HomeMy WebLinkAboutTab 32 Capital Green, LLC, (JDC-Town Center).pdf,Nl
1 THIS INSTRUMENT WAS PREPARED BY
AND RETURN 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
MARYANNE MORSE, CLERK{ OF CIRCUIT COURT
SEMINOLE COUNTY
BK 051381 FMCS 1497— 1504
CLERK'S # 2005191578
RECORDED 11/04/2005 11140:33 AM
RECORDING FEES 69.50
RECORDED BY D Thomas
FOR RECORDING DEPARTMENT USE ONLY
BINDING DEVELOPMENT AGREEMENT
THIS BINDING DEVELOPMENT AGREEMENT (the "Agreement") is made and
executed this 25th day of October, 2005, 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 CAPITAL GREEN, LLC., a Georgia Limited Liability Company
("Developer"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, S 29492.
WITNESSETH:
WHEREAS, Developer is the fee simple owner of certain real property generally located
within the City of Winter Springs Town Center west of Tuscawilla Road, north of State Road
434, and south of Blumberg Boulevard and currently subject to a binding development
agreement between JDC Calhoun, Inc. and the City, dated August 1, 2000, and on file at Winter
Springs City Hall (the "Phase I Property"); and
WHEREAS, Developer is currently completing Phase I of a development project on the
Phase I Property; and
WHEREAS, as part of Phase I, Developer desires to purchase an additional .43 acres of
real property from Mr. & Mrs. Kingsbury which lies adjacent to the Phase I Property along
Blumberg Boulevard as legally described in Exhibit "A" which is hereby fully incorporated
herein by this reference (the "Kingsbury Property"); and
WHEREAS, Developer desires to incorporate the Kingsbury Property into the phase I
project site for purposes of constructing a twenty-six (26) unit residential condominium project;
and
WHEREAS, if Developer acquires the Kingsbury Property, Developer will aggregate
that property with other adjacent property owned by Developer for purposes of creating a
buildable lot under the City Code; and
WHEREAS, Developer desires certain limited assurances from the City before they
finalize the closing on the Kingsbury Property as more specifically set forth under this
Agreement, and
WHEREAS, the City and Developer desire to set forth the following special terms and
conditions with respect to the development 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. Authoritv. This Agreement is entered into pursuant to the Florida Municipal
Home Rule Powers Act.
3. Obligations and Commitments. The City and Developer hereby agree as
follows:
(a) Kingsbury Property,Developer shall use its best efforts to purchase the
Kingsbury Property. if Developer acquires the Kingsbury Property, the Kingsbury Property shall
be aggregated and combined with a portion of adjacent property currently owned by the
Developer along Blumberg Boulevard (the "Building 17 Site"). The purposes of purchasing the
Kingsbury Property shall be to create a buildable lot as generally depicted on the Concept Plan.
Developer agrees to create the Building 17 Site in accordance with the requirements of the City
Code and within sixty (60) days of closing on the Kingsbury Property.
(b) Approval of Concel2t Plan. The City agrees that the Developer shall have the
right to design, permit and construct a four story, twenty-six (26) unit, residential condominium
project on the Building 17 Site in accordance with the concept plan attached hereto and fully
incorporated herein as Exhibit "B" (the "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 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 final surveyed dimensions and that during the final
sitr plan and final engineering process such dimensions shall be surveyed, duly engineered, and
provided to the City. 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. The
condominium project shall consist of four (4) three bedroom units and twenty-two (22) two
bedroom units unless otherwise mutually agreed to by the parties.
(c) Parking. The City hereby acknowledges and agrees that a minimum of forty-one
(41) parking spaces, including handicapped spaces, shall be acceptable for the twenty-six unit
residential condominium project proposed in subparagraph (b) above.
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-2-
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
execution, delivery and performance of this Agreement. This Agreement will, when duly
executed and delivered by the City and Developer ,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 Agreement. 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. Severabili_yt . 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; Termination. This Agreement shall become effective upon
approval by the City Commission and execution of this Agreement by both parties hereto.
However, the development rights set forth herein shall only become effective at such time that
the Developer closes on the Kingsbury Property. If Developer fails to purchase the Kingsbury
Property within six (6) months of the City Commission approving this Agreement, this
Agreement shall automatically terminate and the parties shall no longer have any rights
hereunder.
11. Recordation. This Agreement shall be recorded in the Public Records of
Seminole County, Florida. For purposes of recording this Agreement, a legal description of the
Building 17 Site shall be provided by the Developer when said site is created pursuant to City
Code and attached to this Agreement in order to adequately represent the real property that is
subject to this Agreement.
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.
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-3-
13. Sovereign Immunity. 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. Ci '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.
16. Third -Park 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.
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. Develo ment 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.
