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HomeMy WebLinkAbout2005 08 08 Regular Item 500- CDD Request Approval of final Subdiv/Eng plans and 2nd Mod to Pre-Annex Agreement for Jesup's ReserveCITY COMMISSION AGENDA ITEM 500 August 8, 2005 Meeting Consent Information Public Hearin Re ular X MGR. r~ /Dept. REQUEST: The Community Development Department requests the City Commission approve the proposed final subdivision/engineeringplavs and the Second Modification to the Pre-Annexation Agreement for Jesup's Reserve. PURPOSE: The purpose of this agenda item is to recommend approval for the proposed final subdivision/engineeringplavs and the Second Modification to the Pre-Annexation Agreement for the 161 town-home units and associated infrastructure on 11.03 acres in the Town Center on the south side of S.R. 434, west of Tuskawilla Road. APPLICABLE REGULATIONS: Section 9-71. When fmal development plan is to be filed; extension. Section 9-72. Processing of fmal plans. Section 9-73. Form and contents of fmal development plans. Section 9-74. Action on fmal development plan; expiration of approval. Section 20-317. Application for construction. Chapter 20, Article III, Division 12. Town Center District Code (sections 20-320 thru 20-327). Chapter 20, Article VI, Division 2. General Design Standards for New Development Area (sections 20-463 thru 20-475). Developer's Agreement August 8, 2005 Regular Item 500 Page 2 Town Center Phase I Site Development Permit Agreement CHRONOLOGY: August 23, 2004 -City Commission approved a concept plan for as many as 170 town home units on 11.03 acres with rear-loaded 2 car garages. March 28, 2005 -City Commission approved a development agreement and revised concept plan for 160 units. Apri15, 2005 - As a result of discussions with staff the northwest corner of the project was redesigned to eliminate a frontage roadway. This revision resulted in the addition of one (1) townhouse unit, making a total of 161 townhouse units on this site. May 9, 2005 -City Commission approved the Town Center Phase I Site Development Permit Agreement CONSIDERATIONS: - Jesup's Reserve is a 161-unit town home project located on 11.03 acres in the Town Center. The site is on the south side of S.R. 434 directly across from Town Center Phase I. The site is west of but not adjacent to Tuskawilla Road. - The project consists of 161 rear loaded (garage entrances in the rear, with access from an alley) town house units and a recreation facility with a pool. - Access to and from the development is provided along S.R. 434 through two entrance roadways. The primary entrance is at Doran Drive (McLeod's Way), which will be a full 4-way signalized intersection when the City's construction of a traffic signal at this location is complete. The secondary entrance is directly across from Cliff Rose Drive (Roberts Lane), which will have a directional median opening (right-in, right-out, and left-in). - A traffic study was provided with the subdivision plan. The project is estimated to generate a daily traffic volume of 1,000 vehicles per day, with 78 AM peak hour trips and 92 PM peak hour trips. Based on Staff s review of the traffic study and the proposed development, the following intersection improvements are required and are shown on the final engineering plans: o In S.R. 434, the existing median opening at Cliff Rose Drive has been modified to better channelize traffic turning left into Jesup's Reserve from westbound S.R. 434. o The Doran Drive (McLeod's Way) roadway connection on the south side of S.R. 434 has been designed to be compatible with the City's planned design and construction of a full signalized intersection at this location. August 8, 2005 Regular Item 500 Page 3 - A wetland study and listed species survey were provided by the applicant. The proposed project is not located in, on, or over wetlands or any surface waters. The site development includes an impact to 0.08 acres of isolated wet prairie that is not considered to be a jurisdictional wetland pursuant to the criteria of the St. Johns River Water Management District. - Onsite stormwater runoff is collected is collected and conveyed to an onsite wet detention pond. The wet detention pond has an outfall piping system that discharges to an existing large wetland through a spreader swale in the Nature's Way right-of--way. The outfall piping system has been sized to accommodate Jesup's Reserve and the Ondick property immediately to the east. The large wetland at the outfall discharge is hydraulically connected to Lake Jesup by Little Howell Creek. The design criteria for the wet detention pond consist of the following attenuation and treatment requirements that were established by the City and the St. Johns Water Management District (SJRWMD). o The stormwater treatment volume has been calculated by determining the greater of: a) the first 1.0 inch of runoff from the developed project; orb) the total runoff of 2.5 inches from the impervious area o The post-development peak discharge rate for the 25-year, 24-hour storm has been attenuated to less than or equal to the pre-development peak discharge rate - Under the terms of the Developer's Agreement, the cost for the design and construction of the collector road that runs through the property (identified as "McLeod's Way" on the plans) shall be reimbursed by the City. The collector road connects with Doran Drive across from S.R. 434 and it is intended to facilitate the safe, efficient, and orderly flow of traffic throughout the Winter Springs Town Center. The design for the collector road is complete, as depicted on the plans, and the City portion of the design fee is estimated at $22,100. - Under the terms of the Developer's Agreement, a Neighborhood Street is to be constructed along the eastern property boundary and shall be aligned with Cliff Rose Drive as a fully functional intersection. This Neighborhood Street is shown on the plans in its entirety as Roberts Family Lane. Since the developer only owns approximately half of the property required to build the street, a phasing plan has been prepared in accordance with the terms of the Developer's Agreement. The Neighborhood Street will be constructed by the City when the City has acquired the full amount of land that is required to construct the full width of the street. The portion of the street on the Jesup's Reserve property will be conveyed to the City by recorded plat. - At the May 9, 2005 Commission meeting, the Commission approved a Phase I Site Development Permit for Jesup's Reserve, which allowed the developer to begin site clearing in advance of final engineering approval. The developer began the site clearing activity several weeks ago. - The proposed stormwater management system as shown on the plans complies with all applicable City and SJRWMD codes. As a part of Staff s review of the onsite stormwater management system for Jesup's Reserve, the developer was requested to evaluate the sizing of the onsite retention pond to meet the criteria for Outstanding Florida Waters (OFW) as described August 8, 2005 Regular Item 500 Page 4 in Section 40C-42.026 FAC. The purpose of this request was to obtain information from the developer that could be used to help define future stormwater management policies in anticipation of the potential impacts of the Total Maximum Daily Load (TMDL) program. At this time the TMDL pollutant loadings have not been adopted and the required "best management practices" to meet the required pollutant loadings have not been defined. One potential best management practice is to increase the required storage volume of onsite retention ponds in new developments to meet OFW criteria, which requires retention ponds to have a 50% increase in the pond's permanent pool and treatment volume over the standard required volume. This practice is currently required bylaw only for water bodies that have been designated by the State as being Outstanding Florida Waters (OFW). Lake Jesup is not currently an OFW and Staff is not aware of any plans to change Lake Jesup's classification. If the OFW criteria were applied to Jesup's Reserve, approximately 14 units would be eliminated due to the increased size of the onsite retention pond, and substantial portions of the project would have to be re-designed. FINDINGS: 1. The 11.03 acre subdivision is located within the City, has a Town Center Future Land Use Designation, and is located within the Town Center zoning district. 