plat. OWNER 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. Alternatively, the legal description of property where the model townhomes will be constructed shall be the applicable lot or lots depicted on the final plat. (e) At such time the CITY Building Official completes and approves a final inspection of the model townhome units, the CITY will issue a temporary certificate of occupancy. Said temporary certificate of occupancy shall be issued for the Model Building as a whole, not by individual units. Occupancy of the townhome units shall be limited to the sale and marketing efforts for the Project. In addition, OWNER shall have the right to utilize one garage in the Model Building as a temporary sales office. (f) At the request of OWNER or at such time the project development is completed, whichever occurs sooner, OWNER shall file a re-conversion permit application requesting that the model townhouse units 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 CITY Building Official determines that the units are suitable for permanent residential occupancy and in compliance with the City Codes. 6. CONSTRUCTION ACCESS. Construction access to the Townhome Property shall be from State Road 434 as shown on the final engineering plans, subject to the agreement with the CITY and adjacent property owner. In the event the CITY can not reach such an agreement or such an agreement expires, OWNER and CITY shall promptly meet for purposes of arranging construction access that is acceptable to the CITY. 7. REPRESENTATIONS OF THE CITY. The CITY hereby represents the following: (a) that the TOwnhome Property will be connected to the CITY sewer and water system and OWNER shall pay all standard connection fees; (b) that the capacity of said CITY sewer and water system for the Townhome Property is sufficient for the requirements of a 408 townhome development; (c) that the OWNER has obtained a Master Stormwater Permit from the St. John's River Water Management District for the Town Center which applies to the Townhome Property and that OWNER has no obligation with respect to obtaining said permit; and (d) that the CITY has designated both Spine Road and Tuskawilla Road (that portion between SR 434 and Spine Road) as a CITY collector road by proper City Comprehensive Plan Amendment. 8. REPRESENTATIONS OF OWNER. OWNER represents that it will construct a public Park known as the "Grande Park" consisting of open grass area, large caliper trees and gazebo with pedestrian access (the "Park") within a designated Tract of the Preliminary Plat, in 4 the proposed location as depicted on the Approved Site Plan, in accordance with the design standards of the CITY and also in accordance with all requirements of the Town Center Plan. The Park will be dedicated by OWNER as The Grande Park on the final plat to be recorded for the Townhome Property. Grande Park shall be maintained in perpetuity by the homeowner's association as fully accessible to the general public. Installation and ongoing maintenance of the trees in Grande Park shall be to the CITY'S satisfaction, and such trees shall be subject to replacement by Owner (or the home owner's association at such time as Grande Park is conveyed to the home owner's associations) if the City's Arborist determines, after reasonable inspection, that any such tree has become severely diseased or damaged to the point that the viability of such tree has been significantly compromised. OWNER shall provide and maintain a one story community building and recreation area as depicted on the Site Plan. 9. CONVEYANCE OF EASEMENTS/PUBLIC ACCESS. OWNER shall convey to the CITY any easements including trail, conservation, wildlife crossing, drainage and utility easements prior to CITY's final acceptance of the any public improvements required to be conveyed to the CITY hereunder. Public access easements shall be provided to the City, and maintained in perpetuity by the home owners association, for the sidewalks and overlook seating areas around open space A & B. Further, full public access easements (never to be gated or locked without the City's consent) shall be provided to the City to and from the Cross Seminole Trail at the northeast side adjacent to St. John's Landing and on the southeast side next to the lift station. 