HomeMy WebLinkAbout2003 05 12 Regular H Centex Breach of Contract
051203 Regular Agenda Item uH"
Centex Breach of Contract
Page I of2
COMMISSION AGENDA
ITEM H
Consent
Informational
Public Hearing
Regular X
May 12, 2003
Meeting
Mgr. ~ Dept.
Authorization
REQUEST: City Manager requesting the City Commission to authorize the City Manager
and City Attorney to Notify Centex Homes of a Default of the Development Agreement
between Centex and the City relative to the preservation of trees, and to negotiate a
Settlement Agreement to cure the default.
PURPOSE: This Agenda Item is needed to enforce the provIsIons of the Development
Agreement related to the preservation of trees.
CONSIDERATIONS: On March 11, 2002 the City entered into a Development Agreement
with Centex to construct a 158 unit town home project.
Section 11 of the Development Agreement provided for Centex to comply with the City's Arbor
Ordinance. The Arbor Ordinance requires an arbor permit for authorization of tree removal.
On November 11, 2002 the City Commission approved a landscape plan preserving 527 trees
and requiring every possible safeguard to be taken to protect existing trees shown on the plans.
On December 5, 2002 the City Arborist issued an arbor permit memorializing the landscape
plans approved by the City Commission.
During the lot clearing phase of development, contractors for Centex removed 344 of the 527
trees to be preserved under the agreement, thereby breaching the terms of the agreement.
051203 Regular Agenda Item "H"
Centex Breach of Contract
Page 2 of2
PROCEDURE: Section 36 of the agreement provides that the City shall give the developer
written notice of any breach of the agreement, and 30 days to cure the breach.
FUNDING: No funding is required. However, if Code Enforcement actions were taken under
the Tree Ordinance, fines could be assessed as high as $1,700,000.
RECOMMENDATIONS:
It is recommended that the Commission do the following:
1. Authorize the City Manager and City Attorney to advise Centex in writing of a Breach of
Section 11 of the Development Agreement.
2. Authorize the City Manager and City Attorney to negotiate a Settlement Agreement
curing the breach which may include monetary compensation, tree replacement remedies,
and other considerations.
ATTACHMENTS:
1) Attorney Analysis. (to be provided no later than Thursday, May 8,2003)
2) Development Agreement.
COMMISSION ACTION:
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:05PM;
Page 2/8
BR()WN, SALZMAN, WEISS & GARGANESE, P..A.
Att(}17t'!Ys at 14w
Usher L. Brown t
Suz811ns D'AgrestaD
Anthony A. G8l'ganeseD
Gary S. Salzman.
John H. Ward t
Jeffrey S. WeI$$
Offk.t:.5 in Od9J1d2.! Kinimmee.,
Cocoa & vIer.!
Debrn S. Babb-Nutcl'ler
Jeffrey P. Bu..k
John U. Biedflnnam, Jr.
Joseph E. Blitch
Michelle H. Brett
DouglaGLambert
Jennifer A. Michael
Michelle A, Reddin
Vincent E. Scar1Blos
tBoard Certified Civil TrisllBwyer
-Board Certified Busine$& litigation lawyer
"Board Certified City, County & local Governmenllaw
May 7, 2003
Erin J. O'leary
Of Counsel
Via Facsimile and U.S. Mail
Ronald W. Mclemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Re: Wagner's Curve Development lOur File No. 315-019
Dear Ron:
This letter is in response to your request that I review and provide a detailed
summary of a tree permit and destruction issue involving the Residential Property subject
to the Binding Development Agreement between the City of Winter Springs ("City") and
Centex Homes et aI., dated March 11, 2002 ("Agreementll). The Agreement also affects
a commercial property owned by another party. The commercial property, however. is not
at issue in this matter.
In preparing this letter, I have reviewed and relied upon information provided by
Michael Mingea, City Forester; the Agreement; the First Modification ofthe Agreement; the
Final Subdivision/Engineering and landscape Plans, including the Wagner's Curve
Townhome Development Landscape and Irrigation Plans, dated July 2002 rPlans~); two
letters from Patrick J. Knight, Division President of Centex Homes, dated April 23, 2003
(to Mayor John Bush) and April 30, 2003 (to City Manager Ronald McLemore); and the
City's Arbor Ordinance. I also discussed the matter with you, Michael Mingea and Patrick
J. Knight.
Issue:
Did Centex Homes violate the Agreement and the Plans when it was determined
after site clearing that only 183 trees remained on the Residential Property?
225 East Robinson Street, Suite 6BO . P.O. Box 2873. Orlando, Floods 32802-2873
Orlando (407) 42~6 Fax (407) 425-9596 . Kl6&lmmee (321) 4OH1144 . Cocoa & Viera (866) 425-9566
Web$Re: WMY.orlandolaw.nel . Email: firm@orlelnclolaw.net
2
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:06PM;
Page 3/8
Ronald W_ Mclemore, City Manager
City of Winter Springs
May 7, 2003
Page 2
Summary:
Centex Homes was required to preserve 527 trees on the Residential Property.
Based on Mr. Mingea's assessment, 344 of those trees were removed. The removal
appears to violate the Agreement, the Plans, and the City's Arbor Ordinance.
Notwithstanding, Mr. Mingea unknowingly exceeded his authority when he issued an
"after-the-fact>> arbor permit for the 344 trees and collected an additional arbor permit fee
of $3,440.00. Additionally, Mr. Mingea has documented numerous construction activities
on the Residential Property which appear to be violations of the tree protection
construction requirements set forth in the Arbor Ordinance.
