HomeMy WebLinkAboutOrdinance - City Council - Regular - 3135 - 8/18/2003ORDINANCE NO. 3135
AN ORDINANCE
TO BE ENTITLED:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FORT MYERS, FLORIDA, DECLARING THE INTENTION
OF THE CITY OF FORT MYERS, FLORIDA, TO CHANGE
ITS TERRITORIAL LIMITS BY THE ANNEXATION OF AN
UNINCORPORATED TRACT OF LAND LYING
CONTIGUOUS TO THE BOUNDARY LIMITS OF THE CITY;
AND FINDING THAT THE CONDITIONS OF
CHAPTER 171, LAWS OF FLORIDA, EXIST FOR
ANNEXATION OF SAID TRACT OF LAND; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF
FORT MYERS, FLORIDA, that:
SECTION 1. (a) The City Council of the City of Fort
Myers, Florida, hereby declares its intention to change the territorial
limits of the City by annexation of the following described land as
hereinafter indicated.
(b) The tract of land which City Council
proposes to annex and make a part of the territory of said City is
described as follows:
A parcel of land lying in the State of Florida, County of Lee,
lying in Sections 10, 11, 12, 13, 14, 15, and 23,
Township 45 South, Range 25 East, being more particularly
described as follows:
Beginning at the northwest corner of said Section 12;
thence N89°55'59"E along the north line of the Northwest
Quarter (NW 1/4) of said Section 12 for 2,593.44 feet to the
northeast corner of the Northwest Quarter (NW 1/4) of said
Section 12; thence continue N89°55'59"E along the north
line of the Northeast Quarter (NE 1/4) of said Section 12 for
69.69 feet; thence SO 1 °05'49"E for 2,646.14 feet to a point
on the north line of the Southeast Quarter (SE 1/4) of said
Section 12; thence N89°5548"E along north line of the
Southeast Quarter (SE 1/4) of said Section 12 for
2,524.41 feet to the northeast corner of the Southeast
Quarter (SE 1/4) of said Section 12; thence S00°57'31"E
along the east line of the Southeast Quarter (SE 1/4) of said
Section 12 for 2,645.06 feet to the southeast corner of said
Section 12; thence S00°40'57"E along the east line of the
Northeast Quarter (NE 1/4) of said Section 13 for
2,647.21 feet to the southeast corner of the Northeast
Quarter (NE 1/4) of said Section 13; thence S00053'05"E
along the east line of the Southeast Quarter (SE 1/4) of said
ORDINANCE NO. 3135
Section 13 for 2,644.11 feet to the southeast corner of said
Section 13; thence N89°4221"W along the south line of the
Southeast Quarter (SE 1/4) of said Section 13 for
2,596.61 feet to the southwest corner of the Southeast
Quarter (SE 1/4) of said Section 13; thence N89°42'31"W
along the south line of the Southwest Quarter (SW 1/4) of
said Section 13 for 2,597.48 feet to the southwest corner of
said Section 13; thence S88°09'06"W along the south line of
Section 14 for 1,353.20 feet to the southwest corner of the
Southeast Quarter (SE 1/4) of the Southeast
Quarter (SE 1/4) of said Section 14; thence S00°56'40"E
along the west line of the Northeast Quarter (NE 1/4) of the
Northeast Quarter (NE 1/4) of Section 23 for 1,321.04 feet
to the southwest corner of the Northeast Quarter (NE 1/4)
of the Northeast Quarter (NE 1/4) of Section 23; thence
S88°07'27"W along the south line of the Northwest
Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of
Section 23 for 1,351.52 feet to the southwest corner of the
Northwest Quarter (NW 1/4) of the Northeast
Quarter (NE 1/4) of Section 23; thence S88°07'59"W along
the south line of the Northeast Quarter (NE 1/4) of the
Northwest Quarter (NW 1/4) of Section 23 for 1,353.52 feet
to the southwest corner of the Northeast Quarter (NE 1/4)
of the Northwest Quarter (NW 1/4) of Section 23; thence
NO1°01'24"W along the west line of the Northeast
Quarter (NE 1/4) of the Northwest Quarter (NW 1/4) of
Section 23 for 909.59 feet; thence N 13"29'05"E for
98.76 feet to the beginning of a curve to the left having a
radius of 1,262.50 feet; thence northeasterly along the arc
of said curve through a central angle of 14°3333" for
320.81 feet; thence NO1004'28"W for 2,645.55 feet to a
point on the north line of the East Half (E 1 / 2) of the
Southwest Quarter (SW 1/4) of said Section 14; thence
N00°52'49"W for 843.65 feet; thence S89°07'11"W for
65.00 feet to a point on the west line of the Southeast
Quarter (SE 1/4) of the Northwest Quarter (NW 1/4) of said
Section 14; thence N00°5249"W along the west line of the
Southeast Quarter (SE 1/4) of the Northwest
Quarter (NW 1/4) of said Section 14 for 477.57 feet the
northwest corner of the Southeast Quarter (SE 1/4) of the
Northwest Quarter (NW 1/4) of said Section 14; thence
S88° 18'58"W along the south line of the Northwest
Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of
Section 14 for 1,357.95 feet to the southwest corner of the
Northwest Quarter (NW 1/4) of the Northwest
Quarter (NW 1/4) of Section 14; thence S89°3425"W along
the south line of the Northeast Quarter (NE 1/4) of the
Northeast Quarter (NE 1/4) of said Section 15 for
640.89 feet to an intersection with the east right-of-way line
of I-75; thence N08021'16"E along the east right-of-way line
of I-75 for 1,925.01 feet to the beginning of a curve to the
left having a radius of 5,891.58 feet; thence northwesterly
along said east right-of-way line of I-75 and said curve
through a central angle of 20° 13'29" for 2,079.66 feet to an
intersection with the north line of the Southeast
Quarter (SE 1/4) of said Section 10; thence N89°30'49"E
along said north line of the Southeast Quarter (SE 1/4) of
Section 10 for 365.87 feet to the northeast corner of the
ORDINANCE NO. 3135
Southeast Quarter (SE 1/4) of said Section 10: thence
N88°35'19"E along the north line of the Southwest
Quarter (SW 1/4) of Section 11 for 2,745.88 feet to the
northeast corner of the Southwest Quarter (SW 1/4) of said
Section 11; thence N00°08'39"W along the west line of the
Northeast Quarter (NE 1/4) of Section 11 for 2,670.56 feet
to an intersection with the north line of Section 11; thence
N89°03'32"E along the north line of the Northeast
Quarter (NE 1/4) of said Section 11 for 2,645.22 feet to the
point of beginning.
Containing 2,243.63 acres, more or less.
Subject to easements, restrictions, reservations and
rights -of -way (recorded and unrecorded, written and
unwritten).
Bearings are based on the north line of Section 12 being
N89055159"E.
SECTION 2. A petition for annexation has been
submitted by Worthington Holdings Southwest, LLC which included the
signatures of all owners of real property of the unincorporated area to be
annexed.