10. STREETS AND ROADS. OWNER shall convey to the CITY all streets and roads, excluding passes/alleys, located on the Townhome Property as depicted on the Site Plan, along with all related improvements. The conveyance, which shall be required to be acceptable to the CITY's attorney, shall be by a recorded Plat and free and clear of all liens, taxes and encumbrances, or lenders shall be required to execute a jonder on the Plat agreeing to all the provisions contained on the Plat. The homeowners association shall be responsible for the perpetual maintenance of all landscaping, hardscaping and other decorative features on Loxton Boulevard, the roundabout and Grande Park in good and safe condition. In addition, the homeowner's association shall be responsible for the perpetual maintenance of all decorative brick pavers in the public streets of the Townhome Property that do not conform to the City's regulations in good and safe condition. The obligations referenced in this Paragraph 10 shall also be referenced in the Declaration of Covenants and Restrictions to be recorded for the Townhome Property. Further, OWNER acknowledges and agrees that Field Stone Street and Lynmar Drive, as depicted on the Approved Site Plan, shall be extended into the adjacent property by the adjacent property owner at such time the adjacent property is developed. Moreover, the street names listed on the Approved Site Plan shall be subject to change by the CITY at such time formal addressing is requested through Seminole County. 11. PARKING SPACES. OWNER shall provide a general parking ratio of 2.73 parking spaces per Townhome unit within the Townhome Property. In addition, non designated on-street parking shall be required on the neighborhood lanes known as Arrowhead Road and Armida Drive, unless otherwise directed by the City in writing. S 12. TRASH/REFUSE PICK-UP. No trash dumpster shall be located within the Townhome Property. Trash and refuse service by individual container pickup shall be provided by the CITY'S waste hauler for the clubhouse and to each individual Townhome unit from its rear alley access. 13. DECORATIVE REGULATORY SIGNAGE AND LIGHTING. The mandatory homeowner's association, to be established, shall be required to pay any cost differential between maintaining standard street lights and signs and the decorative street lighting and design requirements of the Town Center Plan. OWNER acknowledges that prior to turning the homeowner's association over to its members, OWNER will require the homeowner's association to execute an agreement memorializing this requirement and that said agreement shall be substantially in conformance with the standard decorative street light and signage form agreement that was previously approved by the City Commission to be utilized on a citywide basis. 14. BUS SHELTER. In compliance with the Transportation Element Policy 1.6.2, OWNER will design and construct a bus shelter along "Spine Road" in a location desirable to the CITY, prior to construction of Phase 2 of the Townhome Property. The final design and location of the bus shelter will be approved by the City and Owner. CITY shall grant to OWNER a temporary construction easement to build the bus shelter on the Wetland Park parcel. 15. LANDSCAPE PLANS. Landscaping shall be installed and maintained in accordance with the landscape plans approved by the city commission, as part of the final engineering plans for the Townhome Property. In addition to the standard Arbor Permit Fee, OWNER shall make a contribution to the CITY'S tree bank in the amount of THIRTY-NINE THOUSAND AND NOI100 DOLLARS ($39,000.00) to partially offset the loss of tree canopy value to the CITY caused by the removal of existing trees located on the Townhome Property. Said contribution shall be used to purchase and install trees and landscape material within the Town Center. No additional funds for specimen tree removal shall be required at issuance of an early work permit or site development permit, whichever occurs first. 16. DEVIATIONS FROM TOWN CENTER PLAN AND CODE. OWNER and CITY have hereby agreed and the CITY approves the following deviations from the Town Center Plan and the Code, respectively: (See Exhibit "D" attached hereto and by reference made a part hereof). 17. WETLANDS PARK. OWNER shall be required to coordinate with the party of the Original Agreement (Schrimsher Land Fund 1986 -II, Ltd., et al) the proper platting of Wetlands Park in conjunction with platting the Project approved hereunder. As part of the plat, Wetlands Park shall be dedicated to the City as required under the Original Agreement. This paragraph is subject to the cooperation of the party to the original Agreement. 18. EFFECT. CITY and OWNER agree that the terms of this Agreement are intended 6 to amend, modify, and further define the terms of the Original Agreement as it applies to the Townhome Property. Except as specifically set forth herein, the Original Agreement shall remain in full force and effect. OWNER assumes no obligation for any improvements or construction not specifically located within the Townhome Property. The CITY hereby accepts and approves the Approved Site Plan as it applies to the Townhome Property. 19. COOPERATION. OWNER and the CITY shall cooperate fully with each other to effectuate the terms, conditions and intentions of this Agreement. 