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HomeMy WebLinkAbout2002 08 12 Regular H Tuskawilla Office Park Issue 081202 Regular H Tuskawilla Office Park Issues City Manager COMlVIISSION AGENDA ITEM H Consent Informational Public Hearing Regular X August l2, 2002 Meeting Mgr. V 1 Dept. Authorization REQUEST: City Manager requesting City Commission to consider alternatives for addressing issues regarding the construction of the Tuscawilla Office Park. PURPOSE: The purpose of this agenda item is for the Commission to consider strategies for addressing issues related to the construction of the Tuscawilla Office Park. CONSIDERA TIONS: OVERVIEW The Final Engineering Plan and a Development Agreement for Tuscawilla Office Park were approved on February ll, 2002. Oak Forest residents had substantial input regarding the project during the approval process which resulted in the construction of a six-foot brick wall on Tuscawilla Office Park property along the abutting property line and the homeowner's acquiring a buffer strip between the wall and their property. All the parties involved believed they were pursuing a plan of action that was mutually beneficial to everyone. However, implementation of the plan has been problematic. At the July 22,2002, City Commission meeting representatives of the homeowners appeared at the meeting venting their frustration with implementation of the plan. The City Commission instructed the City Manager to get with various parties to see what could be done to resolve the various issues. ISSUES There are three major issues as follows: l. Problems with Platting 2. Problems with Construction 3. Problems with the Buffer Wall Page I of8 081202 Regular H Tuskawilla Office Park Issues City Manager 1. Platting: The property owners acquired approximately l.5 acres of abutting property for a buffer area at a cost of approximately $30,000. The city code requires replatting of the property in order to join the buffer area to the existing lots. The actual size of the property is in question due to conflicting survey data. The homeowners believe the size of the property is more in the neighborhood of .75 acres. Although the property owners have deeds for their respective parcels of the acquired property, their original residential parcel and their buffer parcel exist as two separate properties causing a number of problems with future use of the property. Replatting joins the two parcels and eliminates future use problems. The cost of replatting is significant as a result of the number of separate owners and mortgage companies involved effecting the expense of surveying and associated legal and title work involved. The cost of replatting was not anticipated by the homeowners. Therefore, certain property owners are unwilling to pay the additional cost creating a disproportional cost for those who are willing to pay. The property owners believe this additional expense should be born by either the city or the developer. This position is based upon the theory that an appropriate cost sharing arrangement for the buffering solution is one in which the property owners purchase the buffer property, and the city and/or developer pays for the replatting. Replatting is indeed an expensive and complex issue due to not only the number of property owners and mortgage owners involved, but also the number of disciplines involved including surveying, title companies, lawyers, mortgage companies and city staff. Therefore a good solution needs to include not only an appropriate cost sharing but a management structure which can properly plan and coordinate the various players and activities involved. Management Structure: In order to address the management structure issue I am recommending that the city and homeowners employ Bernie Martin to plan and execute the replatting for three reasons as follows: a) Mr. Martin's firm has all the disciplines needed to perform the replatting including, surveying, title work, and legal services. b) Mr. Martin's firm has an excellent tract record with the city in addressing difficult and complex land related issues for which the city has employed him in the past. c) Mr. Martin's firm will give an upset not to exceed cost figure that will give a large degree of certainty to the final cost, a factor heretofore unattainable. Page 20f8 081202 Regular H Tuskawilla Office Park Issues City Manager Mr. Martin's firm is agreeing to do all of the surveying, legal, and title work for $l4,000. The homeowners would have to pay the cost of the title premium which should be in the range of one to two hundred dollars per lot. Cost Sharing: The cost sharing arrangement presents an interesting set of facts as follows: a) The residents were generally supportive of the Town Center concept provided they were properly buffered. b) The property owners have contributed some $30,000 to the buffer solution. Not withstanding the fact that the acquisition of the property adds substantial appreciable value to their property, it remains a fact that the acquisition would not have been "perceived" to be necessary if the adjoining property were developed residentially. c) The developer will contribute approximately $66,000 towards the buffer to install the brick fence and tree planting. d) An alternative in which the city contributed the cost of replatting for the buffering solution does not appear to be unreasonable considering that this cost sharing arrangement would represent only 13% of the total cost of the buffering solution as follows: Homeowners Developer City of Winter Spring Total $30,000 $66,000 $l4.000 $110,000 27% 60% 1.1% 100% Another question raised relative to this issue by the homeowners was the question regarding the entity responsible for the annexation of the buffer area. The annexation was initiated by the developer when it was under contract for purchase by the developer. Although this is an interesting question, I am not certain what bearing this has on the issue. Final Engineering Plan Discrepancy: There was a certain issue raised by the homeowners regarding an approximate 2.8 feet difference in the location of the property line between that represented on the final engineering plan and the Oak Forest Unit Seven Plat. We have reviewed the discrepancy and determined that the boundary survey as depicted on the final engineering plans and plat of the office park is correct as shown. 