2. The subdivision will connect to City potable water and sanitary sewer. The City has adequate capacity for both. 3. A traffic study and subsequent review by the City determined that the engineering plans properly depict all required onsite and offsite transportation improvements. 4. The subdivision plan is consistent with the Comprehensive Plan and with the City Code, except as specified in the developer's agreement and subsequent Town Center Phase I Site Development Permit Agreement. RECOMMENDATION: Staff recommends that the City Commission approve the final subdivision /engineering plans and the Second Modification to the Developer's Agreement for Jesup's Reserve, subject to the following conditions: 1. The HOA shall be required to pay any cost differential between maintaining standard street lights and the required Town Center lighting. 2. The Development Agreement shall be revised to reflect the revised number of units, the potential future cross access to the adjacent property to the west, as well as the modified alley configuration. 3. The City will coordinate the approval of all street and alley names as part of the final plat review. August 8, 2005 Regular Item 500 Page 5 ATTACHMENTS: A. Pre-Annexation Developer's Agreement B. First Modification of Pre-Annexation Developer's Agreement Town Center Phase I Site Development Permit Agreement C. Second Modification ofPre-Annexation Developer's Agreement D. Plans CITY COMMISSION ACTION: ~~ ATTACHMENT A THLS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs town Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407)425-9566 ~~n~niwumnrnawaunrav.rnraairnisuinniiun MpRYAh1Pa :~OR5E, CLERK DF CIRCUIT COURT 5E~tItdOLE COUNTY SK 0551b PGS i32p-1342 CLERK'S t! 2004176555 kECDRDED ii/16/C044 09si~:29 AH RECDkDING FEES 191.04 kECDRDED BY J Eckenroth POR RECORDING DEPARTMENT TJSE ONLY PRE-ANNEXATION DEVELOPER'S AGREEMENT THIS PRE-ANNEXATION DEVELOPER'S AGREEMENT (the "Agreement") is made and executed this 20th day of September, 2004, by and between the CITY OF WINTER SPRINGS, a Florida,~~muriicipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and HIGHLANDER INVESTMENTS, LTD., a Florida limited partnership ~("Highlander"), whose address is 6966 Venture Circle, Orlando, Florida 32807. WITNESSETH: WHEREAS, Highlander is the fee simple owner of certain real property contently located in unincorporated Seminole County, Florida and rnore particularly described in Exhibit "A" .attached hereto and incorporated herein by this reference (the "Property"); and . WHEREAS, the City intends to annex the Property pursuant to the procedures established under Section 171.0413, Florida Statutes or if the City deems necessary, the City will pursue annexation under Section 171.044, Florida Statutes; and WHEREAS, Highlander consents to the proposed annexation of the Property, provided that Highlander is able to develop the Property as asingle-family residential (townhouse) community with individual fee simple owned units and a common area (the "Project") as depicted in that certain Concept Plan, entitled Jessup Reserve Winter Springs Town Center, dated August 23, 2004, and prepared by Capin Associates under Job No. 204070, consisting of seven (7) sheets including a concept plan, typical front elevations and colors for townhome buildings, floor plans for 2 and 3 story units, and a proposed elevation and floor plan for the pool building (collectively referred to as the "Concept Plan"), a copy of which is attached hereto as Exhibit "B" and incorporated herein by this reference, and in accordance with the terms and conditions of this Agreement; and Developer's Agreement City of Winter Springs and Highlander, LTD. Page 1 of 17 WHEREAS, the City and Highlander desire to set forth the following special terms and conditions with respect to the proposed annexation of the Property and development 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. Anthori This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Annexation. Highlander acknowledges and agrees that the Ci the Property in accordance with Section 171.0413, Florida Statutes. The City has agreed to enter into this Agreement as an inducement to Highlander to grant its consent to such annexation. In the event that the City fails to complete the foregoing annexation, Highlander hereby agrees to apply for and pursue a voluntary annexation of the Property into the City pursuant to Section 171.044, Florida Statutes, provided that the other terms and conditions of this Agreement are satisfied. 4. Obliga~ons and Commitments. In consideration of the Ci and Hi entering into this Agreement, and as an inducement for Hi tY ghlandei of the Pro e ghlander to consent to the annexation p rty into the City, the City and Highlander hereby agree as follows: (a) Approval of Concert Plan. The City hereby acknowledges and agrees that the Concept Plan is acceptable; provided, however, Highlander shall have the obligation to further submit and obtain the City's approval of a final subdivision plan and final engineering plans. Highlander acknowledges and agrees that the Concept Plan was not prepared with specific surveyed dimensions and that during the final subdivision and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. Further, the elevations and roof lines depicted in the Concept Plan for the townhome buildings will have to be adjusted to the City's satisfaction in order to accommodate a different number of units than what is shown in the Concept Plan. Moreover, Highlander understands that the City will require that the color of the townhome buildings be varied from building to building. As such, Highlander and the City agree that the Concept Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final subdivision and final engineering phase in order to bring the Project into compliance with the City Code. (b) Utilities. The City hereby acknowledges and agrees that it currently has sufficient water and sewer treatment plant capacity available to service the Property and shall provide such services to the Project as depicted in the Concept Plan. Highlander acknowledges and agrees that offsite improvements may be necessary, at Highlander's cost, to provide water and sewer service to the Properly including, but not limited to, force main, lift station and pump upgrades. Further, all water and sewer improvements required on-site to service the Property shall be at Highlander's expense. Developer's Agreement City of winter Springs and Highlander, LTD. Page 2 of 17 (c) Roadways; Collector Road Unless otherwise provided in this paragraph, all roadways shall be designed and constructed pursuant to the Town Center District Code. In order to facilitate the safe, efficient and orderly flow of traffic throughout the Winter Springs Town Center, the City desires to have a collector road running through the Property which connects with Doran Drive located across S.R. 434 and eventually connecting too, and running through, the adjacent property to the east (Ondick Property) to Tuskawilla Road ("Collector Road"). The Collector Road shall serve as the primary entrance to the Project from S:R. 434. The Collector Road shall be designed, located and constructed in accordance with the Concept Plan and shall consist of three different design segments. The S.R. 434 entrance shall consist of an Urban Boulevard design and connect to a Neighborhood Street. The design requirements for the Urban Boulevard and Neighborhood Street are set forth in the Town Center District Code. The Neighborhood Street shall connect to a modified Edge Drive design which is attached hereto as Exhibit "C" and incorporated herein by this reference. The City agrees to promptly amend the Town Center Transportation Master Plan to incorporate the Collector Road into said Plan. Further, the parties acknowledge that the City is currently in the process of amending its Comprehensive Plan (Transportation Element Policy 1.5.14) to eliminate the bike lane requirement for collector roads within the Town Center and that upon final approval of the amendment, the bike lane will not be required for the Collector Road. Subject to final City approval, Highlander agrees to design, permit, and construct that portion of the