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HomeMy WebLinkAbout2012 11 19 Regular 603 Amberly Developers AgreementCOMMISSION AGENDA ITEM 603 November 19, 2012 Special Meeting Informational Consent Public Hearings Regular X KS RS City Manager Department REQUEST: Community Development Department- Planning Division requests the City Commission consider approval of the Amberly Developer's Agreement (DA), a 36 -unit single - family development located on Dovera Drive, north of Red Bug Lake Road, within the Oviedo Marketplace PUD (and Development of Regional Impact). SYNOPSIS: The applicant, KB Home, is requesting approval of a Developer's Agreement (DA) for a 36 unit single - family development located on Dovera Drive, north of Red Bug Lake Road within the Oviedo Marketplace PUD (and Development of Regional Impact). The Developer's Agreement (DA) establishes the ability to allow the owner to construct both a sales office and up to four (4) model homes on the property to be used for the customary temporary marketing and sales activities prior to platting. CONSIDERATIONS: FUTURE LAND USE AND ZONING DESIGNATION FLU: Mixed Use Zoning: Planned Unit Development APPLICABLE LAW & PUBLIC POLICY Home Rule Powers Florida Statutes City of Winter Springs Comprehensive Plan City of Winter Springs Code of Ordinances Oviedo Marketplace Parcel 14B Second Implementation Agreement Regular 603 PAGE 1 OF 3 - November 19, 2012 CHRONOLOGY • March 26, 2012 — City Commission approved a revision to the Oviedo Marketplace Parcel 14B Second Implementation Agreement in order to add fee simple, single - family residential units, as an authorized residential use on Parcel 14B of the Oviedo Marketplace PUD (and Development of Regional Impact). • May 14, 2012 — City Commission approved both a Concept Plan and Aesthetic Review of Parcel 14B — Oviedo Marketplace subdivision • July 23, 2012 — City Commission approved both the Final Engineering Plan and Aesthetic Review for Parcel 14B- Amberly Oviedo Marketplace. • October 2012 — Final Plat submittal for City staff review. DISCUSSION: A Developers Agreement (DA) has been reviewed by staff, the applicant, and the City Attorney. Pertinent elements of the DA are as follows: The applicant seeks the ability to construct both a sales office and up to four (4) model homes on the property to be used for the customary temporary marketing and sales activities. The applicant requests that the City permit early construction of the model homes upon completion of stabilized access to the model home center and adequate means of fire protection from a city approved source of water. The development of the property shall be in accordance with the Final Engineering Plan and Aesthetic Review Plans approved by the City Commission on July 23, 2012. The model homes shall remain under owner's ownership and control until such time as a final certificate of occupancy for each unit is issued. The model homes shall be constructed in a location reasonably acceptable to the City, and any associated parking, pedestrian activity and other activities conducted by sales staff or the general public shall be adequately segregated from construction activities to ensure safety. The model center shall comply with all applicable state and city regulations regarding accessibility. Occupancy of the model home units shall be limited to the sales and marketing efforts for the project until a final certificate of occupancy is issued for such units. It is intended that the model homes can be shown by sales staff to prospective buyers as long as the building official has issued the temporary certificate of occupancy and the model is not staffed continuously. KB Home desires the ability to erect an ADA accessible tent and /or portable restrooms onsite for use by prospective buyers and KB Home staff prior to final certifications of water and sewer infrastructure. As the project development is completed, the model home units shall be converted into permanent residential units for sale. FISCAL IMPACT: The purpose of this agenda item is to approve the Amberly Developer's Agreement (DA), a 36 -unit single - family development located on Dovera Drive, north of Red Bug Lake Road, within the Oviedo Marketplace PUD (and Development of Regional Impact). There is no Regular 603 PAGE 2 OF 3 - November 19, 2012 immediate fiscal impact directly associated with this agenda item. The newly constructed homes will pay ad valorem taxes. The potential tax revenue of the proposed project is as follows: Fee Simple Single Family Residential Units — 36 units Units 2,450 square feet assessed at 90 square foot: $7,938,000 assessed tax value $7,938,000/1000 7,938.00 $7,938.00 (2.5600) = $20,321.28 $20,321.28 (less the 4% statutory discount) $19,508.43 tax revenue COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: The Community Development Department - Planning Division recommends that City Commission approve the Amberly Developer's Agreement (DA). ATTACHMENTS: A. Amberly Developer's Agreement B. Oviedo Marketplace Parcel 14B Second Implementation Agreement Regular 603 PAGE 3 OF 3 - November 19, 2012 • 014:§4?'