HomeMy WebLinkAbout2002 02 11 Regular C Development Agreement
COMMISSION AGENDA
ITEM C
Consent
Information
Public Hearin2
Re2ular X
February 11. 2002
Meeting
MGR. P- /De~
REQUEST:
Community Development Department requesting Commission consider and approve a development
agreement for a 6.2-acre tract at the northeast comer of the intersection of U.S. 17 - 92 and Nursery
Road.
PURPOSE:
The purpose of this Agenda Item is to request that the Commission approve a development agreement
addressing issues and concerns pertinent to rezoning the 6.2-acre tract at the northeast comer of the
intersection ofU.S, 17 - 92 and Nursery Road.
APPLICABLE LAW:
Section 166.021, Florida Statutes.
(1) As provided in s. 2(b), Art. vm of the State Constitution, municipalities shall have the government,
corporate, and proprietary powers to enable them to conduct municipal government, perform municipal
functions, and render municipal services, and may exercise any power for municipal purposes, except
when expressly prohibited by law.
(2) "Municipal purpose" means any activity or power which may be exercised by the state or its
political subdivisions.
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February 11, 2002
Regular Item C
Page 2
FINDINGS:
The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as
provided in s 2(b), Article VIII of the Florida Constitution and Chapter 166, Section 166.021, Florida
Statutes.
The development agreement is consistent with the City's Comprehensive Plan and Code of Ordinances.
The development agreement provides for reasonable use ofthe subject property, while addressing issues
and concerns pertinent to the present and future use of the site.
CONSIDERATIONS:
Staff has attended meetings with both the applicant and area residents. This development agreement
provides adequate assurance that rezoning the subject 6.2-acre tract to C-2 will not create or worsen the
negative impact upon the nearby residences - and, in fact, will1essen the negative impact.
RECOMMENDATION:
Staff recommends that the City Commission approve the attached development agreement, which
excludes adult entertainment and includes future development phasing, traffic, parking, and buffering.
ATTACHMENTS:
Development Agreement, as provided by the applicant and revised by Community Development
Department staff.
COMMISSION ACTION:
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BINDING DEVELOPMENT AGREEMENT
THIS BINDING DEVELOPMENT AGREEMENT (herein referred to as the
"Development Agreement"), made and executed this _ day of , 2002, by
and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred
to as the "City"), whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and
Wayne P. Reece, an individual (herein referred to as "Reece"), whose address is 561 Virginia
Drive, Winter Park, Florida 32789.
WITNESSETH
WHEREAS, Reece owns certain real property in the City of Winter Springs, Florida,
described in Exhibit "A," attached hereto and incorporated herein by reference (herein referred to
as the "Subject Property"); and
WHEREAS, the subject property was annexed into the City of Winter Springs from
unincorporated Seminole County and Reece has petitioned to amend both the Future Land Use
(FLU) designation and zoning classification to the appropriate City designation and
classification; and
WHEREAS, Reece desires to proclaim his plans for future use ofthe subject property
and proclaim that the subject property will not be used for adult entertainment purposes; and
WHEREAS, Reece acknowledges that certain building safety, parking, and traffic
problems exist on the subject property and proposes measures to minimize their negative
impacts; and
WHEREAS, Reece proposes to enter into this development agreement with the City to
establish a definitive process to minimize the negative impacts of the existing and future uses of
the subject property while allowing future development ofthe subject property, subject to
requirements of the City's Comprehensive Plan, the Code of Ordinances, and conditions set forth
in this development agreement; and
WHEREAS, the City finds this development agreement consistent with the
Comprehensive Plan and City Code of Ordinances and that approval of this development
agreement is a legislative act of the City Commission of Winter Springs; and
WHEREAS, the City Commission further finds that this agreement promotes the public
health, safety, and welfare and is consistent with, and is an exercise of, the City's powers under
the Municipal Home Rule Powers Act, as provided in s. 2(b), Article VIII of the Florida
Constitution and Section 166.021, Florida Statutes, and the City's police powers.
NOW THEREFORE, in consideration of the mutual covenants and mutual benefits
herein contained, the parties agree as follows:
I.Recitals. The forgoing recitals are hereby incorporated herein by this reference.
2. Authority. This development agreement is entered into pursuant to the Florida
Municipal Home Rule Powers Act and the City Code of Ordinances.