SECTION 3. The City Council hereby finds that:
(a) Said tract of land is contiguous to the present
boundary or territorial limits of the City; and that when annexed, it will
constitute a reasonable compact addition to the incorporated territory
with which it is combined.
(b) Said property is currently vacant. The
annexation will allow for uniformity in municipal boundaries which
enables more cost effective provision of services and facilities by reducing
duplication of services.
SECTION 4. The proposed extension of territorial
limits of said City by the annexation of said described tract of land is
pursuant to the provisions of Chapter 171, Laws of Florida, and does not
create an enclave.
Qualified objectors may object to such
annexation within the time and manner provided by said Statute.
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ORDINANCE NO. 3135
SECTION 5. The property hereby annexed is shown
on the map labeled Arborwood Voluntary Annexation (03A1), attached
hereto as Attachment "A".
SECTION 6. This annexation is subject to the terms
and conditions of the Annexation Agreement, attached hereto as
Attachment "B", between the City of Fort Myers and the aforesaid owners
of the property to be annexed.
SECTION 7. City Council directed that notice of this
annexation be published in The News -Press once each week for two
consecutive weeks prior to adoption of this ordinance, and said notice
was published in The News -Press on August 1, 2003 and August 8,
2003.
SECTION 8. A public hearing was held at the
regular meeting of the City Council of the City of Fort Myers, Lee County,
Florida on August 18, 2003.
SECTION 9. The City Clerk is hereby directed to file
a copy of this ordinance with the Clerk of the Circuit Court of Lee
County, Florida, the chief administrative officer of Lee County and the
Department of State within seven (7) days after the adoption of the
ordinance.
SECTION 10. The City Clerk is hereby directed to
record this ordinance and annexation agreement in the Public Records of
Lee County, Florida.
SECTION 11. This ordinance shall take effect
immediately upon adoption.
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ORDINANCE NO. 3135
PASSED IN PUBLIC SESSION of the City Council of the City of
Fort Myers, Florida, this 18+h day of August, A.D., 2003.
Yea
Tam a Hall
C
Yea
Veronica S. Shoemaker
p.m.
2003.
Yea
Yea
Yea }7 � 1 -
Randall P. Henderso , Jr.
Council Members
APPROVED this 18th day of August, A.D., 2003, at 6:46 o'clock
FILED in the Office of the City Clerk this 18+h day of August, A.D.,
5
Marie Adams, CMC
City Clerk
Official Records RK 04049 FAG 4678
ORDINANCE NO. 3135
M ,t �:Iul�I�tMi:3
ANNEXATION AGREEMENT
between
Annexation Agreement
Execution
WORTHINGTON HOLDINGS SOUTHWEST, LLC
and
CITY OF FORT MYERS, FLORIDA
Executed &, PV&iG�� 2003
Official Records BK 04049 PG 4679
Annexation Agreement
Execution
TABLE OF CONTENTS
Page
ARTICLE I
FINDINGS AND CONSTRUCTION
SECTION 1.01. FINDINGS.................................................................................................2
SECTION 1.02. CONSTRUCTION.....................................................................................4
ARTICLE II
APPLICATION FOR ANNEXATION AND DEVELOPMENT APPROVAL
SECTION 2.01.
APPLICATION FOR VOLUNTARY ANNEXATION.. 5
SECTION 2.02.
APPLICATIONS FOR DEVELOPMENT APPROVAL ...................... 5
SECTION 2.03.
FUTURE LAND USE DESIGNATION.................................................6
SECTION 2.04.
SPECIAL DEVELOPMENT AREA DESIGNATION .......................... 6
SECTION 2.05.
PAYMENT OF CITY COSTS RELATING TO ANNEXATION ........7
SECTION 2.06. WITHDRAWAL OF REQUEST FOR VOLUNTARY
ANNEXATION........................................................................................7
SECTION 2.07. IMPACT FEES AND CREDITS..............................................................8
SECTION 2.08. CONTINUED AGRICULTURAL USE OF THE PROPERTY ............9
ARTICLE III
FACILITATION FOR DEVELOPMENT PURPOSES
SECTION 3.01. ESTABLISHMENT OF COMMUNITY DEVELOPMENT
DISTRICT...............................................................................................11
SECTION 3.02.
ALIGNMENT AND EXTENSION OF TREELINE AVENUE .........12
SECTION 3.03.
COST SHARING AGREEMENT
13
SECTION 3.04.
PERMITS FOR EXTENSIONS..............................................................15
SECTION 3.05.
GENERAL FUND CONTRIBUTION..................................................
16
SECTION 3.06.
TIMELY REVIEW OF APPLICATIONS AND
OTHER SUBMITTALS..........................................................................17
SECTION 3.07.
INFRASTRUCTURE BOND REQUIREMENT..................................17
SECTION 3.08.
DISPOSAL OF ONSITE VEGETATION.............................................18
SECTION 3.09.
COVENANT OF GOOD FAITH CONDUCT....................................18
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Annexation Agreement
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ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. NON-PERFORMANCE.........................................................................19
SECTION 4.02. TIME IS OF THE ESSENCE...................................................................20
SECTION4.03. ENFORCEMENT...................................................................................20
SECTION4.04. LURISDICTION......................................................................................20
SECTION 4.05. ENTIRE AGREEMENT; AMENDMENT...........................................20
SECTION 4.06. EFFECTIVE DATE.................................................................................21
EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT B FORM OF INDUCEMENT AGREEMENT
Official Records BK 04049 FAG 4681
Annexation Agreement
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ANNEXATION AGREEMENT
THIS ANNEXATION AGREEMENT is entered into by and between
Worthington Holdings Southwest, LLC, a Florida limited liability corporation, whose
address for purposes of this Agreement is 9240 Marketplace Road, Fort Myers, Florida
33912 (hereinafter "Worthington") and the City of Fort Myers, a municipal corporation
of the State of Florida, whose address for the purposes of this Agreement is Post Office
Drawer 2217, Fort Myers, Florida 33902-2217 (the "City").
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration each to the other, receipt of which is
hereby acknowledged by each party, Worthington and the City agree as follows.
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ARTICLE I
FINDINGS AND CONSTRUCTION
SECTION 1.01. FINDINGS. It is hereby ascertained, determined and
declared that:
(A) Worthington has represented to the City that it is the owner and/or
contract purchaser of the lands legally described in Exhibit A attached hereto (the
"Property") and, as such, represents that it is authorized to enter into this Agreement.
Worthington has represented to the City that no obligation or undertaking hereunder is
barred or prohibited by contractual agreement or by law.
(B) The Property consists of approximately 2,243.63 acres in the
unincorporated area of Lee County, Florida, contiguous to the boundary of the City.
No part of the Property is included within the boundary of any other incorporated
municipality. The Property is reasonably compact and the parties believe it meets the
requirements for a voluntary annexation as described in Chapter 171, Florida Statutes.
(C) The City and Worthington desire to cooperate and take action to annex
the Property into the City upon the terms and conditions contained in this Agreement.
