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HomeMy WebLinkAbout1995-064RESOLUTION NO. 95- 64 Resolution of the Board of County Commissioners of Indian River County, Florida, making findings of fact and conclusions of law pertaining to Indian River Mall, a Development of Regional Impact, and constituting this Resolution as an amended Development Order by Indian River County in compliance with law; and providing an effective date. WHEREAS, on July 19, 1994, Indian River County adopted Resolution No. 94-93 approving a development order (the "Development Order") for Indian River Mall, a Development of Regional Impact ("DRI"), pursuant to the provisions of Subsection 380.06, Florida Statutes; and WHEREAS, on September 2, 1994, the State of Florida Department of Community Affairs ("DCA") filed a Notice of Appeal to the State of Florida Land and Water Adjudicatory Commission ("FLWAC") appealing the Development Order, case no. APP -94-081 (the "Appeal"); and WHEREAS, on October 25, 1994, Indian River County adopted Resolution 94-137 approving a first amendment to the Development Order (the "First Amendment"), which fully resolved all issues on appeal (hereinafter the Development Order, as amended by the First Amendment shall be referred to as the "Development Order"); and WHEREAS, on December 12, 1994, FLWAC entered a Final Order of Dismissal of the Appeal; and WHEREAS, ON March 29, 1995, DeBartolo Properties Management, Inc. (the "Developer") filed a Notification of Proposed Change to a Previously Approved Development of Regional Impact Subsection 380.06, Florida Statutes, for the Indian River Mall DRI (the "Development") in accordance with Subsection 380.06, Florida Statutes, (hereinafter the "Notification of Change"). This Notification of Change is attached hereto and incorporated herein as Exhibit "1"; and WHEREAS, the Notification of Change proposed to amend the Development Order to revise Conditions 39, 41, 42, and 44 of the Development Order to establish the responsibilities for design, rights-of-way acquisition, permitting, construction, and required roadway improvements scheduling, under the Development Order; to amend and restate Finding of Fact 5 of the Development Order to recognize that the revisions to Conditions 39, 41, 42, and 44, along with a local agreement for transportation impact fees and credits approved by the county (which agreement shall not diminish the obligations and responsibilities of the parties herein), and along with the traffic monitoring conditions contained in the Developer Order, will satisfy initial concurrency transportation requirements; and to include a new legal description of the real property subject to the Development Order in order to correct a scrivener's error in the original approved legal description (the "Proposed Changes"); and WHEREAS, the Proposed Changes to the Development Order shall constitute the second amendment to the Development Order; and WHEREAS, the Board of County Commissioners, as the governing body of Indian River County having jurisdiction, pursuant to Chapter 380, Florida Statutes, is authorized and empowered to consider the Notification of Change and the Proposed Changes; and WHEREAS, the Board of County Commissioners, on May 23, 1995, held a duly noticed public hearing on the Notification of Change, in accordance with the requirements of Subsection 380.06, Florida Statutes, and applicable local ordinances, and has heard and considered testimony and evidence at such hearing; and 1 WHEREAS, Subsection 380.06(19), Florida Statutes, requires that the Development Order be amended to reflect the approval of the Proposed Changes. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY that the Development Order, be amended as follows: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The following Findings of Fact and Conclusions of Law are made: a. DeBartolo Properties Management, Inc. (the "Developer") submitted the Notification of Change to Indian River County, the Treasure Coast Regional Planning Council, the State of Florida Department of Community Affairs, and all affected agencies, as evidenced by the Developer's Certification attached hereto and incorporated herein as Exhibit "2"; and b. The Notification of Change, attached hereto and incorporated herein as Exhibit "1", proposed to amend the Development Order to revise Conditions 39, 41, 42, and 44 of the Development Order to establish the responsibilities for design, rights-of-way acquisition, permitting, construction, and the required roadway improvements scheduling under the Development Order; to amend and restate Finding of Fact 5 of the Development Order to recognize that the revisions to Conditions 39, 41, 42, and 44, along with a local agreement for transportation impact fees and credits approved by the county (which agreement shall not diminish the obligations and responsibilities of the parties herein), and along with the traffic monitoring conditions contained in the Development Order, will satisfy initial concurrency transportation requirements; and to include a new legal description of the real property subject to the Development Order in order to correct a scrivener's error in the original approved legal description, all as more particularly described in the Notification of Change (the "Proposed Changes"). This Notification of Change is attached hereto and incorporated herein as Exhibit "1"; and c. The Proposed Changes were considered by the Board of County Commissioners at a duly noticed public hearing held on May 23, 1995, pursuant to Subsection 380.06, Florida Statutes; and d. The Proposed Changes, attached hereto and incorporated herein as Exhibit "1", do not create a change to a previously approved Development of Regional Impact constituting a substantial deviation under the provisions of Subsection 380.06, Florida Statues, nor do they create any type of regional impact not previously reviewed by the regional planning agency pursuant to Subsection 380.06, Florida Statutes, and therefore the Proposed Changes do not constitute a substantial deviation under the provisions of Subsection 380.06(19), Florida Statutes; and e. The Proposed Changes are consistent with the State Comprehensive Plan; and f. The Proposed Changes are consistent with all local land development regulations and the local comprehensive plan; and 2 g. The Proposed Changes do not unreasonably interfere with the achievement of the objectives of the adopted State Land Development Plan applicable to the area; and h. A11 statutory procedures and procedures required by agency rule have been adhered to; and i. All Findings of Fact and Conclusions of Law made in the Development Order are incorporated herein by reference, provided however, that to the extent that a finding of fact or conclusion of law in the original Development Order, or any amendments thereto, conflicts with another finding or conclusion in a different amendment, the more recent in time shall control. 