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3. Representations of Reece and the City. Reece and the City hereby represent and
warrant that Reece and the City have the power and authority to execute, deliver, and perform
the terms and provisions of this development agreement and have taken all necessary action to
authorize the execution, delivery, and performance of this development agreement.
4. Phase I development shall be as depicted on sheet 1 of 1 a conceptual site plan
prepared, signed, and sealed by Richard Labinsky, P.E., on September 12, 2001, reflecting items
"a" and "b" of the following:
a. delineating a stabilized grass parking area for 34 vehicles, east of the eastern-most
existing automotive garage building and north-east of the intersection of the Nursery
Road and Ridge Road rights-of-way (ROWs),
b. creating a "no parking" zone, approximately 20 feet wide by 270 feet long, between
10 re-striped parking spaces directly in front of the eastern-most automotive garage
building and the Nursery Road ROW (this "no parking" zone is to be adequately
posted and enforced to ensure it is kept free of vehicles, debris, and other
obstructions),
c. the existing building and fire code violations in the existing non-residential buildings
shall be rectified within a time-period satisfactory to both the City Fire Department
and the Community Development, Building Division,
d. there shall be no expansion of the existing commercial/industrial nature of the site
until phase II of the project approves all pertinent approvals by the City.
5. Phase II of the development shall commence no earlier than April 1, 2005, and shall
require site plan approval, a concurrency test, and a traffic study. The traffic study shall be
prepared at the applicant's expense following a methodology meeting between the City's traffic
consultant and one employed or retained by the applicant. The applicant shall reimburse the City
for the cost of City's traffic consultant to review and comment on this traffic study. The traffic
study shall address, as a minimum, traffic generation, safe and efficient traffic movements,
pertinent pedestrian safety issues, ROW adequacy, curb-cut location, and the potential for off-
site as well as on-site traffic improvements. The traffic study shall address the actual proposed
phase II site plan, which Sh1ll1 subsequently be amended to accommodate pertinent conclusions
from that study. The results of the traffic study and the City's consultant's review and comments
shall be coordinated with both Seminole County (Nursery Road is a county road) and the Florida
Department of Transportation.
Within 90 days after any certificate of occupancy (CO) is issued for the Phase II
. development, all automotive shops (including, but not limited to, alignment, electrical,
mechanical, paint, body, and/or frame straightening) shall be relocated from buildings facing
Nursery Road. The existing residential use on the subject property shall cease at the time any
building permit for the phase II development is issued.
Phase II shall bring all ofthe subject property (both the existing and phase II
development) into conformance with the most current state handicap accessibility regulations.
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Phase II will be adequately buffered from the adjacent residentially zoned properties with
a masonry wall and vegetation, the extent of which shall be determined at the Development
Review Committee (DRC) meeting for the final site plan approval, subject to modification by the
City Commission. Site lighting will be coordinated with the landscape plan during the final site
plan approval process, to ensure no off-site illumination.
At no time and under no circumstances shall adult entertainment of any kind be
considered an allowable, permissible, or conditional use on the subject property, as of the
execution of this development agreement.
6. Successors and Assigns. This development agreement shall automatically be binding
upon and shall inure to the benefit of the successors and assigns of each of the parties.
7. Applicable Law. This development agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
8. Amendments. This development agreement shall not be modified or amended except
by written agreement executed by all parties hereto and approved by the City Commission of the
City of Winter Springs.
9. Entire Agreement. This development agreement supercedes any other agreement,
written or oral, and contains the entire agreement between the parties as to subject matter hereof.
10. Severability. If any provision of this development agreement shall be held to be
invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not
affect in ay respect the validity or enforceability of the remainder of this development agreement.
11. Effective Date. This development agreement shall become effective upon approval
by the City of Winter Springs and execution of this development agreement by all parties.
12. Recordation. Upon approval by the City of Winter Springs City Commission and
execution of this development agreement by all parties, this development agreement and any
amendments hereto shall be recorded in the public records of Seminole County, Florida, and
shall run with the land.
13. Relationship of the Parties. The relationship of the parties to this development
agreement is contractual and arm's length. Reece is an individual and is not an agent of the City
for any purpose. Nothing herein shall be deemed to create a partnership, or joint venture, or
principal-agent relationship among the parties, and no party is authorized to, nor shall any party
act toward third persons or the public in any manner which would indicate any such relationship
with any other party.
14. Sovereign Immunity. Nothing contained in this development 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 state or federal law.
15. City's Police Power. Reece and the City acknowledge and agree that the City hereby
reserves all police powers granted to the City by law. In no way shall this development
agreement be construed as the City bargaining or surrendering its police powers.
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16. Interpretation. The parties to this development agreement acknowledge and agree
that all parties have participated equally in the drafting ofthis development agreement and no
party shall be favored or disfavored regarding the interpretation ofthis development agreement
in the event of a dispute between the parties.
17. Permits. Failure of this development agreement to address any particular City,
county, regional, state, or federal permit, condition, term or restriction shall not relieve Reece or
the City of the necessity of complying with the law governing said permitting requirements,
conditions, terms or restriction. Applicable permits include, but are not limited to, City
concurrency approval, preliminary and final site plan approval, site construction, demolition,
building, and sign permits; Seminole County concurrency approval and a ROW permit; a St.
Johns River Water Management District permit will be necessary for storm-water management
purposes; a Florida Department of Transportation ROW permit may be necessary for any
modification to existing access to U.S. 17 - 92; and Florida Department of Environmental
Protection permits will be necessary for the installation of potable water and sanitary sewer lines.
18. Third Party Rights. This development agreement is not a third party beneficiary
contract and shall not in any way whatsoever create rights on behalf of any third party.
19. Specific Performance. Strict compliance shall be required with each and every
provision of this development agreement. The parties agree that failure to perform the
obligations established in this development agreement shall result in irreparable damage, and that
specific performance ofthese obligations may be obtained by suit in equity.
20. Attorney's Fees. In connection with any arbitration or litigation arising out of this
development agreement, the parties shall bear their own attorney's fees and costs through all
appeals.
21. Future Rezonings/Development Permits. Nothing in this development agreement
shall limit the City's authority to grant or deny any future rezoning or development permit
applications or requests, or the right of Reece to apply for or oppose any future rezoning or
development permit application subsequent to the effective date ofthis development agreement.
In addition, nothing herein shall be construed as granting or creating a vested property right or
interest in Reece or the subject property.
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22. Notices. All notices and correspondence shall be sent or delivered by registered or
certified mail to the parties hereto, return receipt requested, with copies forwarded to their
respective attorneys, at the addresses set forth below or at such other addresses as the parties
hereto shall designate to each other in writing:
(i) ifto the City:
Mr. Ronald W. McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Telephone: 407-327-5957
Facsimile: 407-327-4753
with copies to:
Anthony A. Garganese, Esq., City Attorney
Brown, Ward, Salzman & Weiss, P.A.
Post Office Box 2873
Orlando, Florida 32802-2873
Telephone: 407-426-9566
Facsimile: 407-425-9596
(ii) if to Reece:
Any notice or demand so given, delivered or made by United States Mail shall be deemed so
given, delivered or made three (3) days after the same is deposited in the United States mail
registered or certified, return receipt requested, addressed as above, provided with postage
thereon pre-paid. Any such notice, demand, or document not given, delivered, or made by
registered or certified mail as aforesaid shall be deemed to be given, delivered, or made upon
receipt ofthe same by the party to whom the same is to be given, delivered, or made.
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IN WITNESS WHEREOF, the parties have executed this development agreement as of
the date of first written above.
CITY OF WINTER SPRINGS, a Florida
Municipal Corporation,
ATTEST:
By:
By:
PAUL P. PARTYKA
Mayor
ANDREA LORENZO-LUACES
City Clerk
WITNESSES:
Wayne P. Reece
By:
Print Name
Title
Date:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
,2002, by Wayne P. Reece, [ ] who is personally known to me, or [ ] who has
produced as identification.
NOTARY PUBLIC, State of Florida
My commission expires:
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COMMISSION AGENDA
ITEM D
Consent
Information
Public Hearine:
Ree:ular X
February 11. 2001
Meeting
MGR. /" lDept.
jl\-/ L
REQUEST:
The Community Development Department, Building Division, requests that the
Commission reconsider a request of John Laudani, on behalf of the homeowners
Howard and Libby Baity, for a variance in the elevation of the finished floor at 627
Sailfish Road.
PURPOSE:
The purpose of this agenda item is to present to the Commission a request for a variance
to allow a finished floor elevation to be three (3.72) inches below the required elevation
of eighteen (18) inches above the hundred year flood stage in order for the Building
Division to issue a final Certificate of Occupancy. '
APPLICABLE LAW:
Sec. 9-241. Storm water management.
