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HomeMy WebLinkAboutHarbor Winds Binding Development Agreement (Partially Executed) -2006 03 10 . BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Attornrys at Law RECEIVED Joseph E. Blitch MAR 1 3 2006 Scott J. Oornstein Andrew M. Fisher Katherine W. Latorre cf,!lk'JF~WI.,'1Jlat'm!fJ@~~ Paul H. McLester T ",.l-g~~ Amy J. Pitsch Oebra S. Babb-Nutcher" Usher L. Brown' Suzanne O'AgrestaO Anthony A. GarganeseO J.W. Taylor Jeffrey S. Weiss Offices in Orlando, Kissimmee & Cocoa 'Board Certified Civil Trial Lawyer oBoard Certified City, County & Local Government Law Erin J. O'Leary Of Counsel March 10, 2006 Via U.S. Mail Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re: Binding Development Agreement for Harbor Winds Dear Andrea: Please find enclosed, the Binding Development Agreement between the City of Winter Springs and Morrison Homes, Inc for the Harbor Winds project. We would kindly ask that you and the Mayor sign the agreement and return the original to our offices. Once the Agreement has been recorded we will forward to your office for safe keeping. Additionally, upon execution and recording of the enclosed Agreement we will proceed with the execution and recording of the First Modification to the Development Agreement approved by the City Commission in February. As always, should you have any questions please do not hesitate to contact our offices. Enclosure KWL/slb Very truly yours .~ I!:'w. Latorre Assistant City Attorney 225 East Robinson Street, Suite 660 . P.O. Box 2873 . Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 . Kissimmee (321) 402-0144' Cocoa (866) 425-9566 Website: www.orlandolaw.net. Email: firm@orlandolaw.net Return to: Katherine W. Latorre, Esq. City of Winter Springs Assistant City Attorney Brown, Garganese, Weiss, & D'Agresta, P.A. 225 E. Robinson Street Ste. 660 P.O. Box 2873 Orlando, FL 32802 (407) 425-9566 BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS THIS BINDING DEVELOPMENT AGREEMENT, made and executed this _ day of 2006, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City"), whose address is 1126 East S.R. 434, Winter Springs, FL 32708, and MORRISON HOMES, INC., a Delaware corporation ("Morrison Homes"), whose address for purposes herein is 151 Southhall Lane, Suite 200, Maitland, FL 32751. WITNESSETH: WHEREAS, Morrison Homes is constructing a townhome development on real property located within the City of Winter Springs, Florida; and WHEREAS, pursuant to the approval of the City of Winter Springs City Commission, Morrison Homes desires to facilitate the orderly development of a townhome project (the "Townhome Project") on the Subject Property (defined in Section 3 below) as depicted in the Final Engineering Plans attached hereto as Exhibit "A" and incorporated herein by this reference (the "Final Engineering Plans"), in compliance with the laws and regulations of the City; and WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, ("Agreement"), with Morrison Homes for the development of the Townhome Project; and WHEREAS, in addition to Morrison Homes's compliance with all City Codes, permitting and construction not in conflict herein, the City and Morrison Homes desire to set forth the following special terms and conditions. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. Section 2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS I MORRISON HOMES, INC. Page 1 of 12 Section 3. Subiect Property. The real property ("Subject Property"), which is subject to and bound by, the terms and conditions of this Agreement is legally described on Exhibit "B" attached hereto and made a part hereof by reference. Section 4. Representations of Morrison Homes. Morrison Homes hereby represents and warrants to the City that Morrison Homes 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 Morrison Homes and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against Morrison Homes and the Subject Property in accordance with the terms and conditions of this Agreement. Morrison Homes represents it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this agreement. Section 5. Oblie:ations and Commitments. In consideration of the City and Morrison Homes entering into this Agreement, the City and Morrison Homes voluntarily agree as follows: (a) Final Engineering Plans. Morrison Homes shall construct the Townhome Project in accordance with the Final Engineering Plans approved by the City Commission of Winter Springs. Said Final Engineering Plans may be amended from time to time by the City without amendment to this Agreement. All Amendments to the Final Engineering Plans shall automatically be incorporated herein by this reference. (b) Off-site Light Spillage. Off-site light spillage shall only be permitted at the main entrance of the Property so that the sidewalk and entrance along Longwood-Wagner Road (State Road 434) are illuminated to enhance public safety. However, any such illumination shall not cause any unreasonable glare for motorists along Longwood-Wagner Road (State Road 434) and shall first be approved by the City. ( c) Garbage Collection. Garbage collection for the subject property will be provided to each individual townhome. Garbage dumpsters are not