2. The Development Order is hereby amended to revise Conditions 39, 41, 42, and 44 of the Development Order to establish the responsibilities for design, rights-of-way acquisition, permitting, construction, and the required roadway improvements scheduling under the Developer Order; to amend and restate Finding of Fact 5 of the Development Order to recognize that the revisions to Conditions 39, 41, 42, and 44 will satisfy initial concurrency transportation requirements; and to include a new legal description of the real property subject to the Development Order in order to correct a scrivener's error in the original approved legal description, all as more particularly described in the Notification of Change (the "Proposed Changes"). This Notification of Change is attached hereto and incorporated herein as Exhibit "1". Accordingly, the Proposed Changes are hereby approved, subject to the terms and conditions herein, and the Development Order is hereby amended to incorporate the Notification of Change as follows: a. Conditions 39, 41, 42, and 44 are amended and restated in their entirety as set forth in Exhibit "3" attached hereto and incorporated herein. b. Finding of Fact 5 is amended and restated in its entirety as follows: 5. The conditional concurrency requirements for drainage, solid waste, water, wastewater, recreation, and transportation have been met under the Indian River County Concurrency Management System. Subject to county approval of a local agreement for transportation impact fees and credits (which agreement shall not diminish the obligations and responsibilities of the parties herein), and subject to the traffic monitoring conditions in this Development Order (as amended), the road improvements contained in Conditions 39, 41, 42, and 44 as amended and presented in Exhibit "3" attached to and incorporated in the second amendment to this Development Order, will satisfy the initial concurrency transportation requirements of the Indian River County Concurrency Management System through buildout of the Development (December 31, 1999) as stated in this development order, and as may be amended. c. The legal description of the real property which is the subject of the Development is hereby amended to correct a scrivener's error and to incorporate the revised legal description for the Development, attached hereto and incorporated herein as Exhibit "4". 3. The Development Order is hereby reaffirmed in its entirety except as amended by this Resolution. 3 4. This Resolution amending the Development Order shall become effective upon rendition by the Board of County Commissioners of Indian River County in accordance with Section 380.06, Florida Statutes. 5. The Developer shall record a notice of adoption of this modification to the adopted Development Order in accordance with subsection 380.06(15)(f), Florida Statutes. 6. Upon adoption, this Resolution shall be transmitted by the Ex Officio. Clerk to the Board of County Commissioners, by certified mail, to the Florida Department of Community Affairs, the Treasure Coast. Regional Planning Council, the Developer, and any other recipients specified by statute or rule. PASSED AND ADOPTED in a public hearing held on this the 23 day of May , 1995. The foregoing resolution was offered by Commissioner Eggert and the motion was seconded by Commissioner Bird , and, upon being put to a vote, the vote was as follows: Chairman Kenneth R. Macht Aye Vice Chairman, Fran B. Adams—A4s-ent Commissioner John B. Tippin Aye— Commissioner Richard N. Bird Aye-- Commissioner Aye_Commissioner Carolyn K. Eggert This Chairman thereupon declared the resolution duly passed and adopted this 23 day of May , 1995. ATTEST: ED AS TO PLANNI G obert M. K Community Develop AICP ent D BOARD OF COUNTY COMMISSIONERS INDIAN RXGER COUNT X FLORIDA By: hairman, Kenneth R. Macht. ou4ty Clerk ERS: ector APPROVED AS TO FORM AND IGAL SUFFICIENCY Zv G G'e r William G. Collins, Esq. Deputy County Attorney u\c\s\irmdoe.ree 4 FORM RPM-BSP-PROPCHANGE- 1 Effective Date 11/20/90 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS DIVISION OF RESOURCE PLANNING AND MANAGEMENT BUREAU OF STATE PLANNING 2740 Centerview Drive Tallahassee, FL 32399 904/488-4925 NOTIFICATION OF A PROPOSED CHANGE TO A PREVIOUSLY APPROVED DEVELOPMENT OF REGIONAL IMPACT (DRI) SUBSECTION 380.06(19), FLORIDA STATUTES Subsection 380.06(19), Florida Statutes, requiresthat submittal ofaproposed change to a previously approved DRI be made to the local government, the regional planning agency, and the state land planning agency according to this form. 1. I, David H. Curl, the undersigned authorized representative of DeBartolo Properties Management, Inc. , hereby give notice of a proposed change to a previously approved Development of Regional Impact in accordance with Subsection 380.06(19), Florida Statutes . In support thereof , I submit the following information concerning the Indian River Mall development, which information is true and correct to the best of my knowledge. I have submitted today, under separate cover, copies of this completed notification to Indian River County, to the Treasure Coast Regional Planning Council, and to the Bureau of Resource Management, Department of Community Affairs. MARCH 23, 1995 (Date) \ • (Signature) David H. Curl, Authorized Agent.. for .DeBartolo Properties Management, Inc. EZWIBIT "1" 2. Applicant (name, address, phone). David H. Curl, Vice President DeBartolo Properties Management, Inc. P.O. Box 3287 Youngstown, OH Phone: (216) 758-7292 3. Authorized Agent (name, address, phone). David H. Curl, Vice President DeBartolo Properties Management, Inc. P.O. Box 3287 Youngstown, Ohio 44512-6085 Phone: (216) 758-7292 Thomas A. Marsicano, Vice President Greiner, Inc. • P.O. Box 31646 Tampa, Florida 33607-1462 Phone: (813) 286-1711 4. Location (City, County, Township/Range/Section) of approved DRI and proposed change. Section 5, Township 33 South, Range 39 East, Indian River County, Florida 5. Provide a complete description of the proposed change. Include any proposed changes to the plan of development, phasing, additional lands, commencement date, build -out date, development order conditions and requirements, or to the representation contained in either the development order or the Application for Development Approval. Indicate such changes on the project master site plan, supplementing with other detailed maps, as appropriate. Additional information may be requested by the Department or any reviewing agency to clarify the nature of the change or the resulting impacts. The specific,changes revisions to the adopted Development Order are set forth in the response to Question 13 of this Notice and attached Exhibits A & B. These specific changes do not result in any changes to the plan of development, phasing, additional lands, commencement date, buildout date, or to representations contained in either the Development Order or the Application for Development Approval. This application proposes two changes to the approved Development Order for the Indian River Mall Development of Regional Impact. The first change consists of the addition of transportation conditions to establish responsibility for the design, permitting, construction and time of completion for the required roadway improvements, these proposed conditions would supersede existing Conditions 39., t eb.M.)s.poaoms 2 41., 42., and 44. of the approved Development Order. The specific language proposed in connection with this change is included in the attached Exhibit A. The second proposed change is to include a new legal description for the project site in order to correct a scrivener's error. in the original legal description filed with the ADA and attached to the approved Development Order. The revised legal description included as Exhibit B, results in a slight increase in the reported project acreage (from 164.520 acres to 164.539 acres), but does not represent an actual increase or addition of land to the project. 