[SIGNATURES FOLLOW ON NEXT PAGE]
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-4-
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written.
r,.
CITY SEAL
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I
CITY OF WINTER SPRINGS
7 F. Bush, Mayor
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
Dated:
By: ✓
Anthony gan" ese, City Attorney for
the City of Winter Springs, Florida
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-5-
Signed, sealed and delivered in the
presence of the following witnesses:
Signature of Witness IV
Printed Name of Witness
5ipature of Witn
lyu
Printed Name of Witness
Capital Green I, Ll
Liability Company
a Georgia Limited
Disher, Vice President
STATE OF-50ltTf:e Gel,?OLWA9
COUNTY OF �_,:71_ EL_Cy
The foregoing instrument was acknowledged before me this J S� day of
, 2005, by John H. Disher, Vice President of ESD Properties, Inc., managing
member of Capital Green I, LLC, A Georgia Limited Liability Company on behalf of said
developer. He is personally known to me or produced as
identification. - -� -
(NOTARY SEAL) " A
(No Public Signaturer
(Print Name)
Notary Public, State of ti b" 4-� N' hCoyii
Commission No.:
My Commission Expires:4-201
Developer's Agreement
City of Winter Springs and Capital Green I, LLC
-6-
LEGAL DESCRIPTION
f PREPAJ4ED BY LOCHRANE )
A PORTION OF THE NORTH2M.00 FEET OF THE EAST 3aB.Dd FEET OFgiiTCli "B" THAT IS ON THE CAST SIDE OF
OVfEDfl-SANFOI4D 190AO fA.X.A. STATE RL]A 1434).ON THE WEST SIDE OF BRANTLEY AVENUE
fA.X.A. TUSKANIILLA ROADI.ON THE SOUTH SIDE OF
PLATTED ROAD (A.K.A. FIRST STREETI OF D.R.
RE DED 1 NPLAT Or B8WK 1. P� 5. OF THE RA9LIIC LAKE REECC0R� 5EMIgo E THE
COOUNN T THEAEOF
FLDPIDA.
ALL BEING JIOWE PARTICULARLY AS FOLLOWS-'
aWMENCE AT TINE NORTHEA51- CORNER OF BLOCK "B". O-R. MITCHELL'S sURVIEY OF THE LEVY
SRANT ON LAKE JESSUP. AS RECORDED IN PL7 T BOOK 1. PAGE 5. PUB(JC RECORDS OF SELJINOL.E
CWNTY FLOMOA. SAID POINT ALSO BEING THE INTERSECTION OF THE 5[]UTH Rf4HT OF WAY
LINE Ord PLA TTED ROAD f AXA_ FIRST STREET 1 AND BRANTLEY AVENUE f AIK.A. TUSKAWfLLA O }
OF SAID D.R. 1RTCHELL`S SURVEY OF THE LEVY GRANT ON LAKE JESSUP) THENCE RUN N7l'T.3'56 W.
ALONG SAID SOUTH R1G9T OF WAY LINE OF PLATTED ROM (AS -A. FIRST STREET) AND THE NORTH
LINE OF BLOCK "B" A INSTANCE Of JSS-OO FEET FOR THE POINT OF BESLNNINGi THENCE DEPARTING AFAR SAID
SOUTH R1LyHT OF H1AY NE AND THE NORTH LINE OF BLOCK "B v RUN SMV4 SS W A UIsTANCE OF M94 FEET,
THENCE RUN S7f E3'31"E A DISTANCE OF 112.34. TFLENCF RUN Nfe 36 9"E A DISTANCE Of E04.�6�FEET TO A
FW,Yr ON THE AFOREMENTKWED SOUTH RIGHT Of WAY LINE AND THE NORTH LINE OF BLOCK' B . THENCE
RUN Ni'I 23'56'W ALM SAID S IOTA PX,9T OF WAY UNE AND THE NORTH LINE; OF BLDClf '13A DISTA,VCE DF
70.75 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.430 ACRES. I1B.T45 SQUARE FEET J. MORE OR LESS.
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KINGSBURY
RESIDENCE
I
BROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at Low
Debra S. Babb-Nutcher° Offices in Orlando, Kissimmee Joseph E. Blitch
Usher L. Brown & Cocoa Victoria L. Cecil
Suzanne D'Agresta" Scott J. Domstein
Anthony A. Garganese° Andrew M. Fisher
J.W. Taylor Katherine W. Latorre
Jeffrey S. Weiss Paul H. McLester
Amy J. Pitsch
"Board Certified Civil Trial Lawyer Erin J. O'Leary
'Board Certified City, County & Local Government Law Of Counsel
December 16, 2005
Ilia Federal Express
Mr. Shane Doran
216 Seven Farms Drive, Suite 200
Charleston, South Carolina 29492
Re: WSTC Phase II Developer's Agreement between the City of Winter Springs
and JDC Calhoun, Inc.