permitted. (d) Internal Rights-of-Way/Streets. Rights-of-way internal to the subject property are as follows: forty five (45) feet wide at Harbor Winds Court; fifty (50) feet wide at Greenview Court, and; eighty (80) feet wide at Timberlane Trail. Streets internal to the subject property do not meet City standards and therefore will be privately maintained. (e) Cul-de-sac Length. Placement of residential units are guided by several site constraints, including but not limited to; 1.) the unusual configuration of the overall parcel; 2.) numerous wetlands; and, 3.) numerous easements, including a 175-foot wide power easement. Due to these restrictions and given that the main project entrance must line up with Timberlane Trail, units placed in the northwest comer of the site must obtain access from a cul-de-sac whose length exceeds the criteria established in Section 9-152 of the City of Winter Springs Land Development Code (800 foot maximum length). The length of the cul-de-sac from the project entrance is 1,254.07 feet. The length from the cross-access easement to the end of the cul-de-sac is 638.78 feet. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRlSON HOMES, INC. Page 2 of 12 (f) Internal Sidewalks. Sidewalks internal to the subject property (within the rights-of-way) shall be five (5) feet wide. (g) Cross-Access Easement. A cross-access easement between the proposed private internal roadway and Fountaintree Drive has been provided. The Final Engineering Plans depict the cross-access easement location. (h) Utility/Drainage Easements. Utility and drainage easements internal to the subject property vary in width, refer to the plat for actual dimensions. (i) Removal of Existing Cart Path. A portion of the Winter Springs Golf Course existing cart path which falls within the boundary of the Subject Property will be removed. G) Temporary Wetland Impact / Construction Easements. Temporary wetland impact / construction easements within wetland areas will be obtained by Morrison Homes to implement construction of retaining walls. (k) Environmental Considerations. The City of Winter Springs requires a 25-foot wide upland buffer adjacent to on-site wetlands. In accordance with this requirement a 25-foot wide upland buffer will be provided adjacent to wetlands that are not impacted, where applicable (where a wetland abuts another wetland, a full 25-foot wide buffer for each wetland can not be achieved). Lots adjacent to impacted wetlands "B" and "D" will provide a 25-foot wide building setback ("wetland impact buffer"). These wetland impact buffer areas equal .35 acres total. The project will provide 1.12 acres of upland preserve to-offset this modification to the upland buffer requirement. A conservation easement, totaling 3.43 acres, will be placed over wetlands A, B, C, D and F and the upland preserve areas. Impacted wetland areas will be mitigated off-site as approved by the St. Johns River Water Management District Permit #40-117-97208-1. The environmental considerations are shown on the Wetland Impact Plan (Exhibit "C"), attached hereto and made a part hereof by reference. (1) Development Standards. the Subject Property: The following development standards shall apply to Max. Units: Min. Front Yard: Min. Side Yard: Min. Rear Yard: Min. Distance Between Buildings: Max. Building Height: Min. Structure Setback From - BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 3 of 12 62 units 20 feet 10 feet 25 feet 20 feet 35 feet SR 434: All Other Property Boundaries: Max. Impervious Surface Ratio: SR 434 Buffer Requirements- Min. Width: Min. Berm Height: Wall Height: Canopy Tree Requirements: Sub-Canopy Tree Requirement: Canopy Tree Requirement (where rear yard backs up to SR 434): 40 feet 1 0 feet 35% 15 feet 3 feet 6 feet 2-112" caliper 10 - 12 feet height spaced 50 feet on center 4 trees per 100 linear feet of road frontage 2-112" caliper 10 - 12 feet height 1 tree per back yard (m) Landscape Material. Deviations to criteria established in Section 20-468, Table 1 (Recommended Shrub Palette), of the City of Winter Springs Land Development Code shall be approved as follows: (1) planting. Allow 3 gallon Rhaphiolepis Indica (Indian Hawthorn), 12 inch height at (2) Allow for Abelia Grandiflora (Glossy Abelia) as an approved plant species in 3 gallon containers, 18 inch height at planting. (3) Allow for Camellia Sasanqua (Sasanqua Camellia) as an approved plant species in 3 gallon containers, 18 inch height at planting. (4) Allow for Tripsacum Floridana (Florida Gama Grass) as an approved plant species in 3 gallon containers, 18 inch height at planting. (5) Allow for Ilex glabra (Inkberry) as an approved plant species in 3 gallon containers, 16 inch height at planting to accommodate the 50% native plant material requirement. (6) Allow for Viburnum obovatum (Walter's Viburnum) as an approved plant species in 3 gallon containers, 16 inch height at planting to accommodate the 50% native plant material requirement. (7) Allow for Crinum asiaticum (Asian Crinum Lily) as an approved plant species in 3 gallon containers, 14 inch height at planting to accommodate the 50% native plant material requirement. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 4 of 12 (8) Allow for Illicium floridanum (Florida Anise) as an approved plant species in 3 gallon containers, 18 inch height at planting to accommodate the 50% native plant material requirement. (9) Allow for Zamia pumila (Coontie) as an approved plant species in 1 gallon containers, 10 inch height at planting to accommodate the 50% native plant material requirement. (10) Allow for Gaillardia pulchella (Indian Blanket) as an approved plant species in 1 gallon containers, at planting to accommodate the 50% native plant material requirement. (11) Allow for Galphimia gracilis (Thryalis) as an approved plant species in 3 gallon containers, 18 inch height at planting. (n) Construction and Use of Model Homes. Prior to the recording of the final plat, the City agrees to permit Morrison Homes to construct model townhome units under the following conditions: (I) The model townhome units shall be contained in a single building and shall not exceed four (4) individual units. (2) The model townhomes shall remain under Morrison Homes ownership and control until such time as the final plat is recorded by the City and a final certificate of occupancy for each unit is issued under the conditions set forth below. In other words, Morrison Homes shall not contract for sale, sell, or lease any of the individual model townhome units until such time as the City approves and records the final plat for the Project and issues a final certificate of occupancy for each unit. (3) Prior to construction, the model townhomes shall be duly permitted by the City in accordance with all City Codes. As part of the building permit application, Morrison Homes shall submit, along with all construction plans for the townhome units, a duly certified boundary survey which shall depict the location and legal description of the model townhome site and each individual model townhome lot. Morrison Homes acknowledges and agrees that this legal description is intended to coincide with the eventual location ofthe townhome lots as depicted and legally described on the final plat. Morrison Homes assumes full and complete responsibility and liability in the event that said legal descriptions do not conform to the lot lines required by the City in the final plat. (4) At such time the Building Official completes and approves a final inspection of the model townhome units, the City will issue a certificate of completion. Said certificate of completion shall be issued for the model townhouse building as a whole, not by individual units. Occupancy of the townhome units shall be limited to the sale and marketing efforts for the Project. In addition, Morrison Homes shall have the right to utilize one garage in the model townhome building as a temporary sales office. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 5 of 12 (5) At the request of Morrison Homes or at such time the Project development is completed, whichever occurs sooner, the model townhome units shall be converted in to permanent residential units and the City shall issue individual certificates of occupancy for each model townhome unit; provided, however, the final plat is approved and recorded by the City and the Building Official determines that the units are suitable for permanent residential occupancy and in compliance with the City Code. (0) Retaining Walls. Partial and full retaining walls are proposed to provide additional storage volume within stormwater ponds. The walls will consist of a keystone modular unit or equal product. (p) Trees Located Under Power Lines. Deviations to criteria established in Section 20-469, Buffers and walls, of the City of Winter Springs Land Development Code shall be approved as follows: Due to the overhead power lines along the western project boundary, 2-1/2" caliper single stem crape myrtles on 40' centers will be provided in lieu of shade trees at 75' on center. Section 6. Successors and Assiens. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. Section 7. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 8. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 9. Entire Ag:reement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Morrison Homes as to the subject matter hereof. Section 10. Severability. If any provision of this Agreement shall be held 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. Section 11. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs Commission and execution of this Agreement by both parties. Section 12. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 13. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Morrison Homes is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent between the BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 6 of 12 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. Section 14. Soverehm 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 state and federal law. Section 15. Citv's Police Power. Morrison Homes 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. Section 16. 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. Section 17. Permits. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve Morrison Homes or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 18. Third Partv Riehts. 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. Section 19. 