Collector Road located on their Property; provided, however, the City shall reimburse Highlander for the reasonable costs thereof. For pwrposes of this Agreement, (i) the design costs shall include the costs and expenses of land surveying, civil engineering, landscape architecture, irrigation design, electrical engineering and lighting design, and (ii) the construction costs shall include the costs and expenses for clearing, grubbing and earth excavation, and for the construction of all storm drainage facilities, Progress Energy approved decorative street lights, landscaping, hadscape, irrigation, sidewalks, curbs, pavement, striping, signage and any required additional offsite improvements related to the Collector Road (all of the foregoing costs and expenses are hereinafter collectively referred to as the "Roadway Expenses"). To the extent any of the Roadway Expenses also benefit other aspects of the Project not related to the Collector Road (e.g., stormwater improvements for the buildings and common areas), the City shall only be responsible for reimbursing the proportionate share of the particular expense related to the Collector Road. The City shall reimburse Highlander in the amount of the Roadway Expenses within ninety (90) days after the Collector Road has been completed and accepted by the City. At the City's option, the City may provide transportation impact fee credits to Highlander to be applied to the Roadway Expenses owed by the City. In the event the City elects to provide such credits, the payment of the transportation impact fee credits by Highlander shall be reconciled at the time the Collector Road is accepted by the City. If the Roadway Expenses exceed the amount of the transportation impact fee credit, the City shall reimburse Highlander, by check, the amount of the Roadway Expense in excess of the transportation impact fee credit. On the other. hand, if the Roadway Expenses are less than the amount of the transportation impact fee credit, Highlander shall pay the City, by check, the amount of the transportation impact fee in excess of the Roadway Expenses. Developer's Agreement City of Winter Springs and Highlander, LTD. Page 3 of 17 Highlander agrees that all Roadway Expenses shall be subject to an informal competitive bid process under which Highlander shall obtain three (3) written quotes or bids. Each quote or bid shall be submitted to the City for review and approval prior to Highlander entering into any contract for the design, permitting and construction of the Collector Road. Highlander fizrther agrees that at the time reimbursement for any Roadway Expense is requested, Highlander 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 Roadway Expense. The City shall not be responsible for reimbursing any Roadway Expense which can not be properly and reasonably documented in writing. The City shall not unreasonably withhold any approvals required undex this paragraph. Highlander agrees to convey to the City that portion of the Collector Road located on the Property and all other roadways (excluding alleyways) depicted on the Concept Plan, along with all related improvements thereon and thereunder, All such land conveyances shall be by a recorded plat and free and clear of all encumbrances. Conveyance of improvements shall be by bill of sale and free and clear of all liens. The plat and bill of sale shall be in a form acceptable to the City Attorney. (d) Construction of Neighborhood Street on Eastern Boundary The parties acknowledge that the Concept Plan requires that a Neighborhood Street be constructed along the eastern boundary of the Property running.perpendicular with S.R. 434. Said Neighborhood Street shall be designed and aligned as a fully functional intersection with Cliff Rose Drive Located across S.R. 434. However, Highlander only owns half of the property that is required to fully construct said street. As such, unless additional lands are made available to construct the full width of the street prior to platting, Highlander shall plat only half of the Neighborhood Street with the understanding that the City desires that the other half of the street be provided by the adjacent property owner (Ondick) in the future. Highlander agrees to convey the half portion of the Neighborhood Street to the City by recorded plat. Said conveyance shall be in the same manner as the Collector Road Upon conveyance, the City will design, permit, and construct the Neighborhood Street at such time the City acquires the full amount of land that is required to construct the full width of the street. Notwithstanding, the City, at its option, may construct the half portion of said street located on the Property, provided the City can successfully acquire a temporary construction easement from the adjacent property owner. If the construction easement cannot be obtained, the City shall construct a sidewalk on the half portion of street for the benefit of the townhome units that will be fronting said street. Because the parties acknowledge and agree that the final construction of this Neighborhood Street will require future land acquisition by the City and phased construction, the timing of which is uncertain, the City Commission hereby waives the provisions of Section 9-152 and 9-154 prohibiting %Z platted streets and requiring cul-de-sacs at dead ends. (e) Construction of Stormwater Imt~rovements. Highlander shall design the Project to accommodate the stormwater requirements for the Property, including the roadway improvements to be located adjacent to and/or within the project. The City shall permit Highlander to ~ use any existing City rights-of--way and/or easements to Developer's Agreement City of Winter Springs and Highlander, LTD. Page 4 of 17 accommodate stormwater generated from the Property, provided said use is deemed acceptable and feasible by the City. Highlander shall provide any additional property that is necessary to accommodate stormwater generated from the Property. At the City's request, Highlander agrees to design, permit and construct oversized stormwater facilities to service adjacent properties and the extension of the Collector Road from the Property to 'Ilzs$awilla Road The City shall reimburse Highlander for the full cost of oversizing said facilities in accordance with the procedures set forth in paragraph 3(c) herein. (fl Installation of Utility Lines by Highlander. Highlander hereby acknowledges and agrees that all overhead utilities along the frontage of the Project shall be installed underground along the boundary of the Property with S.R. 434. By recorded plat, Highlander shall convey to the City a utilities easement, fifteen (15) feet in width, along the entire northern boundary of the Property adjacent to S.R. 434 in a form acceptable to the City Attorney. {g) Easement for ZYaffic S~*nal. Within thirty (30) days of the effective date of this Agreement, Highlander shall grant and convey to the City two 10'x10' easement areas, in a form and in locations mutually acceptable to Highlander and the City, within the Property at the intersection of Doran Drive and S.R. 434, to facilitate the City's installation, maintenance and repair of traffic signal facilities at the City's sole cost and expense. Highlander acknowledges that the design, permitting and installation of the traffic signal is expected to take the City at least nine (9) months to complete. (h) Town Center Code Waivers. Based on the Concept Plan and Highlander's agreement to the terms and conditions set forth in this Agreement, the City Commission hereby grants the following waivers to the Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): (1) The buffer wall requirement along the southern perimeter boundary as required by Section 20-4 i 7. (2} The frontage road required by Section 20-325(c)(8), except as shown on the Concept Plan. (3) The Edge Drive requirements set forth in Section 20-325(c)(11) and the Squares, parks, and streets map in Section 20-325(c), provided the Collector Road and other streets are designed, permitted, and constructed in accordance with the Concept Plan. bn addition, the Collector Road shall comply with the modified. Edge Drive section plan attached hereto as Ezhibit "C" and a total of a minimum of one hundred and three (103) on-street guest parking spaces are provided for the Project on the