2. Construction Issues: Several construction issues were raised by the residents as follows: a) Lack of Dust Control: Property owners feel there was a lack of dust control that resulted in accumulation of dust in two of the owner's pools resulting in the property owner's pools being stained and expenses for having the pools cleaned. The contractor was warned about this on several occasions. Any damages resulting from this is the responsibility of the contractor. The contractor should meet with the parties and determine if this can be settled quickly. Page 3 of8 081202 Regular H Tuskawilla Office Park Issues City Manager Since the rains have returned this problem has all but gone away. Additionally, there is less than two weeks of site development work to be completed. b) Wall Clean up: There is construction debris on the Oak Forest side of the wall. Additionally, there is rutting occurring on the Oak Forest side of the wall. The contractor warrants that he will resolve these issues immediately. c) Buffer Wall Brick Work: Some of the brick at the base of the wall was dislodged and shifting the brick out of alignment. Some oversized brick was used. These factors result in the brick being uneven with inappropriate mortar. The contractor will be required to fix this problem. d) Damaged Trees: The city arborist has validated four trees on the Oak Forest side of the wall that were damaged by the contractor during the construction of the wall. One is dead. The other three will probably die. The residents were concerned about the permit, removal, and replacement cost. There will be no cost to the residents. The contractor has agreed to remove the trees immediately. The developer is already responsible under the development agreement for planting trees on the Oak Forest side of the wall. No new permits are required. The developer's tree permit will be amended to require the contractor to remove the trees and the developer to replace those that are removed as provided in the development agreement. e) Site Compaction Damage: The residents are concerned that the vibrations they are feeling in their homes may cause damage to their homes. Although this is highly unlikely, the contractor has insurance for these type damages. Additionally most of the compaction work is completed. The contractor has agreed to minimize the vibrations during the final days of site development by maximizing non- vibrating rollers rather than vibration type rollers. 3. Buffer Wall Issue: The Final Engineering Plans and Section 5.D of the Development Agreement for the Tuscawilla Business Park approved by the Commission on February 11, 2002 provides for the construction of a six-foot buffer wall running along the south property line of the office park from Tuscawilla Road to the west end of the retention pond on the site. The wall buffers residents from the developed portions of the park. It does not extend to the three property owners whose property is adjacent to the undevelopable parts of the park. This was based upon the theory that there is no reason to buffer the properties from areas of the site with a heavy stand of trees which can never be developed and where there are minimal if any impacts. Page 4 of8 081202 Regular H Tuskawilla Office Park Issues City Manager The three property owner's state that they thought the wall would extend the full length of the property. Additionally, the wall does actually extend approximately twenty feet across the back of the property owner's properties resulting in an unusual amenity problem. It appears that the confusion of expectations results form the fact that the final engineering drawing did not show in detail, nor were they required to show in detail, the lot lines of the abutting properties. Notwithstanding the fact that the developer did precisely what the development agreement and the final engineering plans required, there were different perceptions about what would in fact happen with the wall. Legal Requirements of the Wall: A question was raised relative to the city's legal requirements for extending the wall the full length of the Oak Forest boundary. I am in agreement with John Baker's analysis in Attachment "c" concluding that the development agreement is the controlling document since the abutting property was zoned County A-l at the time the development agreement was executed. Therefore, the length of the wall was determined by the provisions of the development agreement. This creates a difficult situation as follows: 1. The developer performed according to the agreement and the approved plans and does not believe the developer should have to extend the fence further. 2. The city has no appropriate method to require the developer to extend the wall. 3. One of the property owners has a wall extending about 20 feet on the developer property across the field of vision of his backyard. 4. There does not appear to be a good reason for buffering the properties with the wall. 5. The three property owners as we understand it, believed the wall would extend the full length of their property. Alternatives: 1. Do nothing and leave the wall as is. 2. Tear down the twenty-foot section of the wall that partially buffers the one lot thereby eliminating the amenity problem on the lot caused by the wall. 3. Extend the wall on the partially buffered lot the full length of the one property. 