HomeMy WebLinkAbout2008 09 08 Regular 600 Tuscawilla Greens Development Agreement for 60 Unit Condominium DevelopmentCITY COMMISSION
AGENDA
ITEM 600
September 8, 2008
Meeting
Consent
Information
Public Hearin
Re ular X
REQUEST: The Community Development Department requests the City Commission review
the Tuscawilla Greens development agreement fora 60 unit condominium development on
approximately 12.02 acres, located on the south side of Winter Springs Boulevard, adjacent to
Howell Creek, and immediately adjacent to the Tuscawilla Golf and Country Club.
PURPOSE: The purpose of this Agenda Item is for the City Commission to consider, approve,
approve with conditions and/or modifications, or disapprove the Tuscawilla Greens proposed
development agreement if the Commission approves the (1) PUD Master Plan amendment, (2)
the combined preliminary and final PUD plan (for the Part"A" PUD), and (3) the combined
preliminary and final engineering/site plan.
LAND USE AND ZONING DESIGNATION:
Future Land Use Desi ng_ anon: Medium Density Residential (3.6 - 9.0 DU/acre) on 7.54 acres &
Recreation and Open Space on 4.48 acres (site has 4.99 units per acre gross density; 7.96 units
per acre net density)
Zoning: `PUD' (Planned Unit Development)
Pendin Ig tems:(1) PUD Master Plan Amendment, (2) Preliminary & Final PUD Development
Plan, and (3) Preliminary & Final Engineering/Site Plan, pending -being considered as a
"package," contingent upon (4) Commission approval of a proposed development agreement and
(5) Commission approval of a 4`h amended settlement agreement.
APPLICABLE REGULATIONS:
• Code of Federal Regulations (FEMA, 44 CFR 59, Sec. 59.1)
• Chapter 163, FS
• Chapter 166, FS
• Comprehensive Plan
• Chapter 5, City Code.
• Chapter 9, City Code.
• Chapter 20, City Code.
• Settlement Agreement, as amended
September 08, 2008
Regular Item 600
Page 2 of 7
• Proposed Development Agreement
CHRONOLOGY:
Final Order approving Settlement Agreement and amended Settlement Agreement No. 1, recorded
April 14, 1994 in Official Record Book 3102, Page 1354, Public Records of Seminole County,
Florida.
Second Amendment to Settlement Agreement recorded October 22, 1996 in Official Record Book
3156, Page 0454, Public Records of Seminole County, Florida.
Conceptual approval for 60 residential condominium units (15 buildings), with the 4 garages in each
building opening onto an internal courtyard, and on-street parking was approved by the City
Commission on September 10, 2007, subject to conditions.
Third Amendment to Settlement Agreement approved by the City Commission October 2, 2007 and
recorded December 5, 2007 in Official Record Book 06881, pages 235-270, Public Records of
Seminole County. [This amendment allows the development of the "development area" of parcel 7
into a maximum of 60 condominium units.]
Combined preliminary and final engineering/site plan was received on January 30, 2008 and
reviewed at the February 19, 2008 staff review.
A site plan resubmittal was received on March 12, 2008 and reviewed at the April 15, 2008
Staff review.
A site plan resubmittal was received on May 29, 2008 and reviewed at the July 1, 2008 staff
review. At this review, staff conveyed the City Attorney's opinion that the project could proceed
through the Part "A" PUD procedures.
A meeting among staff, the applicant, his attorney, and the City Attorney was held on July 8,
2008 to address the development agreement, the potential for a variance or waiver, conservation
easements, and removal of specimen trees.
A site plan resubmittal was received on July 17, 2008 and scheduled for review at the August 5,
2008 staff review (staff comments were provided to the applicant; by mutual consent between the
applicant and City, no staff review was held on August 5; the applicant provided responses to
staff comments).
Plans for modification of the tennis courts were received on August 1, 2008 and scheduled for
the August 19, 2008 staff review.
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September 08, 2008
Regular Item 600
Page 3 of 7
The PUD master plan, preliminary and final PUD development plan, and preliminary and final
engineering/site plan all received recommendations of approval from the Planning and Zoning
Board on August 21, 2008.