Dear Shane:
Enclosed is a copy of the fully executed Winter Springs Town Center Phase II Development
Agreement, dated December 15, 2005. Please be aware that it was necessary to correct page 1
of the Development Agreement that was provided by your office. Further, we inserted one
additional sheet to Exhibit "B." The same can be found on Page 1 of 14 of Exhibit "B."
The City Manager also noticed a discrepancy on the Phase II B Concept Plan. That
Concept Plan shows two rows of parking along State Road 434. The rows of parking are
inconsistent with the Town Center Code and will obviously need to be engineered to Code at a later
date. In the meantime, in an effort to limit disruption of the pending closing, we are transmitting to
you the fully executed Agreement at the City Manager's direction with the clear understanding that
the Phase II Concept Plan is incorrect and will be corrected after the closing and before recording.
As always, should you have any questions, please do not hesitate to contact me.
cc: Ron McLemore, City Manager
Enclosure
AV r y yV r y yours,
Anthony A. Garganese
City Attorney
225 East Robinson Street, Suite 660 • P.O. Box 2873.Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566
Website: www.orlandolaw.net • Email: firm@odandolaw.net
THIS INSTRUMENT WAS PREPARED BY
7 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
WSTC PHASE II DEVELOPER'S AGREEMENT
THIS WSTC PHASE H DEVELOPER'S AGREEMENT (the "Agreement") is made
and executed this 15th day of December, 2005, 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 JDC CALHOUN, INC. (a Georgia corporation) ("JDC"),
whose address is 216 Seven Farms Drive, Suite 200, Charleston, South Carolina 29492.
WITNESSETH:
WHEREAS, Section 163.3167, Florida Statutes, provides that each local government is
encouraged to articulate a vision of the future physical appearance and qualities of its community
as a component of the local comprehensive plan through a collaborative planning process with
meaningful public participation; and
WHEREAS, the City completed a comprehensive planning study, with extensive public
participation from local residents and local, county, and state officials, which resulted in the
adoption of the Winter Springs Town Center Plan; and
WHEREAS, JDC is the contract purchaser and it or its assignee will be the owner and
developer of approximately 46.5 acres of land located within the boundaries of the City of
Winter Springs Town Center, North of State Road 434 and East of Main Street (aka Tuscawilla
Road) and more particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof (the "Property"); and
WHEREAS, JDC plans to develop a mixed -use project ("Project") on the Property, as
preliminarily depicted in that certain Concept Plan, entitled "Winter Springs Town Center",
submitted to the City Commission of Winter Springs on October 17, 2005, and prepared for the
James Doran Company and consisting of fourteen (14) sheets including a concept site plan,
typical front elevations and colors for buildings, floor plans for residential units (collectively
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 1 of 10
referred to as the "Concept Plan"), a copy of said Concept Plan is attached hereto as Exhibit "B"
and incorporated herein by this reference, and in accordance with the terms and conditions of this
Agreement; and
WHEREAS, JDC and City desire to memorialize their understandings and agreements
regarding the Project; 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 JDC's commitment to
diligently pursue closing on the Property in accordance with paragraph 3.16, the City and JDC
hereby agree as follows:
3.1 Approval of Concept PIan. The City hereby acknowledges and agrees that
the Concept Plan, which provides, inter alia, for minimum of 400,000 square feet
of retail, 300,000 square feet of office, and 700 multi -family units, all in buildings
up to six (6) stories in height, as well as appropriate parking structures, is
acceptable to the City; provided, however, JDC shall have the obligation to
further submit and obtain the City's approval of a final site plan and final
1 engineering plans. Moreover, JDC acknowledges and agrees that nothing in the
Concept Plan shall be construed to represent the final number of parking spaces
which will be required for the Project. JDC shall also have the obligation to
construct aesthetic enhancements to the Project as may be reasonably requested
by the City in accordance with the City Code, particularly the City's aesthetic
review ordinance. JDC acknowledges and agrees that the Concept Plan was not
prepared with specific final 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. As such, JDC 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's Comprehensive Plan and Code.
3.2 Future Changes in Mix of Uses. Nothing contained herein shall be deemed
to preclude JDC from seeking a change in said mix of uses, provided that any
substantial change in the mix of uses are approved by the City Commission in
accordance with the City's Comprehensive Plan and Code. Should JDC propose a
change in the mix of uses, the City may require an updated traffic study for the
Project in order to determine whether or not roadway improvements and parking
requirements should be amended.