(D) In authorizing the signing of this Annexation Agreement, the City believes
that the annexation of the approximately 2,243.63 acres comprising the Property is in
the public interest and will be of substantial benefit to the City in that:
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Annexation Agreement
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(1) Annexation and development of the Property will increase
the City's tax base and produce a net increase in the City's general revenues;
(2) Annexation and development of the Property will enable the
City to advance and extend, through the efforts of Worthington, a portion of an
important and viable link which may facilitate the City's plans to loop its water utility
system lines and extend its wastewater system lines; and
(3) Annexation and development of the Property will advance
the growth management policies and objectives of the City.
(E) Worthington by execution hereof requests and consents to the Property
being annexed.
(F) The parties recognize the benefits of outlining the planning, development
and zoning parameters of the Property pending appropriate and legally required
development approvals.
(G) It shall be Worthington's responsibility to obtain all required permits or
governmental approvals required to execute the provisions of this Annexation
Y
Agreement. Time is of the essence in obtaining such permits or governmental
approvals. All such review and approval by the City shall be based upon sound
planning, engineering, and construction practices consistent with those practices
customarily followed by the City.
C
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(H) The Property is contiguous to the Southern boundary of the City along the
Northwest Quarter and the Northeast Quarter of Section 11, Township 45 South, Range
25 East, and a portion of the Northwest Quarter of Section 12, Township 45 South,
Range 25 East.
(I) The requirements of Section 171.044, Florida Statutes, govern this
Annexation Agreement.
SECTION 1.02. CONSTRUCTION. Words importing the singular
number shall include the plural in each case and vice versa, and words importing
persons shall include firms and corporations. The terms "herein," "hereunder,"
"hereby," "hereto," "hereof," and any similar terms, shall refer to this Agreement; the
term "heretofore" shall mean before the date this Agreement is executed; and the term
"hereafter" shall mean after the date this Agreement is executed.
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ARTICLE II
APPLICATION FOR ANNEXATION AND DEVELOPMENT APPROVAL
SECTION 2.01. APPLICATION FOR VOLUNTARY ANNEXATION.
(A) Worthington has or will shortly file an application for voluntary
annexation of the Property with the City. Once filed, Worthington and the City will use
reasonable efforts to process the application in good faith to the successful completion
of the annexation of the Property into the City.
(B) Annexation of the Property into the City is intended to be accomplished
on or before August 30, 2003.
SECTION 2.02. APPLICATIONS FOR DEVELOPMENT APPROVAL.
(A) On or before September 30, 2003, Worthington shall file with the City, the
Southwest Florida Regional Planning Council, and the Florida Department of
Community Affairs one or more applications for development approval ("ADA") for
development of regional impact ("DRI"). DRI/ADA shall request approval for
development parameters for the Property not to exceed: (1) residential development at
gross density of three dwelling units per acre; (2) 600,000 square feet of retail
commercial and/or office space; and (3) two hundred hotel rooms. The City and
Worthington agree to expeditiously process the review of the DRI/ADA, but both
parties acknowledge that the ultimate approval of the DRI development order cannot
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occur until the Property is actually annexed into the City.
(B) Nothing in this Agreement shall be construed to inhibit or prohibit any
needs analysis or requirements of Worthington to provide or fund for essential services
or capital facilities which arise as a part of ADA/DRI process.
SECTION 2.03. FUTURE LAND USE DESIGNATION. The parties
acknowledge that: (1) pursuant to Section 171.062(2), Florida Statutes, the Lee County
land use plan and zoning regulations shall remain in effect until the City adopts a
future land use designation (prior to adoption the developer will file an application for
a future land use map amendment) for the Property and the Florida Department of
Community Affairs finds the future land use designation in compliance with applicable
laws; and (2) the City's Comprehensive Plan requires an amendment to the Future Land
Use Map reflecting the land use for the area to be annexed.
SECTION 2.04. SPECIAL DEVELOPMENT AREA DESIGNATION.
Prior to or concurrent with the submittal of the DRI/ADA, Worthington will submit to
the City: (1) a request to designate the Property, upon approval of annexation, as a
Special Development Area ("SDA") on the City's future land use map; and (2) an
application for a growth management code text amendment that will establish
design/development regulations for future development of the Property. The City and
Worthington agree to expeditiously process the review of these requests, but the parties
acknowledge that consideration of the ultimate approval of these requests cannot occur
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until the Property is actually annexed into the City.
SECTION 2.05. PAYMENT OF CITY COSTS RELATING TO
VOLUNTARY ANNEXATION. Worthington agrees to pay, and the City agrees to
charge Worthington, the City's standard fees for processing and review of the
annexation and development applications presently adopted and in force in the City,
and as same may be amended from time to time, including but not necessarily limited
to fees charged by independent consultants hired by the City to review such
applications pursuant to the City's Code of Ordinances. Worthington expressly
acknowledges that the City may hire multiple consultants, and the City agrees that it
will confer with Worthington regarding the necessity for hiring a consultant in any
particular substantive area; however, Worthington agrees that the ultimate decision of
whether to hire a consultant(s) and which consultant(s) is hired shall lie exclusively
with the City in accordance with its ordinances.
SECTION 2.06. WITHDRAWAL OF REQUEST FOR VOLUNTARY
ANNEXATION. If, during the annexation and development review process,
Worthington determines, in its sole discretion, that the development approvals are not
likely to be obtained in a manner that will be acceptable to Worthington, Worthington
may withdraw its application for voluntary annexation and all other applications for
development approvals contemplated herein. In the event that the development
approvals are not adopted by the City on or before October 1, 2004, the City agrees that
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upon written request by Worthington, the City will initiate the procedures for
contraction described in Section 171.051, Florida Statutes. In conjunction with any
request for contraction, Worthington shall reimburse the City for all reasonable costs
incurred in processing the voluntary annexation request and any contraction
procedures, and this Agreement shall terminate and be of no further force and effect
upon the adoption of the required ordinance so contracting the City's municipal
boundaries.
SECTION 2.07. IMPACT FEES AND CREDITS.
(A) The waiver of water and sewer impact fees for development on the
Property, if done pursuant to Sections 26-41 and 26-96 of the Fort Myers Code of
Ordinances, should reasonably be expected to result in an increase in net revenues to
the City because such waivers will advance construction by Worthington thereby
increasing the City's tax base and the revenues derived from within the development
from taxes and other forms of revenue in excess of the total amount of the sums of such
waivers and other costs to the City, and should be reasonably expected to substantially
advance economic growth within the City. Pursuant to the Fort Myers Code of
Ordinances, Worthington may submit an application for waiver of water and sewer
impact fees in the form required by the City. In processing any such application or
upon granting of any impact fee waivers, the City shall be entitled to an appropriate
administrative fee as may be specified in the applicable ordinance from time to time.
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The City acknowledges that the development on the Property as contemplated herein
requires phasing which will necessitate the issuing of building permits for the
development over a period of time. Upon timely application for water and sewer
impact fee waivers, Sections 21-46 and 26-96 of the Fort Myers Code of Ordinances
currently provide that Worthington may seek to secure a covenant from the City that
will honor the waiver granted for a period not to exceed seven (7) years;
notwithstanding a change in policy or amendment to the City's ordinance that removes
the opportunity to seek waivers as provided in the City ordinances or would otherwise
impose water or sewer impact fees on that portion of the development for which
construction had not commenced. It shall be Worthington's responsibility to monitor
any change in such ordinances.