CONSIDERATIONS:
Overview
As a condition of the settlement agreement and its modifications, a maximum of 60 residential
condominium units are allowed to be constructed a portion of parcel 7 (15 residential buildings, 4
units each), separated from Winter Springs Boulevard by a brick wall in a manner and height
similar to other walls along Winter Springs Boulevard. One associated wet detention pond will
be constructed partially on the Tuscawilla Country Club site on the west side of Howell Creek as
part of the stormwater management system for this project. One compensating floodplain storage
area will be constructed partially on the Country Club site on the east side of Howell Creek.
Site Characteristics:
The site is predominantly undeveloped mesic and hydric forest associated with and including
Howell Creek. The site contains mature trees and a thick vegetative under-story. An existing
country club maintenance building and tennis courts are also contained along the site's western
edge -these are to be replaced in other locations. The applicant's plan depicts the removal of
approximately 7 on-site trees of 24" or more in diameter (specimen trees).
Transuortation•
Private 40 Foot Ri is-of--way:
The site is proposed with a gate and private cul-de-sac roadways that have a 40-foot wide right-
of-way width and do not incorporate sidewalks. Section 9-157 of the City Code allows for
private gated developments. Roadway widths, cross-sections, and sidewalk specifications are set
forth in section 9-296 and 9-221 of the City Code. Staff does not support narrower right-of--ways
that do not incorporate sidewalks or have sub-standard sidewalks. However, Subsection 9-221
(b) of the City Code gives the City Commission authority to waive the sidewalk requirement if
the Commission determines it to be in the best interest and welfare of the environment. The
PUD "A" approval process requires the applicant to demonstrate how unique site characteristics
make these code requirements unnecessary.
The development agreement states that the private 40 foot right-of--way was designed at the
request and sole risk of the developer and will not become part of the City's public roadway
system. The response does not tie the request to unique site characteristics.
Pedestrian Connectivity:
There is currently no sidewalk along the south side of Winter Springs Boulevard from Tuscora
Drive (at the Tuscawilla Country Club main entrance) to Greenbriar Lane. The project
proposes the addition of a sidewalk along approximately 750 to 800 feet of the abutting
portion of the Winter Springs Boulevard right-of--way. The remaining sidewalk gaps from
Tuscora Drive to the site (approximately 950 feet) and from the site east to Greenbriar Lane
(approximately 600 feet) would need to be installed by the City at a later date. The City Attorney
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September 08, 2008
Regular Item 600
Page 4 of 7
has opined that the Comprehensive Plan does not require sidewalks within the development and
the applicant seeks relief from the code requirement for sidewalks through the development
agreement.
PLANNED UNIT DEVELOPMENT
PUD Part "A"
The City Code provides for two (2) different types of PUD approvals: Part A and Part B. The
City Attorney opined that the project may proceed under the Part "A" PUD requirements.
Section 20-352 of the City Code sets forth the purpose and intent of the Part "A" PUD as
follows:
(1) "To provide for planned residential communities containing a variety of dwelling unit
types and arrangements, with complimentary and compatible commercial centers with
supportive residential and/or complimentary and compatible residential and/or
commercial land uses, all designed to promote the public health, safety and general
welfare.
(2) To allow diversification of uses, structures and open spaces compatible with adjacent
land uses.
(3) To preserve the natural amenities and environmental assets of the land by encouraging the
preservation and improvement of scenic and functional open space areas.
(4) To encourage flexible and creative concepts in site planning that will allow an increase in
the amount and usability of open space that is possible through conventional practices.
(5) To encourage an environment of stable character.
(6) To encourage a more efficient use of land and smaller networks of utilities and streets
than is possible in other zoning districts.
(7) To allow for the creation of well-balanced communities that provide basic recreational
and supportive facilities.
(8) To ensure that development will occur according to the limitations of use, design,
coverage and phasing as stipulated on the preliminary and final development plans."
Subsection 20-354 (d) states that the standards set forth for Part "A" PUDs "...apply unless
waived by the city commission, specifically finding after receiving recommendations from the
planning and zoning board, that the unique characteristics of the development in question
make unnecessary the application of one (1) or more of these provisions in order to carry
out the intent and purpose of the planned unit development district..." The proposed plan is
not consistent with all of these standards and the applicant has been advised of the need to
demonstrate the unique characteristics of the development that warrant the deviations from the
code. The inconsistencies include (1) Chapter 9 street design standards, (2) provision of
illuminated internal sidewalks, separated wherever practical from the vehicular passage-
ways, and (3) the 50 foot building setback from the mean high water level of any stream or
body of water (Buildings 5, 9, and 10 are depicted very close to the floodway and are
potentially in conflict with this provision). The applicant must further demonstrate compliance
with the standards set forth in Subsection 20-354 (d) (1) or provided adequate explanations as to
why unique characteristics of the development make unnecessary this subsection's application.
