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HomeMy WebLinkAbout2005 10 17 Regular 500 City of Winter Springs Special Meeting October 17, 2005 Regular Agenda Item 500 JDC Development Agreement COMMISSION AGENDA ITEM 500 Consent Informational Public Hearin s Re ular x October 17,2005 Meeting F- -- , Mgr. / Dept. Authorization REQUEST: City Manager requests the Commission adopt a Developer's Agreement between JDC Calhoun, Inc, (The James Doran Company) and the City of Winter Springs relative to the Development of the 46.4 Acre Schrimsher Tract located in the North East Quadrant of the intersection of Tuscawilla Road and State Road 434. PURPOSE: The purpose of this Agenda item is to adopt a Developer's Agreement between JDC Calhoun Inc. and the City of Winter Springs regarding the development of the 46.5 Schrimsher Tract. CONSIDERATION: As discussed in previous meetings, the proposed Developer's Agreement provides for the basic entitlements related to the development of the Schrimsher Tract. The tract will be developed in two phases. It is estimated that Phase IIA will result in the East side of Main Street being completed in the summer of2008. FUNDING: None required at this time. RECOMMENDATION: It is recommended that the City Commission adopt the Developer's Agreement with any amendments the Commission deem necessary. A TT ACHMENTS: Development Agreement COMMISSION ACTION: Draft 10/13/2005 THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown Oarganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 FOR RECORDING DEPARTMENT USE ONLY PHASE n DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and executed this _ day of . 2005, by and between the CIlY OF WINTER SPRINGS (a Florida municipal corporation) (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and me CALHOUN, INC. (a Georgia corporation) ("JDC"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, South Carolina 29492. WIT N E SSE T H: WHEREAS, Section 163.3167, Florida Statutes, provides that each local government is encouraged to articulate a vision of the future physical appearance and qualities of its community as a component of the local comprehensive plan through a collaborative planning process with meaningful public participation; and WHEREAS, the City completed a comprehensive planning study, with extensive public participation from local residents and local, county, and state officials, which resulted in the adoption of the Winter Springs Town Center Plan; and WHEREAS, IDC is the contract purchaser and will be the owner and developer of approximately 46.5 acres of land located within the boundaries of the City of Winter Springs Town Center, North of State Road 434 and East of Main Street (aka Tuscawilla Road) and more particularly described on Exhibit <<A" attached hereto and by this reference made a part hereof (the "Property"); and WHEREAS, prior to the acquisition of the Property, IDC has been developing Phase I of its town center development on property located on the west side of Main Street; and WHEREAS, IDC now desires to develop Phase IT of their town center project on the Property; and Phase IT Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 1 of 9 WHEREAS, IDC's Phase II development plans on the Property will be a mixed-use project (the "Project"), as preliminarily depicted in that certain Concept Plan, entitled , dated , 2005, and prepared by under Job No. , consisting of L.) sheets including a concept site plan, typical front elevations and colors for buildings, floor plans for residential units, and a proposed elevation and floor plan for the buildings (collectively referred to as the "Concept Plan"), a copy of said Concept Plan is attached hereto as Exhibit "B" and incorporated herein by this reference, and in accordance with the terms and conditions of this Agreement~ and WHEREAS, mc and City desire to memorialize their understandings and agreements regarding the Project~ and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Obli2ations and Commitments. In consideration of IDC's commitment to diligently pursue closing on the Property in accordance with paragraph 3.16, the City and IDC hereby agree as follows: 3.1 Annroval of Content Plan. The City hereby acknowledges and agrees that the Concept Plan, which provides, inter alii!, for minimum of 400,000 square feet of retail, 300,000 square feet of office, and 700 multi-family units, all in buildings up to six (6) stories in height, as well as appropriate parking structures, is acceptable to the City; provided, however, IDC shall have the obligation to further submit and obtain the City's approval of a final site plan and final engineering plans. Moreover, IDC acknowledges and agrees that nothing in the Concept Plan shall be construed to represent the final number of parking spaces which will be required for the project. mc shall also have the obligation to construct aesthetic enhancements to the project as may be reasonably requested by the City in accordance with the City Code, particularly the City's aesthetic review ordinance. mc acknowledges and agrees that the Concept Plan was not prepared with specific final surveyed dimensions and that during the final site plan and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. As such, IDC and the City agree that the Concept Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final site plan and final engineering phase in order to bring the project into compliance with the City's Comprehensive Plan and Code. Phase II Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 2 of 9 3.2 Future Chan2es in Mix of Uses. Nothing contained herein shall be deemed to preclude IDC from seeking a change in said mix of uses, provided that the mix of uses are approved by the City Commission in accordance with the City's Comprehensive Plan and Code. Should IDC propose a change in the mix of uses, the City may require an updated traffic study for the Project in order to determine whether or not roadway improvements and parking requirements should be amended. 