6. Complete the attached Substantial Deviation Determination Chart for all land use types approved in the development. If no change is proposed or has occurred, indicate no change. No Change. See response to Questions 5 and 13. 7. List all the dates and resolution numbers (or other appropriate identification numbers) of all modifications or amendments to the originally approved DRI development order that have been adopted by the local government, and provide a brief description of the previous changes (i.e.,any information not already addressed in the Substantial Deviation Determination Chart). Has there been a change in local government jurisdiction for any portion of the* development since the last approval or development order was issued? If so, has the annexing local government adopted a new DRI development order for the project? There has been one previous amendment to the Development Order for Indian River Mall. On October 25, 1994, the Indian River County Commission adopted resolution 94-137 in order to settle an appeal of the original Development Order first approved on July 19, 1994 as Indian River County Resolution 94-93. The first amendment included revisions to the project's commencement date and other minor changes required to provide consistency with the Indian River County Comprehensive Plan. There has been no change in local government jurisdiction for any portion of the project. 8. Describe any lands purchased or optioned within 1/1 mile of the original DRI site subsequent to the original approval or issuance of the DRI development order. Identify such land, its size, intended use, and adjacent non -project land uses within lh mile on a project master site plan or other map. • There have been no lands purchased or optional within 1/4 mile of the original Indian River Mall DRI site subsequent to the approval of the original Development Order. 9. Indicate if the proposed change is less than 40% (cumulatively with other previous changes) of any of the criteria listed in Paragraph 380.06(19)(b), Florida Statutes. The proposed change does not result in a change to any of the parameters or criteria set forth in Paragraph 380.06(19)(b), Florida Statutes. Do you believe this notification of change proposes a change which meets the criteria of Subparagraph 380.06(19)(e)2., F.S. YES NO X 10. Does the proposed change result in a change to the buildout date or any phasing date of the project? If so, indicate the proposed new buildout or phasing dates. No change. 11. Will the proposed change require an amendment to the local government comprehensive plan? (wo db. irmjaopcsceen•30)9$ 4 No change required. Provide the following for incorporation into such an amended development order, pursuant to Subsections 380.06(15), F.S.,and 9J-2.025, Florida Administrative Code: 12. An updated master site plan or other map of the development portraying and distinguishing the proposed changes to the previously approved DRI or development order conditions. There is no change in the master site plan as a result of the changes included in this Notice. 13. Pursuant to Subsection 380.06(19)(f), F.S.,include the precise language that is being proposed to be deleted or added as an amendment to the development order. This language should address and quantify: a. All proposed specific changes to the nature, phasing, and build -out date of the development; to development order conditions and requirements; to commitments and representations in the Application for Development Approval; to the acreage attributable to each described proposed change of land use, open space, areas for preservation, green belts; to structures or to other improvements including locations, square footage, number of units; and other major characteristics or components of the proposed change; b. An updated legal description of the property, if any project acreage is/has been added or deleted to the previously approved plan of development; c. A proposed amended development order deadline for commencing physical development of the proposed changes, if applicable; d. A proposed amended development order termination date that reasonably reflects the time required to complete the development; e. A proposed amended development order date until which the local government agrees that the changes to the DRI shall not be subject to down -zoning, unit density reduction, or intensity reduction, if applicable; and f. Proposed amended development order specifications for the annual report, including the date of submission, contents, and parties to whom the report is submitted as specified in Subsection 9J-2.025 (7), F.A.C. The precise language proposed as an amendment to the Development Order is attached hereto as Exhibit A. A revised legal description correcting a scrivener's error is included as. Exhibit B. EXHIBIT A Proposed Resolution (Including Specific Language for Proposed Conditions as Ex. 3) DEVELOPER'S CERTIFICATION STATE OF FLORIDA ) COUNTY OF HILLSBOROUGH ) I hereby certify that on this day before me, the undersigned notary public authorized in this State and County named above to administer oaths and take acknowledgements, personally appeared Gordon J. Schiff, authorized agent for DeBartolo Properties Management, Inc. , the applicant of the Notification of a Proposed Change to a Previously Approved Development of Regional Impact (DRI) Subsection 380.06(19) , Florida Statutes, for the Indian River Mall development ("Notice of Change") , to me well known, who being by me first duly sworn, says upon oath as stated below: 1. DeBartolo Properties Management, Inc. filed the Notice of Change on March 28, 1995. 