HomeMy WebLinkAboutCapital Green, LLC Binding Development Agreement -2005 09 10
THIS INSTRUMENT WAS PREPARED BY
AND RETURN TO:
Anthony Garganese
City Attorney of Winter Springs
, Brown Garganese, Weiss & D' Agresta, P.A.
r 225 E. Robinson St., Suite 660
Orlando, FL 32801
(407) 425-9566
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MARYANNE MORSE, CLERK OF CIRCUIT COURT
SEMINOLE CQTY
BK 05981 PGS 1497-1504
CLERK'S # 2005191578
RECORDED 11104/200S 11140: 35 AM
RECORDING FEES 69.50
RECORDED BY D Tholas
FOR RECORDING DEPARTMENT tJSE ONLY
BINDING DEVELOPMENT AGREEMENT
THIS BINDING DEVELOPMENT AGREEMENT (the "Agreement") is made and
executed this 25th day of October, 2005, by and between the CITY OF WINTER SPRINGS, a
Florida municipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs,
Florida 32708, and CAPITAL GREEN, LLC., a Georgia Limited Liability Company
("Developer"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, S 29492.
WITNESSETH:
WHEREAS, Developer is the fee simple owner of certain real property generally located
within the City of Winter Springs Town Center west of Tuscawilla Road, north of State Road
434, and south of Blumberg Boulevard and currently subject to a binding development
agreement between JDC Calhoun, Inc. and the City, dated August 1,2000, and on file at Winter
Springs City Hall (the "Phase I Property"); and
WHEREAS, Developer is currently completing Phase I of a development project on the
Phase I Property; and
WHEREAS, as part of Phase I, Developer desires to purchase an additional .43 acres of
real property from Mr. & Mrs. Kingsbury which lies adjacent to the Phase I Property along
Blumberg Boulevard as legally described in Exhibit "A" which is hereby fully incorporated
herein by this reference (the "Kingsbury Property"); and
WHEREAS, Developer desires to incorporate the Kingsbury Property into the phase I
project site for purposes of constructing a twenty-six (26) unit residential condominium project;
and
WHEREAS, if Developer acquires the Kingsbury Property, Developer will aggregate
that property with other adjacent property owned by Developer for purposes of creating a
buildable lot under the City Code; and
WHEREAS, Developer desires certain limited assurances from the City before they
finalize the closing on the Kingsbury Property as more specifically set forth under this
Agreement; and
WHEREAS, the City and Developer desire to set forth the following special terms and
conditions with respect to the development of the Property; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference.
2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal
Home Rule Powers Act.
3.
follows:
Oblieations and Commitments. The City and Developer hereby agree as
(a) Kinesburv Prooertv. Developer shall use its best efforts to purchase the
Kingsbury Property. If Developer acquires the Kingsbury Property, the Kingsbury Property shall
be aggregated and combined with a portion of adjacent property currently owned by the
Developer along Blumberg Boulevard (the "Building 17 Site"). The purposes of purchasing the
Kingsbury Property shall be to create a buildable lot as generally depicted on the Concept Plan.
Developer agrees to create the Building 17 Site in accordance with the requirements of the City
Code and within sixty (60) days of closing on the Kingsbury Property.
(b) Aooroval of Conceot Plan. The City agrees that the Developer shall have the
right to design, permit and construct a four story, twenty-six (26) unit, residential condominium
project on the Building 17 Site in accordance with the concept plan attached hereto and fully
incorporated herein as Exhibit "B" (the "Concept Plan"); provided, however, Developer shall
have the obligation to further submit and obtain the City's approval of a final site plan and final
engineering plans. Developer shall also have the obligation to construct aesthetic enhancements
to the project as may be reasonably requested by the City in accordance with the City Code,
particularly the City's aesthetic review ordinance. Developer acknowledges and agrees that the
Concept Plan was not prepared with specific final surveyed dimensions and that during the final
site plan and final engineering process such dimensions shall be surveyed, duly engineered, and
provided to the City. As such, Developer and the City agree that the Concept Plan is intended to
be conceptual in nature and subject to reasonable adjustments at the final site plan and final
engineering phase in order to bring the project into compliance with the City Code. The
condominium project shall consist of four (4) three bedroom units and twenty-two (22) two
bedroom units unless otherwise mutually agreed to by the parties.
( c) Parkine. The City hereby acknowledges and agrees that a minimum of forty-one
(41) parking spaces, including handicapped spaces, shall be acceptable for the twenty-six unit
residential condominium project proposed in subparagraph (b) above.
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-2-
4. Representations of the Parties. The City and Developer 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. This Agreement will, when duly
executed and delivered by the City and Developer ,constitute a legal, valid and binding
obligation enforceable against the parties hereto and the Property in accordance with the terms
and conditions of this Agreement.
5. Successors and Assisms. This Agreement shall automatically be binding upon
and shall inure to the benefit of the City and Developer and their respective successors and
assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property
and shall run with title to the same.
6. Applicable Law. This Agreement shall be governed by and construed In
accordance with the laws of the State of Florida.
7. Amendments. This Agreement shall not be modified or amended except by
written agreement duly executed by both parties hereto (or their successors or assigns) and
approved by the City Commission.
8. Entire Aereement. This Agreement supersedes any other agreement, oral or
written, and contains the entire agreement between the City and Developer as to the subject
matter hereof
9. Severabilitv. 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.
10. Effective Date: Termination. This Agreement shall become effective upon
approval by the City Commission and execution of this Agreement by both parties hereto.