4. Extend the wall the full length of the three properties. The issue of course, with these alternatives is who pays. Page 5 of8 081202 Regular H Tuskawilla Office Park Issues City Manager The cost of the wall is approximately $64 a foot resulting in the following cost: TEAR DOWN WALL ON P ARTIALL Y WALLED LOT Remove 20 feet of Wall. Unknown EXTEND WALL Lot 738 Lot 739 Lot 740 55 Feet x $64 per foot 75 Feet x $64 per foot ll2 Feet x $64 per foot $3,520 $4,800 $7,l68 The most appropriate strategy appears to be as follows: PARTIALLY WALLED LOT l. If the homeowner wants the wall tom down, the developer or city could bear that cost since it does potentially impact the property due to the fact that it only partially buffers the property. 2. If the property owner wants the wall extended then the property owner should pay the cost for the simple reason that there are no impacts on the property from development. LOTS WITH NO WALL If the two property owners with no wall buffers desire the wall to be extended, they should have to pay for the simple reason that there are no impacts on their property from development. ALTERNATIVE STRATEGY: A relatively inexpensive alternative strategy could be a compromise alternative that involves the developer installing a wood or PVC fence beginning at the western terminus of the wall north along the western boundary of the property to the tree line. This would clearly reduce any visual perception of the development from the last three homeowners and discourage any pedestrian traffic. CONCLUSION: There arises from time to time in the arena of local governments issues which by their nature and complexity defy the nomlal relationship between the people and their government, thus requiring a unique realignment of that relationship in order to resolve what would otherwise be unresolvable. The Tuskawilla Office Park issue is a unique situation composed of a number of complexities that resist a satisfactory resolution without the special assistance of government in the role of problem solver. It is important to note that this is not an illegitimate effort on the part of the public to find a clever means of getting around a general law just because they "want what they want". Page 60f8 081202 Regular H Tuskawilla Office Park Issues City Manager This issue derives its legitimacy from the reality that it is a unique situation in which everyone was trying to do the right thing, but which proved to be far more complex than originally perceived. There are no laws being bent here to serve an undeserving special interest. Furthermore, it is undeniable that the city, developer, and the people are part of the equation. Furthermore, I believe we have to give great weight to the idea that there is little to be gained and a lot to be lost by this project being completed with an intense feeling of frustration and resentment on the part of those being impacted. Therefore, it is my belief that the city needs to be a substantial player in resolution of the platting issue and making sure that the full authority of the city is utilized in resolving the site clean up issue not uncommon to these kinds of projects. As we move ahead with future developments in which we ask the acceptance of the public we need to have a track record that underscores the foundation of our credibility. The exact extent of that relationship is far more the venue of elected officials than administrators. However, it is my opinion that an entirely justifiable position can be found at any point between 50% and 100% of the cost involved in replatting. Relative to the further extension of the wall, I don't believe the city has a substantiated role to play. In my opinion a case for negative impacts resulting from any unlawful or unreasonable acts on the part of the city or the developer is a hard case to make. FUNDING: The cost for resolving the platting issues is $l4,000. The fair share determined by the Commission would be funded by a supplemental appropriation from the General Fund. RECOMMENDATIONS: 1. Platting Alternatives. a) Do nothing further. b) Maintain the $5,500 spending limit already approved by the Commission. c) Approve the City Manager's recommendation for reconsideration of the city's contribution to funding the replatting cost. 2. PARTIALLY WALLED LOT ALTERNATIVES: a) Do nothing further. b) Have the 20-foot section removed at developer's expense. c) Have the 20-foot section removed at the city's expense. d) Have the 20-foot section extended the width of the property at the developers expense. e) Have the 20-foot section extended the width of the property at the city expense. f) Require the homeowners to extend the fence ifhe feels it is necessary for the fence to be extended. Page 70f8 081202 Regular H Tuskawilla Office Park Issues City Manager 3. AL TERNA TIVE FENCE EXTENSION: a) Do nothing. b) Have the alternative fence extended at the developer's expense. c) Have the fence extended at the city's expense if the developer refuses to extend the alternative fence. ATTACHMENTS: A) Property Line Maps B) Development Agreement C) John Baker August 2,2002 Memorandum D) Site Picture E) David Alamina Inspection Report of July 26, 2002 COMMISSION ACTION: Page 8 of8 I' nAn ATTACHMENT TRACT H CONSERVATION / ------~ '~ @@ TRACTK ( .~ \ FUTURE DEVEL \(~~~"'--- C-WAU- BLOCK D I I ~~ 'L~ ..~ ~-- ~; \\~:-739 I;; 650 648 ~ 652 ;.---. CHEOY LEE CIA [~-T;l-~ r-;r ~ T % I ~ ;z 'C 'C 'C '" --- 654 ----.-- I I 737 736 /735 734 733 "'l' <', ~ ;$ ~ ~ ~ 'C Ie! 'C ~ Ie! 729 732 731 730 '" :ci 630 --:, V) f ::::. I ~ 7/')0 .,- --_/ /' \'-:-.........- -.- ~ / / Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:24PM; Page 2 --, -.-----.....-------.- Prepared by and Return to: Anthony A. Garganese, City Attorney Brown. Ward. Salzman & Wei&&, P.A. 225 E. Robinson Street, Suite 660 P,O. Box 2873 Orlanda. FL 32802.2673 .... -. ~ IF ClIlaT aIUIf .uJII.i QIIfTy lit( 0.347 PO 1670 CLERK'S . 20028..030 .:GruD UlII,.. 01113111. ..... .. 