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 2 of 10
3.3 Phasi -2 of Project, -Commencement of Phase IIA. JDC intends to develop
the Project in two phases. The first phase of the Project ('`phase IIA') shall not be
phased and shall be developed as a single development project as depicted on
Exhibit "C", which is attached hereto and incorporated herein by this reference.
Phase HA will contain not less than 30,000 square feet of office or retail, not less
than 300 residential units, and two (2) parking structures. phase IIA shall also
include all frontage on Main Street between McDonalds and Magnolia Park. JDC
shall submit to the City all permit applications for the construction of Phase HA
no later than one hundred twenty (120)-days following the date that JDC and the
City approve and execute an Implementation Agreement pursuant to paragraph 4
of this Agreement. JDC agrees to commence substantial construction of Phase
IIA within one hundred twenty (120) days from the date that the City issues a
building permit for all or part of the construction of Phase HA.
3.4 Phasing of Project; Commencement of Phase III3. JDC intends to
commence substantial construction of the second phase of the Project as depicted
on Exhibit "D" C Phase IIB"j no later than sixty -days following the City's
issuance of the final certificate of occupancy for Phase HA. JDC and City agree
that Project depicted on Exhibit "D" may be amended from time to time and will
be further defined by mutual agreement of the parties pursuant to paragraph 4 of
this Agreement.
3.5 Roadways. Unless otherwise provided in this paragraph, all roadways shown
on the Concept Plan (the "Roads") shall be designed and constructed pursuant to
applicable provisions of the City Code. The Roads shall be located in accordance
with the Concept Plan, as may be amended from time to time. The City agrees to
promptly amend the Town Center Transportation Master Plan to incorporate the
Roads into said Master Plan. Subject to final City approval, JDC agrees to
design., permit, and construct the Roads; provided, however, that the City shall
reimburse JDC for the reasonable costs thereof as mutually agreed to pursuant to
paragraph 4 of this agreement.
JDC agrees to convey to the City that portion of the Roads located on the Property
and all other roadways (excluding alleyways) depicted on the Concept Plan, along
with all related improvements thereon and thereunder. All such land conveyances
shall be by a recorded plat and free and clear of all encumbrances. Conveyance of
improvements shall be by bill of sale and free and clear of all liens. Said plat and
bill of sale shall be in a form reasonably acceptable to the City Attorney.
3.6 Utilitles. The City hereby acknowledges and agrees that it currently has
sufficient water and sewer treatment plant capacity available to service the
Project. Furthermore, all water, sewer, and drainage improvements required on -
site to service the Property shall be designed, constructed and installed by JDC,
and the City will reimburse JDC for said improvements to the extent mutually
agreed to pursuant to paragraph 4 of this Agreement.
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 3 of 10
3.7 Construction of Storm Water Improvements. JDC shall design the Project
to accommodate the stormwater requirements for the Property and the McDonalds
site, including the roadway improvements to be located adjacent to and/or within
1 the Project. The City shall permit JDC to use any existing City rights -of -way
and/or easements to accommodate storm water generated from the Property. JDC
agrees to convey to the City certain additional land as shown on the Concept Plan
that is necessary to accommodate storm water generated from the Property to the
extent mutually agreed to pursuant to paragraph 4 of this Agreement.
3.8 Cross -Seminole Trail. The City shall use its best efforts to convince
Seminole County to allow utilization of the Cross -Seminole Trail right-of-way for
road access/fire access/on-street parking for the "North" Main Street building
and/or a clarification that fire codes will allow the "North" Main Street building to
be built without such utilization of the Trail.
3.9 Parking. JDC agrees to design, permit, and construct private and public
Parking within the two parking structures required in Phase HA in accordance
with City guidelines and requirements. In addition to the public parking spaces
required above, JDC agrees, to the extent. feasible, to design, permit, and construct
additional public parking spaces in said parking structures upon the City's request.
Cost sharing for the two Phase IIA parking structures shall be mutually agreed to
in accordance with paragraph 4 of this Agreement.
3.10 Doran Drive TYaffic Signal. The City shall diligently pursue approval of
traffic signal facilities at the intersection of Doran Drive and S.R. 434 by the
Florida Department of Transportation (FDOT). The City shall install such
facilities, at the City's sole cost and expense, as soon as possible after such
approval, but in no event any later than nine (9) months from the effective date of
this Agreement.
3.11 Develo-pment Permit Fees. JDC agrees to pay all ordinary and
customary development permit fees imposed by the City; provided, however, that
the City agrees, in accordance with the City Code, to reduce transportation impact
fees by an amount justified by a duly qualified traffic engineering consultant that
is acceptable to both JDC and the City. JDC and the City agree that Glatting—
Jackson is an acceptable consultant. For the purposes of calculating transportation
impact fees, the City will use an aggregated retail rate.