3.3 PhasinS! ofProiect: Commencement of Phase llA. IDC intends to develop the Project in two phases. The first phase of the Project ("Phase IIA") shall be developed as depicted on Exhibit "C". which is attached hereto and incorporated herein by this reference. Phase ITA will contain not less than 30,000 square feet of office or retail, not less than 300 residential units, and two (2) parking structures. Phase ITA shall also include all frontage on Main Street between McDonalds and Magnolia Park. IDC shall submit to the City all permit applications for the construction of Phase ITA no later than one hundred twenty (l20)-days following the date that IDC and the City approve and execute an Implementation Agreement pursuant to paragraph 4 of this Agreement. IDC agrees to commence substantial construction of Phase ITA within one hundred twenty (120) days from the date that the City begins approving and issuing the permits for all or part of the construction of Phase ITA. 3.4 Ph.sinl of Proiect: Commencement of Phase lIB. IDC agrees to commence substantial construction of the second phase of the Project as depicted on Exhibit "D" ("Phase lIB") no later than sixty-days following the City's issuance of the final certificate of occupancy for Phase IIA. 3.5 Roadwavs. Unless otherwise provided in this paragraph, all roadways shown on the Concept Plan (the "Roads") shall be designed and constructed pursuant to applicable provisions of the City Code. The Roads shall be located in accordance with the Concept Plan. The City agrees to promptly amend the Town Center Transportation Master Plan to incorporate the Roads into said Master Plan. Subject to final City approval, IDC agrees to design, permit, and construct the Roads; provided, however, that the City shall reimburse IDC for the reasonable costs thereof as mutually agreed to pursuant to paragraph 4 of this agreement. IDC agrees to convey to the City that portion of the Roads located on the Property and all other roadways (excluding alleyways) depicted on the Concept Plan, along with all related improvements thereon and thereunder. All such land conveyances shall be by a recorded plat and free and clear of all encumbrances. Conveyance of improvements shall be by bill of sale and free and clear of all liens. Said plat and bill of sale shall be in a form reasonably acceptable to the City Attorney. 3.6 Utilities. The City hereby acknowledges and agrees that it currently has sufficient water and sewer treatment plant capacity available to service the Project. Furthermore, all water, sewer, and drainage improvements required on- Phase II Development Agreement City of Winter Springs! IDe Calhoun, Inc. Page 3 of 9 site to service the Property shall be designed, constructed and installed by IDC, and the City will reimburse IDC for said improvements to the extent mutually agreed to pursuant to paragraph 4 of this Agreement. 3.7 Construction of Storm Water Imorovements. IDC shall design the Project to accommodate the stormwater requirements for the Property and the McDonalds site, including the roadway improvements to be located adjacent to and/or within the Project. The City shall permit IDC to use any existing City rights-of-way and/or easements to accommodate storm water generated from the Property. IDC agrees to convey to the City certain additional land as shown on the Concept Plan that is necessary to accommodate storm water generated from the Property to the extent mutually agreed to pursuant to paragraph 4 of this Agreement. 3.8 Cross-Seminole Trail. The City shall use its best efforts to convince Seminole County to allow utilization of the Cross-Seminole Trail right-of-way for road access/fire access/on-street parking for the "North" Main Street building and/or a clarification that fire codes will allow the "North" Main Street building to be built without such utilization of the Trail. 3.9 Parkin2. IDC agrees to design, permit, and construct private and public parking within the two parking structures required in Phase ITA in accordance with City guidelines and requirements. In addition to the public parking spaces required above, IDC agrees, to the extent feasible, to design, permit, and construct additional public parking spaces in said parking structures upon the City's request. Cost sharing for the two Phase llA parking structures shall be mutually agreed to in accordance with paragraph 4 of this Agreement. 3.10 Doran Drive Traffic Sinal. The City shall diligently pursue approval of traffic signal facilities at the intersection of Doran Drive and S.R 434 by the Florida Department of Transportation (FDOT). The City shall install such facilities, at the City's sole cost and expense, as soon as possible after such approval, but in no event any later than nine (9) months after such approval. 3.11 Develooment Permit Fees. IDC agrees to pay all ordinary and customary development permit fees imposed by the City; provided, however, that the City agrees, in accordance with the City Code, to reduce transportation impact fees by an amount justified by a duly qualifted traffic engineering consultant that is acceptable to both IDC and the City. IDC and the City agree that Glatting- Jackson is an acceptable consultant. For the purposes of calculating transportation impact fees, the City will use an aggregated retail rate. 3.12 Miscellaneous FDOT Tramc Issues. Consistent with the City's Comprehensive Plan (including, but not limited to, the goals, policies and objectives for the Town Center and Central Business District), the Town Center Code and the "Victor Dover Grid," the City shall continue to diligently pursue with FDOT street calming and beautification efforts; access/signalization textured Phase IT Development Agreement City of Winter Springs! me Calhoun, Inc. Page 4 of 9 crosswalks; entry features at the outer perimeter of the Town Center; lowered speed limits; the approval, funding, and installation of traffic lights for Phase lIB of the Project; and other issues that may be identified by the City from time to time. 3.13 Amohitheater. The City shall use its best efforts to secure financing for an amphitheater at Magnolia Park. IDC shall convey to the City at no cost up to 0.5 acres as shown on Exhibit "C" hereto for the construction of such amphitheater. 3.14 IDsoection Penonnel. The City shall, if necessary, engage sufficient personnel - either through City employees or third-party vendors - for the Building Department to perform inspections on an expedited basis. 