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HomeMy WebLinkAbout2002 06 24 Other - Document was Handed out During Meeting Date: 062402 The following Document was handed out during the Regular Meeting of 6/24/02. ,,:)ctll 01- Dnu~"I'4,..'i.M.nu,~~I-L.I'rI""'j\lU.i'L....I.,"h.~,1 .-., -..... -,....- --......., . --' "'} ;. Brown, Ward, Salzman & Weiss, P.A. 225 .e'ad Robinson Streer - Suite 66() Pnu o,Uice Box 2873 Urlando, Norida 12802.}873 (407) 425-9566 (407) 425-9596 fax tJgarKanese@or/ando/aw,nel Date: June 2 J, 2002 To: Andrea Larenzo-Luaces, City Clerk City of Winter Springs Fax: 407-327-4753 From: Anthony A. Garganese, Esq., City Attorney Pages (including this one): 15 File: Development Agreement Ciry a/Winter Springs/JVayne P. Reece If there are any questions regarding this fax, please call 407/425-9566. 7"11il faCllmlle "'elsage i., ar/orney/diem privileged material and Is. uc;,'ardi..gly, conflde,,/ial. 1'hll '''''3Sa~s is Intended unly for the Individual I)' ,,"nry named above. !ftlH ncsj\>(Jr oflhi, "'cnaxe i. ..or the InlcnrJecl recipienl, pu.ase be adviltd thar <1I1Y cliuemlllalio.., aitrrihltrton. or copyIng Of1h11 cCJmnrltniCanOfll1 slril:tly prohlhlted. lfyou have receIved this communlcQl/on in ""or, pleost notify UJ by tckphone im~dlately and renull the "'''g'-"ul ",81J01l8 to .lth~r aba"" odd,~.. vio rh. U.S. Moll. Thank YOI/. COMA-IJ;NTS: Please place a copy of this Agreement in each Commissioner's mailbox today. Thank you. JUN-21-2002 11:50 407 425 95% 94% P.01 .::>ent o.y: CH1U\"VI'lJW~nLJJoi:>~LLIVIJ.\I"'0l"H:j,oi:>u,r .1-\., ..,.v~ ...~:.; ~J~vJ .... ...." .....' """- ,I. .....~,....H'J . ....::;:1:.... ..... ,. Prepared by 3I1d Return to: Anthony A. G3rg311cse, City Attorney Brown, Ward, S31zm3l1 & Weiss, P.A. 225 E. Robinson Street, SuJte 660 P,o. Box 2673 Or1l!ndo. FL 32B02-2873 6121102 Parcel 1.0. Nos. 33-20-30-503-0000-0190 33-20-30.503-000D-019A 33-20-JO..503-0000-019C 33-20-3Q.503-OO00-019E 33-20-30-513.0000.00' 0 33.20-30-513-0000-0120 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_'~), whoseaddre.ss.is .1.126 East State_Road.4.3~, 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: WH EREAS, Reece owns certain real property located in the City of Winter Springs, Florida, and WHEREAS, the Subject Property was annexed intotha 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, as set forth under this Development Agreement; and 1 JUt.I-21-2002 11 : 50 407 425 9596 94% P.02 ~c:i'll o~y: onv\'''I''J_''il-\nIJJ~I"'\l...4..IIV'''\j,-:''''I.,.'''''''''\JJI .,....., ""J"'-t/I -1_-'; --';-'..., --- -- -- ---'''J - .:; ~ - .. WHEREAS, Reece acknowledges that certain building safety, parking and traffic problems exist on the Subject Property, as well as compatibility issues with surrounding residential uses, and proposes measures to minimize the negative impacts of these problems and to enhance the compatibility of the Subject Property with the surrounding residential uses; and WHEREAS, Reece proposes to enter into this Development Agreement with the City to permit the future development of the Subject Property while minimizing the negative impacts and enhancing compatibility of the existing and future uses of the Subject Property, subject to requirements of the City's 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 the City 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 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 Chapter 166.021, Florida Statutes, and the City's police powers; and WHEREAS, this Development Agreement was also adopted pursuant to the public hearing procedures set forth in Section 163.3225, Florida Statutes, and to the extent that the Municipal Home Rule Powers Act does not authorize any provision hereunder, said provision shall be deemed adopted in accordance with the authority granted under 2 JUH-21-2002 11:50 407 425 95% 94:.-; F.03 Sent .By: IjHUWNJI'IAHU,::;ALLMAI~(:af~C:~~~Jr '''''J "VI ..,-' 'J"''''''J .... ...', __, __ '" ....-. ....J Sections 163.3220 -163.3243, Florida Statutes, the "Florida Local Government Development Agreement Act.. NOW THEREFORE, in consideration of the mutual covenants and mutual benefits herein contained, the parties agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference and deemed a material part of this Development Agreement. 2. Authority. This Development Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act, Code of Ordinances of the City of Winter Springs, and to the extent necessary, the Florida Local Government Development ... .. .Agreement Act. 3, Representations of Reece and City. Reece and City hereby represent and warrant that Reece and 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. Subiect Property. The real property subject to this Development Agreement (hereinafter referred to as "Subject Property") is legally described in Exhibit "A," which is attached hereto and incorporated herein by this reference. 