HomeMy WebLinkAbout2012 06 25 Consent 202 Meritage Homes NSSLIA WS VillageCOMMISSION AGENDA
ITEM 202
Informational
Consent X
Public Hearings
Regular
June 25, 2012 KS
RS
Regular Meeting City Manager Department
REQUEST:
The Community Development Department, Urban Beautification Services Division, is
requesting that the City Commission review and approve a Neighborhood Street Sign and
Light Improvement Agreement with Meritage Homes for the Winter Springs Village
Subdivision.
SYNOPSIS:
On June 1, 2011, the City entered into a Developer's Agreement (DA) with Meritage Homes
of Florida, Inc., for the Winter Springs Village Subdivision. Pursuant to the requirement for
use of decorative street signs and decorative pole lighting within the Town Center District, a
separate Use and Maintenance Agreement between the City and Developer is required by
the DA. The Neighborhood Street Sign and Light Improvement Agreement (NSSLIA) for
Winter Springs Village, found in Attachment 'A' of this agenda item, defines the
responsibilities of both City and Developer as related to decorative street signs
and decorative street pole lighting to be located along public roadways within the Winter
Springs Village Subdivision.
CONSIDERATIONS:
Meritage Homes plans to install the following Decorative Street Signs and Street Lights
along public roadways within the Winter Springs Village Subdivision as part of the
Development:
Decorative Street Signs - 45 (Phase 1) / 27 (Phase 2) =Total of 72
Decorative Street Lights - 49 (Phase 1) / 38 (Phase 2) =Total of 87
Consent 202 PAGE 1 OF 2 - June 25, 2012
Under the NSSLIA, with respect to Decorative Street Signs, the Developer /HOA will be
required to provide the City with parts and materials for repairs (not including sign blanks)
and the City will be required to make necessary repairs should the need arise. With respect
to Decorative Street Lights, the City will be required to reimburse the Developer /HOA the
cost of the City Standard Base Rate (currently $13.91 per month times 87 poles), payable on
a quarterly basis.
FISCAL IMPACT:
Street lights installed to service public roads within the Winter Springs Village Subdivision
will impact the General Fund by $14,522 (at the current base rate of $13.91 per pole). This
amount represents a recurring expense and will vary based upon the base rates as
established by Progress Energy. Phase 1 has 49 street lights planned and Phase 2 has
38 street lights planned, for a total of 87. The street light expenditure will be offset by
tax revenue generated from homes added to this subdivision; however, not all homes will
yield tax revenue in the same fiscal year as the expense occurs, based on when specific
homes are purchased and added to the tax rolls by Seminole County.
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and
the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City's Website, LaserFiche, and the City's
Server; has been sent to applicable City Staff, Media /Press Representatives who have
requested Agendas /Agenda Item information, Homeowner's Associations /Representatives
on file with the City, and all individuals who have requested such information. This
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at five (5) different locations around the
City. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
Staff recommends that the City Commission review and approve the Neighborhood Street
Sign and Light Improvement Agreement (Attachment 'A') for the Winter Springs Village
Subdivision and approve the City Manager and City Attorney to draft and execute the final
agreement.
ATTACHMENTS:
A) Neighborhood Street Sign and Light Improvement Agreement - Winter Springs Village
B) Developer's Agreement with Meritage Homes of Florida, Inc. - Winter Springs Village
Consent 202 PAGE 2 OF 2 - June 25, 2012
ATTACHMENT 'A'
NEIGHBORHOOD STREET SIGN AND LIGHT
IMPROVEMENT AGREEMENT
Th is Neighborhood Street Sign and Light Improvement Agreement ( "Agreement "') is
made and entered into this � day of , 2 between the City of Winter
Springs, a Florida. mr - iiei al corporation ("City" , and Me ita a Homes of Florida, Inc,, a Florida
corporation ("Develope
'" "4 ITNESSE .:
WHEREAS, Developer is the developer of that residential community and its related
amenities known as "Winter Springs Vi age," located within the City of Winter Springs, Florida
( "Development"); and
WHEREAS, the City generally rovides standard street signs and standard street lights
located on City streets that traverse through the real propel which constitutes tes the Development; and
WHEREAS, Developer and the City desire to provide enhanced decorative street signs and
decorative street Iig is at the Developer's expense under the terms and conditions herein; and
WHEREAS, the parties acknowledge that this Agreement t will improve the aesthetic
appearance o the Cit ' s streets primarily for the,benefit and e oya - ie t of e elo er, the p roperty
owes in the D e v elopment, and incidentally to the rest of the citizens of Winter Springs.
NOW THEREFORE, in consideration of the mutual promises set foilh herew der, and other
good and val consideration, which the parties acknowledge has een exchanged, the parties
agree as Follows:
Section I . Recitals. The foregoing recitals are t o and correct and. are hereby
incorporated herein as a material part of this Ag reement.
Section 2. Definitions. The following words and phases used herein shall have the
following meaning unless the context clearly indicates otherwise:
2. "Progress Energy " shall mean Pr ogress Energy and any successor and assign to the
City's electric franchise.
2.2 "S " shall mean the metal Face plate of the street sign on w street
yes an other traffic symbols and/or language is written such as "'stop "" and speed limits.
2.3 "Str Light Base Rate" sail mean the actual cost charged ro r ss Energy to
r"on n 0 4/12 Neighborhood Street Sign and Light Improvement Agreement
City of Winter Springs — Meritage Homes of `lo d , Inc.
Page I o
maintain and operate a standard concrete pole and cobra fixture. Said costs include electric,
equipment rental, maintenance, gross receipts tax and other associated charges imposed b y Progress
Energy in accordance with lave. At the effective date of this Agreeme at, the Street Light Base Rate is
equal to $13-91. The parties acknowledge that said base rate is subject to periodic adjustments by
Progress Energy arid. the City of Winter Springs.
Section 3+ Sc2pe of ro_ . The City and Developer agree that this Agreement may
cover both decorative street signs and decorative street lights depending on what is specifically set
forth In Exhibit "I". Th City and Developer agree that Develop desires to purchase, inst
maintain and operate the decorative street sig and street lights depicted and itemized in Eihi
, 1 which i s attached hereto and incorporated herei n by fi rs re 'ere ce the ` Proje t "' . The part 1cs
acknowledge that if decorative street signs are installed, they must comply with the standards of th
Manual of .i orm Traffic Control Devices, latest edition, and the City of Winter Springs, and if
decorative street fights are installed, they insist be provided by 'rogress Energy and approved by the
City of Winter Springs.
Section 4. Developer's Obli Developer agrees to perform the foll owing
yiy - �..N�i� rY �tl�itl��Yi�Y llllll�i YilY9i�liPIiP 99.
o bligations:
4.1 Decorative Street Signs. To the ex tent that decorative street signs are part of this
Agreement as provided on Exhibit I' L, Developer agrees to furry cooperate with the City to
purchase, install, and maintain 72 decorat street signs required by the Project as follows:
( A) Developer agrees to purchase and install the decorative street signs required to complete
the Project.
( B ) In the evert any of the decorative sheet sizes must be replaced or repaired due to
damage, deterioration, or age prior to turn -over and assignment of this Agreement pursuant to
Section 7 herein, Developer agrees to repair or replace the decorative street signs at its sole expense.
F ollowing turn -over and assigrnent of this Agreement pursuant to Section 7 herein, the Association
shall pay the City the cost of the repairs or the cost of .rchasi g and installing the replacement
decorative street signs. Association's payment shall be made within thirty 3 days of receipt o
written notice from the City and prior to the replacement, Notwithstanding, following tum- over, the
City will be r esponsible for the repair or replacement ent o any damaged, deteriorated, or aged street
sign plate. All other components of the street sign including, but not limited to, the foundation,
Taming, and. pole wi b the responsibility of the Associat
( C) Developer agrees to purchase and maintain an inventory of extra d ecorative street signs
in an amount equal to tea percent (10%) of the tot num ber of signs required by this Agreement.
Such inventory shall he stored with the City and shall be used for future sign repairs and replacement
for the Development, The City shall have the right to repair or replace any street sign required b
this ,agreement or to purchase and install any additional decorative street signs t the City
Fore 04/12 Neighborhood Street Sign an Light Im r veine t Agreement
City of inter Springs — Meritage H omes of Florida, Inc.
Page 2 o
determines are seeded for traffic safety purposes within the Development, In the event that a street
sign must be replaced, repaired, or added and Developer has failed to maintain the inventory, the
City shall have the unconditional right to sae said repairs, replacement, or addition using
standard .o- decorative street sign and recover the actual cost thereof from Developer.
4.2 Decorative Street Lights. To the extent that decorative street lights are pall of this
Agreement as provided on Exhibit " ", Developer agrees to fatly cooperate with the City to acquire,
install, maintain, and operate 87 decorative street lights required by the Project as follows
(A) shall assume the full responsibility r o Maintaining the Progress Energy
invoice for all of the street lights covered by the Project, including laving the account placed In the
name of Developer and making g r oo t and timely payments on said. account, Upon t mover to the
Homeowners' or Community Association consistent with Section 7 of this Agreement, said
As'sociatlon shall assume e res oa sibllit r for the street lights and have the account placed in its name.