11.00 -.s rt L lIrli.l" ~. PAllf:F.T.. T D. NO. Ol-2)-)u-~U)-OOOO-0550 BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT, made and executed this df~ay of ~002' by and between the CITY OF WINTER SPRINGS, . Flori.da municipal corporation ("City") whose address is 1126 East State Road 434, Winter Springs, FL 32708, and TUSKAWlLLA OFFICE PARK, L.L.C., a Florida corporation ('TOP"), whose address is 800 Westwood Squa.re, Suite E. Oviedo, FL 32765. W T T N E SSE T II: WHEREAS, TOP i!=> con!=>tructing an office park development on real property located within the City of Winter Springs, Florida; and WHEREAS, the real property is currently located within the City of Winter Springs and is currently part of the Winter Springs Town Center; and WHEREAS, the parties desire to memorialize their mutual understanding that. the real property will be developed as TUSKAWILLA OFFICE PARK DEVELOPMENT project in accordance with the Town Center Zoning District requirements adopted by the City, (the "Project"); and WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, ("Agreement"), with TOP for the development of the Project; and Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:24PM; Page 3 It ILE ...... 200e8~~~ OR lOOK 0't~7 PAE 1671 WHEREAS, in addition to TOP's compliance with all City Codes, permitting and construction not in conflict herein, the City and TOP desire to set forth the fulluwing special tenns 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 incMporated herein by this reference. Section 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. Section 3 . Subiect.e[QP.f.lny~ The real property ("Property") which is the subject to, and bound by, the terms and conditions oftrus Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Section 4. Representations of TOP. TOP hereby represents and warrants to City that TOP 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 perfonnance of this Agreement. This Agreement will, when duly executed and delivered by TOP and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against TOP and the Property in accordance with the tcnns and conditions of this Agreement. TOP 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. -2- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:24PM; Page 4 FILE NJM 2002844030 Oft 800M 04347 PAlE 1672 Section 5. TOP's Obligations and Commitments. In considenttion of the City entering into this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All office structures located on and fronting the Tuskawilla Road (Lots 1-4) shall be two (2) stories in height. All other office structures may be either one (I) or two (2) stories in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fencing. Vinyl picket fencing four (4) feet in height shall be installed fifteen feet (15 ') from the north property line behind Lots 4-11 and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. ( c) . Wetland Buffer. In consideration ofthe peculiar site constraints, the property will be developed with a fifteen-foot (15i) wetland vegetative buller provided said buffer is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City's Comprehensive Plan. Cd) Wall Buffer. A six (6') foot high brick wall shall be constructed along the south property line (Oak Furrest Subdivisiun) from Tu~kawilJa Ruad tu the west end of the detention pond. Said wall shall be fully constructed prior to the first building pem1it being issued for the office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the wall. -3- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:24PM; Page 5 FILE NlM 1OOe844030 Oft BOOK 04347 PAGE 1&73 (e) Dumpster Pad. No Dumpster Pad shall be located along the south (Oak Forrest Subdivision) or State Road 434 property lines. A Dumpster Pad shall be located near Lot 4, (f) Lighting_ All exterior lighting on the Property will be directed inward towards the Property, so as tu minimize or eliminate the effects ofglare on the adjacent residential property, particularly the Oak Forrest Subdivision. (g) Additional Tree Buffer. TOP acknowledges that due to site restrictions on the Property, there are several landscape gaps depicted on the Landscape Plan along the south boundary where no oak trees can be planted on the Property ("Landscape Gap"). In order to fill in the Landscape Gaps with oak trees, TOP agrees to offer the Oak Forrest Subdivision lot owners located adjacent to the south side of the wall and a Landscape Gap, an opportunity to have installed, on their lot, at TOP's expense, a 3_4" caliper oak tree(s) with a height of at least 6-8 feet. Said oak trees shalt be installed in addition to the landscaping required on the Landscape Plan and prior to the completion of the wall at a spacing distance of 45 feet, unless a lot owner states in writing that they do not desire a tree(s) in which case the spacing distance may be greater to accommodate that lot owner's desire not to have a tree. Any tree planted pursuant to this subparagraph (g) shall be counted for purposes of satisfying TOP's Tree Replacement requirements. TOP shall also require the nursery providing the oak trees to provide each lot owner with the nursery's standard tree warranty. -4- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:25PM; Page 6/12 FILE HIM eooaa~~O.JO OR 800M 0-'~7 ~ 1&74 (h) Parks. A land area west of Lots 1-3 shall be developed as a passive park including paved walkways, park benchesl street lighting, and landscaping material suitable to the City and consistent with the Town Center design theme of the Project. Final details shall be subject to the City Manager's approval. (i) Arbor Ordinance Requirement. (A) In consideration of trees which shall be cut, removed or destroyed from the property by TOP or its agent., TOP shall replace trees or monetarily compensate the City as provided in the Arbor Ordinance according to the Tree Replacement Assessment. established by the City. TOP may deduct from their Tree Replacement Assessment, Tree Replacement credits based on the number of replacement credits as provided in the Preferred Plant List, provided that: (i) All plant materials are Florida Grades and Standard One (I) or better; and (ii) All plant materials are properly