5. Phased Development. Reece agrees that future development of the Subject Property shall be in two (2) phases, as follows: 5.1 Phase I. Reece agrees to promptly comm~nce, and fully complete within six (6) months, the following development requirements in substantial 3 JU~,1-21-2002 11: 50 407 425 9596 94% P.04 Sene h'd.y; t:!HUWN,v',",l"\u,~'"''-t..IYI;<'I'C...\l:",'''vJ' .~. J ',~, ",-- ----, conformance with the conceptual Phase I Site Plan, which is attached hereto as Exhibit "S," and fully incorporated herein by this reference C'Phase I Plan"): A. Reece shall delineate and stabilize a grass parking area for vehicles on the Subject Property which shall be located generally east of the eastern-most existing automotive garage building and northeast of the intersection of Nursery Road and Ridge Road. B. Reece shall create and maintain a uno parking" zone on the Subject Property which shall be approximately twenty (20) feet wide by two- hundred seventy (270) feet long and generally located adjacent to Nursery Road and depicted on the Phase II Plan described below. The zone shall be posted and enforced as a "tow-away zone" in accordance with Section 715.07, Florida Statutes. The zone shall also be kept at all time free of debris and obstructions of any kind. C, Reece shall construct a six (6) foot high masonry wall, with a twenty-five (25) foot wide vegetative buffer, along the entire north and east boundaries of the Subject Property that abut a residential area. Said wall shall be constructed of material and designed in a manner deemed acceptable to the City. The location of said wall and buffer is generally depicted on the Phase I Plan. No improvements shall be located within the buffer area except landscaping, the wall, and a portion of the proposed retention pond (north boundary only) as depicted on the Phase I Plan. 4 JUN-21-2002 11:50 407 425 9596 94/; P.05 Sent ey: BHOWNJWAHUJtiALLMAN~w~1QQlr.~.i ~VI ~~~ ~J~VJ .... '..HI ...., ""'.. . I. .....-......J ...." - -, - D. Reece shall construct a four (4) foot high masonry wall along the south boundary of the Subject Property that generally runs approximately four hundred (400) feet from Talmo Street towards Ridge Street. Said wall shall be constructed of material and designed in a manner deemed acceptable to the City, The location of said wall is generally depicted on the Phase I Plan. Future ingress and egress through the four (4) foot wall may be constructed during Phase II of the development upon approval by the City. E. Reece shall re-stripe.th.e parking sp~ces directly in front of the existing eastem-most automotive garage building along Nursery Road to a width of ten (10) feet each. 5.2 Phase II. Reece agrees to fully complete the following development requirements in substantial conformance with the conceptual Phase II Site Plan which is attached hereto as Exhibit "C,ll and fully incorporated herein by this reference ("Phase II Plan"), A Prior to final site plan approval for Phase II development, Reece shall have prepared a written traffic study and report ("Traffic Report") to address the development under the Phase II Plan. The Traffic Report shall be conducted by a traffic engineer and using a methodology deemed acceptable to the City. The Traffic Report shall be at Reece's expense, The Traffic Report shall address and provide recommendations 5 JUN-21-2002 11:50 407 425 9596 94% P.06 tienl bY: t:H1UV'~t'4J~-~j.\nLJJ~,,",LL.lvlJ-i\.l~on~J.uuJr .~., ..,.U, ""t'..J ':'..J.:l~, ...J \.0 I. "", ........ ". -, ....."111' . ....~.... .: I.... regarding, at a minimum, traffic generation, sate and efficient traffic movement, pedestrian safety issues, right-ot-way adequacy, curb-cut location, and the potential for on- and off-site traffic improvements. The Traffic Report shall be subject to review and recommendation by the City's traffic consultant. Reece agrees to reimburse the City for the actual cost of the City's consultant's fees for providing said review and recommendation, The final site plan for the Phase II development shall implement the recommendations accepted by the City to the maximum extent feasible. The parties agree to coordinate the Traffic Report with the Florida Department of Transportation. B. Reece shall construct the proposed Phase II buildings which are depicted on the Phase II Plan. C. Unless sooner required by law, the Phase II development shall bring all the parking areas on the Subject Property into conformance with all applicable handicapped accessibility regulations. D. Illumination levels from the Subject Property shall not produce off-site illumination in residential areas nor off-site illumination in excess of 0.5 foot candles in commercial/industrial areas. Flickering of intrinsically bright sources of illumination shall be controlled so as not to be a nuisance to surrounding areas. 