(B) Prior to t m -over and assignment of this Agreement ent pursuant to Section 7 of this
Agreement, Developer shall be responsible for promptly reporting all broken or damaged sheet lights
directly to Progress Energy. The City reserves the right to do the same in the event that Developer
er
falls in said reporting responsibilities.
Section 5. 0 y's Obligations Subject to Developer's compliance with its payment
responsibilities set forth under this Agreement, the City agrees to perfonn the following obligations:
5.1 Following t m -over pursuant to Section 7 of this Agreement, the City agrees to pay
the cost of r chasing replacement Sign Plates required for maintenance of the Project.
5,2 The City will assist Developer in coordinating with Progress Energy to acquire and
install the decorative sheet lights. Conditioned upon completion of each of the following: 1
installation and the establishment of mi account t with progress Energy-, it at least 5% of the homes
being occupied by private owners; and (iii) all conunon areas being built to 00% completion, the
City agrees to reimburse the Developer for the maintenance and operation of the decorative street
lights In are amount equal and strictly limited to the Street Light Base ate. The City shall not be
obligated to reimburse Developer until each of the preceding conditions i's met. The City shall make
the reimbursement on a quarterly basis. However, with respect to any increase In the number of street
lights above the number that were actually installed for Developer at the effective date of this
Agreement, the City shall not be responsible for the Street Light Base Rate for the additional street
lights unless the City agrees, in its discretion, , tl at the additional fight(s) were required to brin
Developer's street fight plan into conformance with Progress Energy's standard photometric
requirements, Further, reimbursement shall only be made for those street lights that are operational
at the time the conditions s were met and only where Developer has provided proof of ayme at to the
City.
F'onn 04/12 Neighborhood Street Sign and Light Improvement eat Agreement
City of inter Springs — Meritage Homes of Florida, Inc.
Wage 3 of
-Section 6. Title to Street Signs and Lights. The right, title and interest of th
decorative street signs shall be vested in the City. The right, title and interest of the decorative street
lights shall be vested in Progress Energy. Developer shall have no property interest in the decorative
street signs an street 1 1 glt .
Section 7. AsEignment of Agreemen Upon Developer's 100% completion of the
D evelopment o onsite construction occurring or equipment rer. aini other than with respect t
home construction) and t m-over to the Development's Homeowners' or Community Association
( "Assoc i ati on" , Developer shall assign this Agreement to the Association and the Association shall
b e responsible for the Developer's obligations and commitments contained herein, whereupon
Developer will have no further liability hereunder.
Section 8. Anplicable .w• venue. This Agreement shall be governed b and
construed in accordance with the laws of the State of Florida and the Winter Springs Code. The
parties agree that venue shall be exclusively within Seminole County, Florida, for all state disputes
or actions which arise out of or are b ase d upon this Agreement, - d -in Orlando, Florida, for all such
federal disputes or actions.
Section 9. Amendments. This Agreement shall not be modified or amended except b
written agreement executed by all parties hereto and approved by the City Commission or City
Manager of the City of Winter S ri . ;s.
Section 10. Entire . A eem • Readings. This Agreement contains the entire agreement
b etween the parties as to the subject matter hereof The Agreement may only bind the City if
executed y the City Manager or Mayor of Winter Springs. ara ra h headings are for convenience
of the pailles only and are not to be construed as part of this Agreement. All references to whole
p aragraph numbers (e.g. 2 shall include all subparagraphs thereunder (e.g., 2, .
Section 11. Severabil If any provision on o 't is Agreement shall be held to be invalid or
unenforceable t any extent by a. court of competent Jurisdiction, the City shall have the
unconditional right to terminate this A reem ent, modify this A. ree� ent with the Developer's or
Association's consent, as applicable, or remain in the Agreement as modified b y the court.
-Section 12. Sovereign mmu nit Nothing contained in this Agreement shall be
construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida.
Statues, or any other l imitation on the City's potential liability under der state or federal law. Said fights
and limitations shall be deemed fully ineororated herein b this reference.
Section 1 3. Notice. All notices and co Tes onde ace in connection with this Agreement
Est be in writing. N otice and correspondence shall be sent b y first class mail or hand delivered at
the addresses set forth below or at such other addresses as the parties hereto shall designate to each
other in writing.
F orm 04/12 Neighb Street Sig and L ight Imp rovement Agreement
City of Winter Springs ---- Meritae Homes of Florida, Inc.
'age 4 of 7
( a) If to the City:
City Manager
City of Winter Springs
1 126 East State Road 434
Win Spri FL 32708-2799
407-327-5976 hone
407 - 327 -6695 `ax
(b) If to Developer:
.eri a e Homes of Florida, Inc.
Attn: David Brown
5337 Millenia Lakes Blvd. # 16
Orlando, FL 32839
407-712-8664 (Ph
407-712-8688 (Fax)
With a copy to:
Merlta e Homes of Florida, Inc.
Att - Regional Counsel
17851 N. rte' Street, Suite 300
Scottsdale, ,AZ 85255
480-515-8008 (Phone)
480 - 375 -29 (Fax)
Section 1 . Waiver Any forbearance by the City in exercising any eight or remedy under
this Agreement shall not constitute a waiver of or preclude the exercise of any right or reedy.
Section 15. C' t to Seek Eguitable Relief d Spec Assessment. Developer
agrees, acknowledges and recognizes that any breach of this Agreement at by Developer may result in
irreparable hai - i to the City. Developer agrees that in addition to and not in lieu of all legal and
equitable remedies available to City by reason of such breach, City shall e entitled to equitable
relief (including, without limitation, specific erfon - nance and injunctive relief) to en the
occurrence and condition o the reach. Further . the event t evelo er �' i s t make any payrno t
that are required herein, D eve lop er acknowledges and agrees that the decorative street signs and
street lights provide a special benefit to the Association and its members bers and that said special benefit
is shared proportionately by all property owners within. the Development, In the event that the City
deteruines that Developer has not jade the payments required by this Agreement, the City reserves
the unconditional rift to assess Developer; and the Development" s property owners for
Form 04/12 Neighborhood Street Sign an Light Improvei Agr eement
City of Win Springs -- Mritae Homes of Florida, Inc.
Page 5 of
Developer's costs or the decorative street si gns and street lights, In the event the City is requi
' red to
initiate an assessment, Developer agrees to Fully support the assessment and Developer shall not
contest, challenge or intervene in the assessment process. Further, in the event that Developer
defaults on any street fight account with Progress Energy which is covered b this Agreement, the
City shall also, at its sole discretion, l av the right to transfer said accounts into the City's Warne and
thereby assume all the rights afforded an account holder.
.
Section 16. AttorntLs Fees. The prevailing party in any litigation arising under this
Agreement shall be entitled to recover its reasonable attorneys" and paralegal fees and costs, whether
incurred at trial or appeal.
IN WITNESS WHEREOF, the pasties have executed this Agreement as of the date fi rst
written atme.
WITH ES:
zle
e
ti
D � v
r *gat Name
e
erit ax orr , Inc.
Print Name /Title:
eD \j 15i P1zc-s1'DCA `T
STATE OF FLORIDA
COUNTY OF 02N4C-QC
ins instrument w as acknowledg efore � e this �- day o �
Th e forego
20 r �4T &SVj , as DMS)� PoeSIVgo ' Meritage Homes of Flori
I. c., who executed the foregoing instrument and aek.o vl dged before me that lie /she executed the
same for th uses and purposes therein expressed and V who is personally known to me or 0 who
has produced as identification and who did not to e an oath.
(NOTARY SEAL)
.,. � , V V ,
l y
gg My Commission EE0 36964
4
Notary Public Signature
EPc
Typed or Printed Notary Name
onn 04/12 Neighborhood St reet Sign and Light Improvement Agreement
City of Wi ter Springs — Meritage Homes of Florida, Inc.
Page 6 o
CITY of WINTER SPRINGS,
a Florida Municipal Cr-ti:
Print Name
am
Print N ame
STATE of FLORID
COUNTY of S MINO E
City Manager
The foregoing instrument w as acknowledged e ore me this � day of ,
2 b City Manager of Winter Sp ring s, F lorida, wh is erso ally
I mown to me.
(NOTARY SEAL)
------------------------------------------- - - - - -- - -
Notary Public Signature
Typed or Prime d Notary Nay
Fon 04112 Nei ghborhood Street Sign an Light bnpr ovement Agreement
City of Winter Springs — Meritage H omes of Florida, Inc.
'age 7 o
r;
i
F
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C' 0 P 0 a T i 0
Exhibit 1
Neighborhood Street sign. and Liaht g Improvement Agreement
PH Z
PH 11
Total
Decorative Street Lights
49
38
87
Stop Sigmas
21
11
32
Speed Limit:Signs
8
51
13
Do Not inter Signs
S
S
Cross Walk
4
3
7
No Outlet
1
1
Chevrons (Road End).
2
2
Directional
1
1
9 scat (Street Termination)
S
8
Total Number of Street Signs
72 Signs
��
ATTACHMENT 'B'
�� BROWN, GARGANESE, WEISS & DAGREsTA, P.A.