Relevant Facts:
1. On March 11, 2002, the City entered into the Agreement. Centex Homes is a party
to the Agreement and currently owns, and is developing, the Residential Property
subject to the Agreement. The provisions most relevant to the issue presented are
as follows:
a) Section 11: Development of the Subject Property shall be subject to
compliance with the City's Arbor Ordinance as set forth in the City Code, as
amended.
b) Section 11.18.(3): "Tree Replacement Assessment" shall mean the total
amount of monetary compensation owed to the City of Winter Springs as
provided in the Arbor Ordinance for replacement of trees cut, destroyed, or
removed from a property in the City as a result of development or
redevelopr:nent.
c) Section 11. 1 b: In consideration of trees which shall be cut. removed or
destroyed from the Residential Property. . . Centex . . _ shall replace trees
or monetarily compensate the City as provided in the Arbor Ordinance
according to the Tree Replacement Assessment established by the City.
d) Section 30: The failure of this Development Agreement to address any
particular City, county, state and federal permit, condition, term or restriction
shall not relieve Centex . . . or the City of the necessity of complying with the
law governing said permitting requirements, conditions, term or restriction.
3
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:06PM;
Page 4/8
Ronald W. Mclemore, City Manager
City of Winter Springs
May 7, 2003
Page 3
e) Section 36: Prior to the City filing any action or terminating this Agreement
as a result of a default under this Agreement, the City 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 City prior to
filing said action or terminating this Agreement.
2. On November 11, 2002, the City Commission approved the Plans. The provisions
of the Plans most relevant to the issue presented are as follows:
a) Paragraph 5 of the General landscape Notes (Sheet 7 of 13) provided that
"every possible safeguard shall be taken to protect existing trees that are
shown on the landscape plan to be preserved. N
b) Sheet 13 of 13 stated that the "total trees to be saved" were 527 and that
these trees "must be protected with tree barriers prior to any clearing. n
According to Mr. Mingea, the Plans do not clearly identify all the trees that
were suppose to be preserved.
3. On December 4, 2002, the parties entered into a First Modification Binding
Development Agreement ("First Modification")_ The First Modification corrected a
scrivener's error in Section 11.1 d(1) as follows:
(1) For every tree removed (greater than 44 ~ inch caliper), one replacement
tree shall be planted. The replacement tree shall be a minimum of 2 % inch
caliper container grown (30 gallons).
4. On December 5, 2002, the City issued an arbor permit to Derek Henry of Centex
Homes (#200203512) for the Residential Property which authorized the cutting and
removal of 1691 trees_ The permit noted that the permit fee was "based on 527
trees to remain on site." An additional permit note stated "replacements based on
developers agreement and will need to be paid as tree banking revenue at $1 00 per
tree removal for those not mitigated in the approved landscape plan prior to
construction. "
5. On February 18, 2003, Michael Mingea wrote a letter to Derek Henry of Centex
Homes memorializing his findings resulting from a site inspection of the Residential
Property which occurred on or about February 17, 2003. In the letter, Mr. Mingea
states that 344 trees were removed in violation of the Plans and the arbor permit.
4
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:07PM;
Page 5/8
Ronald W. McLemore, City Manager
City of Winter Springs
May 7, 2003
Page 4
He also requested that Centex Homes pay an additional arbor permit fee of
$3,440.00 for the 344 tre'es removed without a permit. In addition, Mr. Mingea
stated that payment of a tree bank revenue fee of $34,400.00 or a replacement
planting of the 344 trees must occur.
6. On February 21, 2003, the City received payment from Centex Homes in the
amount of $3,440.00 for the additional arbor permit fee.
7. On March 26, 2003, Michael Mingea documented with photographic evidence
numerous construction related activities allegedly in violation of the construction
requirements contained in the City's Arbor Ordinance including, but not limited to:
a) Storage of materials and equipment within the canopy of a preserved tree;
b) Dismantling of tree protection barriers;
c) Removal of trees behind a tree protection zone;
d) Deep grade reduction and broken and exposed roots within a tree protection
zone;
e) Sewer installed behind a tree protection barrier;
f) Caterpillar truck tracks within four feet of a trunk of a preserved tree; and
g) Trunk damage of preserved trees.
8. On April 23, 2003, Centex Homes Division president, Patrick J Knight, wrote a letter
to Mayor John Bush explaining Centex Home's version of events. He claims that
Michael Mingea "acknowledged that many of the trees, exceeding what was
previously approved for removal, may have to be removed due to filling and grading
operations_" He also claims that "prior to removing the trees," Centex Homes fully
communicated with the appropriate staff and that Mr. Mingea "was fully aware that
a number of trees may have to be removed." Additionally, he claims that Centex
Homes submitted revised landscape plans to Mr. Mingea in order to install
additional landscaping to compensate for the additional 344 trees removed from the
Residential Property. Approval of those plans is still pending.
9. On April 30, 2003, Patrick J. Knight wrote a letter to City Manager Ronald
McLemore explaining that Centex Homes has followed the City's protocol and
5
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:07PM;
Page 6/8
Ronald W. McLemore, City Manager
City of Winter Springs
May 7, 2003
Page 5
ordinances throughout the development ofthe Residential Property. In addition, the
land clearing operation ~was not haphazard, nor was it a contractor error. JJ Centex
Homes discussed this issue with Mr. Mingea "in advance" and they "only removed
the trees that needed to be removed."
Causes of Action:
Based on my review of the record which has been compiled to date by the City, the
City may have two causes of action against Centex Homes. However, as explained below,
any cause of action brought by the City may have been compromised, or at the very least
complicated, by the actions of the City's Arborist, Michael Mingea. The potential causes
of action are (1) breach of contract and (2) numerous code violations of the City's Arbor
Ordinance.
1. Breach of Contract
Centex Homes agreed that development shall be subject to the City's Arbor
Ordinance, as amended. Agreement. Section 11. Therefore, the Arbor Ordinance
requirements were incorporated into the Agreement. Pursuant to the Arbor Ordinance, the
City Commission approved the Plans on November 11, 2002 which required 527 "total
trees to be saved/' Plans, Sheet 13 of 13, and that "every possible safeguard shall be
taken to protect existing trees that are shown on the landscape plan to be preserved.