6. Special Property Restrictions. Reece agrees that the Subject Property shall be bound by the following special restrictions: 6 JUN-21-2002 11:50 407 425 9596 94;'; P.07 Sent t:ly; t:lHUVVNIVi/..\nUJ~~LLI\l~'~Qo."cJ."",r .... I "'VI ...~'-' ",;"",u, .... .....,. 600 I ... __ ,.. -, _.-.....~I' , _.~ - ....., ,- 6.1 Existing commercial/industrial floor area shall not be expanded on the Subject Property, until Phase /I development has received final approval by the City. Phase /I may be developed in phases. 6.2 On the eastern-most four hundred (400) feet of the Subject Property, auto repair shops, mechanic shops, auto body shops, auto paint shops, sheet metal shops, fabrication shops, industrial uses, and uses which generate obnoxious odors and excessive noise shall be strictly prohibited. 6.3. Businesses operating on the eastem-most four hundred (400) feet of the Subject Property shall limit their hours of operation between 6:00 a.m. and 9:00 p.m. 6.4 To the extent that City of Winter Springs' water and sewer service is readily available to the Subject Project, as determined by the City, Reece shall utilize said services, Reece shall be responsible for all fees, connection charges, impact fees, and other fees required to be paid to obtain said services. 6.5 Reece shall fully cooperate with the City in the City's attempt to acquire additional right-of-way in order to widen Nursery Road to a standard road width at and near the intersection of U.S. Highway 17-92. 7. Park Property Donation. Within ninety (90) days of recording this Development Agreement in the Public Records of Seminole County, Reece shall donate and convey Lots 1 and 12 of Block D, Talmo Subdivision, Plat Book 9, Page 10 of the Public Records of Seminole County for use and maintenance as a park. The closing on said property shall be conducted by the City Attorney and each party shall bear the closing fees that are customary for a seller and buyer under the Florida Bar Standard Real Estate 7 JUN-21-2002 11:50 407 425 9596 94% P.08 Sent .~'Y: BROWN,WARD,SALLMANlj,VI/t:ltiti,I"'.A.j 4UI 4'::1 ::I:I::lOj ..Jull-c::" - u, 'I ...,IoJ,.....I..,I, . ....~... ..Jj ,.... Sale and Purchase Agreement. The City agrees to execute I.R.S. Form 8283 to acknowledge the donation of said real property upon proper receipt of the form from Reece. 8. Successors and AssiQns. This Development Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the Subject Property. 9. Applicable Law. This Development Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the City of Winter Springs, 10. 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. 11. Entire AQreement. This Development Agreement supersedes any other agreement, written or oral, and contains the entire agreement between the parties as to the subject matter hereof. 12. Severabilitv_ 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 any respect the validity or enforceability of the remainder of this Development Agreement. 13. Effective Date. This Development Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution ofthis Development Agreement by all parties. 8 JU~~-21-2002 11: 50 407 425 9596 94% P.09 . Sent ,~: BROWN,WARD,SALZMAN&WEISS,P.A. j 407 425 9596j . Jun.2, -U2 11 :41AMj r'age lUll;) 14. 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 by the City in the public records of Seminole County, Florida, and shall run with the land. 15. Relationship of the Parties. The relationship of the parties to this Development Agreement is contractual and arm's length, Reece 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-witl=l.any other party. 16. $overeiQn Immunitv. Nothing contained in this Development Agreement shall be construed as a waiver of the Citys 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. 17. City's Police Power. Reece acknowledges and agrees 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 away or surrendering its police powers. 18. 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 interpretation of this Development Agreement in the event of a dispute between the parties. 19. Conceptual Plans: Permits. Reece acknowledges and agrees that the Phase I and Phase \I Plans are conceptual in nature and that final site plan approval is 9 JUN-21-2002 11:50 407 425 9596 94;; P.10 Sent ,~y: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 959bj Jun..:l.U.: II ;4H~Mj ri:t:jt: I I I I;;' required by the City before any development can lawfully commence, Furthermore, the / City may, at its discretion, require changes to the conceptua I plans in order to address the requirements of the City's Comprehensive Plan, Code of Ordinances, and the public health, safety, and welfare. The failure of this Development Agreement to address any particular City, county, state and 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, term or restriction. 