2. The Notice of Change was filed with ,11 persons as required by law. STATE OF FLORIDA COUNTY OF HILLSBOROUGH Gordon J. Sc f Authorized A ent for DeBartolo Properties Management, Inc. The foregoing instrument was acknowledged before me this day of , 1995, by Gordon J. Schiff, Authorized Agent for DeBartolo Properties Mana a-ment, Inc., on behalf of the corporation, aid is personally known to me. Notary Public Notary Stamp: EXHIBIT "2" KIMBERLY L. GORE Notary Public, State of Florida My comm. expires: Feb. 24,1999 No. CC 434074 Lykes EXHIBIT 3 The Development Order transportation conditions are amended as .follows. TRANSPORTATION 39. A. Six -lane State Road 60 ("SR 60") from 66th Avenue to 58th Avenue: 1. The Developer shall design, obtain permits for and construct an improvement to SR 60 to expand the roadway from a four to a six lane divided roadway section from the western approach to the 66th Avenue/SR 60 intersection and extending east a distance of approximately one (1) mile to the western approach to the 58th Avenue/SR 60 intersection (the "SR 60 Improvement"). The SR 60 Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. The SR 60 Improvement shall be designed in accordance with a •licable Florida De•artment of Trans•ortation ("FDOT") standards. If the Developer determines that additional right- of-way is needed for the SR 60 Improvement, the Developer shall dedicate property under its ownership which is required for such additional necessary right-of-way. In addition, the County shall acquire or cause to be acquired all such additional necessary right-of-way and temporary construction easements not under the Developer's ownership. If such necessary right-of-way cannot be obtained through donation or negotiation, then within 30 days of Developer providing written notice to the County to commence eminent domain proceedings, the County shall file or cause to be filed a petition in eminent domain and shall utilize the "quick take" procedures available under Chapter 74, Florida Statutes, in exercising its powers of eminent domain, in order to acquire all additional necessary right-of-way and temporary construction easements for the SR 60 Improvement, subject to a Court finding of public purpose and public necessity. The Developer shall reimburse the County for the County's costs incurred in the acquisition of such right-of-way, as described in condition #53 of the original development order. The County and/or the Developer may enter into a joint participation agreement with FDOT in order to obtain any necessary right-of-way and to receive funding from FDOT to pay for resurfacing improvements required by FDOT. Surety in of -credit, Developer, applicable the form of a performance bond, letter - or other surety which is proposed by the and is acceptable to the County under County regulations, shall be provided by CODING: Blocked -out wording is to be deleted. Words underlined are additions. 1 the Developer or its designee contractor for the SR 60 Improvement. No final certificates of occupancy shall be issued for the Development until construction of the SR 60 Improvement is completed from an operational standpoint (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). The SR 60 Improvement shall be completed from an operational standpoint prior to opening any portion of the Development to the public. Completion of the SR 60 Improvement from an operational standpoint shall fully satisfy this condition of the Development Order. 2. Subject to FDOT approval, the Developer shall install signalization at the 66th Avenue/SR 60 intersection and at the SR 60/Access F intersection. Upon installation of such signalization, the County shall accept such signalization for all future maintenance and operation. Prior to issuance of a final certificate of occupancy for the project, the Developer and the County shall enter into a local signal maintenance agreement for the SR 60/Access F signal, and the Developer shall fund operation and maintenance costs. The Developer may provide a bill(s) of sale or other written instrument(11 evidencing the conveyance of any and all of Owner's and Developer's right, title and interest in the signals to the county (or FDOT, as applicable) and the County's (or FDOT's) acceptance of all future maintenance and operation responsibilities. B. Four -lane 58th Avenue from 26th Street to SR 60: The County shall acquire necessary right-of-way and temporary construction easements, design, obtain permits for and construct a four -lane section of 58th Avenue from the northern approach to the 58th Avenue/26th Street intersection to the northern approach of the 58th Avenue/SR 60 intersection (the "58th Avenue Section I Improvement"). The 58th Avenue Section I Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. The 58th Avenue Section I Improvement shall be designed in accordance with adopted Indian River County standards. The County acknowledges that the 58th Avenue Section I Improvement is included within the first three years of Indian River County's adopted Capital Improvements Program ("CIP"). No final certificates of occupancy shall be issued for the Development until construction of the 58th Avenue Section I Improvement is underway (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). CODING: Blocked -out wording is to be deleted. Words underlined are additions. 2 The County shall commence construction of the 58th Avenue Section I Improvement no later than September 1, 1996, subject to the Developer paying costs associated with accelerating permitting and design for the subject improvements. The total costs associated with accelerating the 58th Avenue Section I and II Improvements are estimated to be $15,000. Such payment shall be made within 60 days of approval of the Second Amendment to the Development Order, subject to no appeals. If such payment is not made by such date, no final certificates of occupancy shall be issued for the Development until the 58th Avenue Section I Improvement is underway. As an alternative, if Indian River County amends its Concurrency Management System within the parameters set forth in Rule 9J -5.0055(3)(c), F.A.C. (that is, such improvement is guaranteed to be in place or under actual construction within 3 years after issuance of a certificate of occupancy or its functional equivalent), as it may be amended from time to time, which would allow for issuance of final certificate(s) of occupancy prior to construction of the 58th Avenue Section I Improvement being underway then the Developer shall be entitled to a final certificate(s) of occupancy in accordance with the Concurrency Management System, as modified. It is estimated that the 58th Avenue Section I Improvement shall be completed from an operational standpoint within eighteen (18) months of commencement of construction of the 58th Avenue Section I Improvement. For the 58th Avenue Section I Improvement, the County agrees to obtain from the contractor surety in the form of a performance bond, letter -of -credit, or other surety. Completion of the 58th Avenue Section I Improvement from an operational standpoint shall fully satisfy this condition of the Development Order. C. Four -lane 58th Avenue from SR 60 to 16th Street: The County shall acquire necessary right-of-way and temporary construction easements, design, obtain permits for and construct a four -lane section of 58th Avenue from the northern approach of the 58th Avenue/ SR 60 intersection to the southern approach of the 58th Avenue/16th Street intersection (the "58th Avenue Section II Improvement"). The 58th Avenue Section II Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. The 58th Avenue Section II Improvement shall be designed in accordance with adopted Indian River County standards. The County acknowledges that the 58th Avenue Section II Improvement is included within the first three years of Indian River County's adopted CIP. No final certificates of occupancy shall be issued for the Development until construction of the 58th Avenue Section II Improvement is underway (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). County agrees to commence construction of the 58th Avenue Section II Improvement J no later than September 1, 1996, subject to the Developer paying costs associated CODING: Blocked -out wording is to be deleted. Words underlined are additions. 