Loading...
HomeMy WebLinkAboutTab 27 Bryce Foster Corporation.pdfTHIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407)425-9566 "yq MOB, MM OF CIRCUIT CILU.RT mIw...._ Camw ELK 05582 FaGS 0069 —087 `i CLERK" S :0 z"5eM7661 REMPM FAIA41 89%56%34 AA AMMIts FM 12%* FEMM BY B Thomas FOR RECORDING DEPARTMENT USE ONLY BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT (the "Agreement") is made and executed this o1aNd day of bodernjozPN , 2004, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and BRYCE FOSTER CORPORATION., a Florida Corporation ("Developer"), whose address is 215 Rollingwood Trail, Altamonte Springs. Florida 32714. WITNESSETH: WHEREAS, Developer is the fee simple owner of certain real property currently located in the City of Winter Springs, Florida and within the Tuskawilla PUD and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the parties acknowledge that the Property is currently subject to a Cora: Settlement Agreement which is recorded in Official Record Book 2277, Page 0464 in the Seminole County public records ("Settlement Agreement"); and WHEREAS, the City and Developer acknowledge that the Settlement Agreement was entered into before the Developer purchased the Property and that Developer has inherited the rights provided under the Settlement Agreement by virtue of purchasing the Property; and WHEREAS, in accordance with that Settlement Agreement, Developer is permitted to develop certain enumerated commercial uses; and WHEREAS, notwithstanding the exhaustive list of permitted commercial uses contained in the Settlement Agreement, Developer acknowledges and agrees that some of the listed commercial uses are not in keeping with the residential character of the Tuskawilla PUD; and WHEREAS, Developer strongly desires to develop a "residential friendly" project on the Property that is keeping in the character of the residential character of the Tuskawilla PUD; and WHEREAS, in order to commit to this "residential friendly" Project, ,the Developer is willing to voluntarily and forever forego certain rights under the Settlement Agreement by reducing the list of permitted commercial uses and thereby protecting the residential character of the Tuskawilla PUD; and WHEREAS, the City is willing to permit a "residential friendly" project on the Property under the special terms and conditions set forth herein including, but not limited to, Developer's commitment to forego certain rights under the Settlement Agreement and Developer's commitment to respect, safeguard and preserve the residential character of the Tuskawilla PUD; and WHEREAS, the City and Developer desire to set forth the following special terms and conditions with respect to the development and redevelopment of the Property; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Obligations and Commitments. In consideration of the City and Developer entering into this Agreement, and as an inducement for Developer to voluntarily and forego certain rights under the Settlement Agreement, the City and Developer hereby agree as follows: (a) Approval of Concept Plan. Developer shall design, permit and construct a "residential friendly" commercial development on the Property that creates a sense of place within the Tuscawilla PUD. The "residential friendly" commercial development shall be called the "Tuscawilla Town Square" or some other name mutually acceptable to the Developer and the City. Developer acknowledges that aesthetic enhancements will be a paramount concern to the City and the residents of the Tuscawilla PUD; and as such, Developer agrees to reasonably and adequately address these concerns during the design and construction of the Project. The City hereby acknowledges and agrees that the concept plan, which is attached hereto and fully incorporated herein as Exhibit "B", is acceptable ("Concept Plan"); provided, however, Developer shall have the obligation to further submit and obtain the City's approval of a final site plan and final engineering plans. Developer shall also have the obligation to construct aesthetic enhancements to the Project as depicted in the Concept Plan and as may be reasonably requested by the City in accordance with the City Code, particularly the City's aesthetic review ordinance. Developer acknowledges and agrees that the Concept Plan was not prepared with specific surveyed dimensions and that during the final site plan and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. Further, the elevations and roof lines depicted in the Concept Plan for the commercial buildings will Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -2- have to be adjusted to the City's satisfaction in order to satisfy the requirements under the City's aesthetic review ordinance. As such, Developer