Property. (i) Trash/Refnse Pick-up. No trash dumpster shall be located on the Property. Trash and refuse service to the townhome units and common areas will be provided for each individual townhouse unit or area by individual containers and pickup shall be required in the alleys depicted on the Concept Plan. (j) Wall Requirement. In accordance with Section 20-417, Winter Springs City Code, Highlander shall construct an opaque wall of six (~ feet in height along the Developer's Agreement City of Winter Springs and Highlander, LTD. Page 5 of 17 full length of the western property line excluding the frontage road. Vegetative screening shall also be provided along the western property line excluding the frontage road. (k) Mandatory Homeowner's Association Required. Highlander shall form a mandatory homeowners association (the "Homeowners' Association's for purposes of maintaining any and all common areas, landscaping, entrance signs, walls, fences, recreational areas, and stormwater facilities associated with the Project. A separate Declaration of Covenants, Conditions and Restrictions (the "Declaration's will be executed and recorded among the Public Records of Seminole County, Florida to evidence the formation of the Homeowners' Association and establish its rights, duties and obligations. The Declarations shall be in a form acceptable to the City Attorney and shall require the Homeowners' Association, and the members thereof, to be bound by the terms and conditions of this Agreement. (1) Construction and Use of Model Homes. Prior to the recording of the final plat, the City agrees to permit Highlander to construct model townhouse units under the following conditions: (1) The model townhouse units shall be contained in a single building and shall not exceed five (5) individual units. (2) The model townhouses shall remain under Highlander's ownership and control until such time as the final plat is recorded by the City and a final certificate of occupancy for each unit is issued under the conditions set forth below. In other words, Highlander shall not contract for sale, sell, or lease any of the individual model townhouse units until such time as the City approves and records the final plat for the Project and issues a final certificate of occupancy for each unit. (3) The model townhouse units shall be located along the Urban Boulevard depicted on the Cancept Plan. (4) Prior to construction, the model townhouses shall be duly permitted by the City in accordance with all City Codes. As part of the building permit application, Highlander shall submit, along with all construction plans for the townhouse units, a duly certified boundary survey which shall depict the location and legal description of the model townhouse site and each individual model townhouse lot. Highlander acknowledges and agrees that this legal description is intended to coincide with the eventual location of the townhouse lots as depicted and legally described on the final plat. Highlander 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 the final plat. (5) At such time the Building Official completes and approves a final inspection of the model townhouse uzuts, the City will issue a temporary certificate of occupancy. Said temporary certificate of occupancy shall be issued for the model townhouse building as a whole, not by individual units. Occupancy of the townhouse units shall be limited to the sale and marketing efforts for the Project. In addition, Developer's Agreement City of winter Springs and Highlander, LTD. Page6of17 Highlander shall have the right to utilize one garage in the model townhouse building as a temporary sales office. (6) At the request of Highlander or at such time the Project development is completed, whichever occurs sooner, the model townhouse units shall be converted into permanent residential units and the City shall issue individual certificates of occupancy for each model townhouse unit; provided, however, the final plat is approved and recorded by the City and the Building Official determines that the units are suitable for permanent residential occupancy and in compliance with the City Code. (m) Right-of-wav along Southern Border of Property. The p~~ acknowledge and agree that an unimproved right-of--way owned by the City is located along the southern perimeter of the Property and abuts the adjacent Tuskawilla Trails manufactured home park. The City agrees that Highlander shall have the nonexclusive use of the right-of--way for purposes of constructing an alley and vegetative screening as depicted on the Concept Plan and approved by the City. The vegetative screening shall be installed and maintained along the entire southern boundary of the right-of--way for purposes of screening the Project from Tuskawilla Trails. In consideration of receiving the nonexclusive benefit of using this right-of--way to enhance the Project, Highlander agrees, at its cost, to maintain at all time said right-of--way, and all Project improvements thereon, in a good and reasonable condition. (n) Recreational Area. Highlander shall be required to provide and maintain a recreational area within the Project in accordance with the Concept Plan and final engineering plans approved by the City. (o) Guest ParkinE Spaces. Highlander shall construct a minimum of one hundred and three (103) on-street guest parking spaces within the Project. (p) Development Permit Fees. highlander agrees to pay all ordinary and customary development permit fees imposed by the City including, but not limited to, application, building, and impact fees. The City agrees, however, that the annexation, town center future land use map comprehensive plan amendment, and town center rezoning application fees are hereby waived. Such fees are waived in consideration of Highlander's agreement to fully cooperate with the City's efforts to administratively process such applications in furtherance of the Town Center policies contained in the City's Comprehensive Plan. 5. Representations of the Parties. The City and Highlander 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 Highlander 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. Highlander represents that it has voluntarily and willfully executed this Agreement for purposes Developer's Agreement City of Winter Springs and Highlander, LTD. Page 7 of 17 of binding the Property and the Homeowners' Association, and the members thereof,_to the terms and conditions set forth in this Agreement. 6. Successors and Assigns,. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Highlander and their respective successors. and assigns including, but not limited to, the Homeowners' Association and the members thereof. The terms and conditions of this Agreement similarly shall be binding upon the Properly and shall run with title to the same. 7. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 8. 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. 9. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Highlander as to the subject matter hereof. 10. 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. 11. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 12. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 13. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Highlander 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. 14. Sovereign Immmunity. 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. 15. City's Police Power. Highlander agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. Tn no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 16. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no patty shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Developer's Agreement City of winter Springs and Highlander, LTD. Page 8 of 17 17. Third-Party Rights. This Agreement is not athird-party beneficiary contract and shall not in any way whatsoever create any rights ~on behalf of any third party. 18. Spec'if'ic 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 maybe obtained by a 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 bylaw. 2Q. 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 Highlander 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 Highlander is in breach of any term and condition of this Agreement. (SIGNATURES FOLLOW ON NEXT PAGE] Developer's Agreement City of Winter Springs and Highlander, LTD. Page9of17 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. . Gl7Y Df'~~,~ ~~~ ~% ' ~XSE ~ ~ ~~~ ~ ~~, ~ •u' t ; ' ~ . A ~ i' ' ~ Q ;~ i ~ t7 ~ : b r :, . ~, . . f .