3.12 Miscellaneous FDOT Traffic Issues. Consistent with the City's
Comprehensive Plan (including, but not limited to, the goals, policies and
objectives for the Town Center and Central Business District), the Town Center
Code and the "Victor Dover Grid," the City shall continue to diligently pursue with
FDOT street calming and beautification efforts; access/signalization textured
crosswalks; entry features at the outer perimeter of the Town Center; lowered speed
limits; the approval, funding, and installation of traffic lights for Phase IIB of the
Project; and other issues that maybe identified by the City from time to time.
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 4 of 10
3.13 Am hitheater. The City shall use its best efforts to secure financing for an
amphitheater at Magnolia Park. JDC shall convey to the City at no cost up to 0.5
acres as shown on Exhibit "C" hereto for the construction of such amphitheater.
3.14 Inspection Personnel. The City shall, if necessary, engage sufficient
personnel — either through City employees or third -party vendors — for the
Building Department to perform inspections on an expedited basis.
3.15 Town Center Code Waivers. Based on the Concept Plan and JDC's
agreement to the terms and conditions set forth in this Agreement, the City
Commission hereby grants the following waivers to the Town Center District
Code pursuant to the special exception criteria enumerated in Section 20-321(c):
(A) Balconies. The City agrees that the 6-foot balcony rule for second floor
balconies shall apply as provided in the Town Center Code, however,
balconies on other upper level floors shall be a combination of four and two
foot deep balconies.
(B) He_ !2ht. The height of any and all buildings constructed within the Property
and depicted on the Concept Plan shall be consistent with the City's
Comprehensive Plan and shall be constructed to a height of six (6) stories.
3.16 Closing on the Proverty. Upon the effective date of this Agreement, JDC
shall continue to diligently pursue the closing with the current owner of the
Property in order to become the fee simple owner of the Property. Should JDC
fail to close on the Property within six (6) months of this Agreement, this
Agreement shall automatically terminate uaiess the six month time period is
extended by the parties in writing. Upon termination hereof, neither party shall
have any rights or obligations hereunder.
4. Im lementation Agreement.'
reement. Upon the effective date of this Agreement, the City and
JDC shall commence, in good faith, negotiations for purposes of reducing to writing an
"Implementation Agreement." The purpose of the implementation Agreement will be to
set out the parties' mutual expectations for implementing this Agreement and designing,
Permitting, and constructing the Project. Said expectations shall include, but not be
limited to, cost sharing of infrastructure improvements and parking, as well as aesthetics,
impact fee credits, expedited permit review, and construction schedules. The parties shall
endeavor to complete and execute the Implementation Agreement within sixty (60) days
of the effective date of this Agreement, but in no event will said completion and
execution be later than the City's issuance of any final development order for Phase IIA
of the Project. In addition, JDC and the City agree that the previous agreement between
the City and Schrimsher, dated June 26, 2000, shall remain binding on the Property;
except, however, the Small Neighborhood Squares #4 and #5 required by paragraph IV
therein shall be relocated as mutual agreed to by JDC and the City. Further, paragraph IX
East Market Square Parcel is hereby deleted. In the event that JDC and the City shall
fail to agree and execute an Implementation Agreement within six (6) months of the
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 5 of 10
effective date of this Agreement, this Agreement shall automatically terminate unless the
six month time period is extended by the parties in writing. Upon termination, neither
party shall have any rights or obligations hereunder.
5. Representations of the Parties. The City and JDC 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 JDC, constitute a legal, valid and binding
obligation enforceable against the parties hereto in accordance with the terms and
conditions of this Agreement and upon the Property upon recordation pursuant to
paragraph 12.
6. Successors and Assigns. This Agreement shall automatically be binding upon and
shall inure to the benefit of the City and JDC. Prior to recordation of the Agreement, any
assignment of this Agreement shall require the mutual written consent of the parties.
Notwithstanding anything contained herein to the contrary, JDC may assign, with prior
written notice to the City, its rights and obligations hereunder to one or more affiliates of
JDC which may acquire title to all or any part of the Property.
7. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida and the City's Comprehensive Plan and Code. Any
reference in this Agreement to the laws of Florida and the City's Comprehensive Plan and
City Code shall mean the applicable law, comprehensive plan, or code, as may be
amended from time to time.
S. 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.
9. Entire Agreement. This Agreement supersedes any other agreement, oral or written,
and contains the entire agreement between the City and JDC as to the subject matter
hereof.
10. Severability. 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.
11. Effective Date-, Termination. This Agreement shall become effective upon approval
by the City Commission and execution of this Agreement by both parties hereto. This
Agreement may be terminated by mutual written agreement of the parties or pursuant to
the terms and conditions set forth in paragraphs 3.16 or 4.