and the City agree that the Concept Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final site plan and final engineering phase in order to bring , the Project into compliance with the City Code and the needs of the Tuscawilla PUD. (b) Utilities. The City hereby acknowledges and agrees that it currently has sufficient water and sewer treatment plant capacity available to service the Property,, and shall provide such services to the Project as depicted in the Concept Plan. Developer acknowledges and agrees that offsite improvements may be necessary, at Developer's cost, to provide water and sewer service to the Property including, but not limited to, force main, lift station and pump upgrades. Further, all water and sewer improvements required on -site to service the Property shall be at Developer's expense. _ (c) Gary Hillary Drive. In order to facilitate the safe, efficient and orderly flow of traffic to and from the Project and to create a sense of place, the City desires that Gary Hillary Drive be redesigned and reconstructed in accordance with the streetscape plan which is attached hereto and fully incorporated herein as Exhibit "C." ("Streetscape Plan). Developer agrees to design and reconstruct Gary Hillary Drive in accordance with the Streetscape Plan; provided, however, the City shall reimburse Developer for the reasonable costs thereof. However, the Developer's obligation to reconstruct Gary Hillary Drive is subject to the funding condition provided in the last paragraph of this subsection (c). For purposes of this Agreement, (i) the design costs shall include the costs and expenses of land surveying, civil engineering, landscape architecture, irrigation design, electrical engineering and lighting design, and (ii) the construction costs shall include the costs and expenses for clearing, grubbing and earth excavation, and for the constructionl of all storm drainage facilities, Progress Energy approved decorative street lights, landscaping, hardscape, irrigation, sidewalks, curbs, pavement, striping, signage and any required additional offsite improvements directly related to the reconstruction of Gary Hillary Drive (all of the foregoing costs and expenses are hereinafter collectively referred to as the "Roadway Expenses"). To the extent any of the Roadway Expenses also benefit other aspects of the Project not related to Gary Hillary Drive (e.g., stormwater improvements for the buildings and common areas), the City shall only be responsible for reimbursing the proportionate share of the particular expense related to Gary Hillary Drive. The City shall reimburse Developer in the amount of the Roadway Expenses within ninety (90) days after the reconstruction of Gary Hillary Drive has been completed and accepted by the City. Developer agrees that all Roadway Expenses shall be subject to an informal competitive bid process under which Developer shall obtain three (3) written quotes or bids. Each bid shall be submitted to the City for review and approval prior to Developer entering into any contract for the design, permitting and reconstruction of Gary Hillary Road. Developer further agrees that at the time reimbursement for any Roadway Expense is requested, Developer shall provide the City with a copy of all applicable invoices, receipts, warranties, maintenance bonds, and documentation, including all change orders, which shall clearly evidence each reimbursable Roadway Expense. The City shall not be responsible for reimbursing any Roadway Expense which can not be Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -3- properly and reasonably documented in writing. The City shall not unreasonably - withhold any approvals required under this paragraph. Although it is initially contemplated by the parties that the reconstruction of Gary Hillary Drive will occur within the existing city right-of-way, Developer agrees to convey to the City any additional land that may be necessary to reconstruct Gary Hillary Drive in accordance with the Streetscape Plan. All such land conveyances shall be by warranty deed and free and clear of all encumbrances. Conveyance of roadway; and streetscape improvements shall be by bill of sale and free and clear of all liens. The warranty deed and bill of sale shall be in a form acceptable to the City Attorney. The City and Developer acknowledge and agree that the reconstruction of Gary Hillary Drive will likely coincide with a hazardous waste remediation project that will be performed by Seminole County. The hazardous waste project is the result of a gasoline spill at the 7-11 convenience store several years ago. The gasoline spill affected the area surrounding the 7-11 store, including Gary Hillary Drive. The parties shall continue cooperation with each other