~ 4 I• ../~ •• A • ~ _ 1 • ~~ tn. ~~ ~ ''~~ w F(O ~1D~ ~, y ~r ELF. s~. t , .~ ~~~~ .t r .: ~1es-~~ CITY OF WINTER SPRINGS ~.- By: J F. Bush, Mayor APPROVED AS TO FORM AND LEGAT,TITY For the use and reliance of the City of Winter Springs, Florida, only. Dated: ~~ B`~ By: thony G ese, City Attorney for . the City of Winter Springs, Florida Developer's Agreement City of Winter Springs and Highlander, LTD. Page 10 of 17 Signed, sealed and delivered in the presence of the following witnesses: Si attue~ ess ~~~ _ Printed Name of Witness /~ i ature of W~ ess Printed Name 6f Witness HIGHLANDER INVESTMENTS, LTD., a Flori 'ted partnership By: Printed Name: `~.~.~~. t,J_ ~-~1 s,~ STATE OF FLORIDA COUNTY OF _ ®rQ ~'~. The foregoing instrumentr was acknowledged be ore me this ~ r`~ day of _ /t/a' ~ , 2004, b ~ ~~i.~..~~c~l..~~p~ as /G'i'~S of HIGHLAND STMENT , ., a Florida limited partnership, on behalf of said partnership. a is personally known to me produced as identificatro (NOTARY SEAL) story Public Signature) Runt /Vin Your (Print Name) ~ , MY Comct~ission Notary Public, State e - aaay 2s, 2oa7 Commission No.: My Commission Expires: Developer's Agreement City of Winter Springs and Highlander, LTD. Page 11 of 17 EX.IitBI'T "A" Legal Description Parce136-20-30-502-0000-0020: That part of the unplatted part of Block B of Mitchell's Survey of the Levy Grant described as beginning at a point 1186 feet North 38°45' West of the most Easterly Corner of that part of said Block B lying South West of the Sanford-Oviedo Road and running North 38°45' West 400 feet along the Westerly line of the Sanford-Oviedo Highway; thence South 51°15' West 351.1 Feet; thence South 22°15' East 417.6 feet; thence North 51°15' East 470.78 feet to the Point of Beginning, all in Block B of Mitchell's Survey of the Levy Grant, according to plat thereof as recorded in Plat Book 1, Page 5, Public Records of Seminole County, Florida, Less and Except the right of way for State Road 434, formerly Sanford-Oviedo Road. TOGETHER WITH: Parcel #36-20-30-502-0000-0040: Beginning at the most Easterly corner of Block B, of D.R. Mitchell's Survey of the Levy Grant,' recorded in Plat Book 1, Page 5, lying on the South and West side of the paved road from Sanford to Oviedo; thence along the Southwesterly side of said paved road North 38 degrees 45 minutes West 986 feet for the point of beginning; thence North 38 degrees 45 minutes West 100 feet; thence South 51 degrees 15 minutes West 250 feet; thence South 38 degrees 45 minutes East 100 feet; thence North 51 degrees 15 minutes East 250 feet to the Point of Beginning; Less and except right-of--way for State Road 434. TOGETI-~R WTTH: Parcel #36-20-30-502-0000-004B: Beginning at the most Easterly comer of that part of Block "B" of the D. R. Mitchell Survey of the Levy Grant, as recorded in Plat Book 1, Page 5, of the Public Records. of Seminole County, Florida, lying South and West of the paved road from Sanford to Oviedo; thence along the Southwesterly side of the said paved road North. 38 degrees 45 minutes West 1086 feet; thence South 51 degrees 15 minutes West 235 feet for a point of beginning; thence North 38 degrees 45 minutes West 100 feet; thence South 51 degrees 15 minutes West 235.78 feet; thence South 22 degrees 15 minutes East 104.4 feet; thence North 51 degrees 15 minutes East 265.7 feet to the point of beginning. TOGETHER WITH; Parcel #36-20-30-502-0000-004C: Beginning at the most Easterly corner of that part of Block B of the D.R. MITCHELL SURVEY OF THE LEVY GRANT as recorded in Plat Book 1, Page 5, Public Records of Seminole County, Florida, lying South and West of paved road from Sanford to Oviedo, thence along the Southwesterly side of said paved road North 38 degrees 45 minutes West 986 feet, thence South 51 degrees 15 minutes West 250 feet for a POINT OF BEGINNING, thence South S 1 degrees 15 minutes West 100 feet, thence North 38 degrees 45 minutes West 100 feet, thence North 51 degrees 15 minutes East 100 feet, thence South 38 degrees 45 minutes East 100 feet to the POINT OF BEGINNING. AND Beginning at the most Easterly corner of that part of Block B of the D.R MITCHELL SURVEY OF THE LEVY GRANT as recorded in Plat Book 1, Page 5, Public Records of Seminole County, Florida, lying South and West of paved road from Sanford to Oviedo, thence along the Southwesterly side of said paved road North 38 degrees 45 minutes West 986 feet, thence South 51 degrees 1 S minutes West 350 feet for a POINT OF BEGINNING, thence North 38 degrees 45 minutes West 100 feet, thence South 51 degrees 15 minutes West 150.70 feet, thence South 22 degrees OS minutes 34 seconds East 104.38 feet, thence North 51 degrees 15 minutes East 180.62 feet to the POINT OF BEGINNIrtG. TOGETHER WITH: Parcel #36-20-30-502-00000-004A: Beginning at the most Easterly corner of that part of Block B of the D. R. MITCHELL SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida, lying South and West of the paved road from Sanford to Oviedo;.thence along the Southwesterly side of the said paved road North 38 degrees 45 minutes West 1086 feet to the POINT OF BEGINNING; thence North 38 degrees 45 minutes West 100 feet; thence South 51 degrees 15 minutes West 235 feet; thence South 38 degrees 45 minutes East 100 feet; thence North 51 degrees 15 minutes East 235 feet to the POINT OF BEGINNING, LESS AND EXCEPTright-of--way for State Road 434. TOGETHER WITH: Parcel #36-20-30-502-0000.0050 and 36-20-30-502-0000-0060: Commence at the most Easterly corner of that part of Block B of the D. R. Mitchell Survey of the Levy Grant as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida, lying South and West of the paved road from Sanford to Oviedo; thence along the Southwesterly side of said paved road North 38°45'00" West, 786.00 feet to the POINT OF BEGINNING; thence North 38°45'00" West, 200.00 feet; thence South 51°15'00" West, 530.12 feet; thence South 22°08'19" East along the easterly line of a 30 foot wide unnamed right-of--way per said D. R. Mitchell Survey of the Levy Grant, a distance of 208.71 feet; thence North 51°15'00" East, 589.79 feet to the PO1T OF BEGINNING; same lot being Lot 5 of survey of Joe E. Johnston, C.E. Deed Book 147, Page 221. Less right of way for State Road 434 pursuant to that certain Order of Taking recorded in Official Records Book 2831, Page 1024, of the Public Records of Seminole County, Florida; AND Lot 6, Joe E. Johnston Survey, Block B of D. R Mitchell Survey of the Levy Grant, Plat Book 1, Page 5, Public Records of Seminole County, Florida. That part of the unplatted part of Block B of the D.R Mitchell Survey of Levy Grant in Seminole County; BEGINNING at a point 586.00 feet North 38°45'00" West of the most Easterly corner of said unplatted part of Block B, lying South and West of the paved road leading from Sanford to Oviedo, thence North 38°45'00" West, 200.00 feet along Westerly line of the Sanford-Oviedo Highway; thence South 51 ° 15'00" West, 589.79 feet; thence South 22°08'19" Bast along the easterly line of a 30 foot wide unnamed right-of--way per said D.~ R. Mitchell Survey of the Levy Grant, a distance of 208.71 feet; thence North 51°15'00" East, 649.45 feet to the POINT OF BEGINNING, same being Lot 6 of a Survey made by Joe E. Johnston, C.E. LESS a parcel of land being described as: Beginning at a point 6$6 feet North 38°45' West of the most Easterly corner of unplatted part of Block B, of D. R. Mitchell Survey of the Levy Grant, according to the plat as recorded in Plat Book 1, Page S, Seminole County, Public Records, lying South and West of the paved road leading from Sanford to Ovieda, thence North 38°45' West 100 feet along Westerly line of the Sanford- Oviedo Highway, thence South 51°15' West 200 feet thence South 38°45' East 100 feet, thence North 51°15' East 200 feet to the point of beginning, same being a part of Lot 6 of Survey made by Joe E. Johnston, CE. LESS right-of--way for State Road 434 pursuant to that certain Order of Taking recorded in Official Records Book 2831, Page 1024, of the Public Records of Seminole County, Florida. TOGETHER WITH: Parcel #36-20-30-502-0000-006A: Beginning at a point 686 Feet North 38°45' West of the most Easterly comer of unplatted part of Block B of D. R. Mitchell Survey of the Levy Grant, according to the plat thereof as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida, lying South and West of the -paved road leading from Sanford to Oviedo, thence North 38°45' West 100 Feet along Westerly line of the Sanford-Oviedo Highway, thence South 51°15' West 200 Feet, thence South 38°45' East 100 Feet, thence Norkh 51°15' East 200.00 Feet to the point of beginning, same being part of Lot 6 of a survey made by Joe E. Johnston, C.E., less right of way for State Road 434 pursuant to that certain Order of Taking recorded in Official Records Book 2831, Page 1024 of the Public Records of Seminole County, Florida. E7~HIBIT "C" Modified Edge Drive Plan Below is the Edge i)riyc street section nlodificd to accommodate sidewalkti and green strips on both sides, mal.ing double-loading with buildings possible: Aurld-to Line ., ~l t 1 1 Builddn Linc ~,,.; ~ ~ .. 