2007-36THIS [NSTRUVIFNT PREPARED BY
AND SI IOUI,ll 13E KETURNED'1'O;
RU'S.SELL Fl: DI-~I:vE, ESQ.
Dr'vine ~~ Esles, A.A.
Post Office 13ax 3629
Orlando, (7w•ida 32802-3629
AGREEMENT
for
CONSTRUCTION OF WATER MAIN, REUSE MAIN anci FORCE MAIN
(Heritage Hills)
TH/S ~{GRF,F.rt~iFNT entered into and made as of the a$ clay of ~Gos~r, 2QO7, by and
between the CITY OF CLERNIQNT, FLORIDA, (hereinafter referred to as the "CITI"'), and
LENNAR HUl41i5, LLC, a Florida limited liability company (hereinafter referred to as the
"LENNAR").
~YITNF..SSIFTI1
I~'HERCs1S, LENNAR is the owner and developer of the Heri age Hills subdivision lying;
~<<itlti-t the nnuiicipal baundares of the. City of Clermont; and more particularly described in L'xftiGit
"A"(hereinafter referred to as the "Property"}; and
1•f~HEREA~S, in connection with its approval of t,l>NNAR's development of Heritage Hills, the
CITY is requiring LENNAR to construct the improvements, including certain additional improvements
necessa~•y for the City's Master Irtfrastrueture Plan, all as set forth on ~.r'7tiLit "B" attached hereto (the
"I n1pCOVe}nents"); and
TVKI;REAS, "I'he CITY and LENNAR will share responsibilities on the praportiottate cost of the
hnprovements as otttlined in Exhibit "B"; and
1rYlIERi'AS, the construction of the Improvements is of beneCt to LENNAR and the CITY and
the CITY is willing to allow LENNAR to construct the Improvements, provided L1rNNAI2 agrees to
pay the etpenses related to the construction as they are incurred and the CITY will reimburse
LENNAR as hereinafter set forth.
IYC)Gl~ TNER~FC)2E, in consideration of the nuih~al promises and covenants herein contained, the
C1TY and LENNAR agree as follows:
SECTION 1. RECITALS
T'he above recitals are true and correct anct form a material part of the A~reement.
S>;C"PION 2. O~VNI;RSHIP & LCGAL DESCRIPTION OF PROPI;R'I'Y
LENNAR represents that it is the present owner of the land platted as HF,RiTAGE HILLS
PFIASES 1 and 2. The legal descriptions of said land, which is herein referenced as the "Property", is set
forth in ~i:lribit "A"attached hereto and by this ref'ercncc made a part hereof.
SECTIQN 3. TITLE TRANSFER,
As part of the plat of T-Ieritage Hills Phase 1, LENNAR Izas dedicated Tract E to the CITY free
and clear of all liens, mortgages, easements, and other encumbrances.
SECTION 4. C(}NSTRI_t("rION OF' I11Plt(}t'E~IrN~rs
CITY hereby agrees to permit LENNAR to construct the Improvements (defined below) on the
fc~llo~~ring basis:
A. Plans arzd Speclflcations.
Booth, Ern, Sti•aughan & Hiott, Inc. ("BESI-i"') has prepared, on behalf of the LENNAR, Plans
and Specifications for "I-Ieritage Hills" which. are mare particularly described on falribit "&" attached
hereto (the "Plans"). The Plans are exp~~essly incorporated herein. anal made a part. hereof by reference.
LENNAR shall construct, or caused to be constructed, the Tmprovernerts set Forth in the Playas in
accordance tivitlz all terms and conditions of the Plans, itaclttdipg but not limited to, the construction
timetable, testing, acid insurance requirements -•elated to the project and as more particularly described in
the Plans. E~eept as specifically set forth on Exhibit "C" and as znay ~tlaer1vise be agrcecl by the parties
in ~~riting, LENNAR shall not be responsible for consn•ucting, and the term "Improvements" shall not
include, anything shown on the Plans as futui:e or later impro~~ement. LENNAR, at its sale expense, shall
obtain all required regulatory and governmental. approvals and permits which are necessary in order to
construct the tnaluoven~etits in accordance with the Plans..
B. Construction Contract
LENNAR shall be responsible to negotiate, select arid. enter into a contract with a qualifred
contractor for the construction of the Improverzae~zts based on the Plans and Specifications.