Plans, Sheet 7 of 13. Based on this authorization, the City's Arborist, Michael Mingea, on
December 5, 2002, issued an arbor permit which further memorialized the City
Commission's decision to permit the removal of 1691 trees and to require the preservation
of 527 trees. However, on or about February 17, 2003, Mr. Mingea concluded, after a site
visit, that Centex Homes removed 344 of the 527 trees which were required to be
preserved. He also witnessed, and documented with photographs, construction activity
on the Residential Property that appears to be in violation of Sections 5-10 and 5-14 of the
City's Arbor Ordinance, which establish tree protection requirements during construction.
Since Centex Homes is required by contract to abide by the City's Arbor Ordinance,
and, therefore, the Plans approved by the City Commission, It appears that Centex Homes
breached the terms. and conditions of the Agreement when it allowed the removal of the
344 trees which were required to be preserved.
Section 32 of the Agreement required Centex Homes to strictly comply with the
Agreement's terms and conditions. Centex's failure to preserve the 344 trees is a default
under Section 36 of the Agreement. When a default is declared by the City, the City can
pursue whatever remedies are available under Florida law including an action for specific
'6
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7-03 5:07PM;
Page 7/8
Ronald W. McLemore, City Manager
City of Winter Springs
May 7,2003
Page 6
performance and/or injunctive relief. Alternatively, Section 36 provides the City can
terminate the Agreement.
Prior to filing any action or terminating the Agreement, Section 36 states that the
City must first provide Centex Homes with written notice of the default. Centex Homes
then has thirty (30) days in which to cure the default to the reasonable satisfaction of the
City. The cure period can be extended, but in no case shall the cure period exceed one
hundred twenty (120) days. If the Agreement is terminated, Centex Homes loses all rights
and privileges granted under the Agreement.
However. the City should be concerned with the purported actions of Mr. Mingea
regarding the removal of the 344 trees. Centex Homes is claiming that the trees were
removed only after consultation with, and the prior acknowledgment of, Mr. Mingea.
Therefore, Centex Homes will likely raise an estoppel and waiver defense against the City
if the City pursues a breach of contract action.
Given that Mr. Mingea's actions appear to be contrary to the City Commission's
approval of the Plans and the City's Arbor Ordinance, the City may be able to defend
against an estoppel and waiver claim by arguing that Mr. Mingea exceeded his authority.
In Town of Lauderdale-By- The-Sea v. Meretsky, 773 So. 2d 1245 (Fla. 4th DCA 2000), the
district court held that a building permit issued in violation of law or under a mistake of fact
will not estop the government authority from enforcing its ordinances and revoking a permit
issued in violation of the law. Similarly, in Ammons v. Okeechobee County, 710 So. 2d
641 (Fla. 4th DCA 1998), the district court upheld the revocation of an occupational license
that was issued in violation of a county ordinance. The court reasoned that
it would be inconceivable that public officials could issue a permit, either
inadvertently, through error, or intentionally, by design, which would sanction
a violation of an ordinance adopted by the legislative branch of government.
Only the duly constituted members of the ... Commission enjoy that
prerogative and then only in accordance with established procedures.
Id. at 644. Accordingly, the City may have a valid defense to any claim of estoppel that
could be raised by Centex Homes as a result of Mr. Mingea's actions.
2. Code Enforcement Violations
Centex Homes agreed that development shall be subject to the City's Arbor
Ordinance, as amended. The City's Arbor Ordinance, No. 2002-08, applies. Under the
Arbor Ordinance, violations may be enforced by any lawful means including bringing
7
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596;
May-7.03 5:08PM;
Page 8/8
Ronald W. McLemore, City Manager
City of Winter Springs
May 7,2003
Page 7
charges before the Code Enforcement Board or special master. Section 5-18 provides that
the removal of a tree without a permit is subject to a fine of "not to exceed $5,000 per tree..
The amount of the fine is determined by applying certain factors enumerated in the Code
including the gravity of the violation, corrective action taken by the violator, previous arbor
ordinance violations, the number and size of the trees removed, the historical significance
of the tree removed, and whether the violation is irreparable or irreversible in nature.
Therefore, each of the 344 trees removed constitutes a separate violation of the Arbor
Ordinance. In this case, Centex Homes could be subject to a maximum fine not to exceed
$1,720,000.00, excluding any violation of the construction requirements set forth in
Sections 15-10 and 15-14. Any code enforcement prosecution, however, may be
compromised, or at the very Jeast complicated, by Mr. Minges's issuance of an "after-the-
facf arbor permit. But. under Town of Lauderdale-By- The-Sea and Ammons, the City may
arguably still pursue a code enforcement claim against Centex Homes.
Recommendation:
At this time I am recommending the following:
1. In order to preserve any rights the City may have under the Agreement for a breach
because of the removal of the 344 trees, the City Commission should direct the City
Manager or City Attorney to send Centex Homes a letter declaring a default in accordance
with paragraph 36 of the Agreement. This will trigger a cure period between 30 to 120
days.
2. During the cure period, the City should attempt to amicably resolve this matter
before taking any other legal course of action. In addition to monetary compensation, you
should refer to paragraph 11 of the Agreement and Section 5-17, Remedial Action, of the
Arbor Ordinance as a starting point to determine a possible tree replacement remedy. Any
mutually agreeable final resolution must be approved by the City Commission and may
require a modification of the Agreement and/or a Plan amendment.
I look forward to discussing this matter with you in the near future.
Anthony A. Garganese
City Attomey
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Prepared by and Retum to:
Anthony A. Garganese, City Attomey
Brown, Ward, Salzman & Weiss, P.A.