1 I . ' :~ . t _.. , ` vt ~~ ~~ ~ ' `~ ~~ m ~r 0~ c ~~~ ~ ~ "3 m _ x ~s ~~~ ~ - ~ -~~ -- - "~ o_ ~. ~- ~ ~6 ~ 6~ : i~ fa, -teUSS ~oFi~ t'.. .° ~. ~'i;~ ~w ~R{ D fi.... 'a 'V ~ I' O .).' ~- ~.~ ~ ~~ ~^ ~`~ ~ S ~~ ~~~ N~~ ~ I . ~~ ~~ ~~~~ ,•`41 ~ ~ ~ a`J ~a~ :;! ~ e e~~a >:, ;';~ ^ ;. -~~~~p:E .~~-:. t.:: ~•~~"~:St .~N ':lei ~ ~i f:: _: ..: '. :~.. '~.. ~1 ~ . ~ T ~: t r~~.i Y ~ '¢si ~i a ~ g N ., ~ ~, , 0 ~_ phh'~'-- c ~4F^ ~ ~ [~~{~.~7~-~l ~ • Y 1 C _ ~• O O ~`/r^~VV V, ^ ~ ^ r- ® Ors ~ ; ~~ T ~ -~ ~~ ~ ° ~ ~ x _ fi r~~ ^ `~ .~ °~® i~ ~ ~~ g ± ~ -- x ~ .~ f i - - -. - , ~~ ~ ~.. g i 'M~aeKe: ... i" ^ 0 i ~ ~ k: i ~ ~_~ R 1 8SS ~ p ~ g ` . ~ T i - _ ~ _. . . ~ ; t--- ~ 6~ 8° ~~ p~.I -VdIN . ~ r 1 A ~ ~~ ~~~~~ ^ ~~ .o ~~ a~ .~ -~ : _; ~.~ ~ ,~~. i ~ ;.. ---.. i ~ i . ~~ ~ ~ d n . .. .. .. ( .. .. ...... S,.a. ...;x., . ^ Winter Springs Town Homes Fool Building L .v ~ ~ ~. ~4: _ i__~___ ^ ;. ar ooaa arancrt DRESSING ~ ~ - _LA~~LAy DR~EAS~SI~N~G E' qD.~ 6L~`-3'=tlf e -0~ QG x f CAAANA PATIO I' e aa~nassoaac~s ~~~ ~.~ . ~f Tel .~ I111111Illiliil®IIt1~u^rrHm®.~..~.~^~+•-n,~--. ATTACHMENT B THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony A. Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite A660 Orlando, FL 32801 (407)425-9566 his~~~YAhlNE Mi3R5E, CLERK OF CIRCUIT COURT I~B~S TPGG O~~ 1-t7~~'3 GLERK' S ~ ~OOSC?84~6~a kt~~',rakDED 05/k0/2005 04:33:14 FPM RECDkDlhlfi FEES 78.00 t~t~:Cf.1kuED kY G Harford FOR RECORDING DEPARTMENT USE ONLY TOWN CENTER PHASE I SITE DEVELOPMENT PERMIT AGREEMENT THIS TOWN CENTER PHASE I SITE DEVELOPMENT PERMIT AGREEMENT (the "Permit") is issued by the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to by HIGHLANDER INVESTMENTS, LTD,, a Florida limited partnership ("Highlander"), whose address is 6966 Venture Circle, Orlando, Florida 32807, on this 10th day of May, 2005. WITNESSETH: WHEREAS,- Highlander and the City previously entered into a binding Pre-Annexation Developer'sAgreementdated September 20; 2004 and recorded November 16, 2004 iri Official Records Book 05516, Pages 1320-1342 of the Public Records of Seminole County, Florida (the "Developer's Agreement"), relating to certain real property located in Seminole County, Florida and more particularly described therein and in Exhibit "A" (the "Property"); and WHEREAS, in accordance with the Developer's Agreement, Highlander has submitted final engineering plans and other site development data and information to develop the Property which are currently being reviewed by the City for final approval; and WHEREAS, pending final engineering approval, Highlander has requested that the City permit preliminary site development work consistent with the submitted final engineering plans; and WHEREAS, although the final engineering plans have not been finalized and approved by the City, said plans and the site development data and information submitted to-date are sufficient enough for the City to issue a Phase I site development permit in order to allow Highlander to perform a limited scope of preliminary-site development work in advance of final engineering approval under the terms and conditions stated herein; and WHEREAS, substantial land clearing and restoration of the Property is specifically contemplated and required by the City's Town; Center policies and code in order permit. dense Town Center Phase I-Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -1- _ "EVERY PAGE" 0909536\104086$40970\1 0909536\104086\840970\1 development and a neo-traditional scheme of new tree canopied streets and planned green spaces; and WHEREAS, in furtherance of this request, the City desires to permit a limited scope of Phase I site development work under the terms and conditions stated herein and agreed to by Highlander; and NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to the terms and conditions set forth under this Permit as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference. 2.0 Scope of Work. The scope of this Permit is limited to the following preliminary site development work on the Property: 2.1 Demolition. The demolition and removal of any existing buildings and structures. 2.2 Removal of Vegetation. vegetation which will not be preserved c 2.3 Removal of Muck. 2.4 Dewatering. ground water. 2.5 - Gradinglfilling. furtherance of the planned development, The removal of any existing trees, stumps and other >n the Property. The removal of any existing muck. The dewatering of any existing surface and/or The grading -and filling of the Property in 2.6 Removal of Septic Tanks. The removal of any existing septic tanks and drainage fields. 2.7 Closing Wells. The closing of any existing water wells. All preliminary site development work shall be performed and completed within one hundred and twenty (120) calendar days of the Effective Date of this Permit and in accordance with all applicable local, state, and federal laws, regulations, and permits. The completion date may be reasonably extended by the City Commission upon good cause shown. Any site development work not specifically authorized hereunder is hereby strictly prohibited. Highlander shall be required to obtain other City permits required to implement the work authorized by this Agreement including, but not limited to, demolition and arbor permits. During the term of this Permit, the City and its agents shall have the unconditional right of entry onto the Property to conduct inspections to determine compliance with the terms and conditions of this Permit. Town Center Phase I Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -2- ="EVERY PAGE" 0909536\104086840970\10909536\104086840970\I 3.0 Condition Precedents to Commencement of Work. Prior to commencing the work set forth in section 2.0, the following documents shall be submitted by Highlander to the City in a form acceptable to the City: 3.1 Sketch Plan. A sketch plan depicting the preliminary site development work authorized under section 2.0 and a stabilized construction entrance. 3.2 Construction Vehicle Routing Plan. A construction vehicle routing plan which is designed to provide for a safe and convenient route for construction vehicles and equipment to go to and from the Property. Said plan is subject to modification by the City Manager in order to safeguard persons and property. 3.3 Other Government AgencyPermits. A copy of any and all required permits issued by any other government agency including, but not limited to, a St. John River Water Management District Incidental Work Permit and a Seminole County Health Department Septic Tank and Drainage Removal Permit. 3.4 Engineer Certifications. A written certification from the appropriate project engineer or consultant documenting that the work authorized under section 2.0 is in compliance with applicable environmental laws including, but not limited to, laws. applicable to endangered or threatened species, artesian ~~~ater wells, hazardous materials, and historical artifacts. Highlander shall have the duty to keep updated and current plans, permits, and certifications on file with the City during the term of this Permit. This Permit shall not become effective until such time as the City receives and approves the documents required by this section. 4.0 Permit Fee. _Upori issuance of this Permit, Highlander shall pay a permit fee equal to one percent (1%) of the estimated construction value of the work authorized by section 2.0. 