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September 08, 2008
Regular Item 600
Page 5 of 7
CODE DEVIATIONS:
The applicant proposes a number of code deviations, documented in a development agreement,
which requires the City Commission's approval. The following code deviations are reflected in
the applicant's proposal:
1. The site is designed with 40 foot wide right-of--ways that do not conform to the City's
specifications set forth in sections 9-147, 9-297, and 20-354 (Subsection 20-354 (d) (10)).
Staff does not support this deviation, even though the streets are private. This
deviation has been implemented on another project within the City and has resulted
in inadequate parking space depths outside the garages.
2. The site is designed with some driveway curb-cuts onto the vehicle passageway closer to
each other than the 12 foot minimum separation set forth in Section 17-29. Several
driveways have zero separation from the adjacent driveway curb-cut. While not favored,
some other residential projects within the City are designed with less than 12 feet of
separation between driveway curb-cuts.
3. T'he site is designed without internal sidewalks, as required by sections 9-221 and 20-354
(Subsection 20-354 (d) (12)). While staff does not support this deviation, Subsection
9-221 (b) does allow the City Commission to waive the requirement for sidewalks if
it determines this waiver to be in the interest and welfare of the environment. No
residential subdivision or condominium project has been approved by the City
within the last 7 years without internal sidewalks.
4. Individual garbage pick-up is proposed, in conflict with the dumpster requirement of
Section 9-280. Staff supports this deviation. Other recent multi-family residential
projects have successfully incorporated individual garbage pick-up.
5. The site lighting approval will not be held with the final engineering/site plan, as required
by Section 9-46 and Section 9-73, due to delays typically experienced with the power
companies. No residential certificate of occupancy is to be granted until the appropriate
street lighting is in place and functioning. Staff supports this deviation, wherever the
power company design is involved.
OTHER DEVELOPMENT AGREEMENT ITEMS:
Other issues addressed in the development agreement include, but are not limited to, provision of
a construction trailer, the mandatory condominium association, provision of one of the buildings
for model units and a sales office -prior to issuance of a certificate of occupancy, removal of
seven (7) specimen trees, off-site easements, building setbacks, emergency access, and off-site
excavation of the golf course site (creation of water features at portions of the fourth and tenth
fairways) for fill material.
FINDINGS:
1. The proposed development is within the Tuscawilla Planned Unit Development (PUD)
and is depicted on the zoning map as PUD.
2. The buildings within the development are proposed on land with a Medium Density
Residential Future Land Use designation, which allows a residential density range of 3.6
to 9.0 dwelling units per acre. Other parts of the development have a Recreation and
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September 08, 2008
Regular Item 600
Page 6 of 7
Open Space Future Land Use designation. Much of the site is depicted on the
Comprehensive Plan Future Land Use map with a Conservation Overlay area.
3. The applicant is in the process of amending the Master Plan for this portion of the
Tuscawilla PUD.
4. The existing third amended settlement agreement must be further amended to allow the
proposed decorative fence with columns instead of a brick wall.
5. The existing third amended settlement agreement requires that one battery (2 tennis
courts) of tennis courts be relocated off-site and that one additional battery (relocation of
2 tennis courts + 2 additional tennis courts = a total of 4 tennis courts) be constructed by
the applicant. At least one battery of tennis courts (of the 2 new batteries) must be
constructed and made ready for play before the relocated tennis court is discontinued for
play and demolished.
6. The City Attorney has opined that the Comprehensive Plan (e.g. Transportation Element
Objective 1.5 and its associated policies 1.5.1 through 1.5.17) does not require sidewalks
within the development. The Applicant is proposing a deviation from the Code sidewalk
requirements of Chapter 9 and Chapter 20 through a development agreement.
7. Any deviations from the Code must be addressed through a development agreement,
special exception, variance, or some other appropriate mechanism. The requested
deviations are listed in a draft development agreement.
8. The City Attorney has opined that the applicant's choice to pursue the Part "A" PUD is
appropriate.
9. Staff does not support the deviations from the Code for (a) providing 40 foot wide
rights-of--way that are inconsistent with the Section 9-296 ROW cross-sections (b) not
providing on-site sidewalks separated wherever practical from vehicular passage-ways as
required by Section 9-221 and Section 20-354 and (c) providing multiple driveways per
building closer than the 12 foot minimum separation where they meet the roadway
surface, as required by Section 17-29.