3 with accelerating permitting and design for the subject improvements. The total costs associated with accelerating the 58th Avenue Section I and Section II Improvements are estimated to be $15,000. Such payment shall be made within 60 days of approval of the Second Amendment to the Development Order, subject to no appeals. If such payment is not made by such date, no final certificates of occupancy shall be issued for the Development until the 58th Avenue Section II Improvement is underway. As an alternative, if Indian River County amends its Concurrency Management System within the parameters set forth in Rule 9J -5.0055(3)(c), F.A.C. (that is, such improvement is guaranteed to be in place or under actual construction within 3 years after issuance of a certificate of occupancy or its functional equivalent), as it may be amended from time to time, which would allow for issuance of final certificate(s) of occupancy prior to construction of the 58th Avenue Section II Improvement being underway then the Developer shall be entitled to a final certificate(s) of occupancy in accordance with the Concurrency Management System, as modified. It is estimated that the 58th Avenue Section II Improvement shall be completed from an operational standpoint within eighteen (18) months of commencement of construction of the 58th Avenue Section II Improvement. For the 58th Avenue Section II Improvement, the County shall obtain from the contractor surety in the form of a performance bond, letter -of -credit, or other surety. Completion of the 58th Avenue Section II Improvement from an operational standpoint shall fully satisfy this condition of the Development Order. D. Paving of 26th Street Between 66th Avenue and 58th Avenue: The improvement shall consist of the paving of 26th Street from 66th Avenue (including intersection improvements at 66th Avenue/26th Street) to the western approach of the 26th Street/58th Avenue intersection as a two-lane collector street with swale drainage within an approximately eighty (80) foot right-of-way (the "26th Street Improvement"). The 26th Street Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. The County agrees to design, acquire necessary right-of-way and temporary construction easements, obtain permits for and construct the 26th Street Improvement. The Developer will provide the design for the box culvert which will carry 26th Street over Lateral Canal "A". The 26th Street Improvement shall be designed in accordance with applicable County standards. The County agrees to pursue acquisition of necessary right-of-way and temporary construction easements for the 26th Street Improvement under the established Indian River County petition paving program (the "Petition Paving Program"). The Developer shall use its best efforts to assist the County in obtaining necessary right-of-way for the 26th Street Improvement under the established Petition Paving Program. The County agrees that, if it has not acquired all necessary right-of-way and temporary construction easements through the Petition Paving Program by September 1, 1995, County shall file a petition in eminent domain and shall utilize the "quick take" procedures available under Chapter 74, Florida Statutes, CODING: Blocked -out wording is to be deleted. Words underlined are additions. 4 in exercising its powers of eminent domain, in order to acquire all necessary riqht-of-way and temporary construction easements for the 26th Street Improvement, subject to a Court finding of public purpose and public necessity. O Any costs over and above fair market value for such right-of-way , such as expert fees, appraisal costs, attorneys fees and court costs associated with ri•ht-of-wa takin•s shall be borne b the Develo No settlement prior to jury award shall occur without the prior approval of the Developer. The County shall also be responsible for relocation of any existing utilities and/or installation of any new utilities, including but not limited to water and wastewater lines and facilities. The Developer, at its option, may elect to pay the County's costs associated with the intersection improvements at 66th Avenue/26th Street (in lieu of being assessed for such improvements). The County shall complete construction of the 26th Street Improvement from an operational standpoint by September 1, 1996. If a contractor is used for the 26th Street Improvement, the County shall obtain from the contractor surety in the form of a performance bond, letter -of - credit, or other surety. No final certificates of occupancy shall be issued for the Development until the 26th Street Improvement is constructed from an operational standpoint (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). The completion of the 26th Street Improvement from an operational standpoint shall fully satisfy this condition of the Development Order. E. Intersection Expansion at 26th Street/Northern Project Entrance: 1. The County shall design and obtain permits for the portion of the intersection expansion at the 26th Street/northern project entrance (Access A) that is within county road right-of-way (the "26th Street/Northern Project Entrance Improvement"). The 26th Street/North Project Entrance Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. The 26th Street/Northern Project Entrance Improvement shall be designed in accordance with applicable Indian River County standards. The County shall construct the portion of the 26th Street/Northern Project Entrance Improvement within the 26th Street road right-of-way. The Developer shall pay for the westbound to southbound left turn lane improvement servicing the northern project entrance. The Developer shall construct the portion of the 26th Street/Northern Project Entrance Improvement within the Property (Access A) and shall construct CODING: Blocked -out wording is to be deleted. Words underlined are additions. 5 the crossing of the Indian River Farms Water Control District canal right-of-way which is located between the Development's Property boundary and the 26th Street right-of-way. The County and Developer shall complete their respective portions of the 26th Street/Northern Project Entrance Improvement from an operational standpoint by September 1, 1996. No final certificates of occupancy shall be issued for the Development until the 26th Street/Northern Project Entrance Improvement is completed from an operational standpoint (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). The completion of the 26th Street/Northern Project Entrance Improvement from an operational standpoint shall fully satisfy this condition of the Development Order. 