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HomeMy WebLinkAbout2002 03 11 Regular A Development Agreement COMMISSION AGENDA ITEM A Consent Information Public Hearin Re ular x 9c~f"" /Dept. c ~\r ~ 25 March 11, 2002 Meeting MGR. V REQUEST: Community Development Department requesting Commission consider and approve a development agreement for a 7.561-acre tract at the northeast comer of the intersection of U.S. 17 - 92 and Nursery Road. PURPOSE: The purpose of this Agenda Item is to request that the Commission approve a development agreement addressing issues and concerns pertinent to rezoning the 7.561-acre tract at the northeast comer of the intersection of U.S. 17 - 92 and Nursery Road. APPLICABLE LAW: Section 166.021, Florida Statutes. (1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the government, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law. (2) "Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions. 1 March 11, 2002 Regular Item A Page 2 FINDINGS: The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as provided in s 2(b), Article vm of the Florida Constitution and Chapter 166, Section 166.021, Florida Statutes. The development agreement is consistent with the City's Comprehensive Plan and Code of Ordinances. The development agreement provides for reasonable use of the subject property, while addressing issues and concerns pertinent to the present and future use of the site. CONSIDERATIONS: Staffhas attended meetings with both the applicant and area residents. Mr. Reece states that he has attended 12 meetings with area residents. This development agreement provides adequate assurance that rezoning the subject 7.561-acre tract to C-2 will not create or worsen the negative impact upon the nearby residences - and, in fact, will lessen the negative impact. This matter was deferred by the City Commission on February 11,2002 and again on February 25, 2002. RECOMMENDATION: Staff recommends that the City Commission approve the attached development agreement, which excludes adult entertainment and includes future development, review, phasing, traffic, parking, and buffering. ATTACHMENTS: A - Development Agreement, as provided by the applicant and revised by Community Development Department Staff. COMMISSION ACTION: 2 ATTACHMENT A BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT (herein referred to as the "Development Agreement"), made and executed this _ day of , 2002, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as the "City"), whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and Wayne P. Reece, an individual (herein referred to as "Reece"), whose address is 561 Virginia Drive, Winter Park, Florida 32789. WITNESSETH WHEREAS, Reece owns certain real property in the City of Winter Springs, Florida, described in Exhibit "A," attached hereto and incorporated herein by reference (herein referred to as the "Subject Property"); and WHEREAS, the subject property was annexed into the City of Winter Springs from unincorporated Seminole County and Reece has petitioned to amend both the Future Land Use (FLU) designation and zoning classification to the appropriate City designation and classification; and WHEREAS, Reece desires to proclaim his plans for future use of the subject property and proclaim that the subject property will not be used for adult entertainment purposes; and WHEREAS, Reece acknowledges that certain building safety, parking, and traffic problems exist on the subject property and proposes measures to minimize their negative impacts; and WHEREAS, Reece proposes to enter into this development agreement with the City to establish a definitive process to minimize the negative impacts of the existing and future uses of the subject property while allowing future development of the subject property, subject to requirements of the City's 1 Comprehensive Plan, the Code of Ordinances, and conditions set forth in this development agreement; and WHEREAS, the City finds this development agreement consistent with the Comprehensive Plan and City Code of Ordinances and that approval of this development agreement is a legislative act of the City Commission of Winter Springs; and WHEREAS, the City Commission further finds that this agreement promotes the public health, safety, and welfare and is consistent with, and is an exercise of, the City's powers under the Municipal Home Rule Powers Act, as provided in s. 2(b), Article VIII of the Florida Constitution and Section 166.021, Florida Statutes, and the City's police powers. NOW THEREFORE, in consideration of the mutual covenants and mutual benefits herein contained, the parties agree as follows: I.Recitals. The forgoing recitals are hereby incorporated herein by this reference. 2. Authority. This development agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act and the City Code of Ordinances. 3. Representations of Reece and the City. Reece and the City hereby represent and warrant that Reece and the City have the power and authority to execute, deliver, and perform the terms and provisions of this development agreement and have taken all necessary action to authorize the execution, delivery, and performance of this development agreement. 4. Phase I development shall be as depicted on sheet 1 of 1 a conceptual site plan prepared, signed, and sealed by Richard Labinsky, P.E., on September 12, 2001, reflecting items "a" and "b" of the following: 2 a. delineating a stabilized grass parking area for 73 vehicles, east of the eastern-most existing automotive garage building and north-east of the intersection of the Nursery Road and Ridge Road rights-of-way (ROWs), b. creating a "no parking" zone, approximately 20 feet wide by 270 feet long, between lOre-striped parking spaces directly in front of the eastern-most automotive garage building and the Nursery Road ROW (this "no parking" zone is to be adequately posted and enforced to ensure it is kept free of vehicles, debris, and other obstructions), c. the existing building and fire code violations in the existing non- residential buildings shall be rectified within a time-period satisfactory to both the City Fire Department and the Community Development, Building Division, and d. there shall be no expansion ofthe existing commercial/industrial nature ofthe site until phase II of the project receives all pertinent approvals from the City. 5. Phase II of the development shall commence no earlier than Aprill, 2005, and shall require site plan approval, a concurrency test, and a traffic study. The traffic study shall be prepared at the applicant's expense following a methodology meeting between the City's traffic consultant and one employed or retained by the applicant. The applicant shall reimburse the City for the cost of City's traffic consultant to review and comment on this traffic study. The traffic study shall address, as a minimum, traffic generation, safe and efficient traffic movements, pertinent pedestrian safety issues, ROW adequacy, curb-cut location, and the potential for off-site as well as on-site traffic improvements. The traffic study shall address the actual proposed phase II site plan, which shall subsequently be amended to accommodate pertinent conclusions from that study. The results of the traffic study and the City's consultant's review and comments shall be coordinated with both Seminole County (Nursery Road is a county road) and the Florida Department of Transportation. 