(B) Worthington shall pay impact fees in accordance with all duly adopted
impact fee ordinances applicable to the Property.
(C) Any support or issuance of impact fee credits for creditable
improvements, donations and or dedications made by Worthington for City roads
which may be applicable to the Property shall be provided only in accordance with
applicable ordinances.
SECTION 2.08. CONTINUED AGRICULTURAL USE OF THE
PROPERTY.
(A) Worthington represents and the City acknowledges that the Property is
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being presently used for agricultural purposes and has, in whole or in part, been
granted an agricultural tax exemption by the Lee County Property Appraiser. It is
Worthington's intent to continue the agricultural use of the Property so as to qualify the
Property for continued agricultural exemption until developed. The City will not object
to Worthington's use of the Property, or any portion thereof, for bona fide agricultural
purposes so long as the Property qualifies for classification as agricultural pursuant to
Section 193.461, Florida Statutes, notwithstanding that the Property may be rezoned for
non-agricultural purposes.
(B) Upon acceptance and recording of a final plat for residential or
commercial subdivision for a portion of the Property, or upon commencement of
development on a portion of the Property, Worthington agrees and acknowledges that
it will terminate its agricultural use and the agricultural exemption for that portion of
the Property covered by a plat or actual physical development beginning on January 1
of the next calendar year following recordation of the plat or commencement of the
development. This provision will not apply to plats that may be created by
Worthington to solely facilitate construction and conveyance of infrastructure
improvements and conveyance of unimproved parcels which will ultimately be platted
for residential or commercial development.
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ARTICLE III
FACILITATION FOR DEVELOPMENT PURPOSES
SECTION 3.01. ESTABLISHMENT OF COMMUNITY DEVELOPMENT
DISTRICT. In the event Worthington initiates a petition to establish a community
development district pursuant to Chapter 190, Florida Statutes, Worthington covenants
that it will, at or prior to submitting any such petition, first enter into an inducement
agreement and that this covenant shall be a material inducement for the City to annex
the Property. The inducement agreement shall be in substantially the form described in
Exhibit B attached hereto and made a part hereof. By way of summary, and not
exclusion, the inducement agreement shall provide that Worthington, as the controlling
constituent in any prospective community development district, shall agree to seek to
cause the district Board of Supervisors as its first substantive act to enter into an
interlocal agreement pursuant to Section 163.01, Florida Statutes. The interlocal
agreement shall confirm, agree and acknowledge that all Property located within the
district is within the service area of the City for purposes of providing water and sewer
utility services. The district shall waive any and all rights to contest the City's right, or
the right of Lee County, Florida, in the event the City is unable to serve the area, to act
as the exclusive provider of water and sewer utility services within the district. The
interlocal agreement must acknowledge that all entities, persons, whether private or
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public, including the district, shall and will be obligated to dedicate, transfer and
convey to the City, in accordance with procedures satisfactory to the City, all water and
sewer facilities and other infrastructure without additional cost to the City, and that
such physical facilities will not and shall not serve as security for any form of financing
or bond indebtedness issued by the district. The terms of such interlocal agreement and
any provisions relating the voluntary annexation contemplated herein shall be disclosed
to any purchasers of any bonds or other obligations of the district. The interlocal
agreement shall provide that neither Worthington nor the developer shall compete or
encourage competition for provision of water and sewer infrastructure and related to
the services by the City. Based upon the foregoing, the City will adopt the appropriate
ordinances and resolutions necessary to establish or support the establishment of a
community development district.
SECTION 3.02. ALIGNMENT AND EXTENSION OF TREELINE
AVENUE. The parties acknowledge that Worthington contemplates developing
access to the Property by extension of Treeline Avenue southward from its existing
terminus just south of Colonial Boulevard or northward from its existing terminus at
the north boundary of Airport Woods Subdivision. The City will facilitate and support
the proposed alignment and extension of Treeline Avenue so as to provide access to the
Property, and will support Lee County's issuance of impact fee credits to Worthington
for land donations, design, permitting, mitigation and actual costs of construction (as
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defined by applicable ordinances and regulations) undertaken to extend Treeline
Avenue as contemplated in this Agreement, and to the extent that the extension and or
construction of other eligible roads to the Property may also qualify for the issuance of
road impact fee credits in whole or in part. Creditable roadway improvements relating
to the development of the Property may be used to offset applicable DRI roadway
improvement obligations, including any required proportional share payment.
SECTION 3.03. COST SHARING AGREEMENT.
(A) By separate agreement, Worthington and the City will provide for the
extension of water and sewer lines from their existing terminus in the Treeline Avenue
right-of-way south of Colonial Boulevard under I-75 to Palomino Lane. The extension
of such utility lines may occur on lands owned or controlled by Worthington located
north of the Property, provided that Worthington provides all necessary easements
without charge to the City. Such agreement shall be consistent with this Annexation
Agreement and incorporate the provisions of Section 3.03 and Section 3.04 hereof.
(B) Worthington understands and acknowledges that the City requires
interconnection of water lines to facilities being developed to the west of I-75 via a
crossing beneath I-75. Worthington shall enter into a utility cost sharing agreement
whereby Worthington agrees to pay for and construct such extension or interconnection
subject only to reimbursement to Worthington, without interest, for (1) the incremental
costs of oversizing; provided however the minimum size water line determined
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necessary for the extension or interconnection shall not be less than 12 inches in
diameter, and (2) the actual and verifiable costs of constructing the utility crossing
beneath only the I-75 right-of-way, less the costs reasonably estimated by the City for
crossing the same distance if the right-of-way were unimproved. To the extent
unavoidable wetland impacts are encountered, the City agrees to reimburse
Worthington, without interest, for one-half of the costs which are related specifically to
such wetland impacts encountered between the western boundary of the I-75 right-of-
way and Palomino Lane.
(C) Worthington understands and acknowledges that the City may require
extension of sewer lines to facilities being developed to the west of I-75 via a crossing
beneath I-75. Worthington shall enter into a utility cost sharing agreement whereby
Worthington agrees to pay for and construct such extension subject only to
reimbursement to Worthington, without interest, for (1) the incremental costs of
oversizing; provided however the minimum size sewer line determined necessary for
the extension shall not be less than 10 inches in diameter, and (2) the actual and
verifiable costs of constructing the utility crossing beneath only the I-75 right-of-way,
less the costs reasonably estimated by the City for crossing the same distance if the
right-of-way were unimproved. To the extent unavoidable wetland impacts are
encountered, the City agrees to reimburse Worthington, without interest, for one-half of
14
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the costs of which are related specifically to such wetland impacts encountered between
the western boundary of the I-75 right-of-way and Palomino Lane.
