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HomeMy WebLinkAbout2005 03 28 Regular 505 Proposed Second Modification to the Barclay Reserve Development Agreement CITY COMMISSION AGENDA ITEM 505 Consent Informational Public Hearing Regular X March 28, 2005 Meeting MGR. r /DEPT J4- Authorization REQUEST: The Community Development Department requests the City Commission approve the proposed second modification to the Barclay Reserve development agreement. PURPOSE: The purpose ofthis agenda item is to approve the proposed development agreement modification to address a construction error on 7.45 acres located along the north side ofSR 434, west of Barrington Estates and Don King Concrete. APPLICABLE REGULATIONS Chapter 166, Florida Statutes Development Agreement Chapter 6 of the City Code Chapter 9 of the City Code CHRONOLOGY: On December 8, 2003 - City Commission granted a conditional use for multi- family development at this site, pursuant to Section 20-234 ofthe City Code. December 9,2003 - City received final subdivision plan application package. April 6, 2004 - Applicant and staff address outstanding development agreement and homeowner restrictive covenants issues. April 7, 2004 - Planning and Zoning Board recommends approval, subject to accommodating adequate parking. MARCH 28, 2005 Regular Agenda Item 505 Page 2 of3 April 30, 2004 - Applicant submits final engineering/subdivision plans, to address engineering comments & P &Z concerns May 4, 2004 - Applicant submits amended development agreement and homeowner restrictive covenants. May 10, 2004 - City Commission deferred the final engineering/subdivision plan, development agreement, and homeowner restrictive covenants May 24, 2004 - City Commission approved conceptual plan to provide 219 parking spaces with no on-street parking June 14, 2004 - City Commission approved the final engineering/site plan and associated development agreement for Barclay Woods September 20, 2004 - City Commission approved a similar provision for expediting model unit construction with the Highlander annexation and pre- development agreement October 11, 2004 - City Commission approved the first modification to the development agreement to expedite model home construction November 22, 2004 - City Commission approves aesthetic review for the subdivision January 10, 2005 - City Commission approved the final subdivision plat January 13, 2005 - Plat was recorded February 25,2005 - Attorney Timothy Hughes sends Public Works Director Kip Lockcuff (copy to City Attorney) a letter addressing the construction error CONSIDERATIONS: An unintentional encroachment into the 7 foot building setback (from the boundary of the subdivision) occurred when the location of an 8 inch wide retaining wall was measured to the middle ofthe wall instead ofto the exterior edge, resulting in a 4 inch encroachment. The retaining wall at these locations forms the foundation for the adjacent 3 buildings (buildings 3, 4, and 5). Setting the building back the 4 inches from the retaining wall would violate the angle of repose restriction (a structural issue regulated through the building code) for these buildings. Thus, the applicant must either demolish the work that was done in error or else receive relief through this modification to the development agreement. RECOMMENDATION: Staff recommends the City Commission approve the proposed second modification to the existing Barclay Reserve development agreement. CDD/March 23.2005/12:33 PM MARCH 28, 2005 Regular Agenda Item 505 Page 3 of3 ATTACHMENTS: A. Development Agreement B. Proposed 2nd Modification CITY COMMISSION ACTION: CDDlMarch 23, 2005/12:33 PM TillS INSTRUMENT WAS PREPARED BY: Patrick K. Rinka, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Bola Drive Post Office Box 2809 Orlando, FL 32802-2809 (407) 843-4600 .mmd_n_"_B_.....~I....~I.U ATTACHMENT AORSEt ClERK CF CIRCUIT CllJRT ~IUM.U ltUfl'Y BK 05428 pes (~(~48-(~(~5e. CLERK'S * 2004226749 RECORDED 08/10/2004 04127128 PM RECORDING FEES 18.00 RECORDED BY L Woodle, <<.. .., ; , i r .. . (] AND SHOULD BE RETURNED TO: Anthony Garganese, Esquire Brown Salzman Weiss & Garganese 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 FOR RECORDING DEPARTMENT USE ONLY I I DEVELOPER'S AGREEMENT . ~ THIS DE~P. ER'S AGREEMENT (the "Agreement") is made and executed this ? day of .Y , 2004, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City"), wpose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and BARCLAY WOODS, LLC, a Florida limited liability company ("Barclay Woods"), whose address is 1085 West Morse Boulevard, Suite A, Winter Park, Florida 32789. WIT N E SSE T H: WHEREAS, Barclay Woods is the fee simple owner of (or has the contractual right to purchase) certain real property located within the City in Seminole County, Florida and more particularly described in Exhibit "A". attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, Barclay Woods intends to develop the Property