..151:0 3 qttitio diva (to- Igilft7 :14.0 .e1 01;41attim: r'a " '' : D .'i(y,'�lV Yx�� v :+_ Y. {b'iiilR> ➢"#3 d: *fl ��( `'{S � att ;NICi:.',OPti.,t.i.eigii3t iffieftgadq,.....-4.11NRAVigitAfk •tr.:01445Frfirii N331 t;id Wigiirirtgc, WWI iba;i160.04 "ONO 1:::4frifficlar ,r1415,g) alma • IgigriktAiNiAti 1St vAkti Vii! _ oe'!}4" �Y�.! 3 fy1 451 pA 07(:-.*1 Br P# ; A, 4'}`'0.,- 7a ' (tiff, ItiN11,9 a:OPITAIRlis ori irroAri FillliVa.aligzi • Rib k'oriz110"4:0.Titgl ,3:54.0Y,111D5,191$, -tevviii:KalailiOnWIS, • ZEi'siiii4 tN1 F; 0. =Afp vadri:191i, • V14 0.:k-,7"11t. s tgAi '39f' " -�.'^' ,... ^• ar a6- 'Y`- x:+5r -� fir.` :. S 4 ti ',ONO 1145444. rt n'o:Y ot,g§L: } e. s!A 41'14qcr-V .;14-0i1 • • MP .;4 PIM 611 itq rfirir-4, :41k, • t 4T.v.tpt::11.t.-4.10.!1-4,-,41.?1 lo p.t,k‘,i., ' * 4 Atrintritki;: .1t4 11: „INVIAtt. 7 pi k. 14 P.6 0'441 sYik :OW VA I, • thilateklY � • s fi 4 pia � vats. • TM jaµ ggitifi UP' *4 U I, limp 1.441gftpiififlAs. • F;V: .a Cra i'ek,V115) ;Zit h A` 2 the �,� 't. z" ..., -• 7 '0.42:0•05,5Emrittg o ',110V16,L • �.r 5 �. {t.,.. .13floya nK1d0a 4dy,5_ 'Y 12V y:„?4 'k4$: " : "'140:44'+yo- h l'01.: Et4 3? ',I 15.1.a c.° fr '{*Y. 01V'' • -y Y If' kw v iirirkgikliftf--#'01BUNINkr"5" { rftyrikti r";.1- x OY Mira 0,1.4 gorify 10 1 v StZ: At tftelillaw •S' •:11 :A, I 8 47' • 'Ir-71. • • IiItI 701.04SYY'..,! • 6V14.541, h • 41, 4 i.;;,10) ir ,,,blifpNr,1.4,71fRoWtttilt, ,fW ',CI '11 -"A c _- 7, re 46g "irAfir.:4, • • • . .. + H i �� _ . �w� •k�s�as --" � :�fi- -� ; �:,'�' Asa f� — � ��1d °' — "'�. �'- '"'"'' rr }�~!! �.x°4f`'< a may;° • :• 1.,1 A eikt' Ptc.ii's:*,i,;; ;4 t {� k 1 �i� � 0 n � a, ,:_af ,� � Prepared By: Katherine W. L atorre Winter Springs Assistant City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802-2873 (407) 425 -9566 OVIEDO MARKETPLACE PARCEL 14B SECOND IMPLEMENTATION AGREEMENT THIS SECOND IMPLEMENTATION AGREEMENT ( "Agreement ") is entered into as of the 26th day of March, 2012, between the CITY OF WINTER SPRINGS, a Florida municipal corporation ( "City "), and THE VIERA COMPANY, a Florida corporation ( "Developer "). WITNESSETH: WHEREAS, the purpose of this Agreement is to implement the Oviedo Marketplace Development of Regional Impact ( "DRI ") Development Order for the development of Parcel 14B; and WHEREAS, Developer is the owner in fee simple of certain real property known as "Parcel 14B" containing approximately 11.265 acres subject to development, more or less, located in the City of Winter Springs within the Oviedo Marketplace DRI, legally described herein ( "Property "); and WHEREAS, the Property is subject to that certain City of Winter Springs DRI Development Order for Oviedo Marketplace (formerly Oviedo Crossing) dated November 12, 2001 and recorded January 17, 2002 in Official Records Book 4298, Page 1855 of the Public Records of Seminole County, Florida ( "Winter Springs DO") as amended by that certain First Amendment to the DRI Development Order for Oviedo Marketplace dated February 27, 2006 and recorded May 3, 2006 in Official Records Book 06228, Page 1402, of the Public Records of Seminole County, Florida ( "First Amendment to Winter Springs DO") and as implemented by that certain Oviedo Marketplace Parcel 14B Implementation Agreement dated October 29, 2009 and recorded November 19, 2009 in Book 7290, Page 1801, Public Records of Seminole County, Florida (the "First Implementation Agreement "). The Winter Springs DO, the First Amendment to Winter Springs DO and the First Implementation Agreement are hereinafter collectively referred to herein as the "Development Order"; and WHEREAS, the Property is zoned P.U.D. in accordance with the Code of ordinances, City of Winter Springs, Chapter 20, Article IV, Planned Unit Developments, Division 2. Part A. Planned Unit Developments, which such zoning classification authorizes residential dwelling units and supportive commercial and/or industrial land uses so long as they are complimentary to and compatible with each other; and Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 1 of 8 WHEREAS, the Development Order authorizes "Residential" development on the Property; and WHEREAS, Developer has requested that the City authorize the development of the residential portion of the Property as fee simple, detached single family units; fee simple, attached townhome or condominium residences; an independent living facility; an assisted living facility; or any combination of these uses, pursuant to the terms and conditions of this Agreement; and WHEREAS, the City and Developer desire to memorialize their mutual understanding and agreement as to the character and scope of the "Residential" development of the Property consistent with the terms of the Development order; and WHEREAS, the