C. Canstructiqu.
tENhIAR shall begin corzstrtrction of the Improvements within a reasonable tune after ii obtains
issuance anal delivezy of all of the permits and approvals regtired for construction of the Improvements.
Thereafter LENNAR shall diligent y pursue such construction until completion. LENNAR shall
construct the Improvements and install all related facilities in a woz•kmanlike manner in accordance with
the Plans. and applicable gavernn~ental codes and regulations.
D. Reimbursements
LENNAR agrees to construct said Improvements described above, rand agrees to pay for the
Improvements, with reimbursement from the CITY of LENNAR'S achzal cost, based on the cost
allocation set forth in Ei:/ibit "C'" attached hereto, provided the cost is no greater than THRIiE
MILLION .EIGHT HUNDRF,D NINETY TWO TI-IOUSAND TOUR HUNDRED SIX"I'Y ONE AND
16/100 DOLLARS ($3,892,461.16) ("Cost Limit"). The. CI'I'~' hereby acknowledges and agrees that the
CostLirnit has been determined based on the Plans described in Exliihit "B". Upon receipt of invoices
from its contractor, LENNAR shall submit to the CITY a copy of the invoice for review. LENNAR shall
be entitled to cash reimbursements and non-cash reimbursements of the costs of the Improvements as set
forth in Exhibit "C" and such reimbursements shall be governed by the follotiving.
(i) Cash Rein7bu~seme»Ls. 1A~ith respect Co cash reimbursements, LENNAR shall deliver
an invoice to the CITY on the tenth (10'x'} day of each calendar month far reimbursement of the CITY's
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proportionate and unpaid share of the costs incurred through the end of the preceding month. Such
invoice shall provide reasonable detail as to the work pcrfonnecl and materials proviclcd and shall be dtte
and payable by t}te CITY within fourteen (1Q) days of its receipt. Reimburse~ntent by CITY for the costs
of any improvements beyond those defined herein, or costs in excess of the Cost Limit shall require a
written change order approved by the City Council of CITY prior to the improvements requested in the
change order being Ittade or costs being incurred with respect to the subject matter of the change order.
The CITY hereby agrees to reimburse LENNAR for any additional costs incurred above the Cost Limit
due to mistakes by, or actions on the part of, the CITY, its engineers cx• any of its agents or consultants.
GI"i'Y wil[ cause its engineers to certify the Plans to LENNAR prior to the commencement of
construction of the Improvements.
{ii) 1Vo»-Cash Rcinthrrrse»te~tls. With respect to nan-cash reimbursements,
LENNAR's right. to such reimbursement itt the form of impact fee credits or otherwise shall vest upon
LEI\tNAR completing the Improvements to which the non-cash reimbursement applies in accordance
with the Plans and providing evidence to the CITY that all costs associated with sach Improvements
have been paid in full. Tire CITY hereby ~gtees O that LENNAR may use the sewer impact fees crectits
granted by this agreement in any other LENNAR project within the city's wastewater se--vice area, and
(ii) that the sev~~e~r impact fee credits granted by this agreement may be fully transferable by LT/NNAR to
third parties: at the reasonable consideration and approval by the City.
SECTION 5. CURATIVE I'EI2LODS
No default as to any provision ot`this Agreement an the part of either the CITY or i,F.,NNAK
shall be claimed or cftarged by either party against the other until notice thereof has been given to the
defaulting party in writing, and such default remains uncured for a period of thirty (30) days after such
notice, or if the default cannot be reasonably cured within thirty days, the party has not begun the
process to cute the default within thirty {30) da}~s after such notice. Etldt party hereto shall }rave the
right to seek specific performance in circuit court for any uncured defaults ~s to any provision of this
Agreement. In addition thereto., CITY shall, in the .event of LENNAR's uncured default. hereunder,
CITY may act to complete the construction of the Improvements hereunder, including contracting
directly with LENNAR's contractor, performing the work itself or contracting with a third party. In
such event,. LENNAR shall not be relieved of any liability it }nay have with regard to its default
hereunder.