as a single-family residential (townhouse) community at a density of approximately ten (10) units per acre (the "Project"); and WHEREAS, pursuant to the approval of the City Commission on June 14, 2004, Barclay Woods desires to facilitate the orderly development of the Project on the Property as depicted in those certain Final Engineering Plans for Barclay Woods Townhomes - City of Winter Springs, Florida prepared by Pecht-Evans Engineering, Inc. under Job No. 14201, dated December 2003 and approved by the City Commission on June 14,2004 (the "Engineering Plans") in compliance with the laws and regulations of the City; and WHEREAS, the City Commission has recommended entering into this Agreement with Barclay Woods for the development of the Project; and 0909516\103441\711854\10 . . WHEREAS, in addition to Barclay Woods' compliance with the City Land Development Code (the "Code"), permitting and construction not in conflict herewith, the City and Barclay Woods desire to set forth the following special terms and conditions with respect to the development and operation of the Project. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Obli{!ations and Commitments. In consideration of the City and Barclay Woods entering into this Agreement, the City andjBarclay Woods hereby agree as follows: I (a) Formation of Homeowners' Association. Barclay Woods hereby acknowledges and agrees' that it intends to form a mandatory homeowners' association (the "Homeowners' Association") for purposes of (i) maintaining any and all common areas, landscaping, walls, fences and stormwater drainage facilities associated with the Project, and (ii) satisfying the requirements for gated community status as hereinafter set forth. A separate Declaration of Covenants, Conditions and Restrictions (the "Declaration") will be executed aneJ,' recorded. among the Public Records of Seminole County, Florida to evidence the formation of the Homeowners' Association and establish its rights, duties and obligations. (b) Buffer Walls and Fences. Notwithstanding the requirements of Section 20-417 of the Code, Barclay Woods shall install (i) a six (6) foot tall masonry wall along the eastern boundary line of the Property, and (ii) a six (6) foot tall aluminum fence along the western boundary of the Property. The foregoing wall and fence shall each be erected as soon as reasonably practical and prior to any permanent vertical construction for the Project. The City hereby acknowledges that a masonry wall already exists along the northern boundary line of the Property, therefore no additional wall or buffer shall be required in such location, notwithstanding the requirements of Section 20-417 of the Code to the contrary. (c) Signage. The City hereby acknowledges and agrees that Barclay Woods shall have the right, upon the full execution of this Agreement, to erect construction signs, rnarketing signs and temporary signs (including up to four (4) "banner" signs) as described in Sections 20-470(10), 20-470(11) and 20-470(16) of the Code, in locations reasonably acceptable to the City, which signs shall be permitted to remain for a period of nine (9) months from the date hereof. Barclay Woods shall thereafter have the right to erect permanent Project identification signage at the main entrance to the Project, which shall consist of lettering attached to the two entrance walls spelling "Barclay Woods" (total signage dimensions to be approximately 1 foot high and 11 feet wide). Any construction signs or marketing signs erected on the Project shall not exceed sixty-four 0909516\103441\711854\10 Developer's Agreement - 2 - , . (64) square feet in size. The City hereby acknowledges and agrees that the Project shall not be subject to the fourteen (14) day limitation on the erection of temporary "banner" signs as provided in Section-20:-470(16) of the Code. Barclay Woods and its successors and assigns shall maintain all of the signs erected pursuant to this Section 3( c) in a good condition and state of repair. (d) Reimbursement for Water LineIForce Main. Barclay Woods, or its successors or assigns, shall be obligated to reimburse the City for a portion of the construction costs previously incurred in connection with the installation of the existing water line and force main that will serve the Project (the "Utility Costs"). Barclay Woods' pro rata share of the Utility Costs shall be calculated on the basis of the number of residential units approved for the Project and shall be paid to the City prior to the issuance of a construction permit for the Project site work. . ( e) Gated Community. The City hereby agrees that in the event that Barclay Woods provides reasonable evid~ce that the Homeowners' Association has been duly formed and incorporated underTilie laws of the State of Florida as a mandatory homeowners' association with the authority and obligation to levy and collect regular and special assessments for the ongoing operation, maintenance