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 suit in equity. Section 20. 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. Section 21. 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 Morrison Homes 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 Morrison Homes is in breach of any term and condition of this Agreement. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 7 of]2 IN WITNESS WHEREOF the parties have hereunto set their hand and seal on the date first above written. MORRISON HOMES, INC. A Delaware corporation: By: Leslie Peters, Division President WITNESSES: Printed Name of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 2006, by Leslie Peters, as Division President of Morrison Homes, Inc., a Delaware corporation, who is [ ] personally know to me or [ ] who has produced as identification. Notary Public Signature (Name typed, printed or stamped) Notary Public, State of Commission No.: My Commission Expires: BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRlNGS / MORRlSON HOMES, INe. Page 8 of 12 ATTEST: Andrea Lorenzo-Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Dated: By: Anthony A. Garganese, City Attorney for the City of Winter Springs CITY OF WINTER SPRINGS A Florida Municipal Corporation: By: John F. Bush, Mayor BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS I MORRISON HOMES, INC. Page 9 of 12 EXHIBIT "A" (FINAL ENGINEERING PLANS) Final Engineering Plans are on file at: City Hall City of Winter Springs 1126 East S.R. 434 Winter Springs, Florida 32708 BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC. Page 10 of 12 EXHIBIT "B" PROPERTY That certain piece, parcel and tract of land located in SEMINOLE County, Florida, described as follows: LEGAL DESCRIPTION PARCEL I That part of Tracts "I" and "K", THE HIGHLANDS SECTION THREE, as recorded in Plat Book 17, Pages 48 and 49 of the Public Records of Seminole County, Florida, described as follows: Begin at the Southwest comer of aforesaid Tract "I", said Southwest comer being on the Northerly right-of-way of the Longwood-Wagner Road (State Road 434); thence Nll'49'30"E along the West line of said Tract "1",1192.46 feet; thence S78'10'30"E, 103,67 feet; thence S04'45'18"W, 444.17 feet; thence S43'17'52"E, 123,07 feet; thence SOT50'42"W, 73,65 feet; thence S32'53'13"E, 72.19 feet; thence S61'03'27"E, 181.93 feet; thence S48'27'52"E, 170,96 feet; thence S65'lO'55"E, 122.27 feet; thence N86'12'20"E, 521.26 feet; thence SOO'49'13"E, 338.07 feet; thence N89' 59'34"W, 735.75 feet to the aforesaid Northerly right-of-way; thence N82'53'31"W, 614.65 feet along said right-of-way line to the Point of Beginning, LESS AND EXCEPT that part of Tract "I" THE HIGHLANDS SECTION THREE, as recorded in Plat Book 17, Pages 48 and 49 of the Public Records of Seminole County, Florida, described as follows: Commence at Southwest comer of a aforesaid Tract "I," said Southwest comer being on the Northerly right-of-way of the Longwood Wagner Road (State Road 434): thence NIl' 49'30"E along the West line of said Tract "I", 1192.46 feet; thence S7S'10'30"E, 103,67 feet to a point called "A" for future reference; thence S04'45'18"W, 444,17 feet; thence S43'17'52"E, 123,07 feet to a point called "B" for future reference; thence SOT50'42"W, 73.65 feet; thence S32'S3'13"E, 72,19 feet; thence S61'03'27"E 181.93 feet to a point called "c" for future reference; thence S48' 27' S2"E, 170,96 feet; thence S65' to' 55"E, 122.27 feet to a point called "D" for future reference, Parcel "B" Thence returning to said point "B" for a Point of Beginning; thence run SOT50'42"W, 73,65 feet; thence S32'53'13"E 72.19 feet; then N38'46'28"W, 76.14 feet; then NI4'OI'31"E, 61.50; thence N24' 57' 4S"W 40.14 feet; thence S43 '17' 52"E, 30,00 feet to the Point of Beginning. BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC, Page 11 of 12 Parcel "c" Thence returning to said point "c" for a Point of Beginning; thence run N70'41'46"W, 53.76 feet; thence N41'24'17"W, 26.76 feet; thence S61'03'27"E, 78.20 feet to the Point of Beginning. Parcel "D" Thence returning to said point "D" for a Point of Beginning; thence run S86'12'20"W, 58,50 feet; thence N43'37'32"W, 76.25 feet; thence S65'lO'55"E 122.27 feet to the Point of Beginning. PARCEL 2 That part of Lot 57, of Block D, D.R, MITCHELLS' SURVEY OF THE LEVY GRANT according to the Plat thereof recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida lying North of State Road 434 and West of the Florida Power Corporation Easement, said easement recorded in Official Records Book 690, Page 178, all of the Public Records of Seminole County, Florida, BINDING DEVELOPMENT AGREEMENT FOR HARBOR WINDS CITY OF WINTER SPRINGS / MORRISON HOMES, INC, Page 12 of 12 ... ~. '\, , Ii"", :[.I'l11.i\:fU T~l.j~:;;~~;-~~-~: '::i~~' ,;;'p' r:,~~~'~,;~~~," " ~-':~:- ':, ,j' :1,:, " '~ ,'. I' '.' " " '"' '!' l" 1" I' I' "". .f';f. . !!ina::H.u br':' ".?!U 11'1 '. t.!" . d ~ ti ~," . I" . ~ :;:j, ! (j ~:; ~1,: ,'" "J~"...\ :~~~.:r. <!;. _ r~O,: ":_-- 7" ~\\ \"~~ :;i' ,:, h/,' U: ';C,tJ r,j10 " : ["lli'-"-""'l \'",::" I': i"j ,.; , ':'1 lj f:'; "I.. ': ' ..,~ !t:l ,",,: j' . q ~ " .:~ if. ".' '#/1 ", 'I ~~ 9' I it 'I 'j! 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