2. Developer shall design, obtain permits for and install signalization at the 26th Street/Northern Project Entrance, when warranted, in accordance with applicable Indian River County standards. Upon installation of such signalization, County shall accept such signalization for all future maintenance and operation of such signalization. The Developer and the County shall enter into a local signal maintenance agreement for the 26th Street/Northern Project Entrance signal, and the Developer shall fund operation and maintenance costs. Developer and/or Owner may provide a bill of sale or other written instrument evidencing the conveyance of any and all Developer and Owner's right, title and interest in the signal to the County (or FDOT, as applicable) and the County's (or FDOT's) acceptance of all future maintenance and operation responsibilities. F. SR 60/58th Avenue Intersection: Developer shall design, obtain permits for and construct one (1) eastbound through/right-turn lane at the SR 60/58th Avenue intersection. With the addition of such improvement, the eastbound and westbound approaches to the intersection on SR 60 will provide the following lane configuration: Eastbound (SR 60) one (1) left -turn lane, two (2) through lanes and one (1) right -turn lane; Westbound (SR 60) one (1) left -turn lane, two (2) through lanes and one (1) through/right-turn lane (the "Developer SR 60/58th Avenue Intersection Improvements"). The County shall design, obtain permits for and construct a northbound dual left -turn lanes on the northbound approach to the SR 60/58th Avenue intersection. With the addition of such improvement, the northbound and southbound approaches to the intersection on 58th Avenue will provide the following lane configuration: Northbound (58th Avenue) two (2) left -turn lanes, one (1) through lane and one (1) through/right-turn lane; Southbound (58th Avenue) one (1) left -turn lane, one (1) CODING: Blocked -out wording is to be deleted. Words underlined are additions. 6 through lane and one (1) through/right-turn lane (the "County SR 60/58th Avenue Intersection Improvements"). The Developer and County SR 60/58th Avenue Intersection Improvements are depicted on Exhibit "A", attached hereto and incorporated herein. The Developer and County SR 60/58th Avenue Intersection Improvements shall be designed in accordance with applicable County and FDOT standards. Developer shall construct the Developer SR 60/58th Avenue Intersection Improvements as part of the SR 60 Improvement set forth in subparagraph A.1., above, and shall be subject to the same timeframes, design standards and surety provisions set forth for such improvement. County shall construct the County SR 60/58th Avenue Intersection Improvements (including required signal modifications on the SR 60 and 58th Avenue approaches) as part of the 58th Avenue Segment I and Segment II Improvements set forth in subparagraphs B. and C. above, and shall be subject to the same timeframes, design standards and surety provisions set forth for such improvements. No final certificates of occupancy shall be issued for the Development until the County and Developer SR 60/58th Avenue Intersection Improvements are completed from an operational standpoint or construction is underway (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public, in accordance with applicable Indian River County Codes). Completion of the County and Developer SR 60/58th Avenue Intersection Improvements shall fully satisfy this condition of the Development Order. G. SR 60/Access F Intersection: Developer shall design, obtain permits for and construct the Southbound (Access F)/Eastbound (SR 60)/Westbound (SR 60) intersection (the "SR 60/Access F Intersection Improvement") as part of the SR 60 Improvement set forth in subparagraph A.1., above, and shall be subject to the same timeframes, design standards and surety provisions set forth for such improvement. The SR 60/Access F Intersection Improvement is depicted on Exhibit "A", attached hereto and incorporated herein. No final certificates of occupancy shall be issued for the Development until the SR 60/Access F Intersection Improvement is completed from an operational standpoint (temporary or conditional certificates of occupancy may be issued for purposes other than opening buildings to the public, such as for purposes of training employees, receiving inventories, stocking shelves and displays, and similar preparation activities prior to opening to the public in accordance with applicable Indian River County Codes). Completion of the SR 60/Access F Intersection Improvement shall fully satisfy this condition of the Development Order. H. Allowable Delays In the event that the performance by the Developer or the County relating to any of the commitment dates set forth CODING: Blocked -out wording is to be deleted. Words underlined are additions. 7 in this Development Order shall be interrupted, hindered, delayed or prevented by reason of strikes, lockouts or labor troubles; inability to procure construction materials due to general shortage, government rationing or regulation of labor, materials, equipment, facilities or sources of energy (including, without limitation, electricity, oil or gas); failure of power or transportation; riots, mob violence, sabotage, malicious mischief, insurrection, civil commotion or war; Acts of God fire earth•uake flood hurricane, explosion, natural disaster or other casualty or other reasons of a similar nature beyond the reasonable control of the Developer or the County, as applicable, in performing work or doing acts specified under the terms of this Development Order, then, and in each such event, Developer or County, as applicable, shall be excused from such performance or act for the period of delay (including the period of both the actual delay and any consequential delays resulting therefrom) and any period set forth in the conditions of this Development Order in performance of any such work or act shall be extended for a period equivalent to the period of such delay (including the period of both the actual delay and any consequential delays resulting therefrom). 40. Prior to site plan release, the developer shall dedicate to the county and the Indian River Farms Water Control District a 30' wide access easement for canal maintenance purposes. Said easement shall run the length of the Lateral "A" Canal from SR 60 to 26th Street. The easement will allow possible future maintenance of the canal from the canal's east side, rather than from the canal's 66th Avenue side. Such a shift in maintenance sides is intended to maximize the ability of the county to use canal right-of-way along 66th Avenue for road purposes which could help minimize the amount of 66th Avenue future expansion westbound, toward the Vista Plantation golf course. Note: Original conditions 41 and 42 have been deleted. 1,1kt. 1;U ;8th �..� rirr• , t I,�ri•. ',2,t li I,.,21,t h ',t r —4‘1 t :,2 r,U; tn,1 r,ut ',2l h A. uu, I 1 iii :,It 1,1) t 11,12 Ht ,•t II., ,.r t i I i, ,tt — I iil,,tri, .i1.1 l I I— ..-,114•1 I •t t It 111,1.1,m It; ,I I I 1 l.,I. nt I I;—li• u,tl i1111.1.-1 tint i I tli• t—t,l...1.,. t.:l,:tI 1 ,n ut.,1-1 ,IL i.-, in L1,1• -i ,t11,1 —1,,,t ,11 i ,11,11, ,incl t ire 1;111 ,il,,,.,• .11,• 111 1,I,t.. ui,l •,1,"1,1t i t),11 ••r ,t, 1 ti.tl i.,1 u 1 i,,ri I.