and repair of any and all gates, recreational areas, streets and stormwater drainage systems, and any other common areas located within the Project (hereinafter referred to as the "Private Roadway Improvements") and otherwise complies with the requirements of Section 9--157 of the Code, the City shall grant gated community status for the Project. Barclay Woods acknowledges that the internal Pr~ject roadways comprising the Private Roadway Improvements are designed at Barclay Woods' request and sole risk as twenty-two (22) foot wide inverted crown sections and do not meet City design standards as set forth in Sections 9-147 and 9-296 of the Code, therefore such roadways shall not become part of the City roadway system (and must remain private) in the future. The Homeowners' Association shall have the obligation, at its sole cost and expense, to maintain, repair and replace (as necessary) the Private Roadway Improvements as described above, which obligation shall run with title to the residential lots within the Project as evidenced in the Declaration. The Declaration shall also establish such access and utility easement rights in favor of the Homeowners' Association and residents of the Project as may be necessary for the orderly use and development of the Project. City and other governmental emergency, code enforcement, public and utility service personnel and vehicles shall be allowed access into the Project in accordance with Section 9-157(b) of the Code. ill addition, Barclay Woods shall construct a stabilized twenty (20) foot emergency access road, which road shall be constructed with recycled concrete fines and a top layer of woodchips and shall also include a vegetative barrier. (1) Building Setbacks. The City hereby acknowledges and agrees that since all streets and roadways within the Project will be private, the fifteen (15) foot building setbacks normally required from publicly-dedicated rights-of-way (pursuant to Section 20-482 of the Code) shall not be required. Nevertheless, individual buildings within the Proj ect (including patios and privacy walls) shall be constructed no closer than twenty (20) feet from the back of the curb of the private streets and roadways as set forth in the Engineering Plans, and no part of any residential building (including patios and privacy 0909516\103441\711854\10 Developer's Agreement - 3 - walls) shall be constructed in common areas. In addition, the City hereby agrees that the rear setback requirement shall be reduced from ten (10) feet to seven (7) feet. . (g) Sidewalks. The City hereby agrees that all internal sidewalks within the Project shall only be required to be four (4) feet in width in accordance with Section 9- 221 of the Code. In addition, the Declaration shall establish easement rights in favor of the Homeowners' Association to permit sidewalks to extend into individual townhouse lots as depicted in the Engineering Plans. (h) Model Units/Sales Office. Upon the completion of the first building on the Property pursuant to the Engineering Plans (the "Model Building"), Barclay Woods shall have the right to utilize four (4) units within such building as "model" units for sales .and marketing efforts. " In addition, Barclay Woods shall have the right to utilize one garage in the Model Building as a temporary sales office. The Model Building shall meet all applicable handic, ap accessibj.' 'ty re.quirements prior to being opened for, buSines. s. The Model Building shall be con erted to permanent residential units at such time as the Project development is completed (i) Construction Trailer. During the period from the date hereof through and until the completion of the construction of the Project, Barclay Woods shall have the right to maintain one (1) trailer on the Property for use by its contractors and construction workers. (j) Trash/Refuse Service. / The City hereby agrees that trash and refuse pickup will be provided for each individual residential unit, therefore no Project dumpsters will be located on the Property as otherwise required pursuant to Section 9-280 of the Code. (k). Platting. Barclay Woods shall be required to plat the Property in accordance with Section 9-75 of the Code. Barclay Woods shall submit a proposed lighting plan to the City contemporaneously with its submittal of the proposed plat. (1) On Street Parking. Parking shall not be permitted along the internal Project roadways. Barclay Woods will provide separate remote parking areas to accommodate visitors and guests. (m) Patios. The residential units within the Project are intended to include covered patios. Barclay Woods hereby acknowledges and agrees that no covered patio area or any screened enclosure is to be enclosed in any manner whatsoever so as to become a part ofthe living area of any attached single-family residence. (n) Recreational Area. Barclay Woods shall be required to provide a recreational area within the Project in accordance with the Engineering Plans. (0) Stormwater Pond Maintenance Berm. The City hereby agrees that Barclay Woods shall only be required to maintain a six (6) foot maintenance berm around the Project retention pond rather than a ten (10) foot berm as required pursuant to Section 9- 241(d)(3) of the Code. 0909516\103441\711854\10 Developer's Agreement -4- " 4. Representations of the Parties. The City and Barclay Woods hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by the City and Barclay Woods and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto . and the Property in accordance with the terms and conditions of this Agreement. Barclay Woods represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. 