20. Third Party RiQhts. This Development Agreement is not a third party beneficiary contract, and shall not in any way whatsoever create any rights on behalf of any third party. 21. 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. 22, Attornevs' Fees. In connection with any arbitration or litigation arising out of this Development Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. The City shall have the right to lien the Subject Property for any attorneys' fees and costs awarded the City under this Development Agreement which are not timely paid by Reece. 23. Future RezoningslDevelopment Pennits. 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 10 JUf-j-21-2002 11:50 407 425 9596 94;~ P.ll Sent ,~y: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9~9~; ..Jun.~l .U~ 11 :41AMj r-'agel.:.! i::> any future rezoning or development permit application subsequent to the Effective Date of this Development Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in the Subject Property. 24. Duration. This Development Agreement shall run with the land unless revoked or modified by Reece and the City by filing a recorded instrument of equal dignity herewith in the public records of Seminole County, Florida. 25. 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 q' --..... .----.. .addresses.asthe-pariies-heretoshalldesignate to each other in writing: A. If to City: With copies to: B. If to Reece: With copies to: JUN-21-2002 11:50 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 Anthony A. Garganese, City Attorney Brown, Ward, Salzman & Weiss, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 Telephone: 407-425-9566 Facsimile: 407-425-9596 Mr, Wayne P. Reece 561 Virginia Drive Winter Park) Florida 32789 Telephone: 407-64 7 -0911 Facsimile: 407~47-6491 John A. Leklem, P.A. 5151 Adanson Street, Suite 98 Orlando, Florida 32804 Telephone: 407 -628-3577 Facsimile: 407-628-2975 11 407 425 9596 94% P.12 Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 401 42~ ~~~bj .Jun..:l -u.: n ;4IAMj ,'age 1~/l:) Any notice or demand so given, delivered, or made by registered or certified mail will be deemed so given. delivered or made three (3) days after the same is deposited into aU,S. Mail receptacle and verified. 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. 26. Force Majeure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time . -.Period~) constitutes a default under the terms of this Development Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including. but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, riots. civil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then notwithstanding any provision of this Development Agreement to the contrary, that failure shall not constitute a default under this Development Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. 27. City's Right to Terminate Agreement. Failure by Reece to perform each and everyone of its obligations hereunder shall constitute a default, entitling the City to pursue whatever remedies are available to it under Florida law or equity including, without 12 JUN-21-2002 11 : 50 407 425 9596 94% P.13 Sent 8y: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Jun.21 -02 11 :42AMj Page 14/15 limitation. an action for specific performance and/or injunctive relief or alternatively, the termination of this Development Agreement. Prior to the City filing any action or terminating this Development Agreement as a result of a default under this Development Agreement, the City shall first provide Reece with written notice of said default. Upon receipt of said notice. Reece shall be provided a thirty (30) day opportunity in which to cure the default to the reasonable satisfaction of the City prior to filing said action or terminating this Development Agreement. If thirty (30) days is not a reasonable period in which to cure the default, the cure period shall be extended to a reasonable cure period mutually acceptable to the City and Reece, but in no case shall that cure period exceed . one-hundred.tweflty (.12Q)-days.-Upon.terminationofthe Development-Agreement, Reece shall immediately lose all rights and privileges granted hereunder. IN WITNESS WHEREOF, the parties have executed this Development Agreement as of the date first written above. ATTEST: CITY OF WINTER SPRINGS. a Florida Municipal Corporation: By: By: ANDREA lORENZO.lUACES City Clerk PAUL P. PARTYKA Mayor WAYNE P. REECE. an individual: WITNESSES: By: WAYNE P. REECE Date: 13 JUi'I-21-2002 11: 50 407 425 '3596 94% P.14 ay: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; .. Jun.21.0211:42AM; Page 15/15 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: (SEAL) ji! t 14 -- -,-.--,. 93% P.1S