SECTION 3.04. PERMITS FOR EXTENSIONS. Worthington and the City
shall be co -applicants for all applications required to extend utility lines beneath the I-75
right-of-way and for the easement which will be required from all applicable
governmental entities including the Florida Department of Transportation ("FDOT"),
the South Florida Water Management District ("SFWMD"), and/or the Department of
Environmental Protection of the State of Florida ("DEP") for the right to cross beneath
the right-of-way of I-75, and Worthington shall prepare all documents required in
connection therewith and pay all fees and costs relating thereto. The City shall as co -
applicant assist and expedite the permitting process, provided, however, that the City
shall not be responsible for any monitoring or maintenance requirements associated
with required mitigation for wetland impacts. Worthington shall indemnify and hold
the City harmless from and against any and all liabilities, claims, demands and
expenses incurred by the City by virtue of the development of the improvements so
permitted wherein the City is a co -applicant. If the City chooses not to be, and is not
required to be, a co -applicant it nevertheless shall approve, "sign off' or otherwise
support the application so long as the application is consistent with the terms of this
Annexation Agreement. The parties expressly recognize and agree that the City will
not be a co -applicant in, nor have any responsibility under, any permit application
15
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related to development of the Property (other than as expressly provided in this
Agreement) including, but not necessarily limited to, any Environmental Resource
Permit application submitted by Worthington for the Property.
SECTION 3.05. GENERAL FUND CONTRIBUTION.
(A) In order to reimburse the City for and defray the initial, extraordinary and
indeterminate expenses and costs experienced and expected to be experienced by the
City and to assist and induce the City to focus on and advance the delivery of municipal
services and facilities to areas addressed by this annexation, Worthington hereby
promises and pledges to contribute to the general fund of the City the following:
(1) An "initial contribution" of the sum of One Hundred Sixty
Thousand ($160,000.00) dollars within sixty (60) days of the issuance of the first City site
development permit (excluding Treeline Avenue Extension through the annexed
Property) authorizing construction (vertical or infrastructure) by the City for the
Property to be annexed pursuant to this Agreement;
(2) On July 1 following the date of the "initial contribution" provided
in subparagraph (A) above, Worthington, or its successors and assigns, will provide a
good faith estimate of the number of residential dwelling units which Worthington, or
its successors and assigns, anticipates will be permitted and will receive a certificate of
occupancy on the annexed Property during the coming 12-month period (July 1 through
June 30). Worthington, on behalf of itself and its successors and assigns agrees to and
16
Official Records BK 04049 FAG 4697
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shall pay to the City at the time of each building permit, an amount equal to $140 per
residential dwelling unit. The foregoing covenant shall be deemed a covenant running
with the Property and binding upon all successors and assigns of Worthington.
(3) On each ensuing August 31 Worthington shall provide a report
summarizing the actual number of residential dwelling units that were permitted and
received a certificate of occupancy on the annexed Property during the previous 12-
month period (July 1- June 30).
(B) The provisions and obligations of this Section 3.05 will be incorporated
into any DRI development order adopted for the Property, will run with the land, and
will be binding upon and inure to the benefit of Worthington's successors in interest
and assigns.
SECTION 3.06. TIMELY REVIEW OF APPLICATIONS AND OTHER
SUBMITTALS. The City agrees and intends to review Worthington's applications
for future development of the Property, including, but not limited to, future plats and
building permits, in a timely and expeditious manner. Worthington acknowledges and
agrees that it will work in good faith to timely cooperate and respond to comments
provided by the City.
SECTION 3.07. INFRASTRUCTURE BOND REQUIREMENT. All
infrastructure bond requirements shall be controlled by applicable ordinances and land
development regulations. The City, as a part of the platting process, may reduce
17
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infrastructure bond requirements periodically upon satisfactory completion and
inspection of a portion of the bonded improvements and submittal of a revised
engineer's cost estimate for the remainder of the permits to be constructed under the
plat.
SECTION 3.08. DISPOSAL OF ONSITE VEGETATION. The City
shall not object to, and Worthington shall not be prohibited from, burning onsite
vegetation which is cleared on the Property as part of Worthington's development or
agricultural activities; provided, such clearing is done pursuant to lawfully issued
permits and all necessary permits to allow for such burning are obtained from all
appropriate governmental agencies with jurisdiction over such activities.
SECTION 3.09. COVENANT OF GOOD FAITH CONDUCT. The City
and Worthington covenant with each other to cooperate and work in good faith to
cause the annexation of the Property in conformance with this Agreement and all
provisions of applicable law.
0-]
Official Records BK 04049 FAG 4699
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ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. NON-PERFORMANCE.
(A) In the event that the City or Worthington fail to perform any of the
covenants or pay any of the amounts or provide any of the services as described herein
then the performing party may, after written notice is delivered to the non -performing
party of the non-performance and such non-performance is not cured within sixty (60)
days of such notice, bring an appropriate legal action against or seek mandamus or
specific performance of the terms and covenants from the non -performing party by
filing an appropriate complaint in a Court of competent jurisdiction situated in Lee
County, Florida, in order to seek the remedies described herein.
(B) If the performance of any term or condition set forth in this Annexation
Agreement by any party is prevented, restricted or interfered with by acts of God,
reason of war, revolution, civil commotion, acts of public enemies, strikes, or any other
acts which are beyond the reasonable control of the party affected, then the party so
affected shall be excused from such performance to the extent of such prevention,
restriction or interference. No party to this Annexation Agreement shall be liable for
punitive damages, exemplary damages, consequential damages, lost profits or any
19
Official Records 0K 04049 RAG 4700
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other measure of damages for breach or failure to perform or observe any term or
condition of this Annexation Agreement.
SECTION 4.02. TIME IS OF THE ESSENCE. Time is of the essence
under this Annexation Agreement.
SECTION 4.03. ENFORCEMENT. This Annexation Agreement shall be
construed and enforced in accordance with the laws of the State of Florida and shall be
binding on and inure to the benefit of the parties hereto and their successors and
assigns. This Annexation Agreement does not and shall not be deemed to have
contracted away the City's legislative authority or police powers.
SECTION 4.04. JURISDICTION. Jurisdiction for any litigation arising
under this Annexation Agreement shall lie within the appropriate Court in Lee County,
Florida.
SECTION 4.05. ENTIRE AGREEMENT; AMENDMENT. This Annexation
Agreement is the entire agreement between the parties and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions of the
agreements, understandings, negotiations and discussions of the parties, whether oral
or written, pertaining to the subject matter hereof, and there are no warranties,
representations or other agreements between the parties in connection with the subject
matter hereof, except as specifically set forth herein. Upon execution by all parties, the
City shall provide Worthington with a complete certified copy of this Annexation
20
Official Records BK 04049 PG 4701
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Agreement, together with copies of all exhibits hereto. This Annexation Agreement
may be amended only by an instrument in writing executed by both the City and
Worthington.
SECTION 4.06. EFFECTIVE DATE. This Annexation Agreement shall
be duly executed and entered into as of the date on which the last of the parties hereto
execute this Agreement.
