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HomeMy WebLinkAbout2017 12 06 Public Hearings 401 419 Recycling Rezone PLANNING & ZONING BOARD AGENDA ITEM 401 Consent Information Public Hearing X Regular December 6, 2017 Meeting Mgr. / Dept REQUEST: The Community Development Department requests the Planning & Zoning Board/Local Planning Agency hold a Public Hearing to consider Ordinance 2017-14, which proposes the rezoning of several parcels totaling approximately 3.4 acres, generally located north of State Road 419 near Layer Elementary School. _______________________________________________________________________________________________________________________________________________________________________________________________________ __________________________________________ SYNOPSIS: The City of Winter Springs Community Development Department has initiated the request for a Rezoning of several parcels totaling approximately 3.4 acres, generally located north of State Road 419 near Layer Elementary School. Ordinance 2017-14 proposes to rezone the parcels from “General Commercial District” (“C-2”) to “Light Industrial District” (“I-1”). CONSIDERATIONS: TRAIL MISSING LINK BACKGROUND INFORMATION: A gap in the Cross-Seminole Trail, referred to as the “Missing Link,” exists between Layer Elementary School and the western end of Old Sanford Oviedo Road, a distance of approximately 0.6 miles (see Exhibit A). The primary reason for the gap has been the lack of available right-of-way sufficient for the trail, which for the vast majority of the trail within Seminole County is on lands owned by the State of Florida, with Seminole County serving as the managing entity. A solution to bridge the gap has been in development for several years and generally involves a three way swap of land between the City of Winter Springs, the State of Florida Office of Greenways and Trails, and 419 Metal Recycling (Mr. Bart Phillips). Under the terms of the proposed land exchange (or “swap”), the following actions are planned: December 6, 2017 Planning & Zoning Board, Item 401 26 Page of  Mr. Phillips donates land along the State Road 419 frontage to the City for the trail (approx. 1.36 acres)  The City conveys the State Road 419 frontage land to the State for the trail right-of-way, which will be constructed, operated, and maintained by Seminole County  The State conveys lands to the City at Magnolia Park (approx.. 0.44 acres), the site for future construction of a planned City amphitheater  The City conveys a small parcel to Mr. Phillips (approx.. 0.1 acres), referred to as the “nub parcel” between Layer Elementary School and the 419 Metal Recycling property, after the State conveys this parcel to the City  The City permits the trail to be constructed within a section of unimproved City right-of-way extending from State Road 419 to Old Sanford-Oviedo Road A Developer’s Agreement between the City and 419 Metal Recycling/Phillips has been prepared to facilitate and memorialize the terms and conditions of the land conveyance from Mr. Phillips to the City, covering the following items:  Mr. Phillips to convey the future trail property to the City, as described above  City conveys the 0.1-acre “nub parcel” to Mr. Phillips (after receipt from the State)  Identification of the limits of the “Recycling Property” where 419 Metal Recycling is authorized to operate  Mr. Phillips to complete construction of a 10-foot screen wall at the perimeter of the Recycling Property and surrounding area  Setback relief for non-recycling lands owned by Mr. Phillips adjacent to the trail right-of-way The Developer’s Agreement is attached for the Planning & Zoning Board’s information, and it is not part of the Board’s formal review action. In conjunction with the Developer’s Agreement, the City is processing a Future Land Use Map Amendment (Ordinance 2017-13) and Rezoning (Ordinance 2017-14) of a 3.4-acre land area, owned by Mr. Phillips, that will be the front (southern) portion of the 419 Metal Recycling site. The purpose of the FLUM amendment and Rezoning is to unify the land use and zoning designation for the portion of the Phillips property that is to operate as a recycling business (the “Recycle Property”). REZONING INFORMATION: APPLICABLE LAW AND PUBLIC POLICY: Florida Statute 163. 3174 ( 4) Florida Statute 163. 3187 Amendment of adopted comprehensive plan; Florida Statute 166. 041 Procedures for adoption of ordinances and resolutions; Winter Springs Charter Section 4. 15 Ordinances in General; Winter Springs Article III. Comprehensive Plan Amendments; Section 15 -30. Authority, purpose and intent; Section 15 -35. Review Procedure; December 6, 2017 Planning & Zoning Board, Item 401 36 Page of Section 15 -36. Review criteria; Section 15 -37. Local Planning Agency Review and Recommendation: Florida Statutes 163. 2511- 163. 3246 Florida Statute 166. 041 Procedures for adoption of ordinances and resolutions. Winter Springs Charter Article IV. Governing Body. Section 4.06. General powers and duties. Section 4. 