Atlorncyr at L
111 N. Orange Ave., Suite 2000
P.O. Box 2873
Orlando, Florida 32802 -2573
Phone (407) 425 -9566
Fax (407) 425 -9596
Andrea Lorenzo- Luaces, City Clerk
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
OCT Ft jMC:e'VIE0
2 4 Z01
OF�ICF qW H ER SPRINGS
E CITY CLERK
October 21 j 2011
Re: Winter Springs Village Agreement
g
Dear Andrea:
Anthony A. Gar
Board Certified city, County & Local
Government Law
agarganeseg0dan dola w. n et
Enclosed for safekeeping is the orig inal recorded d DevelopmentAgreementbetween
the City and Meritage Homes.
Si
el
,
Anthony A. Garganese
City Attorney
Ft. Lauderdale (954) 670 -1979 • Kissimmee (321) 402 -0144 ■ Cocoa 866 425 -9566
Website: www.orlandolaw.net • Email: flrm@orlandolaw.net
M�VAvS
f
S•
Prepared by and return to:
Anthony A. Garganese, City Attorney
Brown, Garganese 'Weiss & D'Agresta, P.A.
111 N. orange Avenue, Suite 2000
Orlando, Florida 32802 -2873
(407) 425 -9556 Q° &Xa 5
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CLERK W CIRMIT MURT
SMIMLE COWY
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R�DR BY T Smith
''WINTER SPRINGS VILLAGE
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT ( "Agreement ") is made and entered into this 1 st
day of June, 2011, by and between MERITAGE HOMES OF FLORIDA, INC, a Florida
corporation ("'OWNER") and the CITY OF WINTER SPRINGS, a municipal cor
•
existing under the laws of the State of Florida ( "CITY ").
RECITALS
A. WHEREAS, the CITY has completed a comprehensive planning study in
connection with the requirements of Chapter 163, Florida Statutes, resulting in the adoption of
the Winter Springs Town Center Plan ("'Town Center Plan "); and
B. WHEREAS, OWNER is the owner of certain real property located within the
boundaries of winter Springs Town Center (the "Town Center ") on which it intends to develop a
residential community and related amenities, which real property is more particularly described
on Exhibit A attached hereto and by reference incorporated herein (the "Property); and
C. WHEREAS, the Property is subject to the terms of that certain Agreement dated
June 26, 2000 by and between the CITY and prior owners of the Propert y (the "ors g inal
Agreement "); and
D. WHEREAS, the CITY and OWNER. desire to substitute the Original Agreement
g �'
with thi's Agreement for the future development of the Property pursuant to the CITY's Town
Center Plan and Code; and
E. WHEREAS, OWNER and the CITY intend, for the terns of this Agreement, to
memorialize their understanding and agreement regarding their respective interest, expectations
and intentions regarding the development of the Property within the Town Center and:
NOW THEREFORE, in consideration of the terms and conditions set forth in this
agreement, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the CITY and OWNER agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are true and
correct and are fully incorporated herein by reference as a material part of this Agreement,,
2 . APPROVAL OF FINAL ENGINEERING PLANS Subject to the terms and
conditions of this Agreement, OWNER shall permit and construct the residential development
on the Property that is set forth in the final engineering/subdivision plans that were
conditionally approved by the City Commission on March 28, 2011, and as may be amended
from time to time by OWNER and the CITY. ( "Final Engineering Plans " ). A copy of the
Final Engineering Plans shall be maintained on file at City Hall.
3. FINAL AND FUTURE PLAT APPROVALS. The CITY and OWNER
acknowledge and agree that the final plat for the Property presented to the City Commission on
March 28, 2011 was approved in accordance with the City code. within fourteen (14) days of
the Effective Date of this Agreement, the CITY and OWNER shall cooperate to record the
approved final plat in the Official Public Records of Seminole County as a condition precedent
to OWNER exercising any rights under this Agreement. OWNER and CITY acknowledge and
agree that subsequent to the filing of the final plat, OWNER shall be required to replat the
Property for purposes of developing the residential units depicted on the Final Engineering
Plans. However, the replatting shall not terminate or otherwise negatively affect the public
dedications already set forth in the final plat and also required by the Final Engineering Plans
particularly with respect to any public easements, parks, streets, Michael Blake Boulevard
("MBB"') and wetlands Park. The replatting of the Property may occur in phases depending
on the development schedule established by the OWNER for the residential units.
(a) Pursuant to Section 9 -76 of the City Code, OWNER will deliver to the CITY an
original irrevocable Letter of Credit ( "MBB Infrastructure LOC ") in a dollar amount
reasonably determined by the City, based on an estimate of a duly qualified engineer, to be
financially sufficient to cover the cost of completion of the MBB infrastructure required to be
constructed under the Final Engineering Plans, including, but not limited to streets, drainage
facilities, sidewalks, water and sewer facilities and landscaping. The purpose of the MBB
Infrastructure LOC shall be to ensure that OWNER completes the construction and installation
of the MBB infrastructure in accordance with the requirements of this Agreement. The MBB
Infrastructure LOC shall be delivered no later than the date of the recording of the final plat. In
addition, the MBB Infrastructure LOC shall be maintained in good standing for the benefit of
the CITY until the MBB infrastructure is accepted by the CITY. Upon acceptance of the MBB
infrastructure by the CITY, the CITY shall promptly return the MBB Infrastructure LOC. to
OWNER.
(b) In connection with each re -plat of a portion of the Property, and pursuant to
Section 9 -76 of the City Code, OWNER will deliver to the CITY an original irrevocable letter
of Credit ( "Infrastructure LOC") in a dollar amount sufficient to cover the cost of completion
of the public infrastructure required to be constructed in connection with such re -plat,
including roadways, drainage facilities, sidewalks, water and sewer facilities and landscaping.
The purpose of the Infrastructure LOC shall be to ensure that OWNER completes the
construction and installation of the public infrastructure associated with such re -plat in
accordance with the requirements of this Agreement. The Infrastructure LOC shall be delivered
no later than the date of the recording of the applicable re- plat. In addition, the Infrastructure
LOC shall be maintained in good standing for the benefit of the CITY until the public
infrastructure is accepted by the CITY. Upon acceptance of the applicable public
2
infrastructure by the CITY, the CITY shall promptly return the Infrastructure LOC to
OWNER.
(c) At such time the CITY accepts the public infrastructure associated with each
re -plat of a portion of the Property and pursuant to Section 9 -76 of the City Code, OWNER
will deliver to the CITY an original irrevocable Letter of Credit ("Maintenance LOC") in a
dollar amount reasonably determined by the CITY, based on an estimate of a duly qualified
engineer to be financially sufficient to cover the cost of maintenance of required and installed
public improvements for two (2) years after the date of the completion and acceptance by the
CITY. In addition, the Maintenance LOC shall be maintained in good standing for the benefit
of the CITY until it is released by the CITY promptly at such time the two year period expires.
(d) At such time OWNER provides the MBB Infrastructure LOC required by
subparagraph (a) above, OWNER will deliver an additional original Irrevocable Letter of
Credit ( "Restoration LOC ") in the amount of One Hundred Forty Thousand and No /100
Dollars ($140,000.00) for the restoration of the Property in the event OWNER abandons or
discontinues the Project and City determines that unsafe conditions exist or are created on the
Property due to said discontinuance or abandonment; provided, however, in the event the
$115,000.00 letter of credit and $25,000.00 cash escrow OWNER deposited with the CITY in
connection with OWNER'S Early Work Permit (the "Early Work Permit LOC") is on deposit
with the CITY at the time O"ER is required to deliver the Resotration LOC, the Early Work
permit LOC and $25,000.00 cash escrow may serve as the Restoration LOC for all purposes
under this Agreement if the City Attorney determines that the terms and conditions of the
Restoration LOC are legally sufficient to cover OWNER's obligations under this
subparagraph. For the purposes of this subparagraph and the Restoration LOC, the term
restoration shall include, but not be limited to, reducing the height of stockpiles to a maximum
of ten (10) feet above the existing ground elevation at the toe of slope of the stock pile,
regrading all or portions of the Property in order to mulch and grass and maintain disturbed
areas, installing and maintaining fences around disturbed areas fencing and screening areas
deemed dangerous to the public, repairing damage to public infrastructure, regrading
temporary access areas, boarding incomplete and open buildings, implementing a supplemental
planting plan in order to minimize direct view of disturbed portions of the Property as observed
from Tuskawilla Road and the St. Johns Landing subdivision, and other actions reasonably
deemed necessary by the CITY to protect the public health, safety, and welfare of the public
from the abandonment of the Project. At the time OWNER provides an Infrastructure LOC in
connection with the re -plat of any portion of the Property, OWNER may reduce the amount of
the Restoration LOC proportionately with the amount of the Property included in the re -plat.
For example if the first re -plat includes 50% of the Property, then upon posting of the required
Infrastructure LOC, the Restoration LOC may be reduced by 50 %. The Restoration LOC shall
be maintained in good standing for the benefit of the City until it is released by the City
promptly at the earlier of such time the Infrastructure LOC is provided for the final re -plat of
the Property, or the restoration work is completed .
(e} All LDC" s requi red by this paragraph shall be issued by Wachovia bank, the
same bank that issued the Early Work Permit LOC, or some other nationally recognized bank
qualified to do business in the State of Florida that is deemed acceptable to the City. The City
3
w
of Winter Springs shall be the named beneficiary under each of the LOC's and the LOC's shall
be in a form acceptable to the City Attorney,
4. MICHAEL BLAKE BOULEVARD (MBB). The proposed location of MBB is
depicted in the Final Engineering Plans. OWNER hereby agrees to construct MBB, and
related improvements for an estimated cost as more particularly described in Exhibit "B ", at
its expense, in accordance with design standards as incorporated into the final engineering
plans approved by the CITY, in exchange for an award from the CITY of transportation impact
fee credits and/or U.S. cash funds as determined by the CITY as provided for in Winter
Springs City Code Sections 9 -386 through 9 -390 in a maximum amount of Six Hundred Two
Thousand Two Hundred Thirty and 101Dollars DOLLARS ($602,230.10) (the "Approved
MBB Credit ") inclusive of construction costs and professional fees (excluding attorney's and
other related legal fees). The OWNER shall also be entitled to impact fee credits or U.S. cash
funds for cost overruns incurred in connection with the construction of MBB and related
improvements if due to approved changes in the scope of the Work or material quantity
overruns, all up to a cumulative of 15% more than the Approved MBB Credit based on revised
cost estimates submitted by OWNER and approved by the CITY Manager or his designee.
The payment of any amount exceeding 15% more than the Approved MBB Credit for the
construction of MBB shall require approval of the City Commission. Reimbursement of
eligible costs referenced herein and more particularly described in Exhibit "B" shall be
provided in accordance with the procedures outlined in Paragraph 10 of this Agreement. The
total reimbursable cost of professional fees (excluding attorney's and other related legal fees)
and any related, non - construction expenses, shall be capped at 12.5% of the total actual
construction cost of improvements which are eligible for reimbursement pursuant to this
Paragraph and shall be evidenced by actual invoiced amounts. OWNER shall convey MBB
improvements to the CITY at such time as construction is completed and accepted by the City
Commission. Expenditures eligible for impact fee credits and/or U.S. funds must be approved
by the CITY with documentation of the expenditure, such approval not being unreasonably
withheld or delayed. Project expenditures incurred by the OWNER prior to the effective date
of this Developer's Agreement are not eligible for reimbursement except as specifically
defined in Paragraph 10. OWNER agrees to complete construction of MBB and have the CITY
accept construction thereof, prior to the certificate of occupancy being issued by the CITY for
the first non -model home or non -sales center unit constructed on the Property.
5. MBB WATER MAIN IMPROVEMENTS OWNER, at its own expense, shall
construct a potable water main within the MBB alignment in accordance with the Final
Engineering Plans. At CITY'S request, the water main described in the Final Engineering
Plans shall be sized to provide more capacity than is required for development of the Property.
Therefore, the OWNER shall be entitled to receive U.S. cash funds (the "Approved Water
Credits ") for the additional cost differential of Twenty one Thousand Three Hundred Seventy -
Nine and 44/100 Dollars ($21,379.44) as depicted in Exhibit "C" which shall be creditable
and in addition to the maximum amount specified in Paragraph 4 above. Reimbursement of
eligible costs referenced herein and more particularly described in Exhibit "C" shall be
provided in accordance with the procedures outlined in Paragraph 10 of this Agreement. The
total reimbursable cost of professional fees (excluding attorney's and other related legal fees)
and any related, non- construction expenses, shall be capped at 12.5% of the total actual
to
construction cost of improvements which are eligible for reimbursement pursuant to this
Paragraph and shall be evidenced by actual invoiced amounts.
6. TRAIL CROSSING IMPROVEMENTS OWNER,
at its own expense, shall
construct the required improvements at the intersection of MBB and the Cross Seminole Trail
in accordance with the Final Engineering Plans and pursuant to the ``trail crossing" permit
issued by Seminole County. The OWNER shall be entitled to receive transportation impact fee
credits or U.S. cash funds as determined by the CITY for all expenses related to the design,
permitting and construction of said intersection improvements which credits are included in the
Approved MBB Credits specified in Paragraph 4 above and described in Exhibit "B " .
7. LIFT STATION & FORCE MAIN IMPROVEMENTS. OWNER, at its own
expense, will design and construct a lift station and force plain upon the Property with
connection to the CITY's system at a point designated by the CITY, in the general location as
depicted on the Final Engineering Plans, sized with a capacity to serve all planned units of the
Property, in accordance with design standards provided by the CITY. To the extent the lift
station and force main are oversized beyond that needed for development of the Property, the
CITY agrees to require the developer of the adjacent property more particularly described in
Exhibit "D -1" attached hereto, (the "Schrimsher Parcel ") to reimburse OWNER an amount
not to exceed Forty one Thousand Seven Hundred Sixty -one and 18/100 Dollars ($41,761.18),
more particularly described in the Exhibit "D -2 " , (the "Sewer Benefit Fee ") for the
proportionate share of design and construction costs attributable to the excess capacity
available for development of the "Schrimsher Parcel ". Prior to the City granting local approval
of an FDEP sewer permit for the developer of any part of portion of the "Schrimsher" parcel
the CITY shall require proof of payment of the applicable Sewer Benefit Fee or an executed
agreement between the OWNER and developer stipulating payment of such fee payable upon
tie -in to the lift station. The applicable Sewer Benefit Fee shall be calculated based on a cost
of $652.52 ($41,761.1 units) per equivalent residential unit (ERU) of proposed
development on the "Schrimsher Parcel ". OWNER acknowledges the CITY has no financial
obligation with respect to the matters set forth in this Paragraph, except as specifically stated,
and that OWNER will not seek reimbursement of the Sewer Benefit Fee from the City.
Further, the reimbursement provisions hereof shall only remain in full effect for a period of ten
(10) years from the date of the final Certificate of occupancy issued on the Property.
8. S TORMWATER DRAINAGE IMPROVEMENTS. OWNED., at its own
expense, agrees to construct a stormwater drainage system to serve the Property and that
portion of MBB within the Property, to include three (3) ponds as depicted on the Final
Engineering Plans, in accordance with design standards and guidelines of the CITY and in
accordance with the Modified Environmental Resource Permit from the St. Johns River water
Management District, obtained by OWNER. The proportionate cost of design, construction
and land attributable to serving MBB is included in the Approved MBB Credits and depicted in
Exhibit "B ". In addition to the aforementioned stormwater drainage improvements, OWNER,
at its own expense, agrees to construct the Wetland Park outfall ("Outfall") through the
Property. The outfall serves wetlands Park and other contributing offsite drainage basins.
The OWNER shall be entitled to receive U.S. cash funds ( "Approved outfall Reimbursement ")
for sixty -five percent (65 %) of the expenses related to the design, permitting and construction
of said outfall improvements which shall be creditable and in addition to the maximum
�1
amount specified in Paragraph 4 above. The estimated cost for the Outfall is Two Hundred
Sixteen Thousand Seven Hundred Dollars ($216,700.000 and is more particularly described in
Exhibit "E." Reimbursement shall be provided in accordance with the procedures outlined in
paragraph 10 of this Agreement.
9. PARIS IMPROVEMENTS. OWNER will construct park improvements, (the
"Parks ") for the use and enjoyment of members of the HOA and the public, consisting of open
grass area, an amenity water body and shade trees (three inch in caliper at the time of planting),
with pedestrian access to a publicly dedicated right of way within designated Tracts in the
proposed locations as depicted on the Final Engineering Plans, and in accordance with the
design standards of the CITY and all requirements of the Town Center Code. The Parks, which
will be dedicated to the City on the final plat to be recorded for the Property, will be equal in
quality, and acreage to the substituted Small Neighborhood Squares and Lake Trail Park
referenced in the Original Agreement. The improvements to the Parks shall be started prior to
issuance of the 50 certificate of occupancy for the Project and shall be substantially complete
prior to issuance of the 125 certificate of occupancy. The Parks shall be maintained in
perpetuity as accessible to the members of the HOA and the City. The HOA shall enter into a
Maintenance Agreement with the CITY for any additional or enhanced maintenance of the
Parks above and beyond the standard level of service normally provided for public parks of the
CITY.
10. REIMBURSEMENT PROCEDURE. OWNER agrees that all public
infrastructure costs which are eligible hereunder for CITY reimbursement (by direct payment
or impact fee credit) and incurred after the Effective Date of this agreement shall be sub ect to
an informal, competitive bid process under which OWNER shall obtain three (3) written
quotes or bids, unless warred as to certain labor or materials by the City Manager. At least
fifteen (15) days prior to entering into any agreement or change order for the construction of
infrastructure, the bidding documents shall be submitted to the CITY for review and approval,
which review and approval shall not be unreasonably denied. The CITY shall approve or
disapprove all such submittals within ten (10) days, otherwise they shall be deemed approved.
OWNER shall accept the lowest and most qualified bidder unless otherwise approved by the
CITY Manager, or its designee. OWNED. agrees that at the time reimbursement for any
eligible costs is requested, OWNER shall provide the CITY with a copy of all applicable
invoices, receipts, warranties, maintenance bonds and documentation, including all change
orders, which clearly evidence each reimbursable expenditure. The CITY shall not be
responsible for reimbursing any infrastructure cost which cannot be properly and reasonably
documented in writing. with the limited exception of (a) professional fees, to the extent
authorized pursuant to Paragraph 4 hereof (and specifically excluding attorney's and other
related legal fees), (b) the MBB clearing costs for that portion south of the Cross Seminole
Trail of $4,374.00, and (c) the clearing and grading costs associated with construction of MBB
Of $10,537.00, project expenditures incurred by OWNER prior to the Effective Date of this
Agreement shall not be reimbursed. The CITY shall not unreasonably withhold or deny any
approvals required under this Paragraph and shall make payment within thirty (30) days of
construction completion and acceptance of the improvements by the City Commission.
OWNER acknowledges and agrees that until said infrastructure is fully constructed in
accordance with the approved plans and accepted and conveyed to the CITY under the terms
and conditions herein, the construction of the infrastructure is a private undertaking by
iu
OWNER and shall not be considered a public works project. OWNER shall indemnify and
hold the CITY and its mayor, commissioners, employees and attorney harmless from any
claims, lawsuits, or actions made against the CITY by any contractor or subcontractor engaged
by the OWNER, either directly or indirectly, to design, permit and construct the infrastructure
which is subject to reimbursement hereunder.
11. SALES CENTER & MOREL HOMES. The CITY agrees to allow OWNER to
construct both a sales office and up to four (4) model homes on the Property to be used for the
customary temporary marketing and sales activities of OWNER or their successors or assigns.
OWNER. is encouraged to utilize existing lease space within the Town Center for the purpose
of customary pre - opening marketing and sales activity as it sees fit and in addition to any
onsite activities permitted under this agreement and the CITY code. The CITY agrees that all
finished units within a single townhome building will be considered collectively as a single
model home for purposes of this Paragraph. Further, nothing herein shall cause to limit the
number of inventory homes (pre -sale, spec homes) that may be constructed on the Property.
The CITY represents that such marketing and sales activities shall be permitted through
buildout of the project and are not prohibited or otherwise limited under the Town Center
Code. CITY agrees to permit early construction of the model homes upon completion of
stabilized access and adequate means of fire protection from a City approved source of water
and under the following conditions which are deemed acceptable to OWNER:
(a} The model homes shall remain under OWNER's ownership and control until
such time as a final certificate of occupancy for each unit is issued under the conditions set
forth below.
(b) The model homes shall be constructed in a location reasonably acceptable to the
City, and any associated parking, pedestrian activity and other activities conducted by sales
staff or the general public shall be adequately segregated from construction activities to ensure
safety.
(c) Prior to construction, the model homes shall be duly permitted by the City in
accordance with the Town Center District Code.
(d) At such time as the City Building Official completes and approves a final
inspection of the model homes, the City will issue a temporary certificate of occupancy. Said
temporary certificate of occupancy shall be issued for each model home as a whole. Multiple
townhome units within a single townhome building will be considered collectively as a single
model home unit. occupancy of the model home units shall be limited to the sale and
marketing efforts for the Project until a final certificate of occupancy is issued for such units.
The foregoing shall not preclude issuance of a Final Certificate of Occupancy for any
individual units within the same townhome building as a model unit.
(e) At the request of OWNER or at such time as the Project development is
completed, whichever occurs sooner, the model home units shall be converted into permanent
residential units and the City shall issue final certificates of occupancy for each model home
unit; provided, however, that the City Building official determines that such units are suitable
for permanent residential occupancy and in compliance with the City Codes.
7
12. CONSTRUCTION ACCESS Construction access to the Property shall be from
State Road 434 as shown on the Final Engineering Plans. OWNER may utilize MBB for
construction and sales traffic for the Property. OWNER shall provide written notice of this
requirement to all construction companies working at the Property. Access rights granted under
this agreement shall not be reduced or otherwise limited following dedication of MBB to the
CITY.
13. REPRESENTATIONS OF THE CITY The CITY hereby represents the
following: (a) that the Property is connected to the CITY sewer and water system and
OWNER shall pay all standard connection fees; (b) that the capacity of said CITY sewer and
water system for the Property is sufficient for the requirements of a 202 -unit residential
community and associated amenities; (c) that the CITY has designated both MBB and
Tuskawilla Road (that portion between SR 434 and MBB) as a CITY collector road by proper
City Comprehensive Plan Amendment; and (d) that Wetlands Park, as referred to in the Town
Center Plan, shall be dedicated and conveyed to the CITY at such time the final plat for this
Property is recorded in accordance with Paragraph 3 above.
14. CONVEYANCE OF EASEMENTS. OWNER shall convey to the CITY all
applicable easements depicted on the Final Engineering Plan, including trail, tree preservation,
conservation, drainage and utility easements prior to CITY's final acceptance of the applicable
improvements, which easements may be conveyed by Final Plat or by the applicable re -plat.
15. CONVEYANCE OF STREETS AND ROADS. OWNER shall convey to the
CITY all streets and roads, excluding passes /alleys, located on the Property as depicted on the
Final Engineering Plans, along with all related improvements. The conveyance, which shall be
acceptable to the CITY's attorney, shall be by a recorded Plat and warranty deed and free and
clear of all liens, mortgages, and other encumbrances. The homeowners association shall be
responsible for maintenance of all landscaping, irrigation, hardscaping and other decorative
features not specifically dedicated to the CITY. In addition, the homeowners association shall
be responsible for the maintenance of any decorative brick pavers in the public streets of the
Property. The obligations referenced in this Paragraph 15 shall be referenced in the
Declaration of Covenants and Restrictions to be recorded for the Property.
16. TRASH/REFUSE PICK -UP. No trash dumpster shall be located within the
Property, with the exception of the clubhouse tract, which dumpster will be required to be
located and screened to meet applicable Town Center Codes and Aesthetic Review standards.
Trash and refuse service by individual container pickup shall be provided by the CITY's waste
hauler for the clubhouse and to each individual dwelling unit from its driveway access.
17. DECORATIVE REGULATORY SIGNAGE AND LIGHTING Prior to
issuance of certificate of completion and acceptance of the infrastructure, OWNER and the
CITY shall enter into a separate Use and Maintenance Agreement outlining responsibilities
related to the decorative street lights and signage, including but not limited to, the cost
differential between maintaining standard street lights and signs and the decorative street
lighting and design requirements of the Town Center Plan. Said agreement shall substantially
conform to the standard decorative street light and signage form agreement that was previously
approved by the City Commission to be utilized on a citywide basis which shall be assignable
0
and run with the land. OWNER acknowledges that prior to turning g P rn�ng the homeowner's
association over to its members, OWNER will assign the Use and . g Maintenance Agreement to
the homeowners association for continuation of obligations related ther
eta.
18. SIDEWALK IMPROVEMENTS IN PHASE 1. OWNER wi ll design and
construct a six foot wide concrete sidewalk along the east side of Tuskawilla Road from the
Property north to tie into the existing sidewalk in front of the St. Johns Land' '
ng project and a
six foot wide sidewalk along the east side of Tuskawilla Road south from the Property past the
Cross Seminole Trail to tie into the existing sidewalk along uskawilla Road.
g The sidewalk
shall be constructed within the right of way of Tuskawilla Road. OWNER. also
agrees to
construct a ten (10) foot wide sidewalk on the south side of Road A as depicted in the final
engineering plans. CITY agrees that the sidewalk improvements contemplated herein
p support
the CITY's multi -modal transportation policies, specifically Transportation Element
. , Y p Policy
1. �
.2, and constitute an equivalent multi' -modal facility as referenced in said olio . CITY
p y Y
agrees this facility satisfes any previous obligations to construct or contribute funds for
construction of a bus shelter.
19. LANDSCAPE PLANS. Landscaping shall be installed and maintained on the
common areas within the Property in accordance with the landscape plans approved b the
p y
City Commission, as part of the final engineering plans for the Prop In addition to the
standard •
d Arbor Permit Fee, OWNER has contributed to the CITY'S tree bank in the amount of
THIRTY -NINE THOUSAND AND NO/100 DOLLARS ($39,000.00) to artiall offset the
p Y
loss of tree canopy value to the CITY caused by the removal of existin g trees located on the
Property.
20. PROJECT SIGNAGE CITY agrees that OWNER, as a means of directing the
majority of project-related traffic trips to MBB rather than T '
p Tuskawilla Road, shall be entitled to
locate temporary directional project signage within the right of wa y on MBB road at the
intersection of MBB and S.R. 434, subject to Aesthetic Package review standards and approval
by the Planning and Zoning Commission and the City Commission, such approval as to size
location and appearance only. Said temporary signage shall be fully removed b y OWNER at
such time the Project is completed.