and Seminole County to facilitate the implementation of the hazardous waste remediation project. In the event the City is not in a position to approve the funding of Gary Hillary Drive within thirty (30) days from the effective date of this Agreement, the Developer may proceed with the project as outlined in this Development Agreement and Developer shall still have the use of Gary Hillary Drive for parallel parking and said parking shall be applicable to the parking required for Tuskawilla Town Square. In said event, Developer shall fund the cost necessary to create said parking and only design the improvements to Gary Hillary Drive as provided herein. If at a later date the City approves the improvements and funding for the construction of Gary Hillary Drive, Developer agrees that it shall undertake the construction of Gary Hillary Drive as provided herein so long as construction of Tuscawilla Town Square is still ongoing. (d) Construction of Stormwater Improvements. Developer shall design the Project to accommodate the stormwater requirements for the Property, including the roadway improvements to Gary Hillary Drive. The City shall permit Developer to use existing City property located at the corner of Gary Hillary Drive and Winter Springs Boulevard to accommodate stormwater generated from Gary Hillary Drive and the Property, provided said use is deemed acceptable and feasible by the City. Developer shall provide any additional property that is necessary to accommodate stormwater generated from the Property. (e) Permitted Commercial Uses, In consideration of the significant and substantial development rights received by the Developer from the City under this Agreement, Developer hereby agrees to voluntarily and forever forego the right to use the Property for any of the commercial uses listed on Exhibit B of the Settlement Agreement. However, at such time this Agreement is recorded in the public records of Seminole County, Florida, Developer shall be permitted to use the Property for any of the neighborhood friendly commercial uses specifically listed on Exhibit "C" which is attached hereto and fully incorporated herein by this reference. It is the intent and Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -4- purpose of this paragraph to fully replace Exhibit `B" of the Settlement Agreement with Exhibit "C" of this Agreement. (f) Winter Springs Boulevard Ingress and Egress. , The Developer acknowledges and agrees that during the site plan and final engineering phase of the Project, the City may require that the ingress and egress to the Property from Winter Springs Boulevard to be one way in or out. The minimum driveway width for ingress and egress shall be twenty-two (22) feet. (g) Buildinp_ Setbacks. The following Building Setbacks shall apply to the Property: (1) Front (Winter Springs Boulevard) - 10 Feet (2) Rear (Gary Hillary Drive) - 5 Feet (3) Side (Northern Way) — 20 Feet (h) Development Permit Fees. Developer agrees to pay all ordinary and customary development permit fees imposed by the City including, but not limited to, application, building, and impact fees. Within thirty (30) days of the effective date of this Agreement, the Developer and City agree to meet to calculate an estimated schedule of fees based on Developer's proposed Project at the time of the meeting. (i) Tree Replacement. Developer shall comply with the City's Arbor Ordinance set forth in Chapter 5 of the City Code. The Developer acknowledges and agrees that to the extent that the City's arborist determines that the Property can not adequately sustain the number of replacement trees that are required on the Property under the City Code, Developer shall provide the trees to the City and the City will plant the trees off -site at its discretion. In accordance with Section 5-8 of the Winter Springs Code, the City Commission agrees that no more than three (3) Specimen Trees may be removed from the Property due to Developer's representation that such trees must be removed in order to complete the Project. An inch for inch tree replacement shall be required for the removal of said Specimen Trees. The Specimen Trees may be removed at such time the City issues the appropriate permit, but not prior to such time that the termination rights set forth in paragraph 20 have expired. 0) On -Site Parking. On -site parking shall be a minimum of 18 feet in length. (k) Northern Way Buffer. Developer agrees, at its cost, to design, permit and construct a masonry block decorative wall around the garbage dumpsters. Further Developer agrees, at its cost, to design, permit, and construct a four (4) foot decorative brick wall along the parking area abutting Northern Way. 4. 