15. Ordinances in General. City of Winter Springs Comprehensive Plan. Winter Springs Code of Ordinances, Chapter 20, Zoning, Article III Establishment of Districts, Division 4. Winter Springs Code of Ordinances, Chapter 20, Zoning, Article II, Section 20 -31. APPLICANT AND PROPERTY INFORMATION:  Property owners: Bartholomew D. & Cynthia D. Phillips o State of Florida - Trustees of the Internal Improvement Trust Fund (TIITF) - Office of o Greenways and Trails  Parcel Identification Numbers: 34-20-30-5AW-0000-0330 o 35-20-30-300-0010-0000 o 35-20-30-300-001A-0000 (partial) o  Current Zoning Designations : City of Winter Springs C-2 General Commercial o City of Winter Springs - undesignated o  Proposed Zoning Designation: City of Winter Springs I-1 Light Industrial  Previously Approved Development permits such as conditional use, waiver, or variance (if any) : N/A  Pending Code Enforcement Actions (if any) : No current Code Enforcement actions  City Liens (if any): No known City liens REZONING ANALYSIS: SECTION 20 -31( D) The following summarizes the data and issues which Staff analyzed in reviewing this proposed rezoning, as required by the Code of Ordinances, Section 20 -31: December 6, 2017 Planning & Zoning Board, Item 401 46 Page of The proposed rezoning change is in compliance with all procedural requirements established by 1) City Code and law. The proposed administrative rezoning is in compliance with all procedural requirements established by the City Code and law. Requirements for advertising the land use action have been met. The proposed rezoning change is consistent with the City' s Comprehensive Plan including, but 2) not limited to, the Future Land Use Map and the proposed change would not have an adverse effect on the Comprehensive Plan. The proposedadministrative rezoning change is consistent with the City' s Comprehensive Planamendment as detailed in Ordinance 2017-14 and the proposed change will not have anadverse effect on the proposed Comprehensive Plan Amendment. The proposed rezoning change is consistent with any master plan applicable to the 3) property. The subject property is presently undeveloped, and is proposed for future industrial development. The proposed rezoning is not contrary to the land use pattern established by the City' s 4) Comprehensive Plan. The proposed rezoning from City of Winter Springs “C-2 General Commercial” and “Undesignated” to City of Winter Springs “I-1 Light Industrial” is appropriate and compatible with the land use pattern established by the City’s Comprehensive Plan. Surrounding properties to the north, east, and west have compatible Future Land Use and Zoning designations. The proposed rezoning change would not create a spot zone prohibited by law. 5) The adjoining parcel to the north currently has a zoning designation of “I-1 Light Industrial.” Theproposed zoning designation is compatible with the surrounding area and does not create a spot zone. The proposed rezoning change would not materially alter the population density pattern in a 6) manner that would overtax the load on public facilities and services such as schools, utilities, streets, and other municipal services and infrastructure. The proposedadministrative rezoning does not alter the existing developed population density patternand therefore will not overtax the load on public facilities and services (utilities, streets,and other municipal services and infrastructure). The proposed rezoning would not result in existing zoning district boundaries that are illogically 7) drawn in relation to existing conditions on the property and the surrounding area and the land use pattern established by the City's Comprehensive Plan . The proposed administrative rezoning does not result in existingzoning district boundaries that are illogically drawn due to the surrounding zoning designations (existing I-1 and C-2 zoning designated properties) adjacent to the subject property, as well as the land use pattern established by the City’s Comprehensive Plan. Changed or changing conditions make the proposed rezoning necessary. 8) The proposed zoning designation “I-1 Industrial" is compatible with the proposed "Industrial" Future Land Use Map classification that is proposed via Ordinance 2017-13. The proposed rezoning change will not seriously reduce light or air to adjacent areas. 9) The proposed administrative rezoning will not seriously reduce light or air toadjacent areas. December 6, 2017 Planning & Zoning Board, Item 401 56 Page of Should the city be presented with competent substantial evidence indicating that property 10) values will be adversely affected by the proposed rezoning, the applicant must demonstrate that the proposed rezoning change will not adversely affect property values in the surrounding area. The proposed zoning designation has been determined byevaluating the prevailing character of the area around the subject property. The proposed rezoning will not be a substantial detriment to the future improvement or 11) development of vacant adjacent property. The intent in the zoning of the property is to apply a zoning classification for the subject property that is consistent and compatible with the surrounding land uses. The proposed rezoning will not constitute a grant of special privilege to an individual owner as 12) contrasted with the public welfare. The proposed administrative rezoning does not constitute a grant of special privilege to an individualowner as contrasted with the public welfare. The proposed rezoning change is not out of scale or incompatible with the needs of the 13) neighborhood or the City. The proposed administrative rezoning changeis compatible with the surrounding neighborhood and meets the needs of the City due to the already existing industrial land uses in the area. The proposed rezoning does not violate any applicable land use regulation adopted by the 14) City. The proposed rezoning does not violate any applicable land useregulations adopted by the City. Letters/Phone Calls In Favor Or Opposition To date, the City has not received any letters or phone calls in opposition to this proposal. FISCAL IMPACT: The proposed rezoning of the subject parcels from “General Commercial District” (“C-2”) and “Undesignated” to “Light Industrial District” (“I-1”) will have no immediate fiscal impact on the City. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City' s Website, LaserFiche, and the City' s Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City' s Website, LaserFiche, and the City' s Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner' s Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at six ( 6) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. The proposed Ordinance was advertised in the Orlando Sentinel on Sunday, December 3, 2017. December 6, 2017 Planning & Zoning Board, Item 401 66 Page of RECOMMENDATION: Staff recommends that the Planning & Zoning Board forward a recommendation of approval to the City Commission for Ordinance 2017-14. ATTACHMENTS : 1. Exhibit A – Trail Missing Link Map (1 page) 2. Exhibit B - Ordinance 2017-14 (3 pages) 3. Exhibit C - Developer’s Agreement (13 pages) 4. Exhibit D - Advertisement, Orlando Sentinel (1 page) ÷äôóúóèú ORDINANCE NO. 2017-14 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA, CHANGING THE ZONING MAP DESIGNATION OF SEVERAL PARCELS OF REAL PROPERTY WITHIN THE CITY OF WINTER SPRINGS TOTALING APPROXIMATELY 3.4 TOTAL ACRES, MORE OR LESS, GENERALLY LOCATED NORTH OF STATE ROAD 419 AND NEAR LAYER ELEMENTARY SCHOOL, WINTER SPRINGS, SAID PARCEL BEING MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBIT A ATTACHED HERETO; CHANGING THE ZONING DESIGNATION OF THE PARCELS FROM EITHER GENERAL -)TO LIGHT INDUSTRIAL -LIGHT -, AS APPLICABLE; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS , the City Commission is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS , the Planning and Zoning Board and City Staff of the City of Winter Springs has recommended approval of this Ordinance at their __________________meeting; and WHEREAS, the City Commission of the City of Winter Springs held a duly noticed public hearing on the proposed zoning change set forth hereunder and considered findings and advice of staff, citizens, and all interested parties submitting written and oral comments and supporting data and analysis, and after complete deliberation, hereby finds the requested change consistent with the City of Winter Springs Comprehensive Plan and that sufficient, competent, and substantial evidence supports the zoning change set forth hereunder; and WHEREAS, the City Commission hereby finds that this Ordinance serves a legitimate government purpose and is in the best interests of the public health, safety, and welfare of the citizens of Winter Springs, Florida. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are true and correct and are fully incorporated herein by this reference. Section 2. Zoning Map Amendment. That the Official Zoning Map of the City of Winter Springs, as described in City of Winter Springs Code Section 20-102, is hereby amended to include a change Exhibit A of classification for the property legally described and depicted on from General Commercial City of Winter Springs Ordinance No. 2017-14 Page 1 of 2 ---, as applicable.The intent Exhibit A - is attached hereto and fully incorporated herein by this reference. Section 3. Staff Instructions. City staff is hereby directed to promptly amend the Citys Official Zoning Map upon the effective date of this Ordinance. In addition, upon adoption and full execution of this Ordinance by the City Commission, the City Clerk is hereby directed to record this Ordinance in the Official Records of Seminole County, Florida. This Ordinance shall run with the land. Section 4.Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 5.Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 6.Effective Date. This ordinance shall become effective immediately upon the effective date of Ordinance No. 2017-13 as adopted by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. If Ordinance No. 2017-13 does not become effective, then this Ordinance shall become null and void. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on this ____ day of _______________, 2018. _____________________________________ Charles Lacey, Mayor ATTEST : _____________________________________ Andrea Lorenzo-Luaces, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ______________________________________ Anthony A. Garganese, City Attorney Legal Ad: First Reading: Second Reading:  City of Winter Springs Ordinance No. 2017-14 Page 2 of 2 land planning agency or the Administrative Commission issues a final order determining that the adopted small scale development amendment is in compliance. No development orders, development permits, or land use dependent on this Amendment may be issued or commenced before it has become effective. After and from the effective date of this Amendment, the Comprehensive Plan Amendment set forth herein shall amend the City of Winter Springs Comprehensive Plan and become a part of that plan and the Amendments shall have the legal status of the City of Winter Springs Comprehensive Plan, as amended. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the ____ day of ________________, 2018. ____________________________________ Charles LaceyMayor , ATTEST: _______________________________ Andrea Lorenzo-LuacesCity Clerk , Approved as to legal form and sufficiency for the City of Winter Springs only: ______________________________________ Anthony A. Garganese, City Attorney  Legal Ad: First Reading: Second Reading: City of Winter Springs Ordinance No. 2017-13 Page 3 of 3 Prepared by and return to: Anthony A. Garganese, City Attorney 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802-2873 (407) 425-9566 DRAFT: 11/27/17 T THIS AGREEMENT BARTHOLOMEW D. and CYNTHIA D. PHILLIPS _______, 2018, by and between , BARTHOLOMEW D. PHILLIPS husband and wife (), , individually, and 419 METAL & AUTO RECYCLING CENTER, INC., a Florida corporation Owner CITY OF WINTER SPRINGS (collectively referred to as and the, aFlorida City WITNESSETH: WHEREAS, Bartholomew D. Phillips, individually, Bartholomew D. and Cynthia D. Phillips, husband and wife, and 419 Metal & Auto Recycling Center, Inc. are current fee simple owners of their respective portions of the real property legally , described in which is attached hereto and fully incorporated herein by Recycling this reference (); and WHEREAS, Bartholomew D. and Cynthia D. Phillips, husband and wife, are also the current owner of Seminole County Tax Parcel Id. #34-20-30-5AW-0000- 0340/0350, which is legally described on the attached which is hereby n- fully incorporated herein by this reference (); and WHEREAS, Bartholomew D. Phillips is the principal owner of 419 Metal & Auto Recycling Center, Inc.; and WHEREAS, in accordance with Section 20-259 (10) of the City Code, 419 Metal & Auto Recycling Center, Inc. currently operates a secondary metal recycling business for non-hazardous recyclable materials, and said business operation occurs on a substantial portion of the Recycling Property (); and WHEREAS, subject to the terms and conditions of this Agreement, Owner desires to aggregate the tax parcels of land described above as the Recycling Property for purposes of identifying the land area that will be permitted to be used for the Recycling Business in accordance with the requirements of Section 20-259(10) and for purposes of planning the future redevelopment and improvement of the Recycling Property for the Recycling Business; and City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 1 of 13 WHEREAS, subject to the terms and conditions of this Agreement, Bartholomew D. And Cynthia D. Phillips desire to plan for the future redevelopment and improvement of the Non-Recycling Property; and WHEREAS, Bartholomew D. And Cynthia D. Phillips, husband and wife also to the Cross-Seminole Trail along and adjacent to State Road 419 as more specifically set forth herein, and the City desires to accept said conveyance in accordance with the terms and conditions of this Agreement; and WHEREAS, Owner and the City intend, for the terms of this Agreement, to memorialize their understanding and agreement regarding their respective interest, expectations, and intentions regarding the aforementioned operation of a Recycling Business on the Recycling Property, redevelopment of the Non-Recycling Property and the conveyance of real property for the Trail . NOW, THEREFORE , in consideration of the public purpose stated herein, and the mutual covenants, terms, and conditions and restrictions contained herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Incorporation of Recitals. 1.The foregoing recitals are hereby deemed true and correct and are fully incorporated herein by this reference. Trail Property Conveyance. 2. Within thirty (30) days of the effective date of this Agreement (), Bartholomew D. And Cynthia D. Phillips (the ) hereby agree to convey and donate at no cost to the City fee simple title to C the real property legally described on the attached which is hereby Trail deemed fully incorporated herein by this reference (). The Trail Property is generally described as a 27-foot wide strip of land totaling approximately 1.36 acres more or less running along the entire boundary of the Tax Parcel Id. # 34- 20-30-5AW-0000-0330 portion of the Recycling Property and Non-Recycling Property contiguous to SR 419. The Trail Property shall be used for the Cross Seminole Trail extension or such other public purposes deemed acceptable by the City. There shall be no re-conveyance restrictions upon the Trail Property, and the City shall be free to convey the Property to the State of Florida, Seminole County or such other person. 2.1 The conveyance marketable title required by this Paragraph shall be by warranty deed, and shall be free and clear of all encumbrances including, but not limited to, mortgages, liens, easements and other encumbrances that the Trail Property. 2.2 Closing shall be held in the county where the Trail Property is located at the office of the attorney or other closing agent designated by City. At City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 2 of 13 days or may be extended by mutual agreement of the Parties. 2.3 The City shall furnish the Closing Documents for Phillips review and execution including, but not limited to, the Warranty Deed, Bill of Sale, Assignments, Ownership and Lien Affidavit, Certificate of Non-Foreign Status, satisfaction and release of liens or mortgages, and Closing Statement. 