21
Official Records BK 04049 PG 4702
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Execution
IN WITNESS WHEREOF, Worthington has executed this Annexation
Agreement on the day and year indicated below.
� � 1
(Printed Name of Witness)
i.
TU Mo�IGtcJ
(Printed Name of Witness)
STATE OF FLORIDA
COUNTY OF L-6-6,
WORTHINGTON HOLDINGS
SOUTHWEST, LLC, a Florida limited
liability corporation
Date: , 2003
The foregoing instrument was acknowledged before me this zG�{ da of
�U G U 5-�- 2003, by John Gnagey, as Manager of Worthington
Southwest, LLC a limited liability corporation, on behalf of the corporation.
personally known to me/has produced
i en ication.
OYr`�!+ Barbara George
My Commission DD039430
or W Expires September 17 2005
(SEAL)
Y
Holdings
He/She is
Printed/Typed Name: WUM Gero/tGe'
Notary Public -State of FLA tPA
Commission Number:
Commission Expires:
22
as
Official Records BK 04040 PG 4703
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IN WITNESS WHEREOF, the City has executed this Annexation Agreement on
the day and year indicated below.
arc,
City`Clerk
Approved as to legal form:
STATE OF FLORIDA
COUNTY OF LEE
CITY OF FORT MYERS, a municipal
corporation of the State of Florida
mb 003
The foregoing instrument was acknowledged before me this --� day of
2003, Jim Humphrey, as Mayor of the City of Fort Myers,
Florida, known to me to be the Mayor of the City of Fort Myers, Florida, and being
authorized to do so, executed the foregoing Annexation Agreement for the purposes
therein contained under the authority duly invested by the City of Fort Myers, Florida,
and that the seal affixed thereto is the true seal of said City.
WITNESS my hand and official seal in the County and State last aforesaid this
d day o ' - - x-)2003.
inte ped Name:
(SEAL) Commission Expires:
23 OFFICIAL NOTARY SEAL
MARILYN M FERNLEY
NOTARY PUBLIC SPATE OF FLORIDA
COMMISSION NO. DD053274
MY r-O!^!sTON F,XP. SE1716 2 005
Official Records BY, 04049 PG 4704
Annexation Agreement
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Official Records BK 04049 FAG 4705
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DESCRIPTION OF A PARCEL OF LAND LYING IN
SECTIONS 10, 11, 12, 13, 14, 15, & 23, TOWNSHIP 45 SOUTH RANGE 25 EAST,
LEE COUNTY, FLORIDA
(ARBORWOOD ANNEXATION 07-19-2003)
A PARCEL OF LAND LYING IN THE STATE OF FLORIDA, COUNTY OF LEE, LYING IN SECTIONS 10,
11, 12, 13, 14, 15, & 23, TOWNSHIP 45 SOUTH, RANGE 25 EAST, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 12; THENCE N.89°55'59"E. ALONG
THE NORTH LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 12 FOR 2593.44
FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION
12; THENCE CONTINUE N.89°55'59"E. ALONG THE NORTH LINE OF THE NORTHEAST QUARTER
(NE 1/4) OF SAID SECTION 12 FOR 69.69 FEET; THENCE S.01005'49"E. FOR 2646.14 FEET TO A
POINT ON THE NORTH LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 12;
THENCE N.89055'48"E. ALONG NORTH LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SECTION 12 FOR 2524.41 FEET TO THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER
(SE 1/4) OF SAID SECTION 12; THENCE S.00°57'31"E. ALONG THE EAST LINE OF THE
SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 12 FOR 2645.06 FEET TO THE SOUTHEAST
CORNER OF SAID SECTION 12; THENCE S.00°40'57"E. ALONG THE EAST LINE OF THE
NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 13 FOR 2647.21 FEET TO THE SOUTHEAST
CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 13; THENCE S.00°53'05"E.
ALONG THE EAST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 13 FOR
2644.11 FEET TO THE SOUTHEAST CORNER OF SAID SECTION 13; THENCE N.89°42'21"W.
ALONG THE SOUTH .LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 13 FOR
2596.61 FEET TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SECTION 13; THENCE N.89°42'31"W. ALONG THE SOUTH LINE OF THE SOUTHWEST QUARTER
(SW 1/4) OF SAID SECTION 13 FOR 2597.48 FEET TO THE SOUTHWEST CORNER OF SAID
SECTION 13; THENCE S.88009'06"W. ALONG THE SOUTH LINE OF SECTION 14 FOR 1353.20 FEET
TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST
QUARTER (SE 1/4) OF SAID SECTION 14; THENCE S.00°56'40"E. ALONG THE WEST LINE OF THE
NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 23 FOR
1321.04 FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 23; THENCE S.88°07'27"W. ALONG THE SOUTH
LINE OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF
SECTION 23 FOR 1351.52 FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER
(NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 23; THENCE S.88°07'59"W. ALONG
THE SOUTH LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW
1/4) OF SECTION 23 FOR 1353.52 FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST
QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 23; THENCE
N.01001'24"W. ALONG THE WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE
NORTHWEST QUARTER (NW 1/4) OF SECTION 23 FOR 909.59 FEET; THENCE N.13°29'05"E. FOR
98.76 FEET TO THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 1262.50 FEET;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
14033'33" FOR 320.81 FEET; THENCE N.01°04'28"W. FOR 2645.55 FEET TO A POINT ON THE
NORTH LINE OF THE EAST HALF (E 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID
SECTION 14; THENCE N.00°52'49"W. FOR 843.65 FEET; THENCE S.89°07'11"W. FOR 65.00 FEET
TO A POINT ON THE WEST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST
QUARTER (NW 1/4) OF SAID SECTION 14; THENCE N.00°52'49"W. ALONG THE WEST LINE OF THE
SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 14
FOR 477.57 FEET THE NORTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHWEST QUARTER OF SAID SECTION 14; THENCE S.88°18'58"W. ALONG THE SOUTH LINE
OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION
A-1
Official Records BK 04049 PG 4706
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14 FOR 1357.95 FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER (NW 1/4)
OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 14; THENCE S.89°34'25"W. ALONG THE
SOUTH LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF
SAID SECTION 15 FOR 640.89 FEET TO AN INTERSECTION WITH THE EAST RIGHT-OF-WAY LINE
OF 1-75; THENCE N.08°21'16"E. ALONG THE EAST RIGHT-OF-WAY LINE OF 1-75 FOR 1925.01 FEET
TO THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 5891.58 FEET; THENCE
NORTHWESTERLY ALONG SAID EAST RIGHT-OF-WAY LINE OF 1-75 AND SAID CURVE THROUGH
A CENTRAL ANGLE OF 20013'29" FOR 2079.66 FEET TO AN INTERSECTION WITH THE NORTH
LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 10; THENCE N.89030'49"E.