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 Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -5- 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. 5. 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. 6. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7. 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. 8. Entire Agr_eem_ent. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Developer as to the subject matter hereof. 9. Severabil�. If any provision of this Agreement shall beheld 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. 10. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 11. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 12. 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. 13. Sovereign lmmunitN% Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under the state and federal law. 14. 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. 15. 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. Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -6- 16. 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. �1 17. 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. 18. 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. 19. Develoj2ment 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. 20. Termination. The parties acknowledge and agree that Developer's obligations to complete the Project are subject to and contingent upon the City's approval and issuance of all permits required and necessary for Developer to construct Tuscawilla Town Square including any off site improvements. Further, the Agreement is subject to the mutual agreement of the Parties on the cost schedules and allocation of costs contemplated in paragraphs 3(b), 3(c) and 3(d). If the Project (including off site improvements) and the cost schedules and allocation of costs as referenced above are not acceptable to either party, then either party may terminate this Agreement and the Settlement Agreement shall remain in full force and effect and govern the Development of the Property. Further, Developer shall lose any and all rights under this Agreement. Upon issuance of all City approvals and permits required to commence development of the Project, and the parties agreeing to the allocation of costs, the termination rights under this paragraph shall expire. [SIGNATURES FOLLOW ON NEXT PAGE] Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -7- IN WITNESS WHEREOF, the parties date first above written. CITY SEAL have hereunto set thei�"ds' and.seal on the Foy, CITY OF WINK19>�IIrT S•, All By: ". J Bush, wC?r APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida; only. Dated: I-, 1 1 By: Anthony Garganese, City Attorney for the City of Winter Springs, Florida Developer's Agreement City of Winter Springs and Bryce Foster Corporation, -8- Signed, sealed and delivered in the presence of the following witnesses: BRYCE FOSTER CORPORATION, a Florida Corporation Signature of Witness Aleec String A ""V '-) I� 6 Its President Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF Q' A, .- The foregoing instrument was acknowledged before me this day day of 2004, by Alec String, as President of BRYCE FOSTER CORPORATION, a Florida Corporation, on behalf of said corporation. He is ersonally know Ito me or produced as identification. (NOTARY SEAL) [ _L.��- �Q�—C. ptary Public Signature) s LE-4.i i c.. (Print Name) 9flpZ'9ZAlf1� � � D�, Notary Public, State of Commission No.: `c° My Commission Expires `', } w° Ztl38 JIEhSf]N 11r1�Q T _� Developer's Agreement City of Winter Springs and Bryce Foster Corporation. -9- LEGAL DESCRIPTION FOR TUSCAWILLA SQUARE (North East Corner of Winter Springs Blvd & Northern Way) as prepared by "Southeastern Surveying & Mapping Corp." LEGAL DESCRIPTION: From the centerline of intersection of Winter Springs Boulevard and Northern Way, as shown in Plat of WINTER SPRINGS UNIT FOUR as recorded in Plat Book 18, Pages 6, 7 and 8, Public Records of Seminole County, Florida; run North 86 degrees 23 minutes 05 seconds East along the centerline of Winter Springs Boulevard 282.85 feet; thence North 03 degrees 36 minutes 55 seconds West 60.00 feet to the POINT OF BEGINNING on the North right-of-way line of Winter Springs Boulevard (120 foot R/W); thence run South 86 degrees 23 minutes 05 seconds West along said North right-of-way line 217.85 feet to the point of curvature of a curve concave Northeasterly, and having a radius of 25.00 feet; thence run Northwesterly along the arc of said curve 39.27 feet through a central angle of 90 degrees 00 minutes 00 seconds to the polnt of tangency on the East right-of-way line of Northern Way (80 foot R1W); thence run North 03 degrees 36 minutes 55 seconds West, along said East right-of-way line 90.78 feet to the point of curvature of a curve concave Easterly and