20. AUTHORITY. Each party hereby represents and warrants to the other that they have full power and authority to enter into this Agreement. OWNER also represents that all legal and equitable title to the Townhome Property is currently vested in and held by OWNER and OWNER is duly authorized to bind the Townhome Property to the terms and conditions contained in this Agreement. CITY also represents that all requirements and procedures, including public hearings, have been properly conducted related to the approval of this Agreement so that the execution hereof by the CITY shall constitute the final action of the CITY. 21. 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. OWNER: With a copy to: City: LO Land Assets, LP 2020 Main Street, Suite 1150 Irvine, California 92614 ATTN: Susan D. Vavak Phone: (949)724-1515 Fax: (949)724-1919 Cox, Castle & Nicholson LLP 2049 Century Park East, Suite 2800 Los Angeles, California 90067 ATTN: David S. Rosenberg Phone: (310)284-2251 Fax: (310)277-7889 Ronald W. McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: 407/327/5957 7 Fax: 407/327/4753 With a copy to: Anthony A. Garganese City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32802-2873 Phone: (407)425-9566 Fax: (407)425-9596 22. DEF AUL TS. Failure by either party to perform each and every one of its obligations hereunder 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 prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorney's fees and costs, whether incurred at trial or appeal. 23. 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. 24. APPLICABLE LA W. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 25. 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. 26. AMENDMENTS. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto. 27. ENTIRE AGREEMENT. Subject to paragraph 17 regarding the Original Agreement, this Agreement supersedes any other agreement related to the subject matter hereof, oral or written, and contains the entire agreement between the CITY and OWNER as to the subject matter hereof. 28. 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. 29. EFFECTIVE DATE. This Agreement shall become effective upon approval by 8 the City Commission of Winter Springs and execution of this Agreement by both parties. 30. RECORDATION. Within sixty (60) days following the effective date hereof, a short form memorandum of this Agreement signed by both the CITY and OWNER shall be recorded in the public records of Seminole County, Florida and shall run with the Townhome Property. The memorandum shall include the legal description of the real property described in Exhibit A (the "Townhome Property") and shall otherwise be in a form mutually acceptable to the CITY and OWNER. 31. RELATIONSHIP OF THE PARTIES. The relationship of the parties to this Agreement is contractual and OWNER 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. 32. SOVEREIGN IMMUNITY. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the CITY's right to. sovereign immunity under Section 768.28, or other limitations imposed on the CITY's potential liability under state or federal law. As such, the CITY shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the CITY shall not be liable for any claim or judgment, or portion thereof, to anyone person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). 33. 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 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 conditions ("Uncontrollable Event"), 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 of time that such party was unable to perform solely due to the Uncontrollable Event. 34. 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. 9 35. 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 OWNER or the CITY of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the CITY's police powers, the CITY reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if OWNER is in breach of any term and condition of this Agreement. 36. 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. 37. 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. IN WITNESS WHEREOF, OWNER and the CITY have executed this Agreement in form sufficient to bind them as of the day and year first above written. Signed and sealed in the presence of: CITY OF WINTER SPRINGS, a Florida municipal corporation By: Print Name: Title: Print Name: Print Name: OWNER: LO LAND ASSETS, LP, a Delaware limited partnership By: LE LAND ASSETS, LLC, a Delaware limited liability company Print Name: By: Susan D. Vavak, Vice-President Print Name: F:\USERS\2\AGREE\EngIo-Schrimsher Development Agreement vB (clean).wpd 10 Exhibit "A" Legal Description 11 Exhibit "B" Site Plan of Spine Road 12 Exhibit "C" (Design of Bus Shelter) Final Design and location to be approved by City and Owner, to coincide with permit needs and construction schedule. 13 Exhibit "D" Deviations from City Code (Code Sections are referenced) 1. "Lake Trail Park" has been relocated and replaced with "Grande Park." Two access points are provided to the trail rather than the "Lake Trail Park" access. Full public access from the trail to Sonesta Pointe shall be maintained in perpetuity. 