City finds that fee simple, detached single family units; fee simple, attached townhome or condominium residences; an independent living facility; and/or an assisted living facility, subject to the limitations set forth herein, are consistent with the Property's development designation of "Residential" as set forth in the Development Order and further, that such uses are complimentary to and compatible with the other uses allowed on the Property pursuant to the Development Order and with existing development adjacent to the Property; and WHEREAS, the City desires to provide Developer with a certain amount of flexibility related to the residential development so that the Property may be developed with a blend of uses to meet a variety of the City's needs, while ensuring that any such development does not become inconsistent with the City' s previous approval for residential development; and WHEREAS, to insure that any residential development now or hereafter constructed on the Property is complementary to and compatible with other uses allowed on the Property pursuant to the Development Order and with existing development adjacent to the Property, the City has requested that Developer place further restrictions on the Property to prohibit non - complementary and incompatible residential uses on the Property; and WHEREAS, the City is authorized to regulate the development of the Property; and WHEREAS, Developer is agreeable to further restricting the Property to insure that any residential development now or hereafter constructed on the Property is complementary to and compatible with the other permitted and existing uses on the Property and consistent with the Development Order. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($1O.00) and other valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the City, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference as a material part of this Agreement. Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 2 of 8 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Property. The Property subject to the terms and conditions of this Agreement is legally described in Exhibit "A," attached hereto and fully incorporated herein by this reference. 4. Residential Development. The City hereby finds that fee simple, detached single family units; fee simple, attached townhome or condominium residences; an independent living facility ("ILF"); an assisted living facility ("ALF"); or any combination of same, subject to the limitations set forth herein, are consistent with the "Residential" use designation on the Property. Developer shall develop the 100 residential units authorized on the Property by the Development Order, subject to the following limitations and conditions: A. Authorized Residential Uses. Residential development on the Property shall be limited to the following uses and any uses not specifically stated in this subsection shall be strictly prohibited on the Property: equal: i. Single Family Units. Single family units shall be fee simple, detached single family residences. ii. Townhomes or Condominiums. Townhomes or condominium units shall be fee simple attached residences. iii. ILF. For purposes of this Agreement, an ILF shall mean and refer to a residential housing project for older persons which is developed, marketed and administered to restrict residents under a specific age and containing units intended for occupancy by at least one (1) person of a specific age or older, all in a manner which is lawful and in full compliance with all federal, state and local laws, ordinances and requirements applicable to housing projects for older persons. The term "ILF" for purposes of this Agreement shall not include residential development which is not age restricted in accordance with the laws referenced above, even if said development may be marketed to retired persons or is predominantly composed of older or retired residents. iv. ALF. For purposes of this Agreement, an ALF is defined as any building, or buildings, or distinct part of a building, whether operated for profit or not, which undertakes, through its ownership or management, to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one (1) or more adults who are not relatives of the owner or administrator. B. Residential Units. As used in this section, each one (1) "residential unit" shall i. 0.56 fee simple, detached single family residential units; Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 3 of 8 ii. One (1) fee simple, attached townhome or condominium residential unit; iii. 1.54 ILF units; or iv. 3.15 ALF beds. C. Combination of Residential Development. Developer may develop the Property in any combination of the authorized residential uses set forth above provided the total number of residential units does not exceed 100 total units and provided the total daily residential trip generation does not exceed 642 trips pursuant to the ITE, Trip Generation, 7th Edition (as applied to 100 approved townhome units for Land Use 230). D. Conversion of Residential Development. Upon completion of the residential development of the Property, Developer shall be prohibited from converting any portion of the residential development to another residential use authorized by this Agreement without the prior, written consent of the City Commission. 