2.4 The City shall pay the premium for the City's ALTA Owner's Policy 10- 17-92 (Florida Modified) Title Insurance Policy, charges for related title services including but not limited to title or abstract charge, title examination, and settlement and closing fee, the cost of recording corrective instruments and Florida Documentary Stamps to be affixed to the Warranty Deed. Phillips shall pay any fees related to providing any required corrective instruments including, but not limited to, releases of mortgages and liens which are necessary to convey the Trail Property to the City in accordance with the terms and conditions of this Agreement. The City shall pay the cost of recording the Warranty Deed. Each party shall pay their respective attorney's fees. 2.5 Real property taxes, special assessments and ad valorem taxes for the year of closing and any other pro-ratable items will not be prorated and will be paid by the City if necessary. However, all real property taxes, special assessments and ad valorem taxes for prior years shall be paid by Phillips prior to Closing. 2.6 Phillips shall furnish to the City at the time of Closing an affidavit attesting to the absence, unless otherwise provided for herein, of any Notices to Owner or Claims of Lien of potential lienors known to Phillips and further attesting to the unquestioned ownership by Phillips of the Trail Property and further attesting that there have been no improvements to the Trail Property for 90 days immediately preceding the Closing Date for which payment has not been made in full, or for which payment has not been secured or provided for, all in form acceptable to Phillips and the City and the title company. If the Trail Property has been improved or repaired within 90 days at the request of and authorization by Phillips immediately preceding the Closing Date, Phillips shall deliver releases or waivers of construction liens executed by all general contractors, subcontractors, suppliers, and materialmen in addition to Phillips's lien affidavit setting forth the names of all such general contractors, subcontractors, suppliers and materialmen and further affirming that all charges for improvements or repairs which could serve as a basis for a construction lien or a claim for damages have been paid or will be paid at closing of this Agreement. City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 3 of 13 2.7 At the Closing and up to ninety (90) days thereafter, Phillips and the City agree to execute and deliver such other and further instruments and to take such further actions as either of them or their counsel may reasonably request of the other in order to fully implement the terms of this Agreement and the closing thereof as long as said request is consistent with the respective obligations of the parties as set forth in this Agreement. Further, in the event the City re-conveys the Trail Property to the State of Florida or Seminole County for trail purposes, Phillips agrees to execute and deliver such other instruments and to take such further actions as the State or County may reasonably request in order to fully implement the terms of this Agreement and re-conveyance to the State or County. This paragraph shall survive the closing. 2.8 419 Metal & Auto Recycling Center, Inc. hereby consents to the Closing required by this Paragraph and agrees to support the Closing and not to contest or challenge the Closing in any way whatsoever. 2.9 Phillips hereby represents and warrants to the City based on Ph actual knowledge, without investigation: (A) That Phillips has good, marketable, and indefeasible title to, and is in possession of, the Trail Property, free and clear of all liens, security interests and encumbrances, excluding only those (i) which may be satisfied or released at Closing, (ii) to which the City's title shall be subject as otherwise provided in this Agreement, (iii) liens for taxes not yet due and payable, and (iv) statutory liens not yet delinquent. (B) That there is no condemnation, eminent domain, zoning, or other land use proceeding instituted, or pending on the Trail Property. (C) That there is ingress and egress to the Trail Property sufficient for its current use. (D) That there is no litigation or proceeding pending or threatened against or relating to the Trail Property arising by, through or under Phillips, and Phillips does not know of any basis for such action nor are there any special assessments of any nature with respect to the Trail Property or any portion thereof, nor has Phillips received any notice of any special assessment being contemplated. (E) That Phillips has full power and authority to enter into and perform this Agreement in accordance with its terms, and the completion of this transaction will not violate any law, regulation or agreement affecting Phillips. City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 4 of 13 (F) That there are no: (i) pending litigation or disputes involving the location of the boundaries of any part of the Trail Property; and/or (ii) physical interruptions or obstructions to physical access to any part of the Trail Property. (G) That there is no hazardous waste located on or buried beneath the Trail Property other than what was disclosed in the Phase II Subsurface Investigation Report and Technical Memorandum Concerning Distribution of BaP prepared by the Environmental People, dated October 13, 2016 by Florida and Federal law. (H) This Paragraph 2 shall survive the closing. 