225 E. Robinson street, Suite 660
P.O. Box 2873
Orlando, F~.~802.2873
MARVANE MORSE. a.ERK (F CIRCUIT COURT
SEMINOLE aum "
BK 04358 PG 1310
CLERK'S # 2002850603
RECORDED 03/22/2002 10111101 AM
RECORDING FEES 181.50
RECORDED BY L Woodl.V
Parcel 1.0. Nos. 26-20-30-5AR-Q0OO-18C
26-20-30-5AR-Q000-0200
. .\".; "
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BINDING DEVELOPMENT AGREEMENT
THIS BINDING DEVELOPMENT AGREEMENT (herein referred to as the
"Development Agreement"), made. and executed thi~.11 t'k.. day of ~c b..-, 2002,
" by and between the CITY OF WINTER SPRINGS,a Florida municipal corporation (herein
referred to as the "City"); whose address is 1126 East State Road 434, Winter Springs,
Florida, 32708, and SPRINGS LAND INVESTMENTS, ~ TO., a Florida limitec;1 partnersh.ip
. .- -~..-.:.,.. ,,':
(h~(~lQJe.fe.rr~.g ,to. ~s "Springs"), whose .addre.~s i$,,~Glo. .SYobeltJnvesto.rsG(Q~P,. 175
lookout Place, Suite 201, Maitland, Florida, 32751, and JESSUP SHORES LIMITED
PARTNERSHIP, a Florida limited partnership (herein referred to as "Jessup"), whose
address is c/o Sunbelt Investors Group, 175 lookout Place, Suite 201, Maitland, Florida,
32751, and CENTEX HOMES, a Nevada general partnership (herein referred to as
"Centex"), whose address is 385 Douglas Avenue, Suite 2000, Altamonte Springs,
Florida, 32714.
WITNESSETH:
WHEREAS, Springs and Jessup jointly own certain rea.1 property in the City of
Winter Springs, Florida, described in Exhibit "A" attached hereto andincorporatedherein
r" CERTiFIED COPi' "
MARY ANNE MORSE
CLERK O~ CIHCU T COURT
. B:#~~OU '_(~:~ORIDA__
OEPUTY CLE
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by reference (herein referred to as the "Subject Property");' and
WHEREAS, the Subject Property is currently within an area designated as "C-1
Neighborhood Commercial Districf' according to the zoning classification records of the
City; and
WHEREAS, Centex has entered into a contract to purchase a portion of the Subject
Property from Springs and Jessup for (jevelopment as an attached multifamily townhome
residential community, described in Exhibit "L" attached hereto and incorporated herein
by reference (herein referred to as the "Residential P'roperty"), subject to obtaining an
appropriate conditional use approval, variance or r~zoning of the Residential Property from
the City; and
WHEREAS, the townhome units will be offered for sale to the public; and
. - -- -.' -~-,,<,~- -:"WHEREAS-,.Springs and Jessop desire to retain the righftb'developthe-portion of
the Subject Property not sold to Centex described in Exhibit "M" attached hereto and
incorporated herein by reference (herein referred to as the "Commercial Property") for
commercial purposes; and
WHEREAS, development of the Residential Property and Commercial Property will
require construction of a common entrance road for vehicular access to State Road 434
to be shared by the' residents of the Residential Property and the occupants of the
Commercial Property, and by the guests and invitees of such owners and occupants
described in Exhibit "N" attached hereto and incorporated herein by reference (herein
. .
referred to as the "Private Entry Street"), and a landscaped and improved area adjacent
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to the Private Entry Street described in Exhibit "0" attached hereto and incorporated
herein by reference (herein referred to as the "Entry Feature Property"); and
. WHEREAS, Springs and Jessup and Centex are willing to develop the Subject
Property under its current "C-1" zoning classification in exchange for the covenants of the
City herein set forth; and
WHEREAS, the City Commission has recommended entering .into a Binding
Dev~'opment Agreement with Springs and Jessup and Centex for development of the
Subjec!./ Property; and
WHEREAS, in addition to Springs', Jessup's and Centex's compliance with all City
./
Codes, permitting, and construction not in conflict herein, the City, Springs, Jessup, and
Centrex desire t9 set forth the following special terms and conditions; and
. ,'C". "WHEREAS, .the City Commission of. the City of..Winter".Springs;.findsthat..this
Agreement is consistent with the City's. Comprehensive Plan and land development
regulations and is a legislative act of the City Commission of the City of Winter Springs;
and
WHEREAS, the City Commission further finds that this Agreement promotes the
public health, safety, and welfare and is consistent with, and an exercise of, the City's
powers under the Municipal Home Rule Powers Act, as pr6vi~ed in s. 2(b), Article viiI of
the Florida Constitution and Chapter 166.021, Florida Statutes, and the City's police
powers.
NOW THEREFORE, in consideration of the mutual covenants and mutual benefits
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herein contained, the parties agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated herein by this
reference.
-
2. Authoritv. This Development Agreement is entered into pursuant to the
Florida Municipal Home Rule Powers Act, and the Code of Ordinances of the City of
Winter Springs. .
3. Representation.s of Centex. Sprinas and Jessup. Centex, Springs and
Jessup hereby represent arid warrant to City that Centex, Springs and Jessup have the
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power and authority to bind the Subject Property and execute, deliver and perform the
terms and provisions of this Development Agreement, have an equitable or legal interest
in the title to the Subject Property, and have taken all necessary action to authorize the
~.....':. .~X~C4.tio.Q,. qeliyef}'. and performance of this D~velopmentAgreement... _, ,,'. ....
4. Town Center Zonina. Provided that the terms and conditions of this
Development Agreement are satisfied by Springs, Jessup and Centex, or their respective
successors in title, the City shall not rezone the Subject Property, or any part thereof, into
the Town Center Zoning District (herein referred to as "Town Center"), as long as this
Development Agreement shall remain in effect, uniess the parties agree to initiate the
rezoning to: ToWrfCenter. To the extent that the City Commission determiri'es.. 'at:'-its .
reasonahle discretion, there is a specific and direct conflict between the terms and
conditions of this Development Agreement and the provisions of the Code of Ordinances.
of the City of Winter Springs, the parties agree that the provisions of this Development
Agreement shall control as if approved by the City Commission as a legislative act.