installed; maintained and replaced as deemed necessary under the City's Arbor Ordinance. (iii) Tree removal inspection fee to be capped at $200.00 for all trees to be removed on the Property. (iv) The landscape plan for the proposed development to whivh the vredits are to be applied is prepared by a landscape architect licensed by the State of Florida. (B) For purposes of this Section 5, the following words shall have the meaning ascribed below unless the context clearly indicates otherwise: -5- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:25PM; Page 7/12 FILE NUM aooa..O,JO OR DI< 04347 PMIE 1&75 (i) "City Arbor Ordinance." City Arbor Ordinance shall mean Chapter 5 of the City Code of Ordinances otherwise known as the city Arbor Ordinance. (ii) "Preferred Plant List." Preferred Plant List shall mean that list of plant materials and corresponding Tree Replacement Credits shown in Exhibit "B" of this Agreement. (iii) "Tree Replacement Assessment." Tree Replacement Assessment shall mean the total amount of monetary compensation owed to the City of Winter Springs as provided in the Arbor Ordinance fOf the replacement of trees cut, destroyed, or removed from a property in the City as a result of development or redevelopment. (iv) Tree Replacement Credit. Tree Replacement Credit shall be equal to One Hundred Dollars ($100.00) and no cents 1n tree replacement value. Additionally, TOP agrees to install and maintain in a first class condition landscaping on the Property in accordance with the Landscape Plan attached hereto as Exhibit "C," which is hereby fully incorporated herein by this reference, TOP shall promptly replace dead trees and shmbs to a condition equal to or better than required by the Landscape Plan. (j) Setbacks. Building front set back shall be 0-10 feet, side sct back shall be 0-10 feet and rear set back shall be 0-10 feet. Section 7. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the slIccessors and assigns of each of the parties. -6- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:25PM; Page 8/12 F floE .... 1OOIII~~30 DR IIOOK 04347 PA8E 1&76 Section 8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 9. 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 10. Entire Agreement. This Agreement supel'sedes any other agreement, oral or written, and contains the entire agreement between the City and TOP as to the subject matter hereof Section 11. 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 ofthe remainder of this Agreement. Section 12. Effective Date. This Agreement shall become eflective upon approval by the City of Winter Springs City Commission and execution of this Agreement by both parties. Section 13. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 14. Relationship oCtile Parties. Th~ relationship ofthe parties to this Agreement is contractual and TOP is an independent contractor and not an agent of the City. Nolhing ht::rein 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 mannel' which would indicate any such relationship with the other. Section 15. Sovereign Immunity. Nothing contained in this Agreement shall he construed as a waiver of the City's right to sovereign inununity under Section 768.28, Florida Statutes, or any other limitation on thc City's potentialliahility under state and t'ederallaw. -7- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; . 407 425 9596; Jul-23-02 12:25PM; Page 9/12 "11.8 NUN ~40.JO OR ICXJI( 04347 ~ 1677 Section 16. Citv's Police Power. .TOP 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 17. 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 18. Permits. The failure of this Agre~ment to address any particular City, county, state, and federal permit, condition, term, or restriClion shall not relieve TOP or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 19. Third Party Rights. This Agreement is not a third party beneticiary contract and shall not in any way whatsoever create any rights on behalf of any third party. Section 20. Specific Perfonnance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by tlus Agreement shall result in irreparable damage and that ~p~c.:ific performance of these obligations may be obtained .by suit in equity. Section 21. Attorney's Fees. Tn 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 22. Future RezoningsfDevelopment Permits. Nothing herein shall limit the City's authority to grant or deny any future rezoning or development permit applications or requests -8- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:26PM; Page 10/12 FILE .... 200aM40.JO OR lOOK 04347 ___ 1678 subsequent to the effective date of this Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in TOP or on the Property. IN WITNESS WHEREOF the parties have hereunto set their hands and seal on the date first above written. Signed. sealed and delivered in the presence of ~- By: ~'------~_. (Print Name ofWj1.n~ss) NOTARIAL ACKNOWl,EDGMENT ST A TE OF FLOlUDA COUNTY OF The foregoing inst~ument was acknowledged before me this ~ day of FiJv.Ilf#1' tI, 2002, by SANRDA BLERL Y, as Attorney in Fact for William Barrett, as the President o~WILLA OFFICE PARK, L.L.C.., a Florida corporation, .Ll who is personally known to me, or l~who has produced PI- 'Dr j v tIr:l Lll7nC. as identification. lH 1ti-'T qy --5'1.-'31-0 SUSAN SANORIDGE COMIIoltSSION' CC872109 exrlltE' OCT 08. 