5.0 Default; Restoration of Property. The City reserves the right to revoke or suspend this Permit if the City determines that Highlander is not incompliance with the terms and conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Highlander with written notice identifying any default of the Permit terms and conditions. Upon receipt of the notice of default, Highlander shall have five (5) days to cure the default to the City's satisfaction unless additional time is granted by the City Manager. If highlander fails to cure the default, the City shall have the right to revoke or suspend this Permit. If the City suspends or revokes the Permit, Highlander shall immediately secure and restore the Property to a safe condition to the City's satisfaction so that the Property does not become a public nuisance or a health and safety hazard. At the City's discretion, restoration may include, but not be limited to, removal of debris and vegetation, grading of the Property, mulching, seeding,.erecting sand barriers, fencing, and other activities to stabilize the Property from erosion. If Highlander fails to properly restore the Property within a reasonable period of time, the City shall have the right to make claim to and use the Phase I Security to complete the restoration. In the event the amount of the Phase I Security is not sufficient to cover the City's expenses to restore the Property, Highlander agrees, upon written notice by the City, to reimburse the City for any incurred expenses not covered by the Phase I Security. If Highlander fails to fully reimburse the Town Center Phase I Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -3- _ "EVERY PAGE" 0909536u04086~840970u 0909536u04086~840970u City, the City shall have the right to record, with the Seminole County Clerk of the Court, an assessment lien on the Property for any un-reimbursed expenses. 6.0 Security. Upon issuance of this Permit, Highlander shall post a performance bond, irrevocable letter of credit, or escrow deposit with the City in the amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00) guaranteeing that the work authorized and required by this Permit is performed and completed in full compliance with any and all terms and conditions of this Permit ("Phase I Security"). If the Phase I Security is a bond or irrevocable letter or credit, it shall be issued by a company and in a form deemed acceptable by the City Manager and City Attorney. Upon approval of the final engineering plans and issuance of the Phase II development permit for the Property, Highlander shall post a performance bond, irrevocable letter of credit, or escrow deposit with the City guaranteeing the completion of the public infrastructure required for the Property to the City's satisfaction ("Phase H Security"). The amount of the Phase II Security shall be determined by the City based on Highlander's engineers certifying to the City the estimated cost of said public infrastructure. If the Phase. II Security is a bond or irrevocable letter of credit, it shall be issued by a company and in a form acceptable to the City Manager and City Attorney. Upon the City's receipt of the Phase H Security, the City shall release the Phase I Security. 7.0 Indemnity, Release, Hold Harmless. Highlander hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees, and attorneys from and against all claims, losses, damages, personal injuries (including, but not limited to death), or liability (including reasonable attorneys fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of this Permit; and (2) any work performed under this Permit including, but not limited to any and all acts and omissions of Highlander and their contractors. __ __ __ -_ 8.0 Representations and Warranties. Highlander represents and warrants that the work authorized by this Permit is being performed with the knowledge and understanding that said work is being done prior to final engineering approval by the City and that final engineering approval maybe denied by the City or result in additional site development not contemplated'oy this Permit. Highlander agrees that they are assuming the full and complete risk that final engineering maybe denied by the City or additional site development work may be required and may include a modification of the work performed under this Permit. 9.0 No City Representation and Warranties. Highlander acknowledges and agrees that although this Permit indicates that the City is considering final engineering approval for the Property, the City in no way represents or warrants that the City has approved or will approve said plans. 10.0 Prior Consent Required for Transfer of Permit This Permit is not transferable or assignable without the prior consent of the City Commission. 11.0 Applicable Law. This Addendum shall be governed by and construed in accordance with the laws of the State of Florida. Town Center Phase I Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -4- ="EVERY PAGE" 0909536V04086~840970\1 0909536U04086~840970\1 12.0 Amendments. This Permit shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. 13.0 Entire Permit Agreement. This Permit is issued in furtherance of the Development Agreement. However, this Permit supersedes any other agreement, oral or written, and contains the entire agreement between the City and Highlander as to the specific work authorized under section 2.0 of this Permit. Any provision of the Development Agreement not in conflict with this Permit shall remain in full force and effect. 14.0 Severability. If any provision of this Permit shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional right to declare this Permit null and void and require that the work authorized by section 2 be immediately stopped. 15.0 Effective Date. This Permit shall become effective upon approval by the City Commission, execution of this Permit by all parties hereto, and the completion of the conditions precedent set forth in section 3.0 of this Permit ("Effective Date"). 14.0 Relationship of the Parties. The relationship of the parties to this Permit is contractual and Highlander is 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. 15.0 Sovereign Immunity. Nothing contained in this Addendum shall be construed as a waiver. of the. City's right o soyereign_mmunity under Section 768.28,_ Florida Statutes, or any other limitation on the City's potential liability under the state and federal law. 16.0 City's Police Power. Highlander agrees and acknowledges that the City hereby reserves all police powers granted to the City by law, particularly with respect to whether or not the City Commission will, in its absolute discretion, approve the final engineering plans for the Property. In no way shall this Permit be construed as the City bargaining away or surrendering its police powers. 17.0 Third-Part~ghts. This Permit is not athird-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 18.0 Attorney's Fees. Should the City take'any action to enforce this Permit Highlander agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and costs, through all appellate proceedings, in connection with said enforcement. 19.0 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 Permit. The failure of this Permit to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Highlander of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without Town Center Phase I Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -5- _ "EVERY PAGE" 0909536\104086~840970u 0909536\104086~840970V imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all other permits for the Property until such time the work authorized under this Permit has been completed to the full satisfaction of the City. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] Town Center Phase I Site Development Permit Agreement City of Winter Springs and Highlander Investments, Ltd. -6- _ "EVERY PAGE" 0909536\104086\840970\1 0909536\104086$40970\1 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. By: A' Ct'~'~ OF WINTER SPRL~GS By: F. Bush, Mayor Andrea ~,o~fzo Luaces, City Clerk CITY SEAL APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. ~ / /v d)~ Date: /"1 /// By: Anthony G ese, City Attorney or the City of Winter Springs, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Persoiially 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) _~1~ Ll Notary Public My commission expires: Debra C. Frankl(n My Commission DD292D71 ~a ti~ Expires February 22, 2008 090953611040861840970\1 Town Ccnter Phase I Site Development Pemvt ~lgreemen't City of Winter Springs and ]3ighlander Investments, Ltd. -7- Signed, se ed and delivered in the presen o the following witnesses: Sign re of,Wjmess r~ rhn C Printed Name of Wi s ~saaaiO6iia 7Jrs ' ~.s.