5. Successors and Assiens. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Barclay Woods and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the s~e. 6. Applicable Law. This IAgreement shall be governed by and construed In accordance with the laws of the State of Florida. 7. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission, 8. Entire Aereement. This Ap-eement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Barclay Woods as to the subject matter hereof. 9. Severability. If any provision of this Agreement shall beheld to be 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. 10. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 11. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 12. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Barclay Woods is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. 13. Soverehm Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under the state and federal law. 0909516\103441 \711854\1 0 Developer's Agreement - 5 - 14. City's Police Power. Barclay Woods agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 15. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 16. Permits. The failure of this Agreement to address any particular City, county, state, and/or federal permit, condition, term, or restriction shall not relieve Barclay Woods or the City of. the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. 17. Third-Party Ril!hts. This Agreement is not a third-party beneficiary contract and shall not in anyway whatsoever create any rights on behalf of any third party. 18. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided. by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained bya suit in equity. 19. Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 20. Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Barclay Woods or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. [SIGNATURES FOLLOW ON NEXT PAGE I 0909516\103441\711854\10 Developer's Agreement - 6 - IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ........ ' ",,-,\ . .",,\\\i\lS ""1" . ~ ,\\J. .' . ". /.) I, . 7' '..' "0. '"'/, 't "'. / ...', r6" " ~. . '. ".i~ I . r:;;.... ('\TTY L\ a 't, . <:.~., . . . -.r) . :-.: ~ :-:.:J. ~ ,:<: ~ ~ :tE: ';, ..., ". 0: $!! : ....... /'J.....J~ :;;'i: . ~(~'. v"l~ .'.,"'7' '~, '</.'. oo.;J _ ... _;:,. ;:... : ;& /1 .'. '. . .. ...to- .... . ~l'~ "~-" '~0 ,..: I, S~\i\' .......- ttl, ... .....,-' '\\\0""",,''''' 0909516\103441\711854\10 Developer's Agreement CITY OF WINTER SPRINGS ~, ~ I APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. Dated: - 7 - Signed, sealed and delivered in the presence ofthe following witnesses: BARCLAY WOODS, LLC, a Florida limited liability company /~~~ Signature of Witness 1*r~CK.J<, RlHKA Printed Name of Witness I STATE OF FLO~A COUNTY OF ~('_ .J. .lThe foregoing instrument was acknowledged day of .. U , 2004, by -rh () r I:e , as //\ -hu-f of B CLAY WOODS, LLC, a limited lilltbi1i company, on behalf of s id ompany. He is personally known. to me or produced I as identification. ~ . (NOTARY SEAL) ""'"'''''' . Alny M. Holden /f:'~&..fl'''f~ MY COMMISSION # 0020&102 EXPiRES ~::, j~ . ~riI21, 2007 e:'J:;;::~,,.. ~$ BONDED THIlU TROY FAIN \IlSURANCE, IN~ ~~~~ ' (print Name) Notary Public, State of Commission No.: My Commission Expires: 0909516\103441\711854\10 Developer's Agreement - 8 - .. EXHIBIT" A" Legal Description The West 2/5 of the East 5/8 of the North 1/4 of the Southeast 1/4 (LESS the East 165 feet) of Section 4, Township 21 South, Range 31 East, Seminole County, Florida; less that part lying within the right-of-way of State Road 434. 