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Moreover, the City acknowledges that the underlying land use designation for the Subject
Property is "Mixed Use", and the City agrees not to initiate, sponsor or support any attempt
to change the underlying land use designation as long as this Development Agreement
. . shall remain in. effect, unless the parties agree to initiate the change of land use
designation.
5. Residential Property Conditions. The parties covenant and agree that the
Residential Property shall be developed in accordance with the plans and specifications
identified as Wagner's Curve Mixed Use Development,JJated 10101, (herein referred to as
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the "Townhome Plans") attached hereto as Exhibit "B" and incorporated herein by
reference, and the Residential Development Standards (herein referred to as
the"Townhome Standards") attached hereto as Exhibit "c" and incorporated herein by
~':'" _ :...' ,~'-_.,r~f~r~r19.~:...8_~ y~~.gin this Development Agreement, .a.nd .il1th~ Jpwob.omeJ?Jan~...and
Townhome Standards, the terms 'Townhome Unit' or 'Unit' mean an individual tOwrihbuse
dwelling intended for occupancy by a single family and attached by a party wall to another
Townhome Unit, and the terms 'Townhome Building' or 'Building' mean a structure
..
consisting of two or more Townhome Units attached by party walls under a common roof.
The developer of the Residential Property shall have the right to amend the Townhome
Plans and/or".Townhome Standards provided that any such amendment shall'be first
approved by the City. Minor changes that do not materially modify the location or footprint
of any building may be deemed non-material by the City, and may be .approved by City
Manager. All material modifications of the Townhome Plans and/orTownhome Standards
shall be subject to review and approval of the City Commission, and, at the option of the
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City, may be memorialized by an amendment to this Development Agreement.
6. Phased Townhome Construction. City and Centex agree that the
Townhome Buildings shall be constructed in the numerical sequence set forth in the
. ..
. . ,
Townhome Plans. attached hereto as Exhibit "B."
7. Commercial Property Conditions. The parties covenant and agreethat the
Commercial Property shall be' developed in accordance with Commercial Development
Standards (herein referred to as the "Commercial Standards") attached hereto as
Exhibit ~'D" and incorporated herein by reference. rhe developer of the Commercial
Property shall have the right to amend the Commercial Standards provided that any such
amendment shall be first approved by the City. Minor changes that do not materially modify
the location or footprint of any building may be deemed non-material by the City, and may
.,;,., ._,-~:_ be,appr.oved.bythe_CityManager. All material modifications ofthe.CommercialStandards
shall be subject to review and approval of the City Commission, and, at the option of the
City, shall be memorialized by an amendment to this Development Agreement.
8. Private Entry Street. The parties covenant and agree that the Private Entry
Street shall be developed in accordance with the plans and specifications approved by the
City. Centex, Springs and Jessup agree that the Private Entry Street Plans shall be
submitted tCflhe City"for approval within ninety (90) days of the effective datEf of tHis""
Development Agreement. The Private Entry Street shall be designed as a traditional town
center street, shall include town center architectural features which are acceptable to the
City, and shall be designed substantially similar to that depicted on Exhibit "E." The
Private Entry Street shall be platted along with either the Residential Property or the
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Commercial Property, whichever shall be platted first. Construction of the improvements
depicted on the Private Entry Street Plans shall have been completed prior to the issuance
of a Certificate of Occupancy for the model Townhome Units or for the first commercial
building cOnstructed on the Commercia"i -Property, whichever oCcurs first. Centex, Springs
and Jessup, or their successors in interest, jointly, shall have the right to amend the
Private Entry ~treet Plans provided that any such amendment shall be first approved by
the City. Minor changes that do not materially modify the location or footprint of any
improvement may be deemed non-material by the. City,... and may be approved by the City
Manager. All material modifications of the Private Entry Street Plans shall be subject to
review and approval of the City Commission, and, at the option of the City, 'shall be
memorialized by an amendment to this Development Agreement. The City acknowledges
,. that the Private Entry Street may have sections paved with stabilized brick pavers rather
than concrete or asphalt paving.
. 9. Entry Feature Property. The parties covenant and agree that the Entry
Feature Property shall be developed in accordance with the plans and specifications
approved by the City. Centex, Springs and Jessup agree that the Private Entry Plans
shall be submitted to the City for approval within ninety (90) days of the effective date of
.this Development Agreement.. The Private Entry Feature shall be designedwith enhanced""
plantings and as a traditional town center architectural feature which shall create a long
lasting statement to the public. The Private Entry Feature Property shall be designed
. substantially similarto that depicted on Exhibit "F;" In addition, the Private Entry Plans
shall include an ornamental picket fence or other ornamental hardscape feature along the
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entry drive from the gazebo to the gated entrance. Construction of the improvements
depicted on the Private Entry Plans shall have been completed prior to the issuance of a
Certificate of Occupancy for the model Townhome Units or for the first commercial building
. constructed on the Commercial Property, whichever occurs first.. Centex,. Springs and
Jessup, or their successors in interest, jointly, shall have the right to amend the Private
Entry Plans provided that any such amendment shall be first approved by the City. Minor
changes that do not materially modify the location or footprint of any improvement may be
deemed non-material by the City, and may beapprovec;iby the City Manager. All material
,
modifications of the Private Entry Plans shall be subject to review and approval of the City
Commission, and, at the option of the City,' may be memorialized by an amendment to this
Development Agreement.