10. To meet the Comprehensive Plan (Conservation Element Policy 1.4.5) requirement for
developing in the wetlands, the applicant must demonstrate that the project will
"minimize impacts through innovative design layouts." The applicant has stated
that the development portion of the site consists of the lower quality wetland and
upland habitats, while the higher quality wetlands and upland habitats associated
with Howell Creek have been largely preserved.
11. Pursuant to Subsection 20-354 (d) (1), the applicant must demonstrate that "The natural
topography, soils, and vegetation shall be preserved and utilized, where possible,
through the careful location and design of circulation systems, buildings and
structures, parking areas, and open space and recreation areas. Removal of mature
trees shall be compensated through the installation of landscaping materials." While the
applicant has chosen to develop the lower quality wetlands and uplands of the site,
the project design prevents the use of natural topography and the preservation of
existing vegetation in the development area.
12. Pursuant to Subsection 20-354 (d) (7), the applicant must demonstrate that "Building
setbacks from the mean high water level of any lake, stream or body of water, shall
be at least fifty (50) feet. Other minimum setbacks...shall be proposed by the applicant,
reviewed by the staff and the planning and zoning board, and approved or modified by the
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September 08, 2008
Regular Item 600
Page 7 of 7
city commission." The applicant states that the buildings are located in excess of the 50
feet and staff believes that at least three (3) buildings may be located within the 50 feet,
based upon the location of these buildings compared to the approximate horizontal
location of the mean high water level of Howell Creek. This appears to be a deviation
from Subsection 20-354(d) (7) that would need to be documented in a Developer's
Agreement, unless the applicant is able to demonstrate that the horizontal limits of the
creek at mean high water level are more than 50-feet from any building.
13. Pursuant to Subsection 20-354 (d), in order to waive the standards for Part "A" PUDs, the
applicant must demonstrate "that the unique characteristics of the development in
question make unnecessary the application of one (1) or more of these provisions in
order to carry out the intent and purpose of the planned unit development district."
Staff has detailed in previous findings where there appears to be insufficient
justification for the requested deviations.
14. The applicant must obtain all of the necessary storm-water, wetland, and floodplain
approvals and/or permits from the pertinent agencies before site work may commence.
15. A site lighting plan that meets City standards must be approved and installation must be
completed prior to any residential certificate of occupancy at the site.
RECOMMENDATION:
Staff cannot recommend approval of the development agreement since the associated plans
do not meet certain important minimum City Code specifications, without an adequate
explanation or justification - as required by Code. If the Commission determines, after
hearing the applicant's presentation and reviewing the Planning and Zoning Board's
recommendations that the applicant has met the requirements of the Comprehensive Plan and
City Code for these deviations from the Code, then the Commission could approve the proposed
development agreement or approve it with changes.
ATTACHMENTS:
A -Location Map
B -September 10, 2007 Concept Approval Agenda Item -please see attachment to Public
Hearing 506
C -September 10, 2007 Commission Minutes -please see attachment to Public Hearing 506
D -October 2, 2007 Agenda Item, 3`d Amended Settlement Agreement -please see attachment
to Public Hearing 506
E -October 2, 2007 Commission Minutes -please see attachment to Public Hearing 506
F -Draft Development Agreement
COMMISSION ACTION:
7
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ATTACHMENT F
THIS INSTRUMENT WAS PREPARED BY:
Patrick K. Rinka, Esquire
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, FL 32802-2809
(407)843-4600
And
Anthony A. Garganese, City Attorney of Winter Springs
AND SHOULD BE RETURNED TO:
Anthony Garganese, City Attorney of Winter Springs
Brown Garganese, Weiss & D'Agresta, P.A.
1 l 1 N. Orange Avenue, Suite 2000
Orlando, FL 32801
(407) 425-9566
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and executed this
day of , 2008, 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 WINTER SPRINGS INVESTMENTS, LLC, a Florida limited liability
company ("WSI"), whose address is 1491 East S.R. 434, Unit 103, Winter Springs, Florida
32708.