2.10 At closing, the City agrees to prepare and record a Satisfaction and Release of Code Enforcement Lien and Notice of Termination of Agreement pursuant to Section 4 of the City of Winter Springs Code Enforcement Lien Satisfaction Agreement recorded in the Official Record Book 7378, Page 858 of the Public Records of Seminole County, Florida 2.11 At closing, the City agrees to prepare and record a release of the Trail Easement which currently runs across portions of the vacated Old Sanford-Oviedo Road now owned by 419 Metal and Auto Recycling Center, Inc. pursuant to Section 8 of Easement Agreement between the City and 419 Metal and Auto Recycling Center, Inc. which is recorded at Official Record Book 7199, Page 747 of the Public Records of Seminole County, Florida. However, 419 Metal and Auto Recycling Center, Inc. hereby acknowledges and agrees that the perpetual utility and ingress/egress easement set forth in the aforesaid Easement Agreement shall remain in full force and effect for the benefit of the City. 2.12 Upon request by Phillips, the City will execute the donee acknowledgement set forth in Internal Revenue Service Form 8283 acknowledging receipt of the Trail Property. 3. Nub Property Conveyance to 419 Recycling. The parties acknowledge that the City is currently pursuing a property exchange with the State of Florida for purposes of completing the missing link to the Cross Seminole Trail. The City anticipates receiving a quit-claim deed from the State for the real property legally described in , which is attached hereto and fully incorporated herein by this reference (). If the City receives a quit-claim deed for the Nub Property, the City agrees to convey the Nub Property to 419 Metal & Auto Recycling Center, Inc. by quit-claim deed within thirty (30) days of the quit-claim deed granted to the City being recorded in the Official Public Records of Seminole County, Florida. City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 5 of 13 4.Unity of Title of the Recycling Property for Recycling Business Purposes. Owner acknowledges and agrees to fully comply with Section 20-259 (10) of the City Code which requires that secondary metal recyclers, recovered materials recyclers, and similar recyclers of other non-hazardous recyclable materials must be on a development site comprised of not less than ten (10) acres and not more than twenty (20) acres. Therefore, subject to applicable requirements of the City Code and as a condition of future development permit applications submitted to the City for the Recycling Business, the Recycling Property shall hereinafter be unified in ownership and title for development purposes. For so long as Owner continues to operate a Recycling Business on any portion of the Recycling Property, Owner further agrees to not sell, convey, or assign any interest in the Recycling Property, which would cause the loss of unity of ownership or title, without first obtaining the written consent of the City. Nothing herein is intended to prohibit or restrict the Owner from selling, conveying or assigning the Recycling Property as a unified parcel of land or encumbering the Recycling Property with easements or other interests in land that do not cause loss of unity or ownership of title. Further, nothing herein is intended to prohibit the Parties from reducing the size of the Recycling Property unified herein by written amendment to this Agreement if Owner desires to forego the Recycling Business on any portion of the Recycling Property, provided the remaining portion of the Recycling Property on which the Recycling Business will continue complies with the minimum and maximum acreage requirements of Section 20-259 (10) of the City Code. 5.Continuing and Future Operation of the Recycling Business. Subject to applicable provisions of the City Code and the Unity of Title requirement set forth in Paragraph 4, Owner shall only be permitted to operate the Recycling Business on the Recycling Property. 6.Buffer Wall Along Perimeter of Recycling Property and Non-Recycling Property. Owners agree to permit and construct a screen wall, ten (10) foot in height from ground level, on the Recycling Property and Non-Recycling Property as more D specifically detailed and depicted on the attached which is hereby deemed fully incorporated herein by this reference. The wall design shall comply with the Aesthetic Review package approved by the City Commission on January 26, EXHIBIT D. 2009. The wall shall be completed in three phases, as shown on Phase 1 consists of wall segments that have already been permitted and constructed on a portion of the Recycling Property, and have passed final inspection by the City Building Official. Phase 2 consists of wall segments elsewhere on the Recycling Property that shall be permitted, constructed and passed final inspection by the Building Official no later than: 1) commencement of construction by Seminole -Seminole Trail; or 2) within twelve (12) months from the Effective Date of this Agreement, whichever occurs earlier. Phase 3 consists of wall segments that shall be permitted, constructed and passed final inspection by the Building Official in conjunction with any future development of the Non-Recycling Property. City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 6 of 13 7.Setback Requirements for the Non-Recycling Property. Subject to other applicable provisions of the City Code and this Agreement, Owner shall be permitted to construct buildings and improvements on the Non-Recycling Property with zero front, rear and side setbacks. Time of the Essence 8.: Time, and timely performance, is of the essence of this Agreement and of the covenants and provisions hereunder. 