Loading...
HomeMy WebLinkAboutTab 39 Keewin Real Property Company - Dittmer.pdfTHIS INSTRUMENT WAS PREPARED BY: AND SHOULD BE RETURNED TO: Anthony A. 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 DEVELOPMENT AGREEMENT TWIS DEVELOPMENT AGREEMENT (the "Agreement") is made and executed this i I day of June, 2006, 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 THE KEEWIN REAL PROPERTY COMPANY, a Florida corporation ("Developer") whose address is 1031 West Morse Blvd., Winter Park, FL 32789. WITNESSETH: WHEREAS, Developer is the contract purchaser of that certain real property located in Seminole County, Florida consisting of approximately 47 acres, as more particularly described on Exhibit A attached hereto and incorporated herein (the "Property"); and WHEREAS, Developer desires to develop townhomes or condominiums on the Property (the "Project"); and WHEREAS, Developer has applied for an amendment to the Winter Springs Comprehensive Plan in order to accommodate the Project; and WHEREAS, at this stage in the development review process, the City and Developer have agreed to certain conditions of development related to, among other things: (i) buffers; (ii) notices to potential purchasers; (iii) school mitigation; and (iv) recreational land; and WHEREAS, the Developer acknowledges and agrees that as the Project is taken through the City's development review process, the City may require that this Development Agreement be modified to incorporate additional terms and conditions in order to safeguard the public's interests; and WHEREAS, the City and Developer desire to execute this Agreement in order to more fully set forth the conditions of development. Development Agreement City of Winter Springs and Keewin Real Property Company Page 1 of 9 NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: r 1. The recitals set forth above are true and correct and are incorporated herein by this reference. 2. Buffer. Since the properties to the west of the Project are zoned commercial and industrial, the Developer has agreed to build a buffer between the Project and those properties to the west. The buffer will include a 6' high wall on top of a 5' berm. The buffer shall also include trees, shrubs and irrigation in accordance with a landscape plan deemed acceptable to the City. 3. Notice to Purchasers. The Developer will include in the Covenants, Conditions and Restrictions for the Project a notice to all potential purchasers that the properties adjacent to the west have zoning designations of industrial and commercial. Said notice shall be subject to the approval of the City Attorney. 4. Parks and Recreation. In accordance with Winter Springs Code Section 20-354 and other applicable provisions of the City's Comprehensive Plan and Code, the Developer agrees to dedicate an appropriate amount of land as a park for the residents of the Project. Such park shall have recreational facilities built in accordance with the standards of the National Recreational Association. In addition, such park shall be protected through deed restrictions recorded in the Covenants, Conditions and Restrictions for the Project which shall ensure the preservation of its intended use, the payment of future taxes, and the maintenance of the park and facilities for a safe, healthy and attractive living environment. The park shall be included in the phasing plan, if any, and shall be constructed and fully improved by Developer at an equivalent or greater rate than the construction of the residential structures for which it serves. 5. School MitigationPayment. In order to mitigate the potential impacts of the Project on the Seminole County Public Schools, Developer has agreed to pay One Thousand Two Hundred Thirty -Five Dollars ($1,235.00) for each residential unit in addition to the School Impact Fees charged for each residential unit. The Mitigation Payment shall be paid to the School Board upon the date that the City grants the first vertical building permit for the Project. The School Board shall be considered a third party beneficiary under this Development Agreement for the limited purpose of enforcing the provisions of this paragraph against the Developer. Nothing herein shall be construed as obligating or requiring the City to pay, or otherwise enforce the payment of, the Mitigation Payment to the School Board. Developer agrees to indemnify and hold harmless the City from any action, dispute, claim, or litigation directly or indirectly involving the Mitigation Payment. 6. Notices. Any and all notices, elections, demands, requests and responses thereto permitted or required to be given under this Agreement shall be in writing, signed by or on behalf of the party giving the same, and shall be deemed to have been properly given and Development Agreement City of Winter Springs and Keewin Real Property Company Page 2 of 9 shall be effective upon being personally delivered, or upon being faxed to the number set forth below to the appropriate party, or upon being deposited in the United States mail, postage prepaid, certified with return receipt requested, or upon being deposited on a paid basis with a nationally recognized overnight delivery service, to the other party at the address of such other party set forth below or at such other address as such other party may designate by notice specifically designated as a notice of change of address and given in accordance herewith, provided, however, that the time period in which a response to any such notice, election, demand or request must be given shall commence on the date of receipt thereof, and provided further that no notice of change of address shall be effective until the date of receipt thereof. Personal delivery to a party or to any officer, partner, agent or employee of such party at said address shall constitute receipt. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been received shall also constitute receipt. Any such notice, election, demand, request or response, shall be addressed as follows: If to Developer: The Keewin Real Property Company 1031 West Morse Blvd., Suite 325 Winter Park, FL 32789 Attn: Jay Folk Phone: 407-645-4400 Fax: 407-645-0340 With a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive P.O. Box 2809 Orlando, FL 32801 Attn: M. Rebecca Furman, Esquire Phone: 407-843-4600 Fax: 407-843-4444 If to City: City of Winter Springs 1126 East S.R. 434 Winter Springs, FL 32708 Attn: City Manager Phone: 407-327-5999 Fax: 407-327-4753 Development Agreement City of Winter Springs and Keewin Real Property Company Page 3 of 9 With a copy to: Anthony Garganese, Esq. City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A 225 E. Robinson St., Ste. 660 Orlando, FL 32801 Phone: 407-425-9566 Fax: 407-425-9596 Either party may change the address provided hereinabove by giving written notice of such change to the other party or parties as herein provided. 7. Entire Agreement. The making, execution and delivery of this Agreement by the parties hereto have been induced by no representations, statements, warranties or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties hereto with respect to the subject matter hereof, and there are no other written or oral agreements in effect between the parties hereto relating to the subject matter hereof. This Agreement or any part thereof may only be amended or modified by an agreement in writing by both of the parties hereto. 8. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but should any provision of this Agreement be prohibited or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. 9. Binding Effect. Except as provided hereinabove, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 10. Waiver. A waiver of any provision hereof or any default hereunder by either party shall be effective only in writing. A waiver of one provision shall not constitute a waiver of any other provision hereof, and a waiver of default shall not apply to any other default whether occurring simultaneously or at a later date. 11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which if taken together shall constitute one and the same Agreement. 12. Governing Law. The laws of Florida shall govern the validity, performance and enforcement of the Agreement. 13. Headings. The headings of these several paragraphs contained herein are for convenience only and do not define, limit or affect the contents of such paragraphs. Development Agreement City of Winter Springs and Keewin Real Property Company Page 4 of 9 14. Authorization. Each of the parties represents that this Agreement has been duly executed by a partner or officer authorized to bind such party and that this Agreement constitutes the valid, binding and enforceable obligation of such party. 15. Attorney's Fees. Any party to this Agreement who is the prevailing party in any legal proceeding against any other party brought under or in connection with this Agreement or the subject matter hereof, shall be additionally entitled to recover court costs and reasonable attorney fees, and all other litigation expenses, including deposition costs, travel and expert witness fees from the non -prevailing party. 16. Construction. The parties acknowledge that each party and its counsel have reviewed this Agreement and the parties hereby agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any addendums or exhibits hereto. 17. Venue. Venue for any legal proceedings under this Agreement shall lie solely in the state courts in and for Seminole County, Florida, or in the United States District Court for the Middle District of Florida. 18. 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. When title to the Property is vested in Developer and when duly executed and delivered by the City, then this Agreement will be recorded by the City in the Public Records of Seminole County, Florida, and will constitute a legal, valid and binding obligation enforceable against 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. In the event Developer does not acquire title to the Property pursuant to the Contract for Sale and Purchase or within one year of both parties signing this Agreement, which ever occurs sooner, then this Agreement shall be of no force and effect unless both parties agree in writing that Developer will be given additional time to acquire the Property. Developer represents and warrants that they will notify the City Attorney, in writing, within three (3) business days of closing on the Property. 