ALONG SAID NORTH LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SECTION 10 FOR 365.87
FEET TO THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION
10: THENCE N.88°35'19"E. ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER (SW 1/4) OF
SECTION 11 FOR 2745.88 FEET TO THE NORTHEAST CORNER OF THE SOUTHWEST QUARTER
(SW 1/4) OF SAID SECTION 11; THENCE N.00°08'39"W. ALONG THE WEST LINE OF THE
NORTHEAST QUARTER (NE 1/4) OF SECTION 11 FOR 2670.56 FEET TO AN INTERSECTION WITH
THE NORTH LINE OF SECTION 11; THENCE N.89003'32"E. ALONG THE NORTH LINE OF THE
NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 11 FOR 2645.22 FEET TO THE POINT OF
BEGINNING.
CONTAINING 2,243.63 ACRES, MORE OR LESS.
SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS -OF -WAY (RECORDED
AND UNRECORDED, WRITTEN AND UNWRITTEN)
BEARINGS ARE BASED ON THE NORTH LINE OF SECTION 12 BEING N.89°55'59"E.
A-2
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EXHIBIT B
FORM OF INDUCEMENT AGREEMENT
Official Records BK 04049 FAG 4708
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INDUCEMENT AGREEMENT
THIS INDUCEMENT AGREEMENT (the "Agreement") is entered into as of the
_ day of , 2003, by and between (the "Landowner"),
and THE CITY OF FORT MYERS, a municipal corporation of the State of Florida (the
"City").
WHEREAS, the parties to this Inducement Agreement have entered into [or are
the successors to] the Annexation Agreement dated as of , 2003 (the
"Annexation Agreement"), between [themselves] for the purpose of developing and
delivering infrastructure and services and the financing of the same on lands owned
and controlled by the Landowner and the immediately surrounding area; and
WHEREAS, Landowner has petitioned to establish a community development
district (the "District") in the incorporated area of the City; and
WHEREAS, the Landowner has agreed to enter into this Inducement Agreement
as an inducement for the City to enter into the Annexation Agreement and to establish
or support the establishment of the District; and
WHEREAS, the Landowner represents that upon creation of the District the
Landowner will be the controlling constituent therein.
NOW, THEREFORE, in consideration of the covenants hereinafter contained the
parties agree as follows:
SECTION 1. INCORPORATION. The above recitals are true and correct
and are incorporated herein.
SECTION 2. INTERLOCAL AGREEMENT. The Landowner, as the
controlling constituent in the community development district, has agreed and agrees
to seek to cause the District Board of Supervisors as its first substantive acts to enter into
(A) the Interlocal Agreement with the City in the form attached hereto and incorporated
by reference as Appendix "A", and (B) to ratify and confirm the Annexation Agreement.
SECTION 3. NOTICE TO THIRD PARTIES. The Landowner
acknowledges that it has and shall provide notice of the contents of this Inducement
Agreement, the Interlocal Agreement, and the Annexation Agreement referenced herein
to its successors, assigns and third party purchasers or lessees or to any parties to which
it has agreed to sell, lease or which it has sold or leased lands within the boundaries of
the proposed District.
B-1
Official Records Big. 04049 FAG 4709
and
Annexation Agreement
Execution
IN WITNESS WHEREOF, the City Council of the City of Fort Myers, Florida,
has caused this Inducement Agreement to be executed and
delivered as of the date first above written.
ATTEST:
City Clerk
B-2
CITY OF FORT MYERS, FLORIDA
Jim Humphrey, Mayor
[Landowner]
By:
Print Name:
Print Title:
Official Records BK 04049 PG 4710
Annexation Agreement
Execution
STATE OF FLORIDA
COUNTY OF LEE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
and , well known to me to be
the Mayor of the City of Fort Myers, Florida, being authorized to do so, executed the
foregoing Inducement Agreement for the purposes therein contained under the
authority duly invested by the City of Fort Myers, Florida, and that the seal affixed
thereto is the true seal of said City.
WITNESS my hand and official seal in the County and State last aforesaid this
day of 2003.
(SEAL)
STATE OF FLORIDA
COUNTY OF LEE
Notary Public
My Commission Expires:
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
as of [Landowner], being
authorized to do so, executed the foregoing Inducement Agreement for the purposes
therein contained under the authority duly invested by the Parker Daniels, Inc.
WITNESS my hand and official seal in the County and State last aforesaid this
day of 2003.
(notarial seal)
B-3
Notary Public
My Commission Expires:
Official Records BK 04049 FAG 4711
Annexation Agreement
Execution
APPENDIX A
TO INDUCEMENT AGREEMENT
INTERLOCAL AGREEMENT
14-mll
Official Records BK 04049 PG 4712
Annexation Agreement
Execution
INTERLOCAL AGREEMENT
THIS INTERLOCAL AGREEMENT is entered into as of the day of
2003, by and between the City of Fort Myers, a municipal
corporation duly organized and validly existing under the Laws of the State of Florida
(the "City"), and Community Development District, a
special purpose unit of local government established pursuant to Chapter 190, Florida
Statutes, (the "District").
RECITALS:
WHEREAS, [Landowner] (the "Petitioner") petitioned to establish a Community
Development District in the incorporated area of the City (hereinafter "Petition"); and
WHEREAS, [Landowner] entered into an Annexation Agreement dated as of
2003 (the "Annexation Agreement"), for the purpose of developing and
delivering infrastructure and services and the financing of the same within the District
and immediately surrounding area (the "Development"); and
WHEREAS, the City and the Petitioner have entered into an Inducement
Agreement designed to obtain the City's support for the establishment of the District;
and
WHEREAS, after careful consideration and duly held public meetings to
consider this matter by both the City and the District, the City and District have found
that: (A) this Interlocal Agreement and the Annexation Agreement furthers the public
purpose of the District and the City, their respective constituents, ratepayers and
landowners or residents, both present and future, and the community as a whole; (B)
the parties enter into this Interlocal Agreement and the District accepts, ratifies and
confirms the Annexation Agreement in good faith to promote cooperation in providing
and creating certain infrastructure and services which will serve the Development
which fully encompasses the District; and (C) the public will reap significant
advantages associated with and emanating from this Interlocal Agreement and the
Annexation Agreement.
NOW THEREFORE, in consideration of Ten Dollars ($10) and other valuable
consideration exchanged amongst the parties hereto and the covenants herein
contained, the parties agree as follows:
IM
Official Records BK 04049 FAG 4713
Annexation Agreement
Execution
SECTION 1. INCORPORATION. The above recitals are true and correct
and are incorporated herein.
SECTION 2. AUTHORITY. This Interlocal Agreement is entered into
pursuant to the provisions of Section 163.01, Florida Statutes.
SECTION 3. INDUCEMENT.
(A) The District acknowledges that the Petitioner agreed to cause execution
and delivery of this Interlocal Agreement by the District in order to induce the City to
support the establishment of or enact an ordinance establishing the District.
(B) Petitioner has signed this Interlocal Agreement for the purpose of
agreeing to and acknowledging its concurrence with the provisions of this Interlocal
Agreement and in so doing providing a material inducement for the City to support the
establishment of or enact an ordinance establishing the District.