SECTION 6. HOLD HARMLESS AGIZEENIENT
LENNAR hereby agrees to and shall hold the CITY, its elected and appointed boards,
CO1llltttS5lonS, officers, agents and employees harttzless fi•om any liability for damage or claims for
damages for personal injury, including death, as well as claims for property drtmage which may arise
solely iii connection with the construction activities of LENNAR or its respective contractors, agents or
employees in installing. the Improvements. L>/NNAR shall have no obligation to indemnify CITY with
respect to design defects or any failure of the Improvements to operate properly, provided the
Improvements are constructed in accordance with the Plans. Nothing herein shall be utterpreted,
construed as or deemed a waiver of any sovereign inununity that CI'CY may enjoy.
SECTION 7. DURATION OF AGREEMENT
"I'lte duration of this Agreement shall commence upon the execution hereof and shall end on such
date as L>?NNAR receives reimbursement for all the costs it has incurred in connection with the
construction of the Improvements.
SECTION S. COOYI<:RATION IN THE EVENT OF LEGAL CI-IALLENGE
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Irt the event of any legal action instituted by a third party or other governmental entity or official
challenging the validity of any pa-ovisions of this Agreement, the parties hereby agree to cooperate in
defending such action.
SECTION 9. NOTICES
Where notice is herein required to be given, it shall be by certified mail retttr~ receipt requested,
addressee only, hand delivery or courier. Said notice shall be sent to the following as applicable:
LENNAR'S REPRESENTATIVES:
L.ennar Homes, LLC.
1645 East Highway 50, Suite 301
Clermont, FL 3471 1
Phone: 352<241-4432
Fax No.: 352-241-4450
Attn: Christine Sodermark
YVifh a Rer/aired C~/pies' ta:
Lemtar Homes, LLC.
101 Southhall Lane, Suite 200
Maitland, FL 32751
Phone: 407-682-9291
Fax No.: 407-682-1977
Attn:. Mario Chavez
U.S. 14ome Coipor-ation
Legal Department
1070? Clay Road
Houston, TX 77041
Phone: 713-877-231 I
Fax No.: 713-877-2471
CITY'S REPRESENTATIVES:
City of Clermont, Florida
685 w. Montrose Street, 3"' Floor
Clermont, Florida 3471 1
Attn:. Wayne Saunders
Phone: 352-241-7355
Fax No.: 352-394-4087
Should. any party identified. aUove change, it shall be said party's obligation to notify the
remaining parties of the change in a fashion as is required for notices herein.
SECTION 10. TIME IS Oh` THE ESSENCE
Time is hereby declared of the essence as to the lawfitl performance of all duties and obligations
set forth in this Agreement.
SECTION 11. AGREEMENT TO BE BINDING
This Agreement shall be binding upon the CITY and LENNAR and their successors and assigns
in title or interest.
SECTION 13. ENTIRE AGREEMENT/CONTINUING EFFECT/EFFECT UPON OTi-IER
AGCZEEMIsNTS
A. "['his Agreement constitutes t17e entire agreement between the parties as to the matters set
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forth herein and supersedes all previous understandings, discussions and agre:c;ments to the contrary as to
all matters set forth herein whether oral, expressed or impticd.
13. No variations, modifications, amendments or changes shall be binding upon the parties
unless set forth in a written agreement executed by all parties of equal dignity herewith.
SECTION 14. NON-WAIVER
No consent or Gvaiver, expressed. or implied, by either party, to or of any breach or default of
tl~e other party, with regard to the performance by said other party of its obligations under this
Agreement shall be deemed or construed to constihrte consent or evaiver, to or ot; any other breach or
default in the performance of that party, of the same or of any other abjection of performance
incumbent upon that party. Failure on the part of any party to complain of any act or faihu•e_ to act on
the part of the other party in default, irrespective of ho~v long the failure contirxTes, shall not constitute
a waiver by that party of its rights and any remedies that exist under this Afreement, at law, or in
equity..
SECTION 15. GOVh,RNING LAW; VENUE
'I'bis Agreement shall be governed by and construed in accordance with the laws of the State of
Florida. The Venue for purpose of litigation shall be the Fifth Judicial Circuit in Lake County, Florida.
SECTION 16. CITY`S USLLGATIONS
This Agreement shall not tie deemed to pledge the credit of the CITY nor to make tl~e CITY a co-
venturer ar partner of LFNNAR.