having a radius of 1893.55 feet; thence run Northerly along the arc of said curve 84.25 feet through a central angle of 02 degrees 32 minutes 57 seconds to a point; thence leaving said East right-of-way line, run North 86 degrees 23 minutes 05 seconds East 270.83 feet to the point of curvature of a curve concave Southwesterly, and having a radius of 27.83 feet; thence run Southeasterly along the arc of said curve 40.44 feet through a central angle of 83 degrees 14 minutes 41 seconds to the point of tangency; thence run South 10 degrees 22 minutes 14 seconds East, 173.85 feet to a point on the aforesaid North right-of-way line of Winter Springs Boulevard, said point being on a curve concave Northerly, and having a radius of 1085.92 feet; thence from a tangent bearing of South 82 degrees 16 m"mutes 07 seconds West, run Westerly along the arc of said curve and along said Northerly right- of-way line 78.01 feet through a central angle of 04 degrees 06 minutes 58 seconds to the POINT OF BEGINNING. Exhibit "A" Tuscawiffla SguaitW� Concept Plan Summary Location: 1301 Winter Springs Blvd Winter Springs, Fl. 32708 Land Size: 1.4112 Acres Current Use: Tuscany's Restaurant Proposed Use: Expansion of Tuscany's Restaurant and additional retail space Design Features: Key West Inspired Design in a residential scale, Front Porches, Metal Roofs, Brick drives, Fountain, Gardens, Benches, and Bike Racks, Improvements to Add sidewalks, address storm water Gary Hillary Drive: Drainage, Lighting, Landscaping and Remediation of groundwater contamination Architect: Starmer Ranaldi Landscape Architect: Dobson's Owner: Bryce Foster Corporation EXHIBIT 0 c; ':, rr' � F1� -' � ' v, - ��� .=� � ,'�i S ist ..ti r�.• � .ai ll� i M L,,bJ 1161 Ila EXHIBIT "C" NEIGIiBORHOOD FRIENDLY PERMITTED COMMERCIAL USES The following Neighborhood Friendly commercial uses shall be permitted on the Property: A. Permitted Uses: Administrative public buildings Advertising agencies Alcoholic beverage sales (wine & beer and specialty package) Alcoholic beverage, on -premises consumption, in conjunction with restaurant Alterations and tailoring, shops and services Antique and gift shops Appliances, sales and service Artists' studios Automotive accessories sales Bakery, retail Bicycles, sales and services Bookstores, stationary, newsstands Butcher shop, retail only Camera shops, photographic stores and developers Cleaners, clothing Coin dealers; Computers, hardware and software sales and services Confectionary and ice cream store Dance and music studio Day nurseries, kindergartens, and day care Drug and sundry stores Employment agencies Exercise such as gym, spa and karate Financial institutions, banks, savings and loans (no drive -through) Flooring, retail only (carpet, tile, wood, etc.) Florist Furniture, retail Grocers and delicatessens, specialty and retail Hairstylist and barber shops Hardware stores Health food products and services Hobby and craft shops Home Improvement shops, retail and consultation services Insurance agency i Interior Decorating and draperies Jewelry store Kitchen and other cabinet stores, retail Libraries Loan companies, excluding pawnshops and title loan companies Locksmith Luggage and travel shop Medical clinics and ancillary small laboratories Musical instruments, sales and services Nursery products and supplies, plants, and trees (retail only) Outdoor advertising and signs, sales office Outdoor neighborhood markets on weekends and holidays Optical services and sales Party supplies and services Paint store Pet shops and grooming Photography studios Physical fitness and health clubs Post office Printers, quick print services only Professional services offices, such as accountants, architects, attorneys, bookkeepers, dentists, doctors, engineers, insurance and other agents, and surveyors. Radio, TV, Stereo, and Video Rental shops Restaurants, including indoor and outdoor dining Retail sales of a residential character Schools, public, private and parochial, vocational (such as cosmetology, medical and dental assistant training) requiring no mechanical equipment Shoe repair shops Sporting goods, retail Swimming pool sales and services Telephone Business offices and exchanges Tobacco shops Toy stores Travel agencies Wearing apparel stores B. Other Uses: Upon formal written petition by the Developer, the Developer may petition the City Commission for additional permitted uses. The City Commission may consider the Developer's petition, on a case -by -case basis, and approve, at its discretion, additional neighborhood commercial uses that are keeping with the residential character of the Tuskawilla PUD. The City Commission shall have the right to impose reasonable conditions on any approvals granted under this Agreement.