21. TREE PRESERVATION AND PLANTING SPECIAL CONSIDERATIONS.
(a) Tree Preservation Easement - The Final Plat shall include a ten (10 ) foot wide
Tree Preservation Easement along the rear property line of Lots 1 -13 and east and along
Tuskawilla Road within the common area north of Road A and South of the State trail as
generally depicted in the Final Engineering Plans, whereby existing trees g reaher than 12"
Diameter Breast Height (DBH) shall be preserved and maintained. Additionally, the trees
depicted on Exhibit "F" which are outside the Tree Preservation Easement will be saved due
to their size and quality and also will be protected under the same restrictions applicable to the
Tree Preservation Easement. The Declaration of Covenants shall require that no trees ma y be
removed from this area unless one of the following applies, i} the tree is determined b the Ci
y
of winter Springs arborist to be severely diseased, severely injured or dead ii) the size
location or health of the tree poses a threat to public safety or private p or iii ) the size
or location of the tree imposes an undue and substantial restriction on the full enjoyment and
X
use of Lots 1 -13 within the Property. In no way shall the Tree Preservation Easement limit the
use of the rear yards of Lots 1 -13 except as required to save and protect the trees. If the City
arborist authorizes the removal of any tree on any of the Lots or the common area, the owner of
the property shall be subject to the tree replacement requirements set forth in the City Code.
(b) Supplemental Tree Planting -- OWNER shall, concurrent with completion of
homes on Lots 1 -13, install a total of fifteen (15) Live oak trees, or other canopy tree species
acceptable to the CITY (100 gallon) in order to supplement the existing natural buffer between
the Property and the St. Johns Landings neighborhood. The exact location of the trees may be
determined on a per lot basis to maximize effectiveness and viability of the new trees.
OWNER agrees that each tree planted pursuant to this subparagraph shall have a tree
replacement guarantee for two years in the event that the tree becomes severely diseased or
dies in the opinion of the City's arborist.
22. DEVIATIONS FROM TOWN CENTER PLAN AND CODE OWNER and
CITY have hereby agreed and the CITY approves the following deviations from the Town
Center Plan and the Code, respectively:
(a) Minimum Lot Width -- Section 20- 324(2) requires a minimum lot width of fifty
five (55) feet for front - loaded, single family dwellings within the Town Center. The proposed
minimum lot width is fifty (50) feet and is intended to increase overall density in accordance
with Town Center policies and goals.
(b) Corner Curb Radii - Corner curb radii shall be permitted to exceed the fifteen
(15) foot maximum per Section 20 -324.1 to accommodate the Seminole County fire truck
where shown on the Final Engineering Plans.
(c) Minimum Garage Setback - Section 20 -324 (10) (e) requires that garage doors
be positioned no closer than twenty (20') feet behind the principle plane of the building
frontage if there is a front - facing garage as proposed on the estate lots. The proposed estate
unit designs place the garage twenty (20) feet behind the fagade of the elevated, front porch.
This design meets the intent of screening parked vehicles in the driveway while also providing
a transitional product design more consistent with the standard residential homes found in
neighboring communities adjacent to the Property. However, for the seventy -five (75') foot
estate lots, the twenty (20) foot setback shall be from the sidewalk and not from the elevated,
front porch.
(d) First Floor Elevation (75' estate lots) -- Section 20- 324(5) requires the finished
floor height of the first floor to be elevated a minimum of twenty -four (24 ") inches above the
sidewalk grade. However, the seventy -five (75') estate lots do not have to meet this minimum
requirement.
23. EFFECT CITY and OWNER agree that the terms of this Agreement are
intended to supersede and replace the terms of the Original Agreement as it applies specifically
to the Property. OWNER assumes no obligation for any improvements or construction not
specifically located within the Property, except as depicted on the Final Engineering Plans and
limited to typical maintenance and warranty of infrastructure dedicated to the public upon
completion.
10
0
24. COOPERATION OWNER and the CITY shall cooperate full with each
p y other
to effectuate the terms, conditions and intentions of this Agreement.
25. AUTHORITY Each party hereby represents and warrants to the other that the
have full power and authority to enter into this Agreement. OWNER also represents p eats that all
legal and equitable title to the Property is currently vested in and held b OWNER ER and
OWNER is duly authorized to bind the Property to the terms and conditions contained in this
Agreement. CITY also represents that all requirements and rocedures including public
p � g p lac
hearings, have been properly conducted so that the execution hereof by the CITY shall
constitute the final action of the CITY.
26. NOTICES. Any notice required or allowed to be delivered hereunder shall be
in writing and shall be deemed to be delivered when: (a) hand delivered to the offici
hereinafter designated, or (b) upon receipt of such notice, when deposited in the United States
mail, postage prepaid, certified or registered mail, return receipt requested, or c one day after
deposit with a nationally recognized overnight courier service, e.g. Federal Exp ress , Purolator
Airborne, Express Mail etc., addressed to a party at the other address as sp ecified below elow or
from time to time by written notice to the other party delivered in accordance herewith.
OWNER:
Meritage Homes of Florida, Inc.
5337 Millenia Lakes Blvd. #160
Orlando, FL 32839
Attention: Jeff Porter
Telephone: (407) 712.8681
Facsimile: (407) 712.8688
With a copy to:
Meritage Homes of Florida, Inc.
17851 N. 85th Street, Suite 300
Scottsdale, Arizona 85255
Attention: Regional Counsel
Telephone: (480) 515.8008
Facsimile: (480).375.2915
and with an
Meritage Homes Corporation
additional required
17851 N. 85th Street, Suite 300
copy of any notice of
Scottsdale, Arizona 85255
default, event of
Attention: General Counsel -- THIS NOTICE MAY REQUIRE
default, breach,
IMMEDIATE ATTENTION
claim, or demand to:
Facsimile: (480) 998.9178
Shutts & Bowen LLP
300 South Orange Ave, Suite 1 000
Orlando, FL 32801
Attention: Daniel T. O'Keefe
Telephone: (407) 835 -6956
Facsimile: (407) 8497256
11
City: Kevin Smith
City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32705
Telephone: (407) 327 -5957
Fax: (407) 327 -4753
With a copy to: Anthony A. Garganese
Brown, Garganese, Weiss & D'Agresta, P.A.
111 N . Grange Ave, Suite 2000
Orlando, Florida 32801
Phone: (407) 425 -9566
Fax: (407) 425 -9596
27. DEFAULTS Failure by either party to perform each and every one of its
obligations hereunder shall constitute a default, entitling the nondefaulting party to pursue
whatever remedies are available to it under Florida law or equity including, without limitation,
an action for specific performance and/or injunctive relief. Prior to any party filing any action
as a result of a default under this Agreement, the nondefaulting party shall first provide the
defaulting party with written notice of said default. Upon receipt of said notice, the defaulting
party shall be provided a thirty (30) day opportunity in which to cure the default to the
reasonable satisfaction of the nondefaulting party prior to filing said action. However,
provided the defaulting party is diligently pursuing the cure in good faith, the nondefaulting
party may request up to two (2) individual extensions of time to cure the default. The
nondefaulting party may not unreasonably withhold consent for said extensions provided the
defaulting party continues to diligently pursue the cure in good faith. 28.
SUCCESSORS AND ASSIGNS. This Agreement and any credit accounts
created pursuant to this agreement shall automatically be binding upon and shall inure to the
benefit of the successors and assigns of each of the parties.
29. APPLICABLE LAW- VENUE This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The venue for any legal action
instituted to enforce or interpret any provision of this Agreement shall be in Seminole County,
Florida for state action and Orlando, Florida for any federal action.
30. POLICE POWER The CITY hereby reserves all police powers granted to the
CITY by law. In no way shall this Agreement be construed as the CITY bargaining away or
surrendering its police powers.
31. AMENDMENTS. This Agreement shall not be modified or amended except by
written agreement duly executed by both parties hereto.
12
i
32. ENTIRE AGREEMENT. This Agreement supersedes an other a g reem ent, y g ent, oral
or written, and contains the entire agreement between the CITY and OWNER as to t he subj
'
matter hereof.
33. SEVERABILITY. If any provision of this Agreement shall be held to
g be
invalid or unenforceable to any extent by a court of competent jun*sdiction, the same
f • p me shall not
affect in any respect the validity or enforceability of the remainder of this Agreement.
g •
34. EFFECTIVE . DATE This Agreement shall become effective upon approval b y
.._._ p pp
the City Commission of Winter Springs and execution of •
this Agreement by both parties.
35. RECORDATION 'Within sixty (60) days following the effective date hereof; a
short form memorandum of this Agreement signed by both the CITY and OWNER shall be
recorded in the public records of Seminole County, Florida and shall run with the . Pro ert
p y
The memorandum shall include the legal description of the real p described in Exhibit . p p y
A (the Property), state that this Agreement and any modifications thereto are on file at City
Hall and shall otherwise be in a form mutually acceptable to the CITY and OWNER
.
36. RELATIONSHIP OF THE PARTIES. The relationshi p of the parties to this
Agreement is contractual and OWNER is an independent contractor and not an agent of the
e
CITY. Nothing herein shall be deemed to create a joint venture or rinci al -a ent relationship
p p g p
between the parties, and neither party is authorized to, nor shall either a act toward third
. party Ord
persons or the public in any manner which would indicate any such relationshi p with the other.