-, uri,l, t .:,I, . 42. ti, • f i 1,11111 1„ iniil:-: I 1 l ii. Irv1 1.111 Iii .• r '•',t11 1, 1•111. •2 ,•1 !•'� l i , 1,11 11111,1 1,11,11 1 1i1i.•,1 unl i I i t li..t : 1 I -•,t:t 1,1, 1 :: li 1, • 1, I, 1 I 111— 1„I I . t„t, l.: t E,tit:.i„rt.,; 2. lli,. CODING: Blocked -out wording is to be deleted. Words underlined are additions. 8 -111111111111111111111 43. Commencing in 1997, the developer shall undertake a traffic monitoring program which shall be updated on an annual basis and included in the Annual Report as specified in the Development Order. The developer shall submit a Traffic Monitoring Report to Indian River County, Florida Department of Transportation (FDOT) and Treasure Coast Regional Planning Council (TCRPC) for 58th Avenue from 41st Street to 26th Street and 58th Avenue from 16th Street to 12th Street. The methodology to be used for traffic monitoring and reporting shall be discussed and agreed to at a meeting to be convened by Indian River County with FDOT, TCRPC, the City of Vero Beach, and the developer prior to 1997. As a minimum, the report shall: a. present existing traffic volumes; b. present existing level of service with all analysis used to determine the level of service; c. determine traffic projections for each roadway link and intersection for one year into the future including background, discounting all new traffic from other projects in Indian River County, plus project traffic; d. specify roadway expansions necessary to provide Level of Service D for peak-hour/peak-season conditions on the monitored roadway links and intersections; and e. identify methods for funding the necessary roadway expansions. Commencing in the year 1997, no further building permits for the Indian River Mall Development of Regional Impact shall be issued after three months from the due date of the Annual Report as established in the Development Order, until the Traffic Monitoring Report referenced above has been submitted to and approved by Indian River County, FDOT, TCRPC, in consultation with the City of Vero Beach. No further certificates of occupancy shall be issued for the Indian River Mall Development of Regional Impact within a year of the date of the Traffic Monitoring Report until roadway CODING: Blocked -out wording is to be deleted. Words underlined are additions. 9 expansions, if any, specified in the approved Traffic Monitoring Report are under construction. Monitoring of the roadway links may be discontinued once expansion of the roadway links to a four -lane cross-section are under construction or by buildout of the Indian River Mall. NOTE: Original condition 44 has been deleted. 45. A signal warrant study shall be conducted at the following intersections at a time and by a method acceptable to Indian River County and the Florida Department of Transportation: a. b. c. d. SR 60 and Access F; SR 60 and 66th Avenue; 26th Street and 58th Avenue; and 26th Street and Access A. Required signalization shall be permitted and constructed in accordance with applicable Indian River County criteria on county roads and Florida Department of Transportation criteria CODING: Blocked -out wording is to be deleted. Words underlined are additions. 10 on State roads. Indian River County and Florida Department of Transportation shall establish a date for the installation of any signalization required at the above referenced intersections. The issuance of building permits for the project shall cease if signalization is not installed within one year of the established date. 46. No more than one signalized intersection and one full median opening designed in accordance with applicable Florida Department of Transportation (FDOT) standards shall be allowed along SR 60 between 66th Avenue and 58th Avenue unless otherwise approved by FDOT and Indian River County. 47. As a minimum, the developer shall pay a fair share contribution consistent with the road impact fee ordinance of Indian River County in effect at the time of issuance of building permits. Any DRI Development Order exaction or fee shall be credited toward an impact fee or exaction imposed by local ordinances for the same need. 48. Commencing in 1997, the developer shall undertake a traffic monitoring program which shall be updated on an annual basis and included in the Annual Report as identified in the Development Order. The developer shall submit a Traffic Monitoring Report to Indian River County for 16th/17th Street from 43rd Avenue to 27th Avenue. The methodology to be used when preparing the Report shall be discussed and agreed to at a meeting between Indian River County, the City of Vero Beach, and the developer held prior to 1997. As a minimum, the report shall: a. present existing traffic volume; b. present existing level of service with all analysis used to determine the level of service; c. determine traffic projections for each roadway link and intersection for one year into the future including background, discounting all new traffic from other projects in Indian River County, plus project traffic; d. specify improvements necessary to provide Level of Service D for peak-hour/peak-season conditions on the monitored roadway links and intersections; and e. identify methods for funding the necessary roadway expansions. Commencing in the year 1997, no further building permits for the Indian River Mall Development of Regional Impact shall be issued after three months from the due date of the Annual Report as established in the Development Order, until the Traffic Monitoring Report referenced above has been submitted to and approved by Indian River County and the City of Vero Beach. No further certificates of occupancy shall be issued for the Indian River Mall Development of Regional Impact within a year of the date of the Traffic Monitoring Report until roadway expansions, if any, specified in the approved Traffic Monitoring Report are under construction. Monitoring of the roadway links may be discontinued once expansion of the roadway link to a four -lane cross-section is under construction or by buildout of the Indian River Mall. 49. Commencing in 1995 and continuing every year thereafter, the developer shall submit an Annual Status Report indicating the CODING: Blocked -out wording is to be deleted. Words underlined are additions. 11 status (schedule) of guaranteed roadway expansions. This Annual Status Report shall be submitted to Indian River County, Florida Department of Transportation, Treasure Coast Regional Planning Council and the Department of Community Affairs as part of the Development of Regional Impact Annual Report. The Annual Status Report shall list all roadway expansions needed to be constructed by phase, the guaranteed date of completion for the construction of each needed expansion, the party responsible for the guaranteed construction of each expansion, and the form of the binding commitment that guarantees construction of each expansion. 