3 Within 90 days after any certificate of occupancy (CO) is issued for the Phase II development, all automotive shops (including, but not limited to, alignment, electrical, mechanical, paint, body, and/or frame straightening) shall be relocated from buildings facing Nursery Road. The existing residential use on the subject property shall cease at the time any building permit for the phase II development is issued. Phase II shall bring all of the subject property (both the existing and phase II development) into conformance with the most current state handicap accessibility regulations. Phase II will be adequately buffered from the adjacent residentially zoned properties with a masonry wall and vegetation, the extent of which shall be determined at the Development Review Committee (DRC) meeting for the final site plan approval, subject to modification by the City Commission. Site lighting will be coordinated with the landscape plan during the final site plan approval process, to ensure no off-site illumination. At no time and under no circumstances shall adult entertainment of any kind be considered an allowable, permissible, or conditional use on the subject property, as of the execution of this development agreement. 6. Successors and Assigns. This development agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. 7. Applicable Law. This development agreement shall be governed by and construed in accordance with the laws of the State of Florida. 8. Amendments. This development agreement shall not be modified or amended except by written agreement executed by all parties hereto and approved by the City Commission of the City of Winter Springs. 4 9. Entire Agreement. This development agreement supercedes any other agreement, written or oral, and contains the entire agreement between the parties as to subject matter hereof. 10. Severability. If any provision of this development agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in ay respect the validity or enforceability of the remainder of this development agreement. 11. Effective Date. This development agreement shall become effective upon approval by the City of Winter Springs and execution of this development agreement by all parties. 12. Recordation. Upon approval by the City of Winter Springs City Commission and execution of this development agreement by all parties, this development agreement and any amendments hereto shall be recorded in the public records of Seminole County, Florida, and shall run with the land. 13. Relationship of the Parties. The relationship of the parties to this development agreement is contractual and ann's length. Reece is an individual and is not an agent of the City for any purpose. Nothing herein shall be deemed to create a partnership, or joint venture, or principal-agent relationship among the parties, and no party is authorized to, nor shall any party act toward third persons or the public in any manner which would indicate any such relationship with any other party, 14. Sovereign Immunity. Nothing contained in this development 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 or federal law. 15. City's Police Power. Reece and the City acknowledge and agree that the City hereby reserves all police powers granted to the City by law. In no way shall this development agreement be construed as the City bargaining or surrendering its police powers. 5 16. Interpretation. The parties to this development agreement acknowledge and agree that all parties have participated equally in the drafting of this development agreement and no party shall be favored or disfavored regarding the interpretation of this development agreement in the event of a dispute between the parties. 17. Permits. Failure of this development agreement to address any particular City, county, regional, state, or federal permit, condition, term or restriction shall not relieve Reece or the City of the necessity of complying with the law governing said permitting requirements, conditions, terms or restriction. Applicable permits include, but are not limited to, City concurrency approval, preliminary and final site plan approval, site construction, demolition, building, and sign permits; Seminole County concurrency approval and a ROW permit; a St. Johns River Water Management District permit will be necessary for storm- water management purposes; a Florida Department of Transportation ROW permit may be necessary for any modification to existing access to U.S. 17 - 92; and Florida Department of Environmental Protection permits will be necessary for the installation of potable water and sanitary sewer lines. 18. Third Party Rights. This development agreement is not a third party beneficiary contract and shall not in any way whatsoever create rights on behalf of any third party. 19. Specific Performance. Strict compliance shall be required with each and every provision of this development agreement. The parties agree that failure to perform the obligations established in this development agreement shall result in irreparable damage, and that specific performance of these obligations may be obtained by suit in equity. 6 20. Attorney's Fees. In connection with any arbitration or litigation arising out of this development agreement, the parties shall bear their own attorney's fees and costs through all appeals. 21. Future Rezonings/Development Permits. Nothing in this development agreement shall limit the City's authority to grant or deny any future rezoning or development permit applications or requests, or the right of Reece to apply for or oppose any future rezoning or development permit application subsequent to the effective date ofthis development agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in Reece or in the subject property. 22. Notices. All notices and correspondence shall be sent or delivered by registered or certified mail to the parties hereto, return receipt requested, with copies forwarded to their respective attorneys, at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing: (i) if to the City: Mr. Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: 407-327-5957 Facsimile: 407-327-4753 with copies to: Anthony A. Garganese, Esq., City Attorney Brown, Ward, Salzman & Weiss, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 Telephone: 407-426-9566 Facsimile: 407-425-9596 7 (ii) ifto Reece: Any notice or demand so given, delivered or made by United States Mail shall be deemed so given, delivered or made three (3) days after the same is deposited in the United States mail registered or certified, return receipt requested, addressed as above, provided with postage thereon pre-paid. Any such notice, demand, or document not given, delivered, or made by registered or certified mail as aforesaid shall be deemed to be given, delivered, or made upon receipt of the same by the party to whom the same is to be given, delivered, or made. IN WITNESS WHEREOF, the parties have executed this development agreement as of the date of first written above. CITY OF WINTER SPRINGS, a Florida Municipal Corporation, ATTEST: By: PAUL P. PARTYKA Mayor ANDREA LORENZO-LUACES City Clerk 8 WITNESSES: Wayne P. Reece By: Print Name Title Date: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of ,2002, by Wayne P. Reece, [ ] who is personally known to me, or [ ] who has produced as identification. NOTARY PUBLIC, State of Florida My commission expIres: 9