The Entry Feature Property shall be subject to the right reserved to the Residential
Property to erect and maintain a sign near the intersection of the Private Entry Street and
S. R. 434, visible from S.R. 434, bearing the name of the Townhome project. Any such
sign shall comply with Article VI, Section 20-470, S. R. 434 Corridor Vision Plan
Regulations of the Winter Springs Land Development Code, and may be a permanent
structure including mon!-lmentation, landscaping, irrigation and lighting, provided that said
. sign shall be designed in such a manner as to be consistent with-Town Center design",..;
standards set forth'ln the Town Center District Code. Any such sign and associated
improvements shall be maintained at the sole expense of the property owners association
.. of the Residential Property.
10. TrafficSianal. The parties acknowledge that a traffic signal is being
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designed and permitted at the intersection of the Private Entry Streefand S.R. 434 by
Seminole County with the. input and assistance of the City, and the Seminole County
School Board. The traffic lights shall be installed at no expense to Centex or Springs and
. Jessup.
11. Compliance. with City Tree Ordinance. Development of the Subject
Property shaU be subject to compliance with the City's Arbor Ordinance as set forth in the
City Code, as amended, and subject to the Tree Replacement Guidelines set forth in this
section.
./
11.1 Tree Replacement Guidelines.
a. The following words shall have .the meaning ascribed below unless the
.
context clearly indicates otherwise:
(1) Arbor Ordinance. City Arbor Ordinance shall mean Chapter 5 of the
City Code. of Ordinances otherwise known as the City Arbor
Ordinance.
. (2) Preferred Plant List. Preferred Plant List shall mean that list of plant
materials and corresponding Tree Replacement Credits shown in
Exhibit "K" of this agreement. In addition, the DO Blanchard
Magnolia, .Magnolia Grandiflua, at the 65 . gallon size will be'"'
"c.onsidered a preferred plant at a replacement credit ratio of 5:1.
(3) Tree Replacement Assessment. Tree Replacement Assessment shall
mean the total amount of monetary compensation owed to the City of
Winter Springs as provideqin the Arbor Ordinance for the
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replacement of trees cut, destroyed, or removed from a property in
the City as a result of development or redevelopment.
(4)
Tree Replacement Credit. Tree Replacement Credit shall be equal
. to one-hundred ($100.00 )-dollars and no cents ',n tree replacement
value.
b. .In consideration of trees which shall be cut, removed or destroyed from the
Residential' Property and Commercial Property by Springs, Jessup, and
/
Centex or their agents, Springs, Jessup,...an~ Centex, jointly, shall replace
trees or monetarily compensate the City as provided in the Arbor Ordinance
according to the Tree Replacement Assessment established by the City.
c. Springs, Jessup, and Centex may deduct from their Tree Replacement
Assessment, Tree. Replacement Credits bas.ed on the number of
replacement credits as provided in the Preferred Plant Material List provided
that:
(1 ) All plant materials are Florida Grades and Standard One (1) or better;
(2) All plant materials are properly installed; and
(3) The landscape plan for the proposed development to which the
. credits are to be applied is prepared by a landscape architect .."
'..Iicensed by the State of Florida.
d.
In addition, the following requirements shall apply:
(1 L For every tree removed (greater than 1'4' inch caliper), one
replacement tree shall be planted. The replacement tree shall be a
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minimum of 2~ inch caliper container grown (30 gallons).
(2) With respect to the dense pine trees which were apparently planted
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for silviculture purposes in the middle of the Residential Property,
these pirie trees shatrbe removed and repfaced"lnaccorda"n'ce with'
the natural growth patterns located elsewhere on the Residential
Property. In other words,- the number. of replacement trees shall be
determined using the average density (Le., number) of trees per acre
located on the Residential Property, excluding the area where the
dense pine trees are located in the middle of the Residential
Property.
(3) The size and species of the existing trees that are removed shall not
be considered in determining the required replacement trees unless
a particular existing tree is exempt from this requirement pursuant to
. the City's Arbor Ordinance (e.g., specimen tree).
12. Fencina. Fencing along S.R. 434 and the western boundary of the
Residential Property shall be see-through decorative aluminum material with brick
columns and certified to meet all code requirements. 'The distance between brick columns
shall be reasonably acceptable to the City. Said fencing along the western boundary shall
extend at least to the south end of Townhome Building #13 from S.R. 434 or until.it is no
longer visible from S.R. 434, from the east and west motor vehicle approaches, but in no
case beyond the south end of Townhome Building #14. The fencing'a'nd the landscaping
related to the fencing, along with the streetscaping along S.R. 434, shall be constructed
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in cOnjunction with the Private Entry Street and Entry Feature. The City reserves the right
to withhold the issuance of any Certificate of Occupancy upon the City's determination
that the aforesaid is not being timely constructed as required hereunder.
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: '13. ""'Oth~r Applicable Conditions. The elements of the i'mp'ro~e'me~ts'dep'ict~d
in the Townhome Plans and the Commercial Standards will govern exterior appearance
and' placement, including without limitation, architectural elements, common area
. \ .'
improvements, parking areas, private streets, Private Entry Street, Private Entry Feature,
and setback lines. The parties acknowledge that in addition to complying with the
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approved Townhome Plans and/or Commercial Standards, as the case may be, regarding'
exterior appearance and placement, all structures and improvements constructed or
installed on the Subject Property shall be subject to compliance with applicable building
.. codes, and nothing in this Development Agreement or in the T ownhome. Plans. or
Commercial Standards shall be deemed to alter any applicable building code..
14. Private Streets within Residential. Prooerty: Gates. As depicted in the
Townhome Plans,' the City agrees that the streets and driveways within-the Residential
Property will be privately owned and maintained by the property owners association
created for the Residential Property, and that access will be controlled by elec~rically
. operated gates. The gatesshall'be located as depicted in the Townhome Plans, and the
private streets shall connect to the Private Entry Street at the boundary ,between the
Residential Property and the Private Entry Street. The portion. of the private streets
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between the gates and the Private Entry Street shall be maintained exclusively by the
property owners association for the Residential Property, and the City shall have no
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obligation to provide maintenance for any portion of such private streets. The electric
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gates shall be fitted with devices allowing immediate entry and exit of emergency, fire
and/or police vehicles and personnel, as well as U. S. Postal Service personnel and
"...,., "'''"\leliicles;''afid'Cit}/''seNice personnel and vehlcles~ The eng/neEk'of"recorcrshafi "pro'\ilde"". .
a signed and sealed estimate of the cost of annual maintenance as well as the cost to
resurface the road, the property owners association, or their successors in interest, shall
cause a Florida licensed Certified Public Accountant to annually certify to the City that
adequate funds are being collected from the owners)o meet the' future value of those
engineer's estimates.