2. "Neighborhood Square 2" and "Neighborhood Square 3" are replaced with the "Open Space A" and "Open Space B" which include the stormwater retention lakes as well as a lake perimeter trail and overlook seating area. 3. A separation of greater than 10 feet between face of building and back of walk shall be allowed due to curvilinear roadway frontages, building facade recesses and additional setback area to accommodate parking at the community building. Separations greater than those enumerated in Section 20-325 of the City's Code of Ordinances and categorized by street type shall be allowed, as shown on the final engineering plans. (Sec. 20 - 325.09 through 20 - 325.14 of the City's Code of Ordinances) 4. Brick paver systems within public/private roadways shall be utilized at crosswalks and at the entranceway traffic circle and shall be the maintenance responsibility of the homeowners association. (Sec. 9 - 202.2 of the City's Code of Ordinances) 5. Balconies shall have a length greater than 25% of the individual unit frontages in lieu of 25% of the building front. (Sec. 20 - 326b of the City's Code of Ordinances) 6. The City will not require the entire Schrimsher Property to be platted. Developer will file a plat application for the Townhome Property, Wetland Park and 5 foot buffer strip adjacent to the St. John's Landing subdivision. (Sec. 9 - 2, Sec. 9 - 75a - 3 of the City's Code of Ordinances) 7. The existing boundary, topographic and tree survey dated August 13, 2003, prepared by ASM Surveying, will be accepted by the City. (Sec. 5-6 (a-I) and Sec. 20-321 (b-3) of the City's Code of Ordinances) 8. Porches shall be permitted to have a greater length than 25% of the individual unit frontages. (Sec. 20 - 326.d of the City's Code of Ordinances) 9. All roadways shall be designed and constructed pursuant to the Town Center District Code, except for the following streets which vary from the standard street types included 14 in the Code. These include the Entry Boulevard and the roundabout illustrated at Arrowwood Road/Fieldstone Street and Road "P" (Exhibit "E"). The following streets are Neighborhood Streets, with a 48' right of way: Fallenleaf Lane, Lynmar Drive and Calaveres Street. The following street is an Edge Drive, with a 48' right of way: "Spine Road." The following streets are Neighborhood Lanes, with a 50' right of way ("A" Section): Trinitas Street, Icaria Avenue, St. Francis Drive and Fieldstone Street. The following street is a Neighborhood Lane, with a 66' right of way ("B" Section): Hawley Lane. The revised road configuration is illustrated in Exhibit"F." "Spine Road" is the only collector road. Roads C, H, & L, shall be designated as a "modified neighborhood street hybrid" allowing for parking adjacent to the pond areas. (Sec. 20 - 325.12 of the City's Code of Ordinances) 10. The CITY accepts the deviations to landscape material listed in the recommended shrub pallet and recommended tree pallet referenced in Sec. 20-468, which have been included in the approved landscape plans. 11. The main road entrance, known as Loxton Boulevard, shall be designated a "modified urban boulevard." The median shall be 24 ft. wide. The ingress and egress drive lanes shall be 12 ft. wide for emergency traffic use in lieu of 10 feet wide as defined in Section 20-325 (c-9) of the City's Code of Ordinances. The grass strips on either side of the road shall be permitted to exceed the 6 ft. width of the standard urban boulevard requirements to off-set pedestrian movements from the traffic circle and to open a vista toward the Grande Park area. The right-of-way for this road will be extended in width to encompass the sidewalks on either side of said roadway. (Sec. 20 - 325.9 of the City's Code of Ordinances) 12. Calaveres Street shall be developed as a partial neighborhood street, with no parking or sidewalk on the east side of the roadway, to allow for the expansion to a full neighborhood street section if the Adjacent Property Development develops in a similar fashion to utilize the frontage of this public road. It is the CITY's intent that the sidewalk and parallel parking on the east side of Calaveres Street will be constructed concurrently with the Adjacent Property Development. The sidewalk on the east side of Calaveres Street will be constructed concurrently with the Adjacent Property Development. (Sec. 20 - 325.12 ofthe City's Code of Ordinances) 13. The City will allow a permanent project identification sign at the main entrance at "SpineRoad" and Loxton Boulevard which shall consist of an 8'x8'xI6' bell tower. The project identification sign at the main entrance shall be subject to all applicable City Sign Code provisions including, but not limited to, aesthetic appropriateness review by the City Commission. 15 Exhibit "E" (Illustration of Entry Boulevard and Round About) 16 Exhibit "F" (Revised Road Configuration) 17