12. Recordation. This Agreement shall be recorded in the Public Records of Seminole
County, Florida at such time JDC closes on the Property. Upon recordation, the terms
and conditions of this Agreement shall be binding upon the Property and shall run with
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 6 of 10
title to the same. After recordation of this Agreement, should this Agreement terminate
by mutual agreement of the parties or pursuant to paragraph 4, the City will record'a
notice of termination of development agreement in said public records upon termination.
13. Relationship of the Parties. The relationship of the parties to this Agreement is
contractual and JDC 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.
14. 5overei Immunitv. Nothing contained in this Agreement shall be construed as a
waiver of the City's right to sovereign immunity under Section 769.28, Florida Statutes,
or any other limitation on the City's potential liability under the state and federal law.
15. City's Police Power. JDC 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.
16. 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.
17. Third -Pa Ri hts. 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.
18. 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.
19. Attorne '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.
20. 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.
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 7of10
21. Force Maieure. Neither the City nor JDC shall be in default of this Agreement if
delays in or failure of performance are due to Uncontrollable Forces, the effect of which the
non -performing party could not avoid by the exercise of reasonable diligence. Neither party
shall, however, be excused from performance if nonperformance is due to forces or events
that are preventable and which the non -performing party could have, with the exercise of
reasonable diligence, prevented with reasonable dispatch. The non -performing party shall,
within a reasonable time of being prevented or delayed from performance by an
Uncontrollable Force, give written notice to the other party describing the circumstances and
Uncontrollable Forces preventing continued performance of the obligations of this
Agreement, and the expected time when performance in compliance with this Agreement
will resume. Agreement to the extension of the time period to perform shall not be
unreasonably be withheld by the other party.
[SIGNATURES FOLLOW ON NEXT PAGE]
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 8 of 10
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written. -
ATTEST:
CITY SEAL
Luaces, City Clerk
CITY OF WINTER SPRINGS
By:
Jo F. Bush, Mayor
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
Dated: Xr
By:
thony Garganese, City Attorney for
the City of Winter Springs, Florida
WSTC Phase H Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 9 of 10
Signed, sealed and delivered in the JD'
presence of the following witnesses:
By:
Prit
azure of Witness Titl
. •� +'� �. �1 Lac i�,Sc��
Printed Name of Witness
Signature of Witness
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this 1-7-"�- day of
2005, by a J)& r� �.. �0 rA-�; r , as c
OfQUN, INC., a Georgia corporation, on behalf of said corporation. He is
ersonally kno to me or produced as identification.
(NOTARY SEAL)
(No Lyra' Public Signature) U [�
1R/L�L&Ar� r nc
(Print Name)
Notary Public, State of
Commission No.:
My Commission Expires:
My Commission Expires September 21, 2015
WSTC Phase II Development Agreement
City of Winter Springs/ JDC Calhoun, Inc.
Page 10 of 10
LEGAL DESCRIPTION:
A PORTION OF LOOTS 7 AND 8, BLOCK "A", O.R. M€TCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