15. Aaoreoated Development. For development purposes, the Residential
Property and Commercial Property shall be aggregated as one single development under
,
.. the terms and conditions of this Development Agreement and the City Code. However,. it
is understood by all parties that the Commercial Property and Residential Property may
be developed by separate entities. If said properties are developed by separate entities,
a default under this. Agreement by one entity shall not constitute a default by the other
entity, unless the default involves a joint obligation of the entities under the terms and
conditions of this Agreement. In which case, a default by one entity shall constitute a
default by the other entity;.,,, .
16. Plattin'Q: Developer's Limited Rioht to Terminate. Upon the effective date
of this Development Agreement, Springs, Jessup, and Centex shall promptly submit and
. ',.. . ,"~"'7"'"'C" ," . .
pro'secute with the City an application for development approval consistent with the terms
and conditions of this Agreement. The application shall be prosecuted in good faith and
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shall be subject to the City Commission's approval. Springs, Jessup, and Centex, jointly,
shall have the right to terminate this Agreement until such time final engineering and
construction plans are approved by the City Commission, at which time Springs' Jessup's,
,'.'''...: ;:,-:....ar:1d,G~ntex'srighU{)terminate this Agreement shall expire:.".:- "', ",,,,,,,,,',"-.'>'O"'n"'" """"';"-;<"'" S,. "
17. Government Services. The City shall provide police, fire, emergency and
garbage collection services to the residents of the Residential Property, and, provided that
the Residential Property is developed in accordance with this Development Agreement,
garbage collection shall be provided on a unit-by-unit basis comparable to such services
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provided by the City to residents of sin'gle-family detached homes. The City's personnel; ,
contractors, vendors and suppliers shall have unrestricted access to the Residential
Property for the performance of their duties, and the Residential Property shall be subject
to .an easement for access over and upon the private streets and common areas of the
Residential Property for the benefit of police, fire, emergency and utility personnel, as well
as the United States Postal Service and commercial delivery services.
'18. Successors and AssiQns. This Development Agreement shall automatically
be binding upon and shall inure to the benefit of the successors and assigns of each of the
parties.
19. Applicable Lavv.,.,. This Development Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
20. Homeowner's Association Documents: Third Party Beneficiary. Centex,
'Springs, and Jessup' agree that the Residential Property shall be"managed by a'
homeowner's association. Centex, Springs, and Jessup agree that the homeowner's
association documents shall be submitted to the City for review and approval prior to
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recording. The documents shall provide that the City shall be designated as. a third-party
beneficiary to be in privity with Centex, Springs, and Jessup and the property owners'
association for the purpose of enforcing the rights and obligations hereunder. Such
":"~":" '.."..de,signatiol'l shall, be. to .the satisfaction of each party. and shall,. be cornpleted"prior .t0~the'" ,
- .
issuance of a Certificate of Occupancy. In the event the Commercial Property is subject
to a homeowner's or condominium association, the third party beneficiary provisions of this
paragraph shall also apply.'
21. Amendments. This Development Agreement shall not be modified or amended
./
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except by written agreement executed by all parties hereto and approved by the City
Commission of the City of Winter Springs.
..22. Entire Aqreement. This Development Agreement supersedes any other
agreement, written or oral, and contains the entire agreement between the parties as to
the subject matter hereof.
23. Severabilitv. If any provision of this Development 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
Development Agreement. .
24. Effective. Date. ,.IlJis Development Agreement shall become effective upon
approval by the City.ofWinter Springs City Commission and execution of this Development
Agreement by.all parties.
. . ~''''''25. Recordation. Upon approval by the City of Winter Springs City Commission
and execution of this Development Agreement by all parties, this Development Agreement
and any amendments hereto shall be recorded by the City in the public records of
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Seminole County, Florida, and shall run with the land. A Notice of Termination shall be
recorded in the public records of Seminole County if this Agreement is terminated by
Springs, 'Jessup, and Centex pursuant to paragraph 16 herein.
'.' ,--,~,:",~ ",,!";7,-,--.26).-:<..Relatianship of the Parties. The ..relationship., of.' :,the ;'parties.' to,,-this"
Development Agreement is contractual and arm's length. Springs, Jessup and Centex are
independent contractors and are not the agents of the City for any purpose. Nothing
herein shall be deemed to create a partnership, or Joint venture, or principal-agent
relationship among the parties, and no party is authorized to, nor shall any party act
../
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toward 'third persons or the public in any manner which would indicate any such
relationship with any other party.
27. Sovereiqn Immunity. Nothing contained in this Development Agreement
shall be construed asa 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
or federal' law.
28. City's Police Power. Centex, Springs and Jessup a9knowledge and agree
that the City hereby reserves all police powers granted to the City by law. In no way shall
this Development Agreement be' construed as the City bargaining away or surrendering
its police powers.
29: Interpretation. The parties to this Development Agreement acknowledge
and agree that all parties have participated equally in the drafting of this Development
Agreement, and no party shall be favored or disfavored regarding interpretation of this
Development Agreement in the event of a dispute between the. parties.
30. Permits. The failure of this Development Agreement to address any
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particular City, county, state and federal permit, condition, term or restriction shall not
relieve Centex, Springs and. Jessup or the City of the necessity of complying with the law
governing said permitting requirements, conditions, term or restriction.