WITNESSETH:
WHEREAS, WSI is the fee simple owner of (or has the contractual right to purchase)
certain real property located within the City in Seminole County, Florida and more particularly
described in Exhibit "A" attached hereto and incorporated herein by this reference (the
"Property"); and
WHEREAS, the Property, and the development thereof, is subject to that certain
Settlement Agreement by and between Florida County Clubs, Inc., a Florida corporation, and the
City dated June 16, 1993, as amended pursuant to that certain Amendment Settlement
Agreement No. 1 dated April 14, 1994, as further amended pursuant to that certain Second
Amendment to Settlement Agreement dated September 30, 1995, as further amended pursuant to
that certain Third Amendment to Settlement Agreement dated November 28, 2007; and
WHEREAS, WSI intends to develop an approximately 6.48 acre portion of the Property
as more particularly described and depicted on Exhibit "B" attached hereto as asingle-family
residential (condominium) community at a maximum density of sixty (60) units to be known as
"The Greens at Tuscawilla" (the "Project"); and
0082065\128808\1137454\3
WHEREAS, the remaining portion of the Property as more particularly described and
depicted on Exhibit "C" attached hereto will be subject to a Conservation Easement in favor of
the City and the St. Johns River Water Management District; and
WHEREAS, pursuant to the approval of the City Commission on , 2008
WSI desires to facilitate the orderly development of the Project on the Property as depicted in
those certain Combined Preliminary/Final Engineering Plans for Tuscawilla Greens prepared by
Dave Schmitt Engineering, Inc. under Job No. CHD-2, dated , 2008 and
approved by the City Commission on , 2008 (the "Plans") in compliance with the
laws and regulations of the City; and
WHEREAS, the City Commission has recommended entering into this Agreement with
WSI for the development of the Project; and
WHEREAS, the City and WSI desire to set forth the following special terms and
conditions with respect to the development and operation of the Project.
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. Authori This Agreement is entered into pursuant to the Florida Municipal
Home Rule Powers Act.
3. Obligations and Commitments. In consideration of the City and WSI entering
into this Agreement, the City and WSI hereby agree as follows:
(a) Utilities. The City hereby acknowledges and agrees that it currently has
sufficient water and sewer treatment plant capacity available to service the Property and
shall provide such services to the Project as depicted in the Plans. All water and sewer
improvements required to service the Property as shown on the Plans shall be at WSI's
expense.
(b) Formation of Condominium Association. WSI hereby acknowledges and
agrees that it shall form a mandatory condominium association (the "Condominium
Association") for purposes of maintaining any and all common areas, landscaping,
streets, sidewalks, streetlights, regulatory signage, entrance signs, gates, walls, fences,
recreational areas and stormwater drainage facilities associated with the Project in
accordance with chapter 718, Florida Statutes and other applicable law. A separate
Declaration of Condominium (the "Declaration") will be executed and recorded among
the Public Records of Seminole County, Florida to evidence the formation of the
Condominium Association and establish its rights, duties and obligations.
(c) Gated Community. The City hereby agrees that in the event that WSI
provides reasonable evidence that the Condominium Association has been duly formed
and incorporated under the laws of the State of Florida as a mandatory condominium
-2-
association with the authority and obligation to levy and collect regular and special
assessments for the ongoing operation, maintenance and repair of any and all gates,
recreational areas, streets, sidewalks, streetlights, regulatory signage and stormwater
drainage systems, and any other common areas located within the Project (hereinafter
referred to as the "Private Roadway Improvements") and otherwise complies with the
requirements of Section 9-157 of the Code, the City shall grant gated community status
for the Project. WSI acknowledges that the intemal Project roadways comprising the
Private Roadway Improvements are designed at WSI's request and sole risk with a forty
foot (40') wide right-of--way and do not meet City design standards as set forth in
Sections 9-147, 9-296, and 20-354(d)(10) of the Code, therefore such roadways shall not
become part of the City roadway system (and must remain private) in the future. The
Condominium Association shall have the obligation, at its sole cost and expense, to
maintain, repair and replace (as necessary) the Private Roadway Improvements as
described above, which obligation shall run with title to the condominium units within
the Project as evidenced in the Declaration. The Declaration shall also establish such
access and utility easement rights in favor of the Condominium Association and residents
of the Project as may be necessary for the orderly use and development of the Project.
City and other governmental emergency, code enforcement, public and utility service
personnel and vehicles shall be allowed access into the Project in accordance with
Section 9-157(b) of the Code.
(d) Construction Trailer. During the period from the date hereof through and
until the completion of the construction of the Project, WSI shall have the right to
maintain one (1) trailer on the Property for use by its contractors and construction
workers. WSI shall coordinate the location of the trailer on the Property with the City.
(e) Trash/Refuse Service. The City hereby agrees that trash and refuse pickup
will be provided for each individual residential unit, therefore no Project dumpsters will
be located on the Property as otherwise required pursuant to Section 9-280 of the Code.
(f) Buffer Walls and Fences. WSI shall install and maintain a six foot (6') tall
decorative wrought-iron or similar decorative fence along the Property boundary adjacent
to Winter Springs Boulevard. The fence shall be subject to the City' aesthetic review
approval process and criteria which are set forth in Sections 9-600- through 9-606 of the
City Code.
(g) Sidewalks. In consideration of the conservation easement required to be
conveyed by WSI hereunder, the off-site drainage improvements required under the
Plans, and the conservation easements granted the City pursuant to the aforementioned
Third Amendment to Settlement the City Commission has determined that it is in the best
interest and welfare of the environment to exempt the Project from the requirement to
construct internal sidewalks in accordance with the terms of Section 9-221(b) of the City
Code. However, with respect to the external sidewalk required along Winter Springs
Boulevard, WSI shall complete construction of the sidewalk prior to the issuance of the
first temporary or permanent certificate of occupancy for the Project.
-3-
(h) Model Units/Sales Office. The City hereby agrees that WSI shall be
permitted to construct model condominium units under the following conditions:
(i) The model condominium units shall be contained in a single
building (the "Model Building") and shall not exceed four (4) individual units.
(ii) The model condominium units shall remain under WSI's
ownership and control until such time as a final certificate of occupancy for each
unit is issued under the conditions set forth below.
(iii) The model condominium units shall be constructed in a location
reasonably acceptable to the City, and any associated parking, pedestrian activity
and other activities conducted by sales staff or the general public shall be
adequately segregated from construction activities to ensure safety. Vertical
construction shall not commence until stabilized access and fire protection is
available.
(iv) Prior to construction, the model condominium units shall be duly
permitted by the City in accordance with all City Codes.
(v) At such time as the City Building Official completes and approves
a final inspection of the model condominium units, the City will issue a temporary
certificate of occupancy. Said temporary certificate of occupancy shall be issued
for the Model Building as a whole, not by individual units. Occupancy of the
model condominium units shall be limited to the sale and marketing efforts for the
Project until a final certificate of occupancy is issued for such units. In addition,
WSI shall have the right to utilize one garage in the Model Building as a
temporary sales office.
(vi) At the request of WSI or at such time as the Project development is
completed, whichever occurs sooner, the model condominium units shall be
converted into permanent residential units and the City shall issue final
certificates of occupancy for each model condominium unit; provided, however,
that the City Building Official determines that such units are suitable for
permanent residential occupancy and incompliance with the City Codes.
(i) Electric and Lighting_Plan. WSI shall submit a proposed electric and
lighting plan to the City at such time as the applicable information is provided to WSI by
Progress Energy. No certificate of occupancy shall be issued for the Project until the
lighting plan is approved by the City and street lights are in place in accordance with such
plan. Approval of the electric and lighting plan shall be coordinated with the Urban
Beautification Manager and be subject to aesthetic review in accordance with the terms
of the Code.
(j) Specimen Trees. Approval of this Agreement by the City Commission
shall constitute approval of the removal of seven (7) specimen trees 24" caliper or greater
as depicted in WSI's landscape plans for the Project.
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(k) Off=Site Easements. WSI shall obtain and record any necessary easements
for access to and maintenance of off-site stormwater ponds and conservation areas upon
terms and conditions reasonably acceptable to the City. A copy of the recorded
easements shall be promptly delivered to the City after recording.
(1) Setbacks. Pursuant to section 6-86 and 20-354(7) of the City Code, the
setbacks for the Project shall be as set forth in the Plans unless otherwise approved by the
City Commission in writing.
(m) Driveway Separation. Approval of this Agreement by the City
Commission shall constitute approval of the waiver of the minimum distance
requirements for driveway openings onto the same street as generally required pursuant
to Section 17-29 of the City Code, and therefore driveway separation distances within the
Project shall be in accordance with the Plans.
(n) Emergency Ingress and E ess. WSI shall obtain and record an ofd site
easement in favor of the City for emergency ingress and egress in a location and upon
terms and conditions reasonably acceptable to the City. The easement shall be a minimum
of twenty (20) feet in width. A copy of the recorded easement shall be promptly
delivered to the City after recording.