SAID LANDS LYING IN SECTION 31, TOWNSHIP 20 SOUTH, RANGE 31 EAST AND SECTION 6, TOWNSHIP 21 SOUTH,
RANGE 31 EAST, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1. PAGE 5, OF THE PUBLIC
RECORDS. OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
I COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD (PER FLORIDA DEPARTMENT
I OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-2516, SHEET 10 OF 13, P.I. STATION 600+32.11); THENCE
RUN S38'23'34"E A DISTANCE OF 27,48 FEET ALONG THE BASELINE OF SURVEY A5 SHOWN ON SAID RIGHT OF
WAY MAP; THENCE DEPARTING SAID BASELINE RUN N30'04'55"E A DISTANCE OF 258.26 FEET TO A POINT ON THE
EASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD (FORMERLY KNOWN AS BRANTLEY AVENUE), AS
SHOWN ON SAI❑ RIGHT OF WAY MAP; THENCE CONTINUE N30'04'56'E, ALONG SAID EASTERLY RIGHT OF WAY
LINE, A DISTANCE OF 55,62 FEET FOR A POINT OF BEGINNING, THENCE CONTINUE N30'04'561, ALONG SAID
EASTERLY RIGHT OF WAY LINE, A DISTANCE OF 1279.13 FEET TO A POINT ON A NON --TANGENT CURVE CONCAVE
WESTERLY, HAVING A RADIUS OF II10,99 FEET AND. A CHORD BEARING OF S12'25'14"W. SAID POINT ALSO BEING
ON THE WESTERLY LINE OF THE C.S.X. TRANSPORTATION INCORPORATED "LAKE CHARM BRANCH" RAIL
CORRIDOR; THENCE DEPARTING SAID RIGHT OF WAY LINE RUN ALONG SAID WESTERLY LINE AND ALONG
THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 6' 1 7'06°, A DISTANCE OF 121 .87 FEET TO THE POINT OF
TANGENCY; THENCE RUN S15'33'47"W A DISTANCE OF 101.3.17 FEET TO THE NORTHWEST CORNER OF RELEASE
PARCEL 2 AS DESCRIBED IN OFFICIAL RECORD BOOK 3988, PAGE 1095; THENCE DEPARTING SAID WESTERLY
LINE RUN S57'01'441, ALONG THE NORTHERLY . LINE OF SAID RELEASE PARCEL 2, A DISTANCE OF 104.80 FEET TO
THE NORTHEAST CORNER OF SAID RELEASE PARCEL 2, SAID POINT ALSO BEING ON THE SOUTHERLY LINE OF
ACQUISITION PARCEL B (THE RAILS TO TRAILS CORRIDOR) AS DESCRIBED IN OFFICIAL RECORD BOOK 4092,
PAGE 184; THENCE CONTINUE 557'01'44"E, ALONG SAID SOUTHERLY LINE, A DISTANCE OF 95.46 FEET; THENCE
RUN 55437'59"E A DISTANCE OF 147 17 FEET TO A POINT OF CURVATURE OF A TANGENT CURVE CONCAVE
NORTHERLY, HAVING.,A RADIUS OF 85.0.0 FEET; THENCE RUN ALONG THE ARC OF SAID CURVE THRU A CENTRAL
ANGLE OF 61'16'51" A DISTANCE OF 90.91 FEET TO THE POINT OF REVERSE CURVATURE, SAID CURVE BEING
CONCAVE SOUTHERLY, HAVING A RADIUS OF. 500.00 FEET; THENCE RUN ALONG THE ARC OF
SAID CURVE THRU A CENTRAL ANGLE OF 38'11'46" A DISTANCE OF 333.32 FEET TO THE POINT OF TANGENCY;
THENCE RUN 577'43'04"E A DISTANCE .OF 187.98 FEET; THENCE RUN S46'13'52"E A DISTANCE OF 117.70 FEET;
THENCE RUN S32'50'431: A DISTANCE OF 662.97 FEET TO THE INTERSECTION OF SAID SOUTHERLY LINE AND THE
NORTHWESTERLY LINE OF SAID ACQUISITION PARCEL 0; THENCE RUN S50'31'58"W, ALONG SAID
NORTHWESTERLY LINE, A DISTANCE OF 997.88 FEET TO A POINT ON THE NORTHEASTERLY RIGHT OF WAY LINE
OF STATE ROAD 434 (PER FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-
2516 ,. SHEET. 1 1 OF 1 3J; THENCE DEPARTING SAID NORTHWESTERLY LINE RUN N38'43' 1 5"W, ALONG SAID
NORTHEASTERLY RIGHT OF WAY LINE, A DISTANCE OF 431.17 FEET TO THE POINT OF CURVATURE OF A NON--
TANGENT CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 7905.47 FEET AND A CHORD EARING OF
N37'00'57"W; THENCE RUN ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE ❑F 3'24'3A DISTANCE
B
OF 470,54 FEET TO THE END OF SAID CURVE; THENCE RUN S57'16'44"W A DISTANCE OF 14.00 FEET; THENCE RUN
N38'43' 16"W A DISTANCE OF 136.42 FEET TO THE SOUTHEAST CORNER OF AFORESAID RELEASE PARCEL 2,
THENCE CONTINUE N38'43'16"W A DISTANCE OF 138.78 FEET TO THE SOUTHWEST CORNER OF RELEASE PARCEL
2; THENCE CONTINUE N38'43' 1 6"W A DISTANCE OF 308.12 FEET TO THE MOST SOUTHERLY CORNER OF THOSE