(C) The District acknowledges, ratifies and confirms the foregoing
inducements made to the City to support the establishment of or enact an ordinance
establishing the District, and hereby covenants and agrees that the City or, in the event
the City is unable to provide such service, Lee County, shall be the sole and exclusive
provider of water and sewer utility services and that the District shall undertake no
action or activity which competes with or frustrates the provision of such services to the
Development or any other area whatsoever.
SECTION 4. LAND DEVELOPMENT REGULATION.
(A) The parties have entered into this Interlocal Agreement in good faith and
covenant to cooperate with each other in order to create and provide water and sewer
utility facilities to serve the landowners within the District which shall. be designed,
constructed, installed and paid for by the District and then transferred and dedicated to
the City pursuant to the Annexation Agreement and applicable City ordinances,
regulations and policies.
(B) The parties specifically acknowledge that all actions taken by the City
relating to the development and implementation of utility standards and procedures
and subdivision regulations, all as amended, and their successors in function, are
"governmental, planning, environmental and land development regulation" and will be
so recognized in light of any future analysis of Section 190.004(3), Florida Statutes.
Official Records AK 04049 RAG 4714
Annexation Agreement
Execution
(C) The parties confirm, agree and acknowledge that all Property located
within the District is within the service area of the City for purposes of providing water
and sewer utility services. The District hereby waives any and all right to contest the
City's right (or in the event the City is unable to serve the area, then Lee County's right)
to act as the exclusive provider of water and sewer utility services within the District.
(D) The parties confirm, agree and acknowledge that all entities or persons,
whether private or public, including the District, shall and will be obligated to dedicate,
transfer and convey to the City, in accordance with the Annexation Agreement and
standard City procedures, all water and sewer utility facilities and other infrastructure
to the City, without additional cost to the City, and that any such physical facilities will
not and shall not serve as security for any form of financing or bond indebtedness
issued by the District.
SECTION 5. OBLIGATIONS OF THE DISTRICT.
(A) Pursuant to the Constitution and laws of the State of Florida, and Chapter
190, Florida Statutes, any bond or other obligations issued by the District shall neither
be, nor constitute general obligations or indebtedness of the City, the State of Florida, or
any political subdivision thereof, but shall be payable solely from and secured by a lien
upon and a pledge of special assessment proceeds and other monies in the funds and
accounts established under the resolution or indenture pursuant to which any such
bonds are issued or other security provided by the District therefore, in the manner and
to the extent provided in such indenture or resolution. No bondholder shall ever have
the right to compel the exercise of the ad valorem taxing power of the City or the State
of Florida or of any political subdivision thereof or taxation in any form on any real or
personal Property to pay any such bonds or the interest thereon, nor shall any
bondholder be entitled to payment of such principal and interest from any other funds
of the City, the State of Florida or any political subdivision thereof other than from the
security pledged by the District in such resolution or indenture.
(B) The terms of this Interlocal Agreement and the Annexation Agreement
shall be disclosed to the purchasers of any bonds or other obligations of the District.
SECTION 6. EXCLUSIVITY.
(A) It is expressly understood and agreed that the City shall be the sole and
exclusive supplier of water and sewer utility services within the District and, although
the District may construct, install, develop, dedicate and deliver to the City such
M
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facilities and infrastructure at no cost to the City, the District shall not compete with the
City for such purposes.
(B) The District shall neither create nor, to the extent permitted by law, allow
creation of any special district or other governmental authority located wholly or
partially within the geographic territory of the District pursuant to Chapter 189, Florida
Statutes, Section 163.01, Florida Statutes, Section 373.1962, Florida Statutes, or any other
provision of general or special law or by ordinance, resolution or contract.
(C) The District shall not franchise new or expanded private water and sewer
utilities.
(D) The District shall not assist or encourage the creation or expansion of a
private or investor owned water or sewer utility within the District.
SECTION 7. DEFAULT. In the event of a material default in
performance under this Interlocal Agreement by the District, the parties hereto (A)
acknowledge that the District's existence no longer represents the best alternative
available for delivering community development services and facilities to the area
encompassed by the District; (B) acknowledge that the City possesses the ability to
provide all services provided by the District (1) as efficiently as the District, (2) at a level
of quality equal to the quality actually delivered by the District to the users of the
services, and (3) at a charge equal to the actual charges imposed by the District upon the
users of the services; (C) consent to the admission of this Interlocal Agreement as
evidence in any action resulting from the City's adoption of an ordinance effectively
terminating the existence of the District; and (D) waive any right to contest any such
action. Notwithstanding the foregoing, the City agrees that it shall not adopt any
ordinance effectively terminating the existence of the District unless the ordinance
expressly requires that all debt obligations of the District be paid or defeased pursuant
to the indenture of trust under which such debt obligations were issued prior to
termination of the District. The parties acknowledge and confirm that the provisions of
this Section 6 shall be deemed to be consideration made to, and relied upon by, the City
in making its decision to support and/or approve the creation and establishment of the
District and entering into the Annexation Agreement.
SECTION 8. TERM OF AGREEMENT. This Interlocal Agreement shall
become effective in the manner described in Section 12 hereof and shall remain in effect
for the entire period during which the District remains in existence.
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SECTION 9. AMENDMENTS. This Interlocal Agreement may be
modified in writing only by the mutual agreement of both parties in accordance with
their respective laws, rules and procedures.
SECTION 10. BINDING EFFECT. This Interlocal Agreement shall be
binding upon all the parties hereto, their successors and assigns, and all persons
owning or acquiring the ownership of lands within the District shall take title subject to
and with notice hereof.
SECTION 11. CONSTRUCTION AND SEVERABILITY. The parties
agree, intend and acknowledge that this Interlocal Agreement shall be construed
liberally to be valid and enforceable in all respects. In the event any provision of this
Interlocal Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other
provision hereof.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective
upon filing with the Clerk of the Circuit Court in accordance with Section 163.01(11),
Florida Statutes. Any amendments to this Agreement must likewise be filed before they
shall become effective.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed as of the date and year first above written.
ATTEST:
CITY OF FORT MYERS, FLORIDA
By:
City Clerk Mayor
(SEAL)
ATTEST: COMMUNITY DEVELOPMENT DISTRICT
By:
Name:
Title:
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STATE OF FLORIDA
COUNTY OF LEE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
Mayor and , City Clerk, well known to me to be the
Mayor of the City of Fort Myers, Florida, being authorized to do so, executed the
foregoing Interlocal Agreement for the purposes therein contained under the authority
duly invested by the City of Fort Myers, Florida, and that the seal affixed thereto is the
true seal of said City.
WITNESS my hand and official seal in the County and State last aforesaid this
_ day of 2003.
Notary Public
(notarial seal) My Commission Expires:
STATE OF FLORIDA
COUNTY OF LEE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
, as of the Community
Development District, being authorized to do so, executed the foregoing Interlocal
Agreement for the purposes therein contained under the authority duly invested by the
Community Development District, and that the seal
affixed thereto is the true seal of said District.
WITNESS my hand and official seal in the County and State last aforesaid this
_ day of . 2003.
(notarial seal)
B-11
Notary Public
My Commission Expires: