HomeMy WebLinkAboutVBBC Draft Developer's Agreement
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~_ DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and entered into 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 VBBC DEVELOPMENT, LLC,
a Florida limited liability company ("VBBC"), whose address is P. O. Box 137872, Clermont,
Florida 34713-7872, with reference to the following facts:
A. VBBC is the fee simple owner of the following described real property located within
the City (the "Property"):
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Lot 17, Block B, Less the Northerly 10 feet thereof for road right-of-way, D.R.
Mitchell's Survey of the Levy Grant on Lake Jessup, according to the map or plat
thereof as recorded in Plat Book 1, page 5, in the Public Records of Seminole
County, Florida.
AND
Lot 23, Block B, North of Railroad right of way, D.R. Mitchell's Survey of the
Levy Grant on Lake Jessup, according to the map or plat thereof as recorded in Plat
Book 1, page 5, in the Public Records of Seminole County, Florida.
B. VBBC intends to develop the Property as a single-family townhouse community to be
known as'J~~.~'!'.' at a density of approximately one hundred three (103) units (the
"Project").
C. Pursuant to the conceptual Final Engineering Plans prepared by Vanasse Hangen
Brustlin, Inc., Project # 61002.00. dated June 2. 2006, and approved by the City Commission on
June 12.2006 ("Final Engineering Plans") approval of the City Commission granted on October 1,
~VBBC desires to facilitate the orderly development of the Project as depicted in that certain
Conceptual Plan for 'ATinter Springs TO'ovn Center Prepared by VHB and .\ssociates and approved
by the City Commission on October 10,2005 (the "Conceptual Plan"), and in compliance 'tvith the
la'\vs and regulations of the City with the exceptions permitted under this f..greement.
D. The City desires to permit the orderly development of the Project under the terms and
conditions set forth in this Agreement.
E. The City and VBBC have reached certain other understandings and agreements as to
the development of the Property which are set forth in this Agreement.
In consideration of the foregoing facts, the mutual covenants, conditions, and agreements set
forth below, and other good and valuable considerations passing between the parties, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. RECITATIONS TRUE AND CORRECT. The foregoing recitations are true and
correct and comprise a part of this Agreement.
2. PROJECT ROADWAYS. As depicted on the Final Engineering Plans Conceptual
Wan, the City acknowledges that the following internal roadways within the Project will deviate
from the design standards set forth in the Code of Ordinances (the "Code"), and the City hereby
grants the following waivers to the Code pursuant to the special exception criteria enumerated in
Section 20-321(0) of the Code:
a. The East/West connecting road located approximately two hundred (200) feet north
of the southern boundary of the Property shall be a modified version of a
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Neighborhood Street (as defined in Section 20-325(c)(12) of the Code and as
modified in the Final Engineering Plans). The east portion thereof (which will front
units and which will be approximately 200 feet in length) shall provide for six (6) on-
street parking spaces, but will not provide for on-street parking along the western
portion thereof (which will front two alleys and the Clubhouse (as shown on the
Conceptual Plan) and which will be approximately 300 feet in length). This road
shall not be a Neighborhood Lane (as defined in Section 20-325(c)(14) of the Code).
Furthermore, this connecting road shall receive decorative brick treatment in front of
the Clubhouse.
b. The east/west roadway located in the northwest area of the Property (and which runs
to the western boundary line of the Property) which will connect the Project to the
adjacent alleyway along the western boundary shall not provide for on-street parking.
c. The northern seventy (70) Feet of the eastern entrance to the Property (Canal Street)
shall not provide for on-street parking.
3. ADDITIONAL NON-ROADWAY CODE WAIVERS. Based on the Final
En~ineering Plans Conceptual Plan and VBBC's entering into this Agreement, the City grants the
following additional non-roadway waivers with respect to the Project pursuant to the special
exception criteria enumerated inSection 20-231 (c) of the Code:
a. .^..Iong the southern elevation oftha Clubhouse, the six (6) foot ','Ii de planting section
between the sidewalk and the roudv/uy '.vill be eliminuted in exchange for decorative
planters in front of the building facade.
b. A total ofthirty-eight (38) "live/work" units will be included in the Project. The first
level of the live/work units will be at an average of 9" above sidewalk grade.
Notwithstanding the list of permitted and conditional uses allowed in the Town
Center District Code, +!his level vlill pro'lide for shall be limited to residential use,
professional office space and home occupations permitted under the City Code,
lmless the use is first approved by the Home Owner's Association in accordance with
the Declarations and then the City Commission based on the criteria for conditional
uses under the City Code. Outdoor storage and displays shall be strictly prohibited.
Further, the first level shall not be leased and/or occupied independently of the
second level. as defined/allowed by the Declaration (as defined in paragraph 1
below). The front elevations of the live/work units will provide an entrance at the
first level for the office space and an entrance at a raised front stoop which will lead
to the second floor (the "living" portion ofthe unit). Any business signa~e for the
first level shall be solely limited to stencil signage on the first floor window.
c. To make adjustments for grade changes, units will have finish floor elevations
between g19" and 52" above sidewalk grade. However, there will be eleven (11)
units with a finish floor elevation at an average of 5" above sidewalk grade. The
average finish floor elevation (for the non-"live/work" units) will exceed 24" above
sidewalk grade.
d. Detached-garage units will have a raised front courtyard "patio" area. Finish floor
elevations of the front courtyard will be a minimum of 7" above sidewalk grade.
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e. Seventy-seven (77) of the one hundred three (103) total units (approximately 75%)
shall meet the ten-foot build-to-line required from the right-of-way of any
Neighborhood Street ((as defined in Section 20-325(c)(12) of the Code),
Neighborhood Lane, and Edge Drive, and the remaining twenty-six (26) units
(approximately 25%) shall be permitted to have five-foot build-to-line. The latter
units shall occur at ends of building.
f. Some often (10) units along Orange Avenue will be built further than 10' from the
right-of-way line of Orange Avenue because of the geometrical constraints of the
Property.
g. Sixteen (16) units with attached garage will have option oflockout unit at first level.
The lockout unit will be at sidewalk grade, with the main living space to be a
minimum of 10' above sidewalk grade.
h. All Liriope will be planted at 24" on center in lieu of9" on center.
i. The build-to-line along the Edge Drive at the southern boundary of the Property shall
be 12' rather than 10'.
J. Certain green spaces (as provided for in the Conceptual Final Engineering Plan)
between the sidewalk and curb shall be 5' wide rather than 6' wide.
Any deviation from the Code not specifically set forth in this Agreement shall require separate City
approval in accordance with the special exception application procedure and criteria set forth in
Section 20-231(c) of the Code.
4. HOMEOWNERS' ASSOCIATION. VBBC will form a mandatory homeowner's
association (the "Homeowners Association") to be called Artesian Park Owners Association, Inc. (a
Florida not-for-profit corporation), for the purposes of maintaining any and all common areas,
landscaping, entrance signs, walls, fences, alleys, recreational areas, and storm water drainage
facilities associated with the Project. A Declaration of Covenants, Conditions, and Restrictions for
Artesian Park (the "Declaration") will be executed and recorded in the Public Records of Seminole
County, Florida. Attached to the Declaration as an exhibit will be the Articles of Incorporation of the
Homeowners' Association (as duly filed with the Florida Secretary of State). The Declaration shall
establish the rights, duties, and obligations of the Homeowner's Association. The Declaration shall
be in a form acceptable to the City Attorney.
5. SIGNAGE. VBBC shall have the right, upon the full execution of this Agreement, to
erect on-site construction signs, marketing signs, and temporary signs (including up to four (4)
"banner" signs), as described in Sections 20-470(10), 20-470(11) and 20-470(16) of the Code, in
locations reasonably acceptable to the City, which signs shall be permitted to remain for a period of
thirty six nine (~.2) months from the date hereof. VBBC shall thereafter have the right to erect
permanent identification signage with respect to the Project at the main entrance of the Project,
which shall consist of stone engraved letters attached to the end rail of the "bridge" spelling
"Artesian Park" (with the total signage dimensions to be approximately two (2) feet in height and
one (1) foot in width), subiect to the Citv's aesthetic review procedure and criteria set forth in the
City Code. Any construction signs or marketing signs erected on the Property shall not exceed efle
hundred sixty-four (M+OO) square feet in size in the aggregate. The Property shall be not subject to
the fourteen-day limitation on the erection of temporary "banner" signs as provided in Section 20-
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470(16) of the Code. VBBC shall maintain all ofthe signs erected pursuant to this paragraph 5 in a
good condition and in a good state of repair.
6. SIDE'VALKS..All sidewalks shall comply with the applicable provisions ofllie Code
(minimum width of six (6) feet).
7. MODEL UNITS/SALES OFFICE. Prior to the recording of the final plat, VBBC
may construct model townhouse units (the "Models") under the following conditions:
a. The Models shall be contained in two buildings and shall not exceed sixteen (16)
units.
b. The Models shall remain under the ownership and control ofVBBC until such time
as the final plat is recorded and a final certificate of occupancy for each of the
Models is issued under the conditions set forth below; in other words, VBBC shall
not enter into any contract to sell, sell, or lease any of the Models until such time as
the final plat is recorded and a final certificate of occupancy is issued for each of the
Models.
c. The Models shall be constructed in a location reasonably acceptable to the City.
Vertical construction shall not commence until stabilized access and fire protection is
available.
d. Prior to the construction of the Models, the Models shall be duly permitted by the
City in accordance with the Code. As part ofthe building permit application, VBBC
shall submit, along with all construction plans for the Models, a duly certified
boundary survey which shall depict the location and the legal description of the sites
on which the Models are to be located and each lot upon which one of the Models
will be located. The legal description of such sites and the lots is intended to coincide
with the eventual location of the lots to be depicted and legally described on the final
plat. VBBC assumes full and complete responsibility and liability in the event that
such legal descriptions do not conform to the lot lines required by the City in final
plat.
e. At the time the appropriate official of the City completes and approves a final
inspection of the Models, the City will issue temporary certificates of occupancy.
Such temporary certificates of occupancy shall be issued for the buildings in which
the Models are located as a whole, not individual Models. Occupancy of the Models
shall be limited to the sales and marketing efforts for the Project. In addition, VBBC
shall have the right to utilize: (i) a garage in one of the Models as a temporary sales
office; and (ii) a room in one of the Models as an office for the closings of sales of
townhouse units.
f. At the request of VBBC or at such time as the development of the Project is
completed, whichever occurs sooner, VBBC shall file a re-conversion permit
application requesting that the Models be converted to permanent residential units
and the City shall issue individual certificates of occupancy for each ofthe Models,
so long as the final plat has been recorded and the appropriate official of the City
determines that the Models are suitable for permanent residential occupancy and in
compliance with the Code.
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8. TRASH/REFUSE SERVICE. The City, through its solid waste franchisee, will
provide trash and refuse pickup for each individual townhouse unit, and therefore no dumpsters will
be located on the Property as otherwise required pursuant to the applicable provisions ofthe Code.
9. LIGHTING PLANS; DECORATIVE STREET PAVERS. The fmal lighting design
for the Project has not yet been provided by the applicable utility company. No certificate of
occupancy for units shall be issued until the final lighting plan and a separate the Citv's standard
installation and maintenance form agreement for decorative street lighting and signs and decorative
pavers has been approved by the City and the Homeowner's Association.
10. PLATTING VBBC shall be required to plat the Property in accordance with Section
9-75 of the Code. The Neighborhood Lane and the Neighborhood Street which are perpendicular to
the trail located to the south of the Property shall be depicted on the plat extending to the southern
boundary of the Property. VBBC shall submit a proposed lighting plan to the City
contemporaneously with its submittal of the proposed plat, unless the applicable information is not
received from Progress Energy in time to submit such plan at the time final engineering plans are
submitted.
11. WETLANDS. The City acknowledges and agrees that VBBC has sufficiently
addressed the City's Comprehensive Plan requirements with respect to wetland impacts and
preservation by way of mitigation requirements to be set forth in the permit issued or to be issued by
St. Johns River Water Management District. VBBC shall provide the City with a copy of the St.
Jolm's pennit upon receipt to verify compliance with this section.
12. RECREATIONAL AREAS. VBBC shall provide recreational areas within the
Project in accordance with the Conceptual Final Engineering Plan.
13. GUEST PARKING SPACES. VBBC shall construct a minimum of 86 on-street
guest parking spaces within the Project. The guest parking spaces on the Edge Drive and the
Neighborhood Street shall be marked with appropriate parking stripes as depicted on the Conceptual
Final Engineering Plan. The guest parking spaces on the Neighborhood Lane shall not be striped. No
parking shall be allowed in the Alleys (as defined in Section 20-322 of the Code).
14. STORMWATER POND MAINTENANCE BERM. The City agrees that VBBC
shall only be required to maintain a six (6) foot maintenance berm around the Project's retention
pond rather than a ten (10) foot berm as required under Section 9-241 (d)(3) ofthe Code.