(o) Excavation of Golf Course for Fill Purposes. It is understood by WSI and
the City that WSI intends to work with the owners of the Tuscawilla Golf Course
property to obtain fill for the development of the Property by excavating portions of the
4`h and 10~' fairways. Such excavation, if consented to by said owners, shall also be
subject to permits issued by the City and any other applicable government permitting
agency. It is further understood by WSI and the City that if the excavation is permitted
by the City, the excavation areas shall be incorporated into the 4`h and 10`h fairways as
bona fide water features as commonly seen on a well maintained golf course.
4. Rearesentations of the Parties. The City and WSI 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 WSI and recorded in the Public Records of Seminole County, Florida,
constitute a legal, valid and binding obligation enforceable against the parties hereto and the
Property in accordance with the terms and conditions of this Agreement. WSI represents that it
has voluntarily and willfully executed this Agreement for purposes of binding the Property and
the Condominium Association, and the members thereof, to the terms and conditions set forth in
this Agreement.
5. Successors and Assisns. This Agreement shall automatically be binding upon
and shall inure to the benefit of the City and WSI and their respective successors and assigns
including, but not limited to, the Condominium Association and the members thereof. The terms
and conditions of this Agreement similarly shall be binding upon the Property and shall run with
title to the same.
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6. 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.
7. Entire Agreement. This Agreement supersedes any other agreement, oral or
written, and contains the entire agreement between the City and WSI as to the subject matter
hereof.
8. 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.
9. Effective Date. This Agreement shall become effective upon approval by the
City Commission and execution of this Agreement by both parties hereto.
10. Recordation. This Agreement shall be recorded in the Public Records of
Seminole County, Florida.
11. Relationship of the Parties. The relationship of the parties to this Agreement is
contractual and WSI 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.
12. 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. 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).
13. City's Police Power. WSI 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.
14. 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.
15. Permits. The failure of this Agreement to address any particular City, county,
state, and/or federal permit, condition, term, or restriction shall not relieve WSI or the City of the
necessity of complying with the law governing said permitting requirements, conditions, term, or
restriction.
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16. Third-Party Rishts. This Agreement is not athird-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. 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 WSI 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
WSI is in breach of any term or condition of this Agreement.
20. Termination. The City shall have the unconditional right, but not obligation,
to terminate this Agreement, without notice or penalty, if WSI fails to receive building permits
and substantially commences construction of Project within three (3) years of the effective date
of this Agreement. In addition, the City shall have the right, but not obligation, to terminate the
Agreement if WSI permanently abandons construction of the Project, provided, however, the
City shall first deliver written notice and an opportunity to cure as set forth in paragraph 23.0
herein. If the City terminates this Agreement, the City shall record a notice of termination in the
public records of Seminole County, Florida.
21. Applicable Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The parties agree that venue shall be
exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are
based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which
arise out of or are based upon this Agreement.
22. Default; Opportunity to Cure. Should either party desire to declare the other
party in default of any term and condition of this Agreement, the non-defaulting party shall
provide the defaulting party a written notice of default. The written notice shall, at a minimum,
state with particularity the nature of the default, the manner in which the default can be cured,
and a reasonable time period of not less than thirty (30) days in which the default must be cured.
No action may be taken in a court of law on the basis that a breach of this Agreement has
occurred until such time as the requirements of this paragraph have been satisfied.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written.
ATTEST:
By:
Andrea Lorenzo Luaces, City Clerk
CITY SEAL
STATE OF FLORIDA
COUNTY OF SEMINOLE
CITY OF WINTER SPRINGS
By:
John 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 Garganese, 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..
Witness my hand and official seal this day of , 2008.
(NOTARY SEAL)
Notary Public
My commission expires:
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Signed, sealed and delivered in the WINTER SPRINGS INVESTMENTS, LLC, a
presence of the following witnesses: Florida limited liability company
By:
Signature of Witness Thomas J. Corkery, Manager
Printed Name of Witness
Signature of Witness
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2008, by Thomas J. Corkery, as Manager of Winter Springs Investments,
LLC, a Florida limited liability company, on behalf of said company. He is personally known to
me or produced as identification.
(NOTARY SEAL)
(Notary Public Signature)
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EXHIBIT "A"
Legal Description
(To Be Provided)
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