2003 I()tI)fD J1IIOIJOM ID'I Nfr ACE 1'lOTAi:( (5,'EAL) -9- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Jul-23-02 12:26PM; Page 11/12 FILE .... eooa&44030 OR lOOk 04347 Pf:a.i 7' EXHIBIT "A" The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereufby reference. Legal description: TIlAT PORTJONOFLOTS 53,54,55, 5K, 59, 62, 63 AND THOSE UNIMPROVED RIGHT-Of-WAYS LYlNO BETWEEN LOTS 55 AND 58,LOTS 59 AND 62 AND THE NORTII ~OFTHAT30' VACATED RIGHTOFWA YLYING SOUlHERL YOF LOTS 55,5R, 59, 62 AND 63,D.R. MITCHEU,'SSURVEYOFTIlE I.RVYGRANT,ACCORDlNG TO THE PLAT T1 n\lU~Ol' AS RECORDED IN PLAT BOOK I, PAGE 5 OF THE PUBLIC Rr.CORDS OF SEMlNO].H COUNTY, FLORIDA; BElNG MORE PAR TICU rJARL Y DESCRIBED 1\S FOLLOWS: COMMENCE1\T THE SOUTIIWlJ:~TCORNEROFTIffiAFOREMENTIONED I.OT 63; THENCE RUN SOUTIl87002'40" ENiT, ^I.ONCr TIm SOUTH LINE OF LOT 63, A DISTANCH OF 62.14 F'dET TO Tlfr.: POINT 01' DEQJNNING; 1'HENU; DEPARTINGSAIDSOU1H LINE RUN SOUTH02057'20"WEST, A D1STANCEOF 15.00FEETTOTHE CENTERLINE Of A 30' UNIMPROVED RIGHT OF WAY VACATED IN OFFTClAL RECQRT>S BOOK 4112, PAGE 0597 OF TIlE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; THENCE RUN SOUfH 87002'40" EAST ALONG SAID CENTERLINE A DISTANCE OF 1129.20 FEET TO THE WESTERLY RlGHT -OF-W1\ Y OF llJSKA WILL.A ROAD AS DESCRIBED IN OFFICIAL RECORDS BOOK 3603, PACtio: 1095 OF THE PUBLIC RI::CORDS OF SE~OLE COUNTY, FI.ORIDA; SAID POlNT LYING ON A CURVE CONCAVE NORTHWESTERLY HAVING TIm FOLLOWlNCl!:-:T..EMENTS: A RADIUS OF 5677.5R FEET, A CENTRAL ANOLE OF 03042'36", ^ CHORD LENOTH OF 367.57 FEET ANlJ ^ CHOlm 1.ll!:AJUNO OF NORTH 12013'06" HAST; THENCE FROM A TANGENTBEi\RlNGOFNORTlI14004'24"EAST,RUNNORTHFASTERLY ALONG SAlDRlOHT OF WAY AND TIm ARC OF SAIDCITRVE A mSTANCEOF 367.64 FEET 'f0 TilE POINT OF REVERSE CURVATUIU( OF A CUR,VE CONCA VESOUTHEASTERL YHA VING TIlE l'OLl.OWINO EI JiMENTS: A RADIUS OF sn 1.58 mET, ACfiNTRALANGLE OF 01012'46", A CHO!{j) J.ENctTH Of 122.38 FEET AND A CHORD H.EAH1NO OF NC)RTlll 0058' 11 "EAST; THRNCI;. [{UN NORTllEASTERL Y ALONG THE ARC OF SAID CUR vn A DISTANCE OF 122.38 FEET; THENCE I)IWARTING SAID CURVE AND RKtHT OF WA Y I.lNJi.1H IN SOUTH. :w020'33"WEST, ADISTANCIi OF 64.52 FRET; THENCE RUN SOUTI I 45038'29"WEST,ADlSTANCE OF 59.63 FEET; THKNCE RUNsOIJ'm71 o30'38"WEST,ADlSTANCEOF 48.60FEET; THENCE IWN NOJ{llJ 75"'28'56" WEST, A DlSTANCE OF 27.98 FEET; THENCE IWN NORTH 54016'32" WEST, A DISTANCE OF 44.31 FEET; THRNCTI Rl.JN SOUTH 44013 '12" WEST, A DlSTANCE OF 1 R.82 FEET; THENCE RUN SOUTH 51 () J W33" WEST, 1\ DISTANCE OF 345.75 FEET; 1'llHNCE RUN SOUTH 86031 '22" WEST, A DISTANCE OF 82.36 FEET; THENCE RUN NOKIH62037' 1 7"W13ST,ADISTANCE OF 63.47FEET; THENCE R1JNSOUTU76"27'47" WEST, A J)ISTANc.:E OF62.38 FEET; THENCE RUN NORTH K4034'12"WIiST, A lJISTANCEOF 83.22 FEET; THENc.:F. RUN SOUTH 76044'49"WEST 1\ DISTANCE OF 45.06 FEET; THENCE RUN NORTH 81 018'28" WI~ST. A [)ISTANCE OF 49.25 FEET; THENCE RUN SOHTH 85001 '56"WEST, 1\ DlST1\NClJ: OF 18.02 FERT, TIIENCE RUN SOUTll 52042'01 "Wf.:.ST, A DIS TANCE oF67.33 FEET, TI-IENCERUNSOUTll 80017'21 "WEST, ADIS'fANCE 01' 52.69FTil\T; THENCE RUN SOUTH 03027'55" WEST, A mSTANCE OF 23.12 FEET; THENCE RUN SOUTH 69"'34 '23" WEST, A DISTANCE OF 95.27 FEET; THENCE RUN NORTH 820I(j'34" WEST, A DISTANCE OF 77.56 FEET; nmNCI\ IWN SOUTIl84055'50" WEST, A DISTANCE OF 75.60 FEET TO THE POINT Of I3EG!NNINCl. CONTAINING; J YY, 036 SQUARE FEET (4.569 ACRES) +/- K:rrSW/JIILEGt\L DESCRIrTION.DOC IHW R/61O I JRM -1- Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Jul-23-02 12:26PMj Page 12/12 FILE ...... eooH440JO OR lOOk M3~7 ~ 1680 EXHIBIT "B" ,TUI~20-2~: :.'i'~V C1+; DElJatlI'rEJ.4T 4e? e..:: :62;l p. all/B8 C/lI!DlT AVERNII1 clU!l)rr NIiT TRill! 0" lAAGri ~IW. NMlIi a~ IlA TIC! COllT "AUt! 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This ordinance amended Section 20-434 of the City Code to state the following: "Any developer or property owner proposing a commercial or multi-family development or redevelopment adjacent to a single family zoning district or use shall construct at the developer's expense, an opaque wall of six (6) feet in height along the full length of the property line between such development or redevelopment and the adjacent single family district or use... The wall shall be constructed of concrete block, brick or other durable material (wood not allowed) which is compatible with the surrounding area, and acceptable to the Development Review Committee as to compatibility, design, and compliance with this section of the City Code... The wall requirements of this section shall also apply along the boundary of property that also constitutes the outer perimeter of the existing area zoned Town Center" [my note: Avery Park, which included the Tuskawil/a Office Park area, was rezonedfrom its Seminole County A-I zoning district to the Town Center City zoning district on May 29, 2001, with the adoption ofOridinance No.2001-27J. The triangular-shaped property that the Oak Forest Unit 7 residents purchased retained the Seminole County A-I zoning district until the City performed (for free) a Future Land Use amendment and rezoned the property to PUD (Tuscawilla Planned Unit Development) on June 10,2002. This occurred after the development agreement and final engineering/site/subdivision plans for the Tuskawilla Office Park were approved on February 11,2002. The development agreement specifically states the following in Section 5, paragraph d: "Wall Buffer. A six (6) foot high brick wall shall be constructed along the south property line (Oak Forest Subdivision) from Tuskawilla Road to the west end of the detention pond. Said wall shall be fully constructed prior to the first building permit being issued for the office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the wall." The development agreement was executed on February 28, 2002. Since the development agreement was approved with the site and subdivision plans, the development agreement is the controlling document (even if the provisions of the wall ordinance required the wall along the entire southern boundary of the property). CONCLUSIONS: .l. The wall ordinance addressed both buffering single family from commercial development and buffering the perimeter of the existing [on May 8,2000] area zoned Town Center. 2. The Tuskawilla Office Park property was not zoned Town Center until May 29, 2001. 3. The triangular-shaped property immediately adjacent to the Tuskawilla Office Park site was zoned Seminole County A-I until June 10,2002, which was after the City Commission approved the development agreement, site, and subdivision plans on February 11, 2002. 