~.r0 Signature of witness LCo~m~/~~ kJ 11~1~.CC i'J'L~/.P~D Printed Name of witness STATE OF FLO A COUNTY OF ~, HIGHLANDER STMENTS, LTD., a Florida limited parLhe~ship er Investor nts a to ' a cozpo 'o ,its Gen r er Da~ W~ Date: The foregoing instrurrlent was acknowledged before me this day of 2005, by David W. McLeod, as President of Highlander Investments, Inc., a Florida core anon, the General er of HIGHLANDER INVESTMENTS, LTD., a Florida limited partnership. He ' personal own to me or has produced as identification. (NOTARY SEAL) ary Publ'c Signature) _ (Print Name) _ _ - _ _ __ Notary Public, State of Commission No.: My Commission Expires: ~r Debra C. Fra~ItNn =o ~` My Commission pD2921iT1 ~or n•°" ~Pires Febrw+ry 22, 2008 0909536~104086~840970\1 Tovm CoAtar Phase ISite-DevelopinentPerrnit Agreement City of winter Springs and Highlander Investments, Ltd. -8- .. TOGETHER WITH: Parcel #36-20-30-502-0000-006A: Beginning at a point 686 Feet North 38°45' West of the most Easterly corner of unplatted part of Block B of D. R. Mitchell Survey of the Levy Grant, according to the plat thereof as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida, lying South and West of the paved road leading from Sanford to Oviedo, thence North 38°45' West 100 Feet along Westerly line of the Sanford-Oviedo Highway, thence South 51°15' West 200 Feet, thence South 38°45' East 100 Feet, thence North 51°15' East 200.00 Feet to the point of beginning, same being part of Lot 6 of a survey made by Joe E. Johnston, C.E., less right of way for State Road 434 pursuant to that certain Order of Taking recorded in Official Records Book 2831, Page 1024 of the Public Records of Seminole County, Florida. Exhibit "A" ATTACHMENT C 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 SECOND MODIFICATION OF PRE-ANNEXATION DEVELOPER'S AGREEMENT THI5 SECOND MODIFICATION OF PRE-ANNEXATION DEVELOPER'S AGREEMENT (the "Amendment") is made and executed this day of 2005, 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 LEVITY AND SONS OF SEMINOLE COUNTY, LLC, a Florida limited liability company ("Levitt"), whose address is 7777 Glades Road, Suite 410, Boca Raton, Florida 33434. WITNESSETH: WHEREAS, Highlander Investments, Ltd., a Florida limited partnership ("Highlander"), and the City previously entered into a binding Pre-Annexation Developer's Agreement dated September 20, 2004 and recorded November 16, 2004 in Official Records Book 5516, Pages 1320-1342, as modified pursuant to that certain First Modification of Pre-Annexation Developer's Agreement dated and Record in Official Records Book , Pages both of the Public Records of Seminole County, Florida (together the "Developer's Agreement"), relating to certain real property located in Seminole County, Florida and more particularly described therein (the "Property"); and WHEREAS, Levitt purchased the Property from Highlander and is the current fee simple owner of the Property; and WHEREAS, Levitt has requested a further amendment to the Developer's Agreement in order to update the Concept Plan for the Project and identify certain changes with respect to the proposed development of the Property; and WHEREAS, in furtherance of this request, the parties desire to amend the Developer's Agreement pursuant to the terms and conditions contained herein. Second Modification to Pre-Annexation Developer's Agreement City of Winter Springs and Highlander Investments, Ltd. -1- 090953 6\ 104086\864542\ 1 NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to amend the Developer's Agreement as follows: 1. Recitals; Capitalized Terms. 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 Developer's Agreement. 2. Concept Plan. The Concept Plan attached to the Developer's Agreement as Exhibit "B" is hereby deleted in its entirety, and the new Concept Plan attached hereto as Exhibit "B" is hereby inserted in lieu, in place and instead thereof. 3. Easement for Traffic Signal. Levitt and the City hereby acknowledge and agree that the easements described in Section 4(g) of the Developer's Agreement shall be conveyed to the City within thirty (30) days of the effective date of this Amendment. 4. Town Center Code Waivers. Section 4(h) of the Developer's Agreement is hereby deleted in its entirety, and the following new Section 4(h) is hereby inserted in lieu, in place and instead thereof, to wit: "(h) Town Center Code Waivers. Based on the Concept Plan and Highlander's agreement to the terms and conditions set forth in this Agreement, the City Commission hereby grants the following waivers to the Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): (1) The buffer wall requirement along the southern perimeter boundary as required by Section 20-417. (2) The frontage road required by Section 20-325(c)(8). (3) The Edge Drive requirements set forth in Section 20- 325(c)(11) and the Squares, parks, and streets map in Section 20- 325(c), provided the Collector Road and other streets are designed, permitted, and constructed in accordance with the Concept Plan. In addition, the Collector Road shall comply with the modified Edge Drive section plan attached hereto as Exhibit "C" and a minimum parking ratio of 2.5 parking spaces per townhome unit shall be provided on the Property for the Project. (4) The setback requirement from the right-of--way as required by Section ,provided that seventy percent (70%) of the townhome units within the Project shall have a ten (10) foot setback and thirty percent (30%) of the townhome units within the Project shall have a six (6) foot setback." Second Modification to Pre-Annexation Developer's Agreement City of Winter Springs and Highlander Investments, Ltd. -2- 0909536\ 104086\864542\ I 5. Guest Parking Spaces. Section 4(0) of the Developer's Agreement is hereby deleted in its entirety, and the following new Section 4(0) is hereby inserted in lieu, in place and instead thereof, to wit: "(o) Guest Parking Spaces. Levitt shall provide a minimum parking ratio of 2.5 parking spaces per townhome unit within the Project." 6. Street Li lg Ming Plan. The following new Section 4(q) is hereby added to the Developer's Agreement, to wit: "(q) Street Lighting Plan. The street lighting plan for the Project shall be submitted to the City for approval prior to the recording of the final plat for the Project." 7. Effect of Amendment. All other terms and conditions of the Developer's Agreement, not in conflict with this Amendment, shall remain in full force and effect. [SIGNATURES FOLLOW ON NEXT PAGE] Second Modification to Pre-Annexation Developer's Agreement City of Winter Springs and Highlander Investments, Ltd. -3- 0909536\104086\864542\1 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS By: John F. Bush, Mayor ATTEST: By: Andrea Lorenzo Luaces, City Clerk CITY SEAL STATE OF FLORIDA COUNTY OF SEMINOLE APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: By: Anthony Garganese, City Attorney for the City of Winter Springs, Florida 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: Second Modification to Pre-Annexation Developer's Agreement City of Winter Springs and Highlander Investments, Ltd. -4- 0909536\104086\864542\1 Signed, sealed and delivered in the presence of the following witnesses Signature of Witness Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF LEVITY AND SONS OF SEMINOLE COUNTY, LLC, a Florida limited liability company By: Levitt and Sons, LLC, a Florida limited liability company, its Managing Member By: Name: Title: The foregoing instrument was acknowledged before me this day of , 2005, by , as of Levitt and Sons, LLC, a Florida limited liability company, the Managing Member of LEVITY AND SONS OF SEMINOLE COUNTY, LLC, a Florida limited liability company. He is personally known to me or has produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of _ Commission No.: My Commission Expires: Second Modification to Pre-Annexation Developer's Agreement City of Winter Springs and Highlander Investments, Ltd. -5- 0909536\104086\864542\I