5. Compliance with Ordinances and Regulations. Developer shall comply with all ordinances and regulations of the City (including, but not limited to, the City Land Development Regulations), which are applicable to the development of the Property. 6. Representations of the Parties. The City and Developer hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by the City and Developer and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. Developer represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement 7. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Developer and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 8. Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 4 of 8 9. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 10. Entire Agreement; Exhibits. This Agreement and all attached exhibits hereto supersede any other agreement, oral or written, regarding the Property and contain the entire agreement between the City and Developer as to the subject matter hereof. The Exhibits attached hereto and referenced herein are hereby fully incorporated herein by this reference. 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 of the remainder of this Agreement. 12. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 13. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 14. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Developer is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. 15. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, 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 other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). 16. City's Police Power. Developer agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 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. Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 5 of 8 18. Third - Party Rights. 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. 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 a suit in equity. 20. Attorney'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. 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 Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City' s police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement. 22. Default; Opportunity to Cure. Should either party desire to declare the other party in default of any term and condition of this Agreement, the non - defaulting party shall provide the defaulting party a written notice of default. The written notice shall, at a minimum, state with particularity the nature of the default, the manner in which the default can be cured, and a reasonable time period of not less than thirty (30) days in which the default must be cured. No action may be taken in a court of law on the basis that a breach of this Agreement has occurred until such time as the requirements of this paragraph have been satisfied. 23. Termination. The City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if Developer fails to receive building permits and substantially commence construction of Project within three (3) years of the effective date of this Agreement. In addition, the City shall have the right, but not obligation, to terminate the Agreement if Developer permanently abandons construction of the Project, provided, however, the City shall first deliver written notice and an opportunity to cure as set forth in Section 22 herein. If the City terminates this Agreement, the City shall record a notice of termination in the public records of Seminole County, Florida. IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed as of the day and year first written above. Second Implementation Agreement City of Winter Springs 1 The Viera Company Page6of8 ATTEST: By Andrea Lorenzo - Luaces, City Clerk CITY SEAL CITY OF WINTER SPRINGS, a Florida municipal corporation. By: Charles Lacey, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: By: Anthony A. Garganese, City Attorney for the City of Winter Springs, Florida Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 7 of 8 Signed, sealed and delivered in the THE VIERA COMPANY, a Florida corporation. presence of the following witnesses: Signature of Witness Printed Name of Witness Signature of Witness Printed Name of Witness By: Print Name: Title: Date: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2012, by , as of THE VIERA COMPANY, a Florida corporation, on behalf of said company. He /She is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Second Implementation Agreement City of Winter Springs 1 The Viera Company Page 8 of 8