4. The development agreement. which takes precedence over the provisions of th~n Ordinance. specified the length of the wall.. This was executed in the field, beyond the actual water's edge of the pond to the western end of the toe of the berm. CC: City Manager Public Works Director -- :;1';". \ developments unless appropriate buffers are required between the different land uses; and WHEREAS, the City Commission of the City of Winter Springs hereby finds that requiring a six foot solid wall between multi-family and single family developments and commercial and residential developments promotes compatibility and coexistence of the different land uses and is consistent with the intent and purpose of the City's Comprehensive Plan; and - . WHEREAS, the City Conunission of the City of Winter Springs hereby finds that in addition to adopting the wall requirement hereunder, the language contained in City Code Sections 20-239, 20-453 (b), and 20-465 (b) should be conformed arid clarified as set forth herein; and . WHEREAS, the City Commission of the City of Winter Springs hereby finds that this Ordinance is in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLOlUDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated herein in their entirety by this reference. Section 2. Amendment of City Code. The following sections of the Winter Springs Code . are hereby amended or created as follows: (underlined type indicates additions and st! ikcout type indicates deletions.) A. Section 20-239, as set forth below, is hereby repealed in its entirety: An opaquc, six (G) foot wall, consttuctcd of conc..lcte, block o! otller dUldblc.. 1I1atclial. (wood not allowed) compatible with lh~ suHouudihg alC<1, and <lcx'cptablc.. to the Dcvclopmcllt Rc.\-icw Committe..:., shall be lcquilCd atthc. t;mc. of dC.vc.lOphlCllt 01 redevelopmcilt of conw.l.\JlviafIy zoned or used propClty to buffet I csidc..ntially L.Oned propclt} G'OI(l COlllillClCial acti\1it.i:cs clUJ I1Ses. This \.'\0<111 is to bc con.stlUctcd by thc developer oCtIlc comillcrc.ia:llj l1sed property. B. Under Chapter 20, Zoning, Article V. Supplemental District Regulations, Section 20-434 is hereby created to read as follows: Sec. 20-4~4. Residential Wall B'ufTers Required. lb <s ;r :~~ il n :~ ~~: ~: :t >( Any developer or property owner proposing a commercial or multi-family development or redevelopment adjacent to a single family zoning district or use shall City of Winter Springs Ordinance No. 2000-07 Page 2 of G .r :g ~: ~ ~l h ~t ",:.;". -? construct. at the developer's expense an opaque wall of six (6) feet in height along the full length of the property line between such development or redevelopment and the adiacent single family zoning district or use. A wall shall also be required for a proposed commercial development or redevelopment adiacent to a multi-family: zoning district or use as required above. The wall shall be constructed of concrete block. brick or other durable material (wood not allowed) which is compatible with the surrounding area and acceptable to the Development Review Committee.as to compatibility design and compliance with this section and the City Code The wall:. requirements of this section shall apply internally within the boundaries of Town Center, but only to buffer loading docks. service areas. and trash disposal faciliti~s- from adiacent single-family or multi-family residential uses. If a wall is required internally within the Town Center, the wall requirement may be waived or varied by the Development Review Committee and City Commission pursuant to the special exception criteria and procedure set forth in the Town Center District Code. The wall requirements of this section shall also apply along the boundary of property that also constitutes the outer perimeter of the existing area zoned Town Center -;? -3==> C. Section 20-453(b) of the State Road 434 New Development O~erlay Zoning District _ Regulations, as set forth below, is amended to read as follows: Sec. 20-453 Buffers and Walls. (b) Walls: All opaquc, ~~x (G) foot wall, cOl1sttUcted of cOucletc Gloch. 01 othet dUlabk IhatcLia:l (wood lIOt allowed) compatiblc with thc sUllouhdillg cl1Ga, (1.l1d acceptable to thc Dcvclopnlent RCview Committcc, sha:ll be lequiled att!tc ~tllC of development or Jc..Jevclopmcllt of cOlruncLc~a1ly z;oncd or used plOpcrt) to buffet residentia:ll} .c.oncd pl0pClt)' Galli colllmercial activities and usc~. This wall is to be constlUcted by thc dCvelopcr of tile cOlllmcrcially lised ploperty. Any developer Of' .property' - OWner. ptoposihg" .ii" .Coriunercial or multi-family' development or redevelopment adiacent to a single family zoning district or use shall construct. at the developer's expense, an opaque wall of six (6) feet i:~e~~: ~Ion~ the full length of the property line between such development or rede~ n an the adjacent single family zoning district or use. A wall shall also be ;~~i~~ for; proposed commercial development or redevelopment adjacent to a multi-family zoning district or use, as required above The wall shall be constructed 0: ~:~:e block, brick or other durable material (wood not allowed) which is co~; tib : h the surrounding area. and acceptable to the Development Review Co~;I~te~ as ~~ compatibility. design. and compliance with this section and the City Code. The w~1I requirements of this section shall apply internally within the bOundarie~ of ~~wn Center but only to buffer loading docks. service areas. and trash dispo~ facT ties from adiacent single-family or multi-family residential uses. If a wall is required City or Winter Springs Ordinance No. 2000-07 Page J of 6 : f I' I: I II ., - " Section 5. TOP's Obligations and Commitments. In consideration of the City entering into this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All office structures located on and fronting the Tuskawilla Road (Lots l-4) shaU be two (2) stories in height. AU other office structures may be either one (1) or two (2) stories in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fencing. Vinyl picket fencing four (4) feet in height shall be installed fifteen feet (l5') from the north property line behind Lots 4-Il and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. -:- to: .:.. "~". (c) Wetland Buffer. In consideration of the peculiar site constraints, the property will be developed with a fifteen-foot (IS') wetland vegetative buffer provided said buffer is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City's Comprehensive Plan. I'. '!