SECTION 17. CONSTRUCTION
f\. This Agreement shall not be construed against any party on the basis of it being the
drafter of the Agreement. The parties agree that the parties herein played an equal part. in reciprocity in
drafting this Agreement
13. Capitalized tet-ms contained herein shall have TYO more Force nor effect tharT
uncapitalized terms.
C'. Captions and section headings in this AgreeTnent are provided for convenience only and
shall not he deemed to explain, modify, am}~lify or aid in the interpretation, construction or meaning of
this Developer's Agreement.
I:). There are no third party beneficiaries to this Agreement. This Agreement is entered into
exclusively For the benefit of the parties herein.
SECTION 18. FURTHER ASSURANCE'S
Each party hereto agrees to sign. any other and further instruments and documents, consistent
herewith, as may be -Tecessary and proper in order to give complete effect to the benefits deriving from
the. terms and conditions of this Agreement.
SECTION 19. SEVERABILITY
If any part of this Agreement is found invalid or unenforceable in any court, such invalidity or
unenforcealaility shall not affecC the other parts of that Agreement, if the rights and obligations of the
parties contained herein are not materially prejudiced and if the Intentrons of the parties can be
affected. To that end, this Agreement is declared severable.
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SECTIQN 20. EFP'ECTIVG DATE
This Agreement shall not be effective and binding until this Agreement is approved by
and signed by all parties hereto.
IN WITNESS ~VHEI2EOr,
day and year first above written.
Signed, Sealed and Deliverer
In the Presence af:
Signature of Witness t~1
Printcd'Namc:
Signattn•e of Witness #2
Printed Name:
STAT)/ OF FLORIDA
COUNTY OF
LENNAR. HUIVIES, LLC.
a Florida limited liability company
By:
Printed Name: Christine Sodermark
Title: Executive VicePresident
MAILING AD'I~RESS:1G~151ast Elighway 50, Suite 301
Clermont, FL 3271,1.
E'1z~ foregoing ia~strument was acknowledged before me this day of , 2007, by
as of LENNAR HOMES, LLC., a Florida limited liability
company, on behalf of the company, tivho is personally knc~~vn to me or who 17as produced
as identification and wha diet (did not) take an oath.
Notary Public
Printed Name:
My Commission Expires:
LENNAR and the CITY have executed this Agreement as of the
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Approved as form and CITY OF CLF,RMONT, FLORIDA
Legality for use and reliance by the
City of Clermont, Florida.
B
ame: ~f,
Title: _~_~Qr
AT'T'EST:
By: ~~
Name: ~Oc ~~rc~
Title: Ct~'--4-~~c-IL_.
MAILING AL)QKESS:
tom. ~. `~~ -aoa l ~
C}ermont, Florida 32711
S•I'A"I E OF FLORIDA
COUNTI' OF LAKE
The foregoin ~ tr Went ~~~as acknowledged before me this ~ day of 1,~,~j
2007, ~y 14 / ; ~/ .SE and ~,~(,t.C~-I CK.~'Cj c{n(~, the O,f' _ and
_.C~ respectively, of the City of Clermont, IF UY,da, who are uersonall:y nown to me
and. they acknowledged executing the same freely and voluntarily raider authority vested in them and that
the seal affixed thereto is the true and corporate seal. of the City of Clermont, Florida and produced
as identification and who did (did
not) tike an oath.
~~~ ~~
Notar}~ Public _~.