0909516\103441\711854\10 Developer's Agreement - 9- ATTACHMENT B THIS INSTRUMENT WAS PREPARED BY: Patrick K. Rinka, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, FL 32802-2809 (407) 843-4600 AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 FOR RECORDING DEPARTMENT USE ONLY SECOND MODIFICATION OF DEVELOPMENT AGREEMENT THIS SECOND MODIFICATION OF DEVELOPMENT AGREEMENT (the "Agreement") is made and executed this day of , 2004, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and ASHTON ORLANDO RESIDENTIAL, L.L.c., a Nevada limited liability company ("Ashton"), whose address is 341 North Maitland Avenue, Suite 100, Maitland, Florida 32751. WITNESSETH: WHEREAS, Barclay Woods, LLC, a Florida limited liability company ("Barclay Woods"), and the City previously entered into a binding Development Agreement dated July 7, 2004 and recorded August 10, 2004 in Official Records Book 05418, Pages 0048-0056 of the Public Records of Seminole County, Florida (the "Original Development Agreement"), relating to certain real property located in Seminole County, Florida and more particularly described therein (the "Property"); and WHEREAS, Ashton purchased the Property from Barclay Woods and is the current fee simple owner of the Property; and WHEREAS, Ashton modified and amended the Original Development Agreement pursuant to that certain First Modification of Development Agreement dated , 2004 and recorded , 2005 in Official Records Book , Pages , of the Public Records of Seminole County, Florida (the "First Modification") (the Original Development Agreement and the First Modification are hereinafter together referred to as the "Development Agreement"); and WHEREAS, Ashton has requested a further amendment to the Development Agreement in order to permit certain setback encroachments as hereinafter set forth; and 0909516\103441 \827777\1 Second Modification to Developer's Agreement City of Winter Springs and Ashton Orlando Residential, L.L.C. - 1 - WHEREAS, in furtherance of this request, the parties desire to amend the Development Agreement to permit certain setback encroachments, all under the terms and conditions contained herein. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to amend the Development Agreement as follows: 1. The recitals set forth above are true and correct and are incorporated herein by this reference. Unless otherwise set forth herein, all capitalized terms utilized herein shall have the same meaning as set forth in the Development Agreement. 2. Section 3(f) of the Development Agreement is hereby deleted in its entirety, and the following new Section 3(f) is hereby inserted in lieu, in place and instead thereof, to wit: (f) Building Setbacks. The City hereby acknowledges and agrees that since all streets and roadways within the Project will be private, the fifteen (15) foot building setbacks normally required from publicly-dedicated rights-of-way (pursuant to Section 20-482 of the Code) shall not be required. Nevertheless, (i) individual buildings within the Project (including patios and privacy walls) shall be constructed no closer than eighteen (18) feet from the back of the curb of the private streets and roadways as set forth in the Engineering Plans, (ii) garage doors shall be constructed no closer than twenty (20) feet from the back of the curb of the private streets and roadways as set forth in the Engineering Plans, and (iii) except for a portion of buildings 3, 4 and 5 as depicted on Ashton's Final Engineering Plans, no part of any residential building (including patios and privacy walls) shall be constructed in common areas. In addition, the City hereby agrees that the rear setback requirement shall be reduced from ten (10) feet to six feet eight inches (6'8"). Upon completion of construction of the Project, Ashton shall prepare and submit to the City an "as-built" drawing showing the improvements and the actual rear setbacks to confirm compliance with the requirements hereof. 3. All other terms and conditions of the Development Agreement, not in conflict with this First Modification, shall remain in full force and effect. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE I 0909516\103441 \827777\1 Second Modification to Developer's Agreement City of Winter Springs and Ashton Orlando Residential, L.L.c. - 2 - IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the ate first above written. CITY OF WINTER SPRINGS By: John F. Bush, Mayor ATTEST: By: Andrea Lorenzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. CITY SEAL Date: By: Anthony Garganese, City Attorney for the City of Winter Springs, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this _ day of ,2005. (NOTARY SEAL) Notary Public My commission expires: 0909516\103441 \827777\1 Second Modification to Developer's Agreement City of Winter Springs and Ashton Orlando Residential, L.L.c. - 3 - Signed, sealed and delivered in the presence of the following witnesses: ASHTON ORLANDO RESIDENTIAL, L.L.c., a Nevada limited liability company Signature of Witness By: ASHTON WOODS USA, L.L.C., a Nevada limited liability company, its managing member Printed Name of Witness Signature of Witness By: Name: Title: Printed Name of Witness Date: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2005, by , as of Ashton Woods USA, L.L.c., a Nevada limited liability company its managing member of ASHTON ORLANDO RESIDENTIAL, L.L.c., a Nevada limited liability company, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: 0909516\103441 \827777\1 Second Modification to Developer's Agreement City of Winter Springs and Ashton Orlando Residential, L.L.C. - 4 -