<> I (d) Wall Buffer. A six (6') foot high brick wall shall be constructed along the south property line (Oak Forrest Subdivision) from TuskawiUa Road to the west end of the detention pond. Said wall shall be fully constructed prior to the first building permit _ "ji'! .. ., "< :li :i, ,:1 ~~~ being issued for the office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the :j~: ij:~ . ./1. wall. I I, I!. I! :1 ." ';: .. -3- ATTACHMENT nnn City of Winter Springs Building Division MenD To: Ron Smith From: David Alamina cc: Ron McLemore, Dennis Franklin, Michael Scheraldi, Files Date: July 26. 2002 Re: Tuskawilla Office Park Wall Complaint and Inspection Today we received a complaint about the above subdivision wall relating to questionable workmanship and construction deficiencies. Upon investigating and inspection the following were noted and must be corrected prior to FINAL INSPECTION Several head joints on concrete masonry units' course were void of mortar and must be repaired. Oversized CMU blocks were used for construction and caused a projection of the base course and exposing hollow cells. The oversized masonry blocks were not per engineer's plans and need to be corrected per permitted plans. The location of the protruding CMU blocks is approximately between pilasters 8 and 9 at south side of wall. Remove all loose accumulated mortar at un-tooled joints at base of wall. Shifted, dislodged and broken blocks from base course shall be corrected and/or replaced. See your engineer of record for proper structural repairs and forward copy of engineer's repair to the building department. Remove all debris including tree limbs buried by fresh fill. Back fill and grade per engineers plan to top level of CMU. Be sure to maintain integrity of drainage. Sod all re-graded areas of wall perimeter per City Code Section 9-160 to prevent erosion and to aid in storm water drain or percolation. Note that the only inspections called for by the contractor are three separate footing inspections and these were passed and signed off by the building department. There was one footing rejection and a re-inspection. Today the pilasters were checked for grouting. C:\dalamina\docs\word\memos\tuscawilla office park wall complaint 07 _25_02.doc 1 Date: 08/12/02 Distributed by BJM Associates on 8/12/02. Under Regular "H". ASSOCIATES INC. ENGINEERS. LAND PLANNERS. SURVEYORS .I ,. ..~, '.1' . .' I :1""-.'11..... I .'-!llIi . ~ 0 01 ~j' Y f' ^ n.. 0 r r: X (; f: I. I. f' rl C r: "'-- - R.I\':.. . J A~;!;OI:la'c~, Int:. '~..~_:.' ;,'i'di..-,;.- '..,-il>. ..,.......,,,. _-~.::11: L 8JM Associates has worked in Osceola County for over 25 years with a combined experience force of over 85 years. Our mission statement is to be responsive to developers needs which includes being timely, professional and ensure that our efforts comport with 8JM's standards of excellence in our presence in Osceola County, keeping aerchival information, updating studies and utilities. keeping our relationship with Osceola County sound. Projects such as 8uenaventura Lakes (10,000 du), Pebble Pointe (600 du), Mill Run North, Oaks at Mill Run. Windmill Pointe (300 du), Pineridge, Fells Cove, Carribean Villas, Star Island, Lorraine Estates, Runneymede Ranchlands, Happy Trails, Resort World, Spas at Resort World, Montana Street, Post Office (Michigan Street), 8uenaventura Lakes Park. are some of the 8JM projects in Osceola County. CURRENT PROJECTS: WINDMILL POINTE PHASE 4 STAR ISLAND - DEVELOPMENT OF REGIONAL IMPACT 8JM is only a phone call away. Pebble Pointe 600 dwelling units Offsite grey water, highway_ _'____ widening I ',- ~- \- J . \1J -. "r \ J J :.. .:.~.I ~ ~-' ~~ PineRidge and Windmill Pointe 1lil over 400 dwelling units, water treatment plant, design,planning . ;~ IDIiI^SSOCl"" lNo. ENGINEERS, LAND PLANNERS, SURVEYORS Buenaventura Subdivisions Units 2 and 3 - Mill Run Units, Oaks at Mill Run Multi . Family Sites Fee Simple Apartments Commercial shopping Centers PincRidge BJM Associates in Orange County Rose Pointe and Rose Bay, 221 units. 158 units, design, eminent domain, land acq ui si ti on ,zon i ng, planni ng.,desi gn, Administrative hearings, construction and final home construction, sales and title policies )> Vl Vl o n )> -t '" Vl Z n ~ > ~ ~ n o e z ~ -< ~ :li:I o <:.., tlj n ~ CP:J .... = ~ - C Q. ~ ~t:l;"';;"';rJ:J ....oo..c c ~:::':::'c '" < = = ... -11'''''''::: 'Cl ::: l"'" t'" ~ ;;~II'II'- 'Cl=:O:-:O:-"C ~ ~ ~ 0 ... 'Cl ... _...tr:ltrJ= _.0 rIJ tI}..... ~'Cl-- '" ~ II' II' ...-- -~~ _.rIJ fIj ~""=""= :::':::' 11'11' '" '" ~ ~ ... - - OrJ:JrJ:JN>-3 ... c Coli' ~ 0" ~ :. ~ 1JCl=~='" ~ ...'-<1 IJCl ... II' ~~ ~ = =11'- ~ _c""=- Q."'......c - ... ~ Q. .....J= tI.l-f'D ... = Q.... Q. = Q. ... a ... n_. :;cI:-. = ~ 0 II' 'Cl=... "'11''-<1 ~-~ ~"'- = C II' -...= II' < ~ :-. ~ tpJ 0", = = ~ IJCl ~ <=' ~~~ <"'~ ~~::!. ~ Q. = ... :;cI1JCl >-3 ... ""= ...1JCl_ ~ :::'11' II' -= -"'", =0 ~ ~ =- -~ ... := ~ ... ...= -II' ... - - ... ;.0 '" = ....-., CONIlIRJCTICH ....... WINDMILL POM PHAS!! ... GIWlIIO PlAIl 5CI!:Owo.. COUNT"r". ~ ! . - II' 6 I i Ii I Vl C "" < '" -< o "" Vl \ ASSOCIATES INC. ENGINEERS. LAND PLANNERS. SURVEYORS Bernard Martin, p.E., p.L.S. President 1. 506 Wymore Road Ph 407. 645. 5566 Winter Park, FL 32789 Fax 407. 629. 5389 bmartin @bjmassociates.com J., :... ". :~, .~. ~:: :"'.:.'~ ;, -. ''''".. , , J " .\ \ \ \ ,. 1 .\ ~l 't> / ( I / ~ . :---- .. $ ( I ,~. / i / ! .,' I / : (I I ! j , . , \ / \ ! I // / I i \ 1\ , /