19. 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. 20. Amendments. This Agreement shall not be modified or amended except by written agreement duty executed by both parties hereto (or their successors or assigns) and approved by the City Commission. Development Agreement City of Winter Springs and Keewin Real Property Company Page 5 of 9 21. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 22. 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. 23. Sovereign Immunii . 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, 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). This paragraph shall survive termination of this Agreement. 24. 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. 25. Third -Party Rights. Except as provided in paragraph 5, 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. 26. 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. 27. 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 Development Agreement City of Winter Springs and Keewin Real Property Company Page 6of9 certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement. 28. 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 vertical construction of the Project within three (3) years of the effective date of this Agreement. If the City terminates this Agreement, the City shall record a notice of termination in the public records of Seminole County, Florida if this Agreement is recorded pursuant to paragraph 18. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] Development Agreement City of Winter Springs and Keewin Real Property Company Page 7 of 9 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: By: _, 0 Andrea L I renzo Luaces, City Clerk CITY" SEAL STATE OF FLORIDA COUNTY OF SEMINOLE CITY OF WINTER SPRINGS By: '; & � 4?"O'e VF. Bush, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: By: Anthony rganese, City Attorney for the City of Winter Springs, Florida Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. 1 Witness my hand and official seal this day of �ut 2006. (NOTARY SEAL) E(T&Boyndedptl1hrough ANDI BOWKER MISSION #DD223479RES: JUN 16, 2007 Advantage Notary r � - 6iL� o ry Public My commission expires: Development Agreement City of Winter Springs and Keewin Real Property Company Page 8 of 9 Signed, sealed and delivered in the THE KEEWIN REAL PROPERTY presence of the following witnesses: COMPANY, a Florida corporation Sign itnes N -I— Title: 1. I y 0[a QRr—sk %=-"Ci Printed Name of Witness Date: ( I `-k O C. s atu orwim s on Prin Namc of Witness STATE OF FLORIDA COUNTY OF ORANGE The foregoing ins'Qum w s ac owledged before me this day of 2006, by as of THE KEEWIN REAL PROPERTY C MPANY, on behalf of said company. He is personally known to me or produced _ JAI j __ as identification. (NOTARY SEAL) _ ! (Np u6he Si ature (Print Name) I TA SHERRY MCOOPER Notary Public, State of � MY COMMISSION DD3-R Commission No.:�b9E ;'�p�S6� EXPIRES: June23,2o10 My Commission Expires: ifo7jlBwHN Flod"NOWySovleaeom Development Agreement City of Winter Springs and Keewin Real Property Company Page 9 of 9 Exhibit `A' 77- ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ............................................................................................... ................ .......... ....... 2M:::::: AW ......... ................................................ ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ............................................................................................................... ................................................................................................................ PARCEL NUMBERS 26-20-30-5AR-0000-0210 28-20-30-5AS-OB00-015A 28-20-30-5AS-OB00-0170 33-20-30-503-OS00-0000 33-20-30-503-0000-0150 33-20-30-503-0000-0240 33-20-30-503-0000-025A LESS AREAS 1 & 2 AS DESCRIBED: Area 1 A parcel of land being a portion of Lot 18, Block "B" of OAK GROVE PARK, according to the plat thereof as recorded in Plat Book 7, Page 83, Public Records of Seminole County, Florida. Being more particularly described as follows: BEGIN at the Northwest corner of WILDWOOD according to the plat thereof as recorded in Plat Book 19, Page 7 through 10, Public Records of Seminole County, Florida; thence South 03057'20" East, along the Westerly line of said WILDWOOD, for a distance of 166.02 feet to a point of curvature of a curve concave Westerly, having a radius of 175.00 feet and a delta angle of 29059'46"; thence, continuing along the Westerly line of said WILDWOOD, run Southerly along the arc of said curve for a distance of 91.62 feet to the point of tangency; thence, continuing along the Westerly line of said WILDWOOD, South 26002'26" West for a distance of 126.10 feet; thence, departing said Westerly line of said WILDWOOD, South 86002'40" West for a distance of 94.04 feet; thence North 03057'20" West for a distance of 362.73 feet to the Southerly right of way line of Shepard Road and Northerly line of said Lot 18; thence North 8fi'rQ�1.n F'£f hr;n `+girl C-- #hcrly r;-k+ ref lino fnr n Aic+nn�n of 1.Q0 r') foo+ +n +ho DnIAIT