"'." r'~-','_"",.,~,"""'" .,3L ",." ThirdPartv Riahts. This, Development AgreemeAt,.is. not"a~.third'party
beneficiary contract, and shall not in any way whatsoever create any rights on behalf of
any third party.
32. Specific' Performance. Strict compliance shall be required with each and
every provision of this Development Agreement. The parties agree that failure to perform
./
the obligations established in this Development Agreement shall result in irreparable
damage, and that specific performance of these obligations may be obtained by suit in
equity.
33. Attornevs' Fees. In connection with any arbitration or litigation arising out
of this' Development Agreement, the'. prevailing party shall be entitled to recover
reasonable attorney's fees and costs through all appeals to the extent permitted by law.
34. Future Rezoninas/Development Permits. Nothing in this Development
Agreement shall limit the City's authority to grant or deny any future rezoning or
development permit applications or requests, or the r-ight of Centex or Springs and Jessup
.to apply for or oppose any future rezoning or development permit application subsequent .
to the Effective Date'of this Development Agreement. In addition, nothing herein shall be .
construed as granting or creating a vested property right.or interest in Centex, Springs,
and Jessup or on the Subject Property.
35. Force Maieure. The parties agree that in the event that the failure by either
party to accomplish any action required hereunder within a specified time period ("Time
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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 contro'l of such
party, including, but not limited to, acts of God, acts of government authority (other than
. ,.,' ,.'. ", . Jhe,.:City's.own,acts)l 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 caUncontrollable 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
./:
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, be extended by the amount of time that such party was unable to perform solely due to the
Uncontrollable Event
36. City's Riaht to Terminate Aareement. Failure by Springs, Jessup, and/or
Centex to perform each. and every one of its obligations hereunder shall constitute a
,default, entitling the City to pursuewhatever remedies are available to it under Florida law '
';or equity including, 'without limitaion, an action for specific performance and/or injunctive
relief or alternatively, the termination of this Agreement. Prior to the City filing any action
or terminating this Agreement as a result of a default under this Agreement, the City 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 re~sonable satisfaction of the City prior to filing said action or terminating
this Agreement. If thirty (30) days is not a reasonable period in which to cure the default,
: the cure period shall be extended to a reasonable cure period mutually acceptable to the
City aod the defaulting party,. but in no case shall that cure period exceed one~hundred
twenty (120) days. Upon termination of the Agreement, the defaulting party shall
18
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immediately lose all rights and privileges granted hereunder,
IN WITNESS WHEREOF, the parties have executed this Development Agreement
as of the date first written above.
. CITY
..Munic
By:
PAUL P. PARTYKA
Mayor
WITNESSES:/
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~1. Ct, ~ cPO/"tA f)r(L(L.J
STATE OF FLORIDA
COUNTY OF ()(a"'~e
ATTEST:
By:
SPRINGS LAND INVESTMENTS, L TO.,
a Florida limited partnership
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By: Euro American Investors' Group
a FIQrida general partnership
By:
Sun belt Investors Group, Inc~
a Florida corporation
General Partner
A.~t
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By:
Date:
The foregoing instrument was acknowledged before me this .1J) day of .Ji3'>{VO~ '
2002, by A C,'. LeevtbM I as ~f!~101\'''+'''~ of SPRINGS LA D
INVESTMENTS, L TO., a Florida limited partnership, M who is personally known to me,
or [ ] who has produced ~ identification.
PETER LEER DAM NOTARY PUBLIC, State of Florida
Notary Public, Slate of Florida My commission expires: O~/D11 oS
My comm. expo Mar. 1, 2005
Comm. No. DO 00583f1
(SEAL)
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WITNESSES:
JESSUP SHORES LIMITED PARTNERSHIP
a Florida limited partnership
By: Euro American Investors Group
a Florida general partnership
..........., } :." :"'. "'~"'J\ ,~,~.... ... . ..;-..... ' ..~. . .
~
By:
Sun belt Invest()rS 'Group, Inc~
a Florida corporation
General Partner
A~~eSidenl
~
By:
~ ~ (f~
Date:
02/1..0 101-
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STATE OF FLORIDA
COUNTY OF Dro.Nje,
The fore.\loing instrument was acknowledged before me this 10 day of JebrvarEi'
2002, 'by ~.c. Cee((da~ , as ~t <S1';7~(reof JESSUP SHORES LIMIT 0
PARTNERSHIP a Florida limited partnership, ~ who is personally known to me, or [ ]
who has produced .... . . I-;-:j~j ~entification. .. ..
.., ~, Stateof FloriQa
PETER lEEROAM My commission expire~: 03/0 I / oS
Notary Public. State of FlorIda
(SEAL) My comm. exp.Mar. 1,2005
Comm. No. DO 005SM
20
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WITNESSES:
CENTEX . HOMES, a ' Nevada general
partnership,
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by: CENTEX REAL ESTATE CORPORATION,
'a Nevada corporation, Managing General
Partner
By: ~Dl_ i,~
Patrick J. Knight
Division President
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Date:
STATE pF FL~IDA .
COUNTY OF ~~
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The foregoing instrument wa~ acknowledged before me this 19 \:b. day of ~
2002, by . ,.; ---= ~ , as \)f> of CENTEX HOMES, a Nevada
general partnership, who is ersonally known to me, or [ ] who has produced
as identification.
rtf"""." . K'B RO"8E"RT':O" I
~1!!"'F~i{, ''',r.. v '~'~";j'
? i.: ~ :.~ MY COMMISSI'"N H\.. . ,3564 '
a"~::'--;ct~.~'l EXPIRES: Mal~h :::1 ~uc~
~J ':.1;>: :./T ~~.." Bonded Thru Nota!''! ::ubjil; Unaen'.'I'ilcrs
"f~hln.' _ ~..
.~,qr_ J'"
NARY PUBLIC, State of Flori
. My commission expires:
(SEAL)
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