(c) The drainage system for each subdivision shall include a sufficient facility to
remove storm water without flooding any lot in the proposed subdivision or in the
surrounding territory. All finished floor elevations shall be a minimum of one and one-
half(11/2) feet above the hundred-year flood stage.
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July 23, 2001
REGULAR AGENDA ITEM F
Page 2
CONSIDERA TIONS:
The property is located at 627 Sailfish Road. The required finished floor elevation is
35.50 or 18 inches above the Base Flood Elevation (BFE). The constructed finished floor
is 35.19 feet above the BFE or 3.72 inches too low.
FINDINGS:
1) An inspection of the finished floor elevation revealed that the elevation was not in
conformance with City standards. The builder was made aware of the situation early in
the building process but took no action to correct the situation.
2) The Board of Adjustment recommended granting the variance request although the code
requirements of Section 20-82(1O(c)) were not met.
3) The Code Board heard testimony on July 17,2001 and found the builder in non-
compliance and imposed a $1.00 fine.
4) The City Commission on July 23, 2001 considered the Code Board recommendation and
directed the City Attorney to take the matter back to the Code Board to establish a more
equitable fine.
5) On August 21, 2001 the City Attorney presented the matter to the Code Board and the
Code Board upheld their recommendation of non-compliance and the $1,00 fine.
CHRONOLOGY:
. March 19,2001 Variance application received.
. April 5, 2001 The variance was considered by the Board of Adjustment. They
recommended approval with a hold harmless agreement and a recorded disclosure statement
for future buyers. Both documents have been executed and the disclosure statement
recorded.
. May 3,2001
The Board of Adjustment minutes were approved.
. May 14,2001
The City Commission tabled the matter.
. June 25, 2001 The City Commission removed the matter from the table and referred it to
the Code Board for prosecution.
July 23, 200 I
REGULAR AGENDA ITEM F
Page 3
. July 17,2001 The Code Board heard testimony, found the owners and builder in non-
compliance, and imposed a $1.00 fine against the builder.
. July 23,2001 The City Commission received the recommendations of the Code Board
and directed the City Attorney to take the matter back to the Code Board to request a more
equitable fine.
. August 21, 2001 The City Attorney presented the matter to the Code Board. The Code
Board reconfirmed its finding of non-compliance and the recommended fine of$1,OO against
the builder, which has been paid.
RECOMMENDATION:
Staff recommends that the Commission grant a variance from the requirements of Section 9-241.
ATTACHMENTS:
A - Hold-harmless letter.
B - Disclosure statement.
C - Payment receipt
COMMISSION ACTION:
ATTACHMENT A
Hold-harmless Letter
July 5, 2001
City of Winter Springs
1126 E. State Road 434
Winter Springs, Florida 32708
" " ~'~I :..
RE: 627 Sailfish Road
Winter Springs, Florida
To whom it may concern:
I, Libby A. Baity and Howard W. Baity Jr. hereby hold to City of Winter Springs harmless
from any flood damage that might be caused by the elevation of our property being below the
code of Winter Springs.
Ri~~~
ATTACHMENT B
Disclosure Statement
11111111111111111111111111111111111111111111I11111111/111111
July 6, 200 I
CERTI fi ED COP~
Y-lfl.RY;:.NNE MORSE
CLERK OF CIRCUiT COURT
S~'~Je/~
. DE '. CLERK --.
,J U t 1 (jJ; 2nn1
627 Sailfish Road Uu
Winter Springs, Florida 32708
MARYANNE MORSE, CLERK OF CIRCUIT COURT
SEMINOLE COUNTY
BK 04125 PG 0126 '\
CLERK'S # 2001721366
RECORDED 07/10/200101:00:42 PM'
RECOROING FEES 6.00
RECORDED BY S Hergert
Whom it may concem:
Re:
This is to inform all future home owners of the above referenced address that the property does not
comply with the Winter Springs Building Code of elevation.
'"
Although the elevation of said property is a little more than three inches too low for Winter Springs
Building Code, Flood Insurance is not required. The above referenced property does comply with FEMA
;i~:e;,:;:tO~fl~IM~~_
State of Florida
COWity of Seminole
BEFORE me, a Notary, personally appeared Libby A. Baity who is personally known to me e::...
~{bo produced as idootifioatien and who did acknowledge before me
that she executed the foregoing statement.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Seminole County,
Florida, this ~ of July, 2001.
~~
State of Florida
County of Seminole
N Publ.ic .