However, the development rights set forth herein shall only become effective at such time that
the Developer closes on the Kingsbury Property. If Developer fails to purchase the Kingsbury
Property within six (6) months of the City Commission approving this Agreement, this
Agreement shall automatically terminate and the parties shall no longer have any rights
hereunder.
11. Recordation. This Agreement shall be recorded in the Public Records of
Seminole County, Florida. For purposes of recording this Agreement, a legal description of the
Building 17 Site shall be provided by the Developer when said site is created pursuant to City
Code and attached to this Agreement in order to adequately represent the real property that is
subject to this Agreement.
12. RelationshiD of the Parties. The relationship of the parties to this Agreement is
contractual and Developer 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.
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
- 3 -
13. Sovereism Immunitv. Nothing contained in this Agreement shall be construed as
a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any
other limitation on the City's potential liability under the state and federal law.
14. City's Police Power. Developer agrees and acknowledges that the City hereby
reserves all police powers granted to the City by law. In no way shall this Agreement be
construed as the City bargaining away or surrendering its police powers.
15. Interoretation. 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.
16. Third-Party Ri2hts. 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.
17. Soecific 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.
18. Attornev's Fees. In connection with any arbitration or litigation arising out of
this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and
costs through all appeals to the extent permitted by law.
19. Develooment 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 Developer or the City of the
necessity of complying with the law governing said permitting requirement, condition, term or
restriction. Without imposing any limitation on the City's police powers, the City reserves the
right to withhold, suspend, or terminate any and all certificates of occupancy for any building or
unit if Developer is in breach of any term and condition of this Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE]
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-4-
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written.
CITY OF WINTER SPRINGS
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APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
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Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-5-
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Si~ture of Witness
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Printed Name of Witness
Signed, sealed and delivered in the
presence of the following witnesses:
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Printed Name of Witness
STATE OF .5oU T f/ e,q-/Z() t.Z7V ;q
COUNTY OF t'Je7l.K E L 8/
The foregoing instrument was acknowledged before me this J. S' day of
~ ~toj, eA , 2005, by John H. Disher, Vice President of ESD Properties, Inc., managing
member of Capital Green I, LLC, A Georgia Limited Liability Company on behalf of said
developer. He is personally known to me or produced as
identification.
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Notary Public, State of .,J ou-i...,., C(IWLtUIt
Commission No.:
My Commission Expires: .
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(NOTARY SEAL)
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Developer's Agreement
City of Winter Springs and Capital Green I, LLC
- 6-
EXHIBIT
IA
LEGAL DESCRIPTION
(PREPARED BY LDCHRANE I
A PORTION OF THE NORTH 2D9.00 FEET OF THE EAST 358.00 FEET OF BLDCK "8" THAT IS ON THE fAST SIDE OF
WlEDO-SANFORD ROAD (A.K.A. STATE ROAD -fJ.4J. ON THE WEST SIDE OF BRANTlEY AVENUE
(A.K.A. TVSICAWlLLA ROAD J, ON THE stJUTH SIDE OF PLATTED ROAD (A.K.A. FIRST STREET J OF O.R.
I/ITCHELL'S SUlNEY OF THE LEVY GRANT ON WE .JESSlJP. ACCORDING TO THE PLAT THEREOF
REctJRDEO IN PLAT BlJOK I, PASE 5, OF THE PUSUC RECORDS OF SEIlINOLE COONTY, Fl.DRIDA.
AU BEING IIORE PARTICULARl.Y AS FOUDWS:
COIII/ENCE AT THE NORTHEAST CORNER OF BLDCK "S", D.R.I/ITCHELL'S StINEr OF THE l..E.VY
GRANT ON LAXE JESSUP, AS RECORDED IN PLA T BaoK I, PN;E 5, PUBUC RECORDS OF SElllNOLE
CWNTY FLORIDA, SAID MNT ALSO BEING THE INTERSECTION OF THE SOUTH RlSHT OF WAY
UNE 01 PLA TTEO ROAD (A.K.A. FIRST STREETJ AND BRAJlTLEY AVENUE r A.K.A. TUSlCAW/U.A !!IJ!!. J
OF SAID D.R.IIITCHEU'S SU/NEY OF THE LEvr GRANT ON J.AJCE JESSUP, THENCE RUN NTI'23'56 W,
ALDNG SAID SOUTH RIGHT OF WAY UNE OF PLATTED ROAD (A.X.A. FIRST STREET J AND THE. NORTH
UNE OF BLOCK "B.~, A DISTANCE OF J58.00 FEET FOR THE POINT OF BE6/NfflN6i..THENCE DEPARTING AFORESAJD
SOOTH RIGHT OF wAY UNE AND THE NORTH UNE OF BLDCK "8" RUN SJO"04:sB"W A DISTANCE OF tDB.!U FEET,
THENCE. RUN srrt;j'S,"E A DISTANCE OF 1/2.34', THENCE RUN NTB-J6'09"E A DISTANCE OF t!tH.75 FEU TO A
POINT ON THE AFOREMENTiONED SOUTH RIGHT OF WAY UNE AND THE NORTH'UNE OF BUJCK '8', THENCE
RUN NT/.2J'56"W AlJJNG SAJD SOOTH RIGHT OF WAY UNE AND THE NORTH UNE OF BLDCIC "s" A DISTANCE OF
70.75 FEET 1D THE POINT OF BEGINNING. .
CONTAINING O..co ACRES. (18.745 SaJARE FEET J.IIDRE OR LESS.
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EXHIBIT
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