9. Representations of the Parties . The City and Owner hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. The City acknowledges that this Agreement was approved and executed in accordance This Agreement will, when duly executed and delivered by the City and Owner and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the Parties hereto and the Recycling Property and Non- Recycling Property in accordance with the terms and conditions of this Agreement. Owner represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Recycling Property and Non-Recycling Property, as their individual interests may appear, to the terms and conditions set forth in this Agreement. 10. Successors and Assigns . This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Owner and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Recycling Property and Non-Recycling Property and shall run with title to the same. 11. Applicable Law; Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The Parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. 12. Amendments . This Agreement shall not be modified or amended except by written agreement duly executed by the Parties hereto (or their successors or assigns) and approved by the City Commission. However, modifications or amendments that only effect either the Recycling Property or Non-Recycling Property, and not both, shall only require the approval of the fee simple title owner of the property actually affected by the modification or amendment. 13. Entire Agreement; Exhibits . This Agreement and all attached exhibits hereto supersedes any other agreement, oral or written, regarding the Recycling Property and Non-Recycling Property and contains the entire agreement between the City and City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 7 of 13 Owner as to the subject matter hereof. The Exhibits attached hereto and referenced herein are hereby fully incorporated herein by this reference. 14. Severability . If any provision of this Agreement shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 15. Effective Date . This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by the Parties hereto. 16. Recordation . This Agreement shall be recorded by the City in the Public Records of Seminole County, Florida. 17. Relationship of the Parties; Indemnification . The relationship of the Parties to this Agreement is contractual and Owner is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. Agreement, it refers to the person(s) or entity(ies) that own fee simple title to the particular real property that is subject to this Agreement. Owner expressly agrees to indemnify and hold harmless the City and its employees, officers and attorneys from any and all injuries or damages of any kind sustained by Owner and their respective employees, contractors, invitees, tenants, guests or agents, if any, arising out of or from any activity or business operation occurring on the Recycling Property and Non-Recycling Property. Owner shall be solely responsible for maintaining and securing their respective interests, as they may appear, in the Recycling Property and Non-Recycling Property. 18. Sovereign Immunity . The City and its employees and officers intends to avail itself of the benefits of section 768.28, Florida Statutes, and any other statute and common law governing sovereign immunity to the fullest extent possible and nothing right to sovereign immunity under Section 768.28, or other limitations imposed on common, state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). 19. City's Police Power . Owner agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 8 of 13 Agreement be construed as the City bargaining away or surrendering its police powers. 20. Interpretation . The Parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 21. Third-Party Rights . This Agreement is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 22. Specific Performance . Strict compliance shall be required with each and every provision of this Agreement. The Parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 23. Attorney's Fees . In connection with any arbitration or litigation arising out of this es and costs. 24. Development Permits . Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the Effective Date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Owner or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any lim any and all certificates of occupancy or certificate of completion for any building, unit or improvement if Owner is in breach of any term and condition of this Agreement. 