15. TREE MITIGATION. VBBC has submitted a tree survey together with the
Conceptual Final Engineering Plan. VBBC shall comply with the following conditions with respect
to the tree mitigation: VBBC may remove all existing trees on the Property to facilitate the
construction of the Project, provided that VBBC shall mitigate for the removal of the trees in such
area in accordance with Table I of Section 5-9 of the Code, and all existing trees to be removed with
a caliper measured twelve (12) inches above grade of twenty-four (24) inches or greater shall be
replaced at the rate of five (5) credits per tree and an additional one (1) replacement credit per four
(4) inches of caliper above twenty-eight (28) inches.
16. CONSTRUCTION TRUCK ROUTE. The City desires to keep construction truck
traffic along Tuscawilla Road, north of State Road 434, to an absolute minimum, especially over the
brick paved portion of Tuscawilla Road. Prior to the commencement of the construction of the
Project, the City shall determine (with the assistance ofVBBC) an acceptable transportation route to
and from the Property for all large construction trucks and heavy machinery (e.g., dump trucks and
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concrete trucks). The City's determination shall be placed in writing and delivered to VBBC. VBBC
shall provide a copy of such determination to all construction companies working at the Project. At
all times, VBBC shall require all such trucks to utilize the transportation route selected by the City.
The City may make reasonable modifications to the transportation route at any time by providing
prior written notice to VBBC.
17. EASEMENT ON PART OF LEVITT PROPERTY. The City acknowledges that
Levitt and Sons of Seminole County, LLC, a Florida limited liability company ("Levitt"), and VBBC
have entered into an Agreement for Exclusive Easement whereunder Levitt has granted unto VBBC
an exclusive easement over the easterly six (6) feet of Tract F of the plat of Jessup's Landing
Townhomes. VBBC will be permitted to undertake construction of driveways, curbs, drainage
structures, landscaping, irrigation, and installation of utilities within the easement area consistent
with the Conceptual Final Engineering Plan.
18. OTHER REPRESENTATIONS. The City and VBBC each represent and warrant to
the other that they have the power and authority to execute, deliver, and perform the terms and
provisions of this Agreement and have taken all necessary action to authorize the execution and
delivery and performance of this Agreement. This Agreement will when duly executed and delivered
by the City and VBBC and recorded in the Public Records of Seminole County, Florida constitute a
valid and binding obligation enforceable against the City, VBBC, and the Property in accordance
with the terms and conditions ofthis Agreement.
19. RECORDATION. This Agreement shall be recorded in the Public Records of
Seminole County, Florida.
20. RELATIONSHIP OF THE PARTIES. The relationship of the parties to this
Agreement is contractual and VBBC is not an agent of the City. Nothing in this Agreement shall be
deemed to create a j oint 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.
21. SOVEREI GN IMMUNITY. Nothing contained in this Agreement shall be construed
as a 'Naiver of the City's right to sO'/ereign immunity under Section 768.28, Florida Statutes, or any
other limitation on the City's potential liability under the state and federal law. Notwithstanding anv
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 potentialliabilitv 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 iudgment.
Further. the City shall not be liable for any claim or iudgment. or pOliion thereof. to anv one person
for more than one hundred thousand dollars ($100.000.00). or any claim or iudgment. or portion
thereot: which, when totaled with all other claims or iudgments paid by the State or its agencies and
subdivisions arising out of the same incident or occurrence. exceeds the swn of two hundred
thousand dollars ($200.000.00). TIns paragraph shall survive tennination oftl11s Agreement
22. CITY'S POLICE POWER. VBBC agrees and acknowledges that the City reserves
all police powers granted to the City by law. In no way shall this Agreement be construed as a
bargaining away or surrendering by the City of its police powers.
23. PERMITS. The failure of this Agreement to address any particular City, county,
state, and/or federal permit, condition, term, or restriction shall not relieve VBBC or the City ofthe
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necessity of complying with the law governing such permitting requirements, conditions, terms, or
restriction.
24. 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.
25. 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.
26. DEVELOPMENT PERMITS. No provision contained in this Agreement shall limit
the City's authority to grant or deny any development permit applications or requests subsequent to
the effective date of this Agreement. 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 ifVBBC is in breach of any material term or condition of this Agreement.