37. SOVEREIGN IMMUNITY. Nothing contained in this Agreement shall be
construed as a waiver of the CITY's right to sovereign immunity under Section 768.28 s Florida
Statutes, or any other limitation on the CITY's potential liability under state and federal law.
38. FORCE MAJEURE. The parties agree that in the event that the failure b y either
party to accomplish any action required hereunder within a specified time period "Time
Period) constitutes a default under the terms of this Agreement and, if an y such failure is due
to any unforeseeable or unpredictable event or condition beyond the control of such art
p y
including, but not limited to, acts of God, acts of government authority than the CITY' ys
own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages of
labor or materials, injunction or other court proceedings beyond the control of such art
p y, o
severe adverse weather conditions (``Uncontrollable Event"), then, notwithstanding any
Y
provision of this Agreement to the contrary, that failure shall not constitute a default under this
Agreement and any Time Period proscribed hereunder shall be extended b y the amount of time
that such party was unable to perform solely due to the Uncontrollable Event.
39. INTERPRETATION. The parties hereby agree and acknowledge that the have
g y
both participated equally in the drafting of this Agreement and no art shall be favor p y d or
disfavored avored regarding the interpretation of this Agreement in the event of a dispute between the
parties.
40. PERMITS. Nothing herein shall limit the CITY's authority o rant or den an
� � y y
development permit applications or requests subsequent to the effective date of
this
Agreement. The failure of this Agreement to address any particular City, state tY� y, a nd
13
federal permit, condition, term, or restriction shall not relieve OWNER or the
CITY of the
necessity of complying with the law governing said pennittin requirements, condition
� �. s, term,
or restriction. Without imposing any limitation on the CITY's of * powers, the
. p p CITY
reserves the right to withhold, suspend, or terminate any and all certificates of occupancy f
p y o
any building or unit owned by OWNER within the Proper( if OWNER is in breach
' Y of any
ter or condition of this Agreement.
41. THIRD PARTY RIGHTS. This Agreement is not a third a beneficiary
p x`ty
contract and shall not in any way whatsoever create any rights on behalf of an third party.
. p y
42. COUNTERPARTS. This Agreement may be executed in an y number of
counterparts, each of which when so executed and delivered shall be considered an original
agreement; but such counterparts shall together constitute but one and the same instrument.
43. TERMINATION. The City shall have the unconditional right,, but not
obligation, to terminate this Agreement, without notice or penalty, if OWNER fails to receive
ve
building permits and substantially commences construction of the Project within three (3) � years
of the effective date of this Agreement. In addition, the City shall have the right, but
. Y gh , not
obligation, to terminate the Agreement if OWNER permanently abandons construction of the
Project, provided, however, the City shall first deliver written notice and an op p ortunity to cure
�� y
as set forth in paragraph 27 herein. If the City terminates this Agreement, the City shall record
a notice of termination in the public records of Seminole County, Florida.
44. WAIVER. The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of an y other p rovision of this
Agreement or of any future breach of the provision so waived.
45. INDEMNIFICATION. OWNER hereby agrees to indemnify, release and hold
harmless the CITY and its commissioners, employees and attorneys from and against Y g all
claims, losses, damages, personal injuries (including, but not limited to death) or liabili
(including reasonable attorney's fees and costs through all appellate proceedings), directl . PP p g �3 y or
indirectly arising from, out of, or caused by OWNER and OWNER'S contractor's and
subcontractor's performance of construction activities in furtherance of this Agreement g and
any and all permits issued hereunder. This indemnification shall survive the termination of this
Agreement, but shall cease at such time applicable statute of limitations have expired.
IN WITNESS WHEREOF, OWNER and the CITY have executed this Agreement in
form sufficient to bind them as of the day and year first above written.
[Signature Page Follows]
14
OWNER:
Signed and sealed in the
presence of:
ft Name.1
J � d
MERITAGE HOMES OF FLORIDA, INC.,
a Florida corporation
B 77750-V
Print Name:
Title: T--�)imcffl 2?!�Vpz±
PriA(-- N_ --- aom' do: 0"' 0
STATE OFF RIDA
COUNTY OF � n
U �S+
The foregoing instrument was acknowledged before me thiss,` -( -- , _�Vj ��" g . , day of May, 2011, by
Q r ssnm as �r. e f Men a Homes o f Flori da
Inc., who is personals known _to me or who has produced a driver's license or 5
identification card, or who has produced as identification.
My commission expires:
(NOTARY SEAL)
Signature of Notary Public on line above)
(Print Name of Notary Public on line above)
DEBORAH BRAWO
MY COMMISSION # DD 991409
•: *ter EXPIRES: May 15, 201
�' t p f �� ; •' Bonded Thru NotaryoPublic Underwriters
15
+CITY of WINTER. SPRINGS, a Florida
municipal corporation
Signed and seal in the 1
p resence of: .. � �
Print e: Vj
Title: 1 Tkf 'lea
Print acne: ;
AV'4r". d4A %
Print Name. } -.
STATE OF FLORIDA
COUNTY OF Cl
�r ore me this day of�� a d 11
The foregoing instrument was acknowledged bef , b y
Kevin L. Smith, as City Manager of the City of Winter Springs, Florida, who is
y known to or who has produced a driver's license or identification card, or
who has p roduced as identification.
9&Kb�& 4
(Sign ture of Notary Public on line above)
AVII t ft
(Print Name of Notary Public on line above)
My commission ex Tres:
_.�',, +•,,�, DANIELLE M. HAWER
.*S MY COMMISSION # EE 0622+48
1, �d - : EXPIRES: April 15, 2015
Bonded Thru Notary Public Underwriters
(NOTARY SEAL)
16
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EXHIBIT B
TABULATION OF QUANTITIES AND COST ESTIMATE
Winter Springs Village
Michael Blake Blvd. & Construction Access Road
February 17, 2011
Carnahan Proctor Cross
Storm Drainage
15" RCP (0' -6')
Unit
Total
Average
30.54
Total
Category
Meas
Quantity
Unit Price
$
Price
Site & General Conditions
7,680.00
15 " RCP (8' -10')
LF
177
$
Mobilization
LS
1
$ 4,000.00
$
4,000.00
Silt Fence 18"
LF
5,920
$ 0.90
$
5,328.00
Erosion Control
LS
1
$ 3,000.00
$
3
Clear and Grubbing
Acres
3.3
$ 4,860.00
$
16,038.00
Sod - Landscape Strip
SY
2,930
$ 1.40
$
4,102.00
Grass Seed/Mulch
Acres
0.74
$ 2,160.00
$
1,598.40
Irigation & Landscaping
LS
1
$ 50,000.00
$
50,000.00
Storm Drainage
15" RCP (0' -6')
LF
255
$
30.54
$
7,843.84
15" RCP (6' -8')
LF
240
$
32.00
$
7,680.00
15 " RCP (8' -10')
LF
177
$
34.00
$
5
15" RCP (10' -12')
LF
898
$
38.00
$
34,124.00
18" RCP (10'- 12')
LF
949
$
41.00
$
38,909.00
42" RCP (10' -12')
LF
177
$
95.00
$
1 6,815.00
18" MES
EA
2
$
1,345.00
$
2,690.00
P-5 Inlet
EA
2
$
2,549.33
$
5,098.66
P -6 Inlet
EA
12
$
2,815.72
$
33,788.64
STS M.H. 48"
EA
1
$
1,414.67
$
1,414.67
STS M.H. 60"
EA
2
$
1
$
3,824.65
Type C Ditch Bottom Inlet (8' -10') &. Wall
LS
1
$
5,000.00
$
5,000.00
Valley Gutter/Inlet
EA
1
$
1,800.00
$
1,800.00
Paving
1.75" SP9.5
SY
4,807
$
8.60
$
41,340.20
6" Crushed Concrete Base
SY
4,807
$
7.30
$
35,091.10
12" Subgrade
SY
9,223
$
2.25
$
20,751.75
Curb, Sidewalks & Paths
Temp. Stabilized Construction Entrance
LS
1
$
25,800.00
$
25,800.00
Valley Gutter
LF
1,125
$
8.50
$
9,562.50
Type F Curb and Gutter
LF
3,580
$
7.00
$
25,060.00
6' T.E. Sidewalk @ 4" Thick
LF
1,740
$
12.65
$
22,011.00
Handicap Ramps
EA
10
$
595.00
$
5
Striping and Signage
LS
1
$
3,000.00
$
3,000.00
Trail Crossing
LS
1
$
43,350.00
$
43
Pond Construction
MBB Impact on Pond 1 Construction (8.2 %)
MBB Impact on Pond 2 Construction (6.7 %)
LS 1 $ 15,625.00 $ 15,625.00
LS 1 $ 13,210.00 $ 13,210.00
SUBTOTAL: $509,824.42
P:IPRDJECT FOLDERS \090816 -LA - Meritage Homes Sonesta Pointelcost estimates \Revised Exhibits 2-17 -
2011.1Revisions 5 27 26111exhibitc -MBB Cost Estimate - jan- 17- 11.x1s
Unit Total Average Total
Category Meas Quantity Unit Price Price
Construction Contingency (5 %) $25,491.22
Professional Fees (Survey,Engineering, Management...etc) (12.5 %) $56,914.46
GRAND TOTAL COST
SUBTOTAL: $92,405.68
GRAND TOTAL $602
P :\PROJECT FOLDERS \090$16 -LA - Meritage Homes Sonesta Pointe \cost estimates \Revised Exhibits 2-17-- -
2011 \Revisions 5 27 2011\exhibitc -MBB Cost Estimate - jan- 17- 11.xls
EXHIBIT C
TABULATION OF QUANTITIES AND COST ESTIMATE
Winter Springs Village
Potable Water System Oversizing
February 17, 2010
Carnahan Proctor Cross
Unit Total Average Total
Category Description Meas Quantity Unit Price Price
Water Main (Cost differential for increasing water main from 8 in. dia. To 12 in. dia.)