25Default; Opportunity to Cure. . Should the Owner or the City desire to declare the other party in default of any term and condition of this Agreement, the non- defaulting party shall provide the defaulting party a written notice of default. The written notice shall, at a minimum, state with particularity the nature of the default, the manner in which the default can be cured, and a reasonable time period of not less than thirty (30) days in which the default must be cured. No action may be taken in a court of law on the basis that a breach of this Agreement has occurred until such time as the requirements of this paragraph have been satisfied. 26Termination. . The City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if Owner fails to cure any material default pursuant to Paragraph 25 of this Agreement. The City shall also have the right, but not obligation, to terminate the Agreement if Owner permanently abandons the Recycling Business on the Recycling Property, provided, however, the City shall first deliver written notice and an opportunity to cure as set forth in paragraph 25.0 herein. If the City terminates this Agreement, the City shall record a notice of termination in the public records of Seminole County, Florida. City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 9 of 13 27. Force Majeure . The Parties agree that in the event that the failure by either party nstitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority (other disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. The extended time period shall be agreed to in writing by the parties and said agreement shall not be unreasonably withheld by either party. 28. Notice . All notices, demands, requests, consents, approvals or other Notices communications (collectively, ) required or permitted to be given hereunder or which are given with respect to this Agreement shall be effective only if in writing and delivered by personal service, or delivered to an overnight courier service with guaranteed next day delivery or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: TO PHILLIPS: Bartholomew D. And Cynthia D. Phillips 212 Morton Lane Winter Springs, FL 32708 TO 419 METAL AND AUTO RECYCLING CENTER, INC. Attn: Bartholomew Phillips 600 Old Sanford Oviedo Road Winter Springs, Florida 32708 TO CITY: Attn: City Manager City of Winter Springs, Florida 1126 East State Road 434 Winter Springs, FL 32708 or to such other address as such party shall have specified most recently by like Notice. The attorneys for the parties hereto are also hereby respectively authorized to give any Notice permitted under this Agreement. Any Notice given as provided herein shall be deemed received as follows: if delivered by personal service, on the date so delivered; if delivered to an overnight courier service, on the business day City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 10 of 13 immediately following delivery to such service; and if mailed, on the third business day after mailing. IN WITNESS WHEREOF, Owner and City have set their respective hands on the day and year first below written. Signed, sealed and delivered in the BARTHOLOMEW D. PHILLIPS AND presence of the following witnesses: CYNTHIA D. PHILLIPS, H/W Signature of Witness Bartholomew D. Phillips Printed Name of Witness ________________________________________ Cynthia D. Phillips Signature of Witness Date: ________________ Printed Name of Witness STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this ______ day of Bartholomew D. Phillips and Cynthia D. Phillips as husband ___________, 2018, and wife . They being personally known to me or produced ___________________ _______________ as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 11 of 13 Signed, sealed and delivered in the BARTHOLOMEW D. PHILLIPS presence of the following witnesses: An individual Bartholomew D. Phillips Signature of Witness Printed Name of Witness Date: _________ Signature of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this ______ day of Bartholomew D. Phillips, an individual ___________, 2018, . He being personally known to me or produced ___________________ _______________ as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Signed, sealed and delivered in the 419 METAL & AUTO RECYCLING CENTER, INC., presence of the following witnesses: a Florida corporation. By: Signature of Witness Bartholomew D. Phillips, President Printed Name of Witness Date: _____________ Signature of Witness Printed Name of Witness STATE OF FLORIDA City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. Page 12 of 13 COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this ______ day of 419 METAL & AUTO ___________, 2018, Bartholomew D. Phillips as President of RECYCLING CENTER, INC., on behalf of said company. He is personally known to me or produced ___________________ _______________ as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: CITY: CITY OF WINTER SPRINGS _____________________ _________ Charles Lacey, Mayor Date ATTEST: ___________________________ Andrea Lorenzo-Luaces, City Clerk APPROVED AS TO FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY: ____________________________ Anthony A. Garganese, City Attorney Exhibit List A -- Legal Description and depiction of the Recycling Property B Legal Description and depiction of the Non-Recycling Property C Legal description and depiction of the Trail Property which will be conveyed by Phillips to City D Specifications and Construction Phase Schedule of the Wall E Nub Property City of Winter Springs Bartholomew D. and Cynthia D. Phillips and 419 Metal & Auto Recycling Center, Inc. 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