27. NOTICES.
a. Method of Giving Notice - All notices, consents, approvals, or other communications
of any kind permitted or required to be given under this Agreement shall be given in
writing, and delivered to the parties at their respective addresses as set forth below, in
one of the following ways, at the option of the party giving the notice: (i) by hand
delivery; (ii) by certified or registered mail, return receipt requested and proper
postage prepaid; or (Hi) by a nationally recognized overnight courier service such as
Federal Express.
b. Addresses for Notices -
If to the City:
Mr. Randy Stevenson
City Manager
1126 East S.R. 434
Winter Springs, FL 32708
If to VBBC
Mr. David Veit
8000 Canyon Lake Circle
Orlando, Florida 32835
c. Effective Date of Notices - Notices delivered by hand delivery or by a nationally
recognized overnight courier service such as Federal Express shall be effective on the
date delivered to the recipient. Notices delivered by certified or registered mail shall
be effective upon receipt, or three (3) Business Days (a "Business Day" shall mean a
day other than a Saturday, a Sunday, or a national holiday) after deposit in the United
States mails, whichever shall first occur. If the last day for giving any notice or
performing any act under this Agreement falls on day that is not a Business Day, the
time shall be extended to the next day that is a Business Day.
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d. Change of Address or Recipient - Any party wishing to change the person designated
to receive notices or the address for notices by complying with the provisions ofthis
paragraph. Any notice given before such a change is not invalidated by the change.
28. MISCELLANEOUS PROVISIONS.
a. Entire Agreement - This Agreement constitutes the entire agreement and
understanding between the parties as to the subject matter hereof.
b. Amendment and Modification - Any modification or amendment of any of the
provisions of this Agreement must be reduced to writing, approved by the City
Commission, and signed by the City and VBBC.
c. Number and Gender - Whenever used in this Agreement, the singular number shall
include the plural, the plural number shall include the singular, and the use of any
gender shall include all genders where the context permits.
d. Severability - If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall be to any extent held invalid
or unenforceable, the remainder of this Agreement or the application of such terms,
covenants, and conditions to the persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term,
covenant, or condition of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
e. Litigation - If any litigation is instituted for the purpose of enforcing or interpreting
any provision of this Agreement, the prevailing party, as determined by the court
having jurisdiction thereof, shall be entitled to recover, in addition to all other relief,
an amount equal to all costs and expenses incurred in connection therewith, including
reasonable attorneys' fees at the trial level and in connection with all appellate
proceedings. Fees for paralegals and other legal support personnel shall be a
recoverable cost or expense in accordance with the preceding sentence.
f. Governing Law - This Agreement and all documents and matters related thereto are
governed by and will be construed in accordance with the laws of the State of
Florida. The venue of any legal action instituted to enforce or interpret any provision
of this Agreement shall be in Seminole County, Florida.
g. Construction - Each party acknowledges that all parties to this Agreement
participated equally in the drafting of this Agreement and that it was negotiated at
arm's length. Accordingly, no court construing this Agreement shall construe it more
strongly against one party than another.
h. Effective Date - This Agreement shall become effective upon approval of the City
Commission and execution of this Agreement by the City and VBBC.
1. Waiver - The waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed a waiver of any other provision of this Agreement
or of any future breach of the provision so waived.
J. Paragraph Headings - The paragraph headings used in this Agreement are for
convenience only, and shall not be used in interpreting or construing any provision of
this Agreement.
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k. Binding Effect - The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns.
1. Exhibits - Any exhibits attached to this Agreement shall, by this reference, be
incorporated into this Agreement.
m. Waiver of Jury Trial - The parties hereby mutually knowingly, willingly, and
voluntarily waive their right to trial by jury and no party shall seek a jury trial in any
lawsuit, proceeding, counterclaim, or any other litigation proceeding based upon or
arising out of this Agreement or any related agreement or instrument, or any course
of action, course of dealing, statements (whether oral or written), or actions relating
to this Agreement. This waiver applies to any action or legal proceeding, whether
sounding in contract, tort, or otherwise. The parties also waive any right to
consolidate any action in which a jury trial has not been waived. Each party
acknowledges that the provisions of this subparagraph are a material consideration in
executing and delivering this Agreement and consummating the transactions it
contemplates. Each party acknowledges that it makes this waiver knowingly,
voluntarily, and intentionally and after consideration of the ramifications of this
waiver with its attorneys.
29. TERMINA TION. The City shall have the unconditional right, but not obligation,
to terminate this Agreement, without notice or penalty, ifVBBC tails to receive building permits and
substantially commence construction of the Project within three (3) years of the effective date ofthis
Agreement. Hthe City terminates this Agreement, the City shall record a notice oftennination in
the public records of Seminole COlmty, Florida.
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EXECUTED by the City this _ day of
, 200~~.
CITY OF WINTER SPRINGS, a Florida
municipal corporation
By:
Its
EXECUTED by VBBC this _ day of
, 20~Q.
VBBC DEVELOPMENT, LLC, a Florida
limited liability company
By:
Juan C. BariUas
Member
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