Printed Name: ~i Q_ /")/
My Comnussion Expires:
,~.~; -,., JANE WA+~REN
:y~ ~~:
~,; ,.~ MY COMMiSS'.C7N }~ DQ ~09t33
Rl~~ gdhdetl Thru Pl ~ry P~,~Liic~naerwrilers
7 `
EXH113ITS
Exhibit "A" - hegal Description for Heritage Hitls
Exhibit "B" - Deseri~~tio1~ of the Plans and Specifications for the imptrovements to be installed
F,xhibit "C' -Cost Sharing and Reimbursement Schedule:
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EXI-IIBIT "A"
LEGAL DESCRIPTION
roR
HERITAGE NILLS
A tract of Ia~3d lying in Section 2 and 3, Township 23 South, Range ?..G 1'sast, r.akc C.'ounty,
7~Ic~rida being; more particularly described tts follatvs:
Commence at the North 1J4 Carnes of Section 2, thence S U0°17' (l'1 W along the West line of
the Northeast l!4 of Section 2 for a distance of 131.8.96 feet to the POINT ClI+ I3EGINNINCr;
thence S 89°38' SU East along the North Ir"nc of the S 1I 2 of the Nort[teastcrly l/4 of Scctiatr 2
for a distance of 2G47.K4 feet tlici~ce ,S UU°{??.2' '[~" 4V alattg the last litre cif the Northeasterly
f/4 of Section 2 far a distance of 1288.41 feet to the Northerly right of way of Ilartwood Marsh
Road;. (An 80.Uf} feet. right of tivay per official Record T3ook :129x, )?age 1952) tttcnce N 8°933'
OS" W along said right of way for a distance of 2031.70 feet to the Point of curvature of'a curve
concave southerly having a radirts of 676.00 feet; thence alu~xg said curve-through ~, central angle
cif 29°37` 34" for a distance of 349.54 fec;t to thv point of truigency; thence S 6U°49'22 W for a
distance of 581.,58 fiet to the Pt~iut of curvature of a curve concave Sautl~eastcrly having a radius
of 422.00 feet; ilxcnce Rlang the arc of said c~~rve throat;}i a central angle of 6°00T 10" for a
distance of 442,80 Feet to Clte paint of tangency; tllcnce S 00°42' 12" ~'V for a distance of 59.22
feet; to a point oti a non-tanfent curve concave Southeasterly artd having a radius of 6222.73
feet; thence departing said right-of-way front a tangent bearing of Soutt- 60E 4tl' Sri" West, run
Southwesterly along the are of said curve through a central angle of 03) 37' 29" for a distance of
393,66 reef to the point of tangency; thence South 57)" 03' 2'7" West for a distt~nce of 851.32 feet;
thence S 89°5~)' Std" ~V for a distance of 3$11.20 feet to the West line o#' the Southeast 1/4 of
Section .3; t.hencc 5 OU°23' OS" W along the Last linC of sAid Southwest l/4 of Section 3 for a
distance of l l t13.9~3 feet; thence S 89°33' S7" ~V aionl the South line; of said. Sor.tthwest 1l4 far a
distance of 1335.49 thence N U°038' l9" L thong the West line cif the l~ 1/ 2 ol'thc Southwest l!4
of Section 3 fc~r a distance of 2655.36 feet; thenoe S f39°4U' 41" ~ along the North line of the S
1/ 2 of Section 3 for a distance of 2315.53 fcc;t; thence N UO°25' l 1" I; Far a cii5tanee of 661.U5
f4et; ihet~ce S 89°39' 4S" C far a distance af' 33U.78 feet; ther3ec N 00°25' S3" L along the WCSt
ItnC Of 1116 E 1/2 or the NQXtheaSt I/4 of S6CtlOt1 3 for a distance of (i6i1.9(i fcc:t tiitnea S
$°93x'49" L talcfng the. North lint: of tl~c Southwest 1/4 of the Northeast 1/4 cif Section 3 Cor a
dist<nce of 1323,66 feet; thence S $°943' 10" E alont; the North line of the S Il 2 of the
North~3rest I/4 of Section 2 for a dititancc of 2648.47 feet. to the I'oIN1' t7F T3EG'INNING.
Containing 442 acres, more or less
exhibit B
Description of the Plans aid Specifications fox the
Improvements to be Installed
plan. Set Name En ineerin Firm Seal llate
IIerita e Hills Phase T BESH, Inc. October 26, 2006
I-Ierita e HiIIs Phase 2 BESH, Inc. October 16, 246
Ilerita e HiIIs Boulevard Extension BESI~, Inc. June 6, 2007
exhibit C
Cost Sharing and
Reimbursement Table
Sewer Impact
tltilit Cost Cash Fee Credits
Force Main 2,337,970.24
Reuse Main 1,187,106.72
Wastewater Subtotal 3,525,076.95 1,405,755.96 2..,119,321.00
Water Main 182,505.60
Raw Water Main 184,878.60
Water Subtotal 367,384.20 367,384.20
Pro'ect Totals 3,892,46.1.16 1,773,140.16 2,119,321.00