50. A traffic methodology meeting shall be conducted for any proposed change to the Development Order that may affect traffic, such as an increase in project size and extension of the project buildout dates. The Florida Department of Transportation, the Department of Community Affairs, Treasure Coast Regional Planning Council, Indian River County, and the City of Vero Beach shall be present at the meeting. Issues to be discussed at the meeting include, but are not limited to: trip generation rates, trip distribution and assignment, passer-by rates, growth factors, application of the growth factors, approved developments in the area, and proposed roadway expansions. A traffic study shall be submitted to the Florida Department of Transportation, Department of Community Affairs, Treasure Coast Regional Planning Council, Indian River County, and the City of Vero Beach which will determine traffic impacts of the proposed change. This study will incorporate the methodology discussed at the traffic methodology meeting. The traffic study shall identify any additional roadway expansions necessary to maintain the subject transportation network at objective levels of service. Additional building permits shall not be issued for the portions of the Indian River Mall Development of Regional Impact that are the subject of the proposed change until: 1) a new project phasing program and roadway expansion program necessary to maintain acceptable levels of service for the remainder of the development has been approved by Indian River County, Florida Department of Transportation, Department of Community Affairs, and Treasure Coast Regional Planning Council in consultation with the City of Vero Beach; and b) the Development Order has been amended to reflect the new phasing program and set of additional roadway expansions. 51. No additional building permit shall be issued after December 31, 1999, unless a traffic study has been conducted by the developer, and submitted to and approved by Indian River County, Florida Department of Transportation, Department of Community Affairs, and Treasure Coast Regional Planning Council, in consultation with the City of Vero Beach, which demonstrate that the regional roadway network can accommodate the remaining (yet to be generated) Indian River Mall generated traffic and growth in background traffic beyond 1999 and still be maintained at Level of Service D during peak- hour/peak-season conditions. The traffic study shall: a. be conducted in 1999, and b. identify the roadway expansions and timing of those expansions necessary to provide Level of Service D during peak-hour/peak-season conditions for the subject transportation network during the projected condition of the project including project impacts and growth in background traffic. CODING: Blocked -out wording is to be deleted. Words underlined are additions. 12 Additional building permits shall not be issued until: a) a new project .phasing program and roadway expansion program necessary to maintain acceptable levels of service for gthe remainder of the development has been approved by Indian River County, Florida Department of Transportation, Department of Community Affairs, and Treasure Coast Regional Planning Council in consultation with the City of Vero Beach; and b) the Development Order has been amended to reflect the new phasing program and set of additional roadway expansions. The project site plan(s) shall incorporate vehicular and pedestrian interconnections between commercial sites within the project area and adjacent to the project area, in accordance with the county's land development regulations. The County recognizes that in order for the developer to meet the requirements of the transportation section of this Development Order it may be necessary for the developer to acquire road right-of-way which is currently under private ownership. Upon written request by the developer, the County agrees to file a petition in eminent domain as is necessary to exercise its power of eminent domain to acquire such right-of- way, subject to a court finding of proper public purpose and public necessity. Should a court enter an order finding no public purpose or public necessity, and the transportation conditions contained herein cannot be satisfied, the developer must file for and obtain modification(s) to the development order to ensure satisfaction of applicable transportation level of service standards. No further building permits or Certificates of Occupancy shall be issued until such Development Order modification(s) are approved. No settlement prior to jury award shall occur without the prior approval of the developer. All attorney's fees, expert fees, and costs associated with the County's exercise of its power of eminent domain, including compensation to land owners, shall be borne by the developer. u\a%s\.xhiblt3.irs CODING: Blocked -out wording is to be deleted. Words underlined are additions. 13 BOUNDARY SURVEY DESCRIPTION FOR INDIAN RIVER MALL D.R.I. 164.539 ACRES Beginning at a point being 50.0 feet east and 30.0 feet south of the Northwest corner of the Northwest one-quarter of Section 5, Township 33 South, Range 39 East; run parallel to the North line of said Section 5, S 89' 52' 28" E a distance of 614.00 feet to the principal point and place of beginning of the following description: Thence S 89' 52' 28" E, 72.00 feet to a point; thence S 00° 07' 32" W, 425.00 feet to a point; thence S 44° 52' 28" E, 35.36 feet to a point: thence S 89° 52' 28" E, 250.00 feet to a point; thence N 00° 07' 32" E, 230.00 feet to a point; thence S 89° 52' 28" E, 770.02 feet to a point; thence S 000 07' 32" W, 143.38 feet to a point; thence N 87' 01' 21 E, 550.00 feet t9 a point; thence S 57" 58' 39" E, 556.50 feet to a point, thence S 326 01' 21" W., 122.35 feet to a point; thence.S 57° 58' 39" E, 330.00 feet to a point; thence S 47' 13' 39" E, 69.27 feet to a point; thence S 89" 51' 57" E, 917.49 feet to a point; thence S 00° 08' 03" W, 339.44 feet to a point; thence S 00° 07' 12" W, 1153.69 feet to a point on north right-of-way line of State Road 60 Highway; thence run N 89' 53' 54" W along said North right-of-way line a distance of 1325.68 feet; thence run S 89° 52' 37" W a distance of 709.99 feet to a point of intersection with the East boundary line of Wallace Acres Subdivision, as recorded in Plat Book 7, page•12 Public Records of: Indian River County, Florida, and said North right-of-way; thence run N 00''33' 07" E along said 'East boundary line a distance of 493.55 feet to the Northeast corner of said subdivision; thence run N 89' 53' 07" W along the North boundary line a distance of 619.05 feet to a point; thence run S 00' 30' 13" W a distance of 496.11 feet to the said North right-of-way line of State Road 60 Highway; thence run S 89° 52' 25" W a distance of 1277.97 feet to a point on the 'West line of Tract 5 of said Section 5; thence run N 00° 01' 21- E and parallel to the West line of said Section 5 a distance of 1630.00 feet to a point; thence N 45' 00' 00" E, 465.00 feet to a point; thence N 67 .00' 00" E, 123.49 feet to a point; thence S 89' 52' 28" E, 145.85 feet to a point; thence N 45' 07' 32" E, 35.36 feet to a point; thence N 00' 07' 32" E, 425.00 feet to the point of beginning and containing 164.539 acres of ]and more or less. EXHIBIT "4"