LANDS DESCRIBED IN OFFICIAL RECORD BOOK 2803, PAGE 643; THENCE DEPARTING SAID NORTHEASTERLY
RIGHT OF WAY LINE RUN N30'04'56"E, ALONG THE SOUTHEASTERLY LINE OF..SAID PROPERTY, A DISTANCE OF
220,00 FEET; THENCE RUN N38'43'16"W, ALONG THE NORTHEASTERLY LINE OF SAID PROPERTY, A DISTANCE OF
yy 200.00 FEET TO THE POINT OF BEGINNING,
! TOGETHER WITH:
„A„
A PORTION OF LOTS 7 AND 8, BLOCK "A", D,R. MLTCHELL'S. SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
SAID LANDS LYING IN SECTION 31, TOWNSHIP 20 SOUTH, .RANGE 31 EAST AND SECTION 6, TOWNSHIP 21 SOUTH,
RANGE 31 EAST, ACCORDING TO THE PLAT THEREOF A5 RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC
RECORDS OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD (PER FLORIDA DEPARTMENT
OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-251.6, SHEET 10 OF 13, P.I. STATION 600+32,1 1); THENCE
RUN S38723'34"E A DISTANCE OF 1729.58 FEET ALONG THE BASELINE OF SURVEY AS SHOWN ON SAID RIGHT OF
WAY MAP: THENCE DEPARTING SAID BASELINE RUN N50'31'58"E A DISTANCE OF 97.29 TO A POINT ON THE
NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD (FORMERLY KNOWN AS BRANTLEY AVENUE), AS
SHOWN ON SAID RIGHT OF WAY MAP, FOR THE POINT OF BEGINNING; THENCE RUN N50'31'58"E A DISTANCE OF
1.033.48 FEET; THENCE RUN N39'28 02"W A DISTANCE DF 15-00 FEET;. THENCE RUN N50'31'58"E A DISTANCE OF
106.44 FEET; THENCE RUN 583'03'12"E A DISTANCE OF 94.74 FEET; THENCE RUN S47'54'36"E A DISTANCE OF 34.00
FEET; THENCE RUN S37'59'33"E A DISTANCE OF 57.62 FEET; THENCE RUN S68'24'08"E A DISTANCE OF 52.48 FEET
TO THE EASTERLY LINE OF BLOCK A D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP AS
RECORDED 1N PLAT 800K 1, PAGE 5; THENCE RUN 505"13.'52"W ALONG SAID EASTERLY LINE OF BLOCK "A" A
DISTANCE OF 251.46 FEET; THENCE DEPARTING SAID EASTERLY LINE OF BLOCK A" RUN S62'36'00"W A
DISTANCE OF 109.52 FEET; THENCE RUN S50'54'04"W A DISTANCE OF 11.72 FEET; THENCE RUN
S22'01' 13"W A DISTANCE OF 65,99 FEET; THENCE RUN S29'00'27"W A DISTANCE OF 4.4.28 FEET; THENCE RUN
S52'03'03"W A DISTANCE OF 9.60 FEET, THENCE RUN S28'03'23"W A DISTANCE OF 97.92 FEET; THENCE RUN
S44'20'04"E A DISTANCE OF 176.05 FEET ; THENCE RUN 537'21'37"E A DISTANCE OF 71,69 FEET TO A POINT ON THE
AFOREMENTIONED EASTERLY UNE OF BLOCK A"; THENCE RUN ALONG SAID EASTERLY LINE OF BLOCK A'
SO5'13'52"W. A DISTANCE OF 42.89 FEET; THENCE DEPARTING SAID EASTERLY LINE OF BLOCK 'A" RUN
N27'56'26"W A DISTANCE OF 41.29 FEET; THENCE RUN N36'31'04"W A DISTANCE OF 54.5.$ FEET; THENCE RUN
N52'32'0I "W A DISTANCE OF 245.40 FEET; THENCE RUN S89'06'27"W A DISTANCE OF 57.99 FEET; THENCE RUN
S65'37'O2"W A DISTANCE OF 39,09 FEET; THENCE RUN S46'29'24"W A DISTANCE OF 41.50 FEET ; THENCE RUN
S28'55'33"W A DISTANCE OF 34.27 FEET; THENCE RUN SlO'O2'16"W A DISTANCE OF 55.95 FEET; THENCE RUN
503'05'47"W A DISTANCE OF 52.29 FEET; THENCE RUN S07'51'13"W A. DISTANCE OF 30.86 FEET; THENCE RUN
5OO'47'47"W A DISTANCE OF 49.12 FEET; THENCE RUN S07'25'22"W A DISTANCE OF 52.87 FEET; THENCE RUN
S67'05 00"W A DISTANCE OF 15.29 FEET ; THENCE RUN S79'35'01 "W A DISTANCE OF 69.29 FEET; THENCE RUN
N89'18'43"W A DISTANCE OF 95,92 FEET; THENCE RUN N60'50'07"W A DISTANCE OF 119.48 FEET; THENCE RUN
S85'04'53"W A DISTANCE OF 186.65 FEET; THENCE RUN S09'51'29"W A DISTANCE OF 3.05 FEET; THENCE RUN
N38'52'1 1 "W A DISTANCE OF 121.02 FEET; THENCE RUN S51'1 6'44"W A DISTANCE OF 5.00 FEET TO A POINT ON THE
AFOREMENTIONED NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD; THENCE RUN ALONG THE
SAID NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD N38'43'16"W A DISTANCE OF 73.56' TO THE
POINT OF BEGINNING.
CONTAINS 46.553 ACRES (2,027,848.68 SQ. FT.), MORE OR LESS.
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