Water main ($ 23.50 for 12 inch - $ 15.00 for 8 inch) LF 1,860 $ 8.50 $15,810.00
Gate valves ($ 1,921.00 for 12 inch - $ 1,158.00 for 8 inch) EA 3 $ 753.00 $2,289.00
SUBTOTAL: $15,499,00
Construction Contingency (5 %)
Professional Fees (Survey, Engineering, Management... etc) (12.5 %)
$904.95
$2,375.49
SUBTOTAL: $3,280.44
GRAND TOTAL COST GRAND TOTAL:
$21,379.44
Note: (Cost differential for increasing water main from 8 inch Diameter to 12 inch diameter)
P:IPROJECT FOLDERS\090816 -LA -- Meritage Homes Sonesta Pointelcost estimates\Revised Exhibits 2-17 -
Page 1 24111Revisions 5- 27- 20MEXHIBIT C- POTABLE WATER.x1s
DAIIAIIV
W33
EXHIBIT D -2
TABULATION OF QUANTITIES AND COST ESTIMATE
Winter Springs Village
Pump Station and Force Main Oversizing
May 27, 2011
Carnahan Proctor Cross
Unit Total Average Total
Category Description Meas Quantity Unit Price Price
Lift Station
Pump Station Cost ($ 123,120.00)
Force Main Cost ($ 53,646.90)
LS 1 $ 24,624.00 $24,624.00
LS 1 $ 1 0,729.38 $10,729.38
SUBTOTAL: $35
Construction Contingency (5%)
Professional Fees (Survey, Engineering, Management... etc) (12.5 %)
$1,767.67
$4,640.13
SUBTOTAL: $6
GRAND TOTAL COST
NOTE: Cost allocation for estimated 64 units on Schrimsher residual property.
GRAND TOTAL: $41 9 761.18
P:\PROJECT FOLDERS\ 09081.6 - -LA -- Meritage Homes Sonesta Pointelcost estimates\Revised Exhibits 2- 17- 2011\Revisions 5-27 -
201.1.1exhibit D -2 Pump Station Force Main Credit.xls
A F ■
EXHIBIT E
TABULATION OF QUANTITIES AND COST ESTIMATE
Winter Springs Village
WETLAND PARK OUTFALL
January 17, 2011
Carnahan Proctor Cross
SUBTOTAL: $131
Construction Contingency (10 %)
Professional Fees (Su rvey, Engineering ,Legal,Management...etc) (15 %)
$13,112.17
$21,635.07
SUBTOTAL: $34
GRAND TOTAL COST
GRAND TOTAL: $165
Note: Includes Wetland Park Outfall from the Easterly right -of -way of Michael Blake Blvd.
to Easterly Terminius of Outfall. Does not include that portion of Wetland Park outfall located
in Wetland Park or the right of way of Michael Blake Boulevard.
P:\PROJECT FQLDERS\090816 --LA - Meritage Homes Sonesta Pointe cost estimates\EXHIHIT F WETLAND PARK- 1- 17- 11.x1s
Unit
Total
Average
Total
Category Description
Meas
Quantity
Unit Price
Price
Site & General Conditions
Mobilization
LS
1
$ 1,000.00
$
1
Erasion Control
LS
1
$ 1,000.00
$
1,000.00
Clear and Grubbing
LS
1
$ 2,500.00
$
2
Storm Drainage
42" RCP (10' -12')
LF
1,148
$ 95.00
$
109,050.00
STS M.H. 60"
EA
5
$ 11 ) 912.33
$
9,561.65
Type C Ditch Bottom Inlet (8' -10') & Wall
LS
1
$ 5,000.00
$
5,000.00
Wingwall /Outfall
EA
1
$ 3,000.00
$
3,000.00
SUBTOTAL: $131
Construction Contingency (10 %)
Professional Fees (Su rvey, Engineering ,Legal,Management...etc) (15 %)
$13,112.17
$21,635.07
SUBTOTAL: $34
GRAND TOTAL COST
GRAND TOTAL: $165
Note: Includes Wetland Park Outfall from the Easterly right -of -way of Michael Blake Blvd.
to Easterly Terminius of Outfall. Does not include that portion of Wetland Park outfall located
in Wetland Park or the right of way of Michael Blake Boulevard.
P:\PROJECT FQLDERS\090816 --LA - Meritage Homes Sonesta Pointe cost estimates\EXHIHIT F WETLAND PARK- 1- 17- 11.x1s
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Fir-, C INC. Winter Sprin Villa
ARNAHAN • PROCTOR- CROSS .
OD J COMIJLrW ENIUNEIRS NNERS
CPC AUTH. NO, =20M ME No—uwalls Tree Preservation
LtUIBILITY UNSATISFAGIUM
f OR STOMP
NARYAW MORSE
CLERK OF COURT, SEN I NCLE COUNTY
1750 E LAKE NARY BLVD
SANFCRD, FL 3773
4 -665-4411
DA
fEi06/07/2011
TINE:42:51:0$ PM
RECEIPT: 1050543
BROWN BA RSANESE WE I SS ET AL
CODE - 1029
ITEM -01 AGR 0E:51:08 PN
FILE:20II060353 BKIPG:0 7582/1450
RECORDING FEE 20540
Stih. Total 245 *50
AMOUNT DUE: $845.54
PAID CHECK: $245.50
Check #:31340 $205.50
TOTAL PAID: $205450
REC BY .mTRMITH
DEPUTY CLERK
Have a Nice Day
E
�
NARYAW MORSE
CLERK OF COURT, SEN I NCLE COUNTY
1750 E LAKE NARY BLVD
SANFCRD, FL 3773
4 -665-4411
DA
fEi06/07/2011
TINE:42:51:0$ PM
RECEIPT: 1050543
BROWN BA RSANESE WE I SS ET AL
CODE - 1029
ITEM -01 AGR 0E:51:08 PN
FILE:20II060353 BKIPG:0 7582/1450
RECORDING FEE 20540
Stih. Total 245 *50
AMOUNT DUE: $845.54
PAID CHECK: $245.50
Check #:31340 $205.50
TOTAL PAID: $205450
REC BY .mTRMITH
DEPUTY CLERK
Have a Nice Day
SPRINGS VELLAGE MASS GRADING DEVELOPMENT PE
AGRE
This MERITAGE TUSKAWILLA SITE MASS GRADING DEVELOPMENT
PERMIT AG (the "Permit") is issued by the CITY OF WE4TM SPRINGS, a
Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, winter
Springs, Florida 32708, and agreed to by AGE HOMES of FLORIDA INC., a Florida
corporation ( "Meritage"), whose uktress is 5337 Millenia Lake Blvd, Suite 160, Orlando,
Florida 32839, on thi?L' ODtday of September 2010.
WITNESSETH:
wSEREAs, Meritage is E-11 ! pt ng to obtain then pernlits for a reSdential
development pro ject within the City of Winter Springs commonly known as the Winter Springs
Village (the "Praj ect") and
WHEREAS, Meritage received conditional approval from the City of winter Springs for
a modified concept plan on June 14, 2010 subject to further review regarding Meritage's desire
to receive approval of a number of deviations from the Town Center Code; and
WHEREAS, Meritage is the assignee of permits from the St Johns River water
Mana District (SJRWMD) and U.S. Army Corps of En ` eers (ACOE);and
the approved conceptual plan is compatible with the project clearing and
grubbing and rough 9miding previouslY approved by the SJRWM D, Permit Nos. 4-117- 95697 -1
and 3 and 40 -117- 95697 -2, and ACRE, USACGE NWP -39 (SAJ- 2004 -11066 -EB)); and
S. although Meritage has not received final City approval for the proposed
development of the Project, Meritage desires to proceed with mass grading of the project and
unplement certain conditions set forth in the "SJRWMD" and "ACCE" Permits ", including the
clearing andgrubbing and rough gradina of the Project; and
WHEREAS, although the fugal approvals have not been granted for the development of
the Project, the conditional plans and the site development data and information submitted to the
City to -date are sufficient enough for the City to issue a limited site development permit in order
to allow Meritage to perform preliminary site development in compliance with certain terms and
conditions of the SJRV& D and ACCE Permits and to initiate project development; and