.~;.~~
~.~~~ssion ~~UX~D.lEV1N
f.~~ Notary Public - State of Aorida
; W:: MyCo~Bifi'esDec 25.2Dt
~DF~?jf Co~n It CC979516
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BEFORE me, a Notary, personally appeared Howard W. Baity Jf. who is personally known to me
or who pnx:Iuuxl 83 idootifieatiOR and who did acknowledge before
me that he executed the foregoing statement.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Seminole County,
Florida, this ~ of July, 200 I.
~~
Notary Public
My Commission Expires:
This document was prepared by:
(jj) Libby A. Baity
~ 627 Sailfish Road
Winter Springs, Florida 32708
-- ..t~'_"-I&.1......GI'
~~"""" NORMAN D.lEV1N
fJm'% Notary Public - Stale of Aorlda
S' - E My Co~n &;ins Doc 25. 2004
~P.f.I"'~ Comrrission fCC919516
....'"
..
ATTACHMENT C
Payment Receipt
CIn OF WItHER S~'RINGS DEP
riISCELLANt.OUS CASH RECEIPTS
Date / Ti~e : 07/24/01 13:22
Payftlent : $ i. B.j
Re~eiot " : 30917
Check/'Cred i t C"\"I'd ~:
Clerk : if r'eeL\tl.n
Paid B.,. : LAUDAHI
,"
Date: 021102
This was handed out on 2/11/02 by Dennis
Franklin under Regular "D".
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FLOOD DAMAGE PREVENTION
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~ 8-50
Sec. 8-34. Variance procedure.
(a) Appeal board.
(1) The city commission as established by the
city shall hear and decide appeals and
requests for variance from the require-
ments of this chapter.
(2) The city commission shall hear and decide
appeals when it is alleged there is an
error in any requirement, decision, or
determination made by the floodplain ad-
ministrator in the enforcement or admin-
istration of this chapter.
(3) Those aggrieved by the decision of the city
commission or any taxpayer, may appeal
such decision to the circuit court.
(b) Conditions under which variances may be
granted.
(1) In passing upon such application, the city
commission, shall consider all technical
evaluations, all relevant factors, stan-
dards specified in other sections of .this
chapter, and, the danger that material
may be swept onto other lands to the
injury of others; the danger to life and
property due to flooding or erosion dam-
age; the susceptibility of the proposed
facility and its contents to flood damage
and the effect of such damage on the
individual owner; the importance of the
services provided by the proposed facility
to the community; the necessity to the
facility of a waterfront location, where
applicable; the compatibility of the pro-
posed use with existing and anticipated
development; the relationship of the pro-
posed use to the comprehensive plan and
floodplain management program of that
area; the availability of alternative loca-
tions not subject to flooding or erosion
damage for the proposed user and the
safety of access to the property in times of
flood for ordinary and emergency vehi-
cles.
(2) Variances may be issued for the recon-
struction, rehabilitation or restoration of
structures listed on the national register
of historic places or the state inventory of
Supp :-Jo. 1
historic places without regard to the pro-
cedures set forth in the remainder of this
section.
(3) Variances shall only be issued upon a
determination that the variance is the
minimum necessary, considering the flood
hazard, to afford relief.
(4) Variances shall not be issued within any
mapped regulatory floodway.
(5) Variances shall only be issued upon a
showing of good and sufficient cause; a
determination that failure to grant the
variance would result in exceptional hard-
ship to the applicant; and a determination
that the granting of a variance will not
result in increased flood heights, addi-
tional threats to public safety, or extraor-
dinary public expense; create nuisances;
cause fraud on or victimization of the
public, as identified in (b)(1) above; or
conflict with the local government compre-
hensive plan or with other existing local
laws or ordinances.
(6) Any applicant to whom a variance is
granted shall be given written notice that
the structure will be permitted to be built
with a specific, reduced lowest floor eleva-
tion and that the cost of flood insurance
will be commensurate with the increased
risk resulting from the reduced lowest
floor elevation.
(7) The city commission may attach such
conditions to the granting of any variance
as it deems necessary to further the pur-
poses of this chapter.
(8) The floodplain administrator will main-
tain a record of all variance actions, in-
cluding justification for their issuance and
report such variances issued to the Fed-
eral Insurance Administration, Federal
Emergency Management Agency.
(Code 1974, ~ 19-13; Ord. No. 2001-04, * 1, 1-22-
01)
Sees. 8-35-8-50. Reserved.
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