3.15 Town Center Code Waivers. Based on the Concept Plan and IDC's agreement to the terms and conditions set forth in this Agreement, the City Commission hereby grants the following waivers to the Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): (A) Balconies. The City agrees that the 6-foot balcony rule for second floor balconies shall apply as provided in the Town Center Code, however, balconies on other upper level floors shall be a combination of four and two foot deep balconies. (B) Hei2ht. The height of any and all buildings constructed within the Property and depicted on the Concept Plan shall be consistent with the City's Comprehensive Plan and shall be constructed to a height of six (6) stories. 3.16 Closin2 on the Prooertv. Upon the effective date of this Agreement, IDC shall continue to diligently pursue the closing with the current owner of the Property in order to become the fee simple owner of the Property. Should IDC fail to close on the Property within six (6) months of this Agreement, this Agreement shall automatically terminate unless the six month time period is extended by the parties in writing. Upon termination, neither party shall have any rights or obligations hereunder. 4. Imolementation A2reement. Upon the effective date of this Agreement, the City and IDC shall commence, in good faith, negotiations for purposes of reducing to writing an "Implementation Agreement." The purpose of the Implementation Agreement will be to set out the parties' mutual expectations for implementing this Agreement and designing, permitting, and constructing the Project. Said expectations shall include, but not be limited to, cost sharing of infrastructure improvements, parking, aesthetics, impact fee credits, expedited permit review, and construction schedules. The parties shall endeavor to complete and execute the Implementation Agreement within sixty (60) days of the effective date of this Agreement, but in no event will said completion and execution be later than the City's issuance of any final development order for Phase IIA of the Project. In the event that IDC and the City shall fail to agree and execute an Implementation Agreement within six (6) months of the effective date of this Agreement, this Agreement Phase II Development Agreement City of Winter Springs! me Calhoun, Inc. Page 5 of 9 shall automatically terminate unless the six month time period is extended by the parties in writing. Upon termination, neither party shall have any rights or obligations hereunder. 5. Reoresentations of the Parties. The City and IDC 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 IDC, constitute a legal, valid and binding obligation enforceable against the parties hereto in accordance with the terms and conditions of this Agreement and upon the Property upon recordation pursuant to paragraph 12. 6. Successors and Assi2ns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and IDC. Prior to recordation of the Agreement, any assignment of this Agreement shall require the mutual written consent of the parties. Notwithstanding anything contained herein to the contrary, IDC may assign, with prior written notice to the City, its rights and obligations hereunder to one or more affiliates of IDC which may acquire title to all or any part of the Property. 7. Aoolicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 8. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 9. Entire A2reement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and IDC as to the subject matter hereof 10. Severabilitv. If any provision of this Agreement shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 11. Effective Date: Termination. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto, This Agreement may be terminated by mutual written agreement of the parties or pursuant to the terms and conditions set forth in paragraphs 3.16 or 4. 12. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida at such time IDC closes on the Property. Upon recordation, the terms and conditions of this Agreement shall be binding upon the Property and shall run with title to the same. After recordation of this Agreement, should this Agreement terminate by mutual agreement of the parties or pursuant to paragraph 4, the City will record a notice of termination of development agreement in said public records upon termination. Phase II Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 6 of 9 13. Relationshio of the Parties. The relationship of the parties to this Agreement is contractual and IDC is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties,and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. 14. Soverei2n Immunitv. 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. 15. Citv's Police Power. IDC agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 16. Interoretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 17. Third-Pam Ri2hts. This Agreement is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 18. Soecific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 19. Attomevts Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 20. Develooment Permits Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, tenn or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement. 21. Force Maieure. Neither the City nor IDC shall be in default of this Agreement if delays in or failure of performance are due to Uncontrollable Forces, the effect of which the non-performing party could not avoid by the exercise of reasonable diligence. Neither party shall, however, be excused from performance if nonperformance is due to forces or events Phase II Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 7 of 9 that are preventable, removable, or remediable and which the non-performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non-performing party shall, within a reasonable time of being prevented or delayed from performance by an Uncontrollable Force, give written notice to the other party describing the circumstances and Uncontrollable Forces preventing continued performance of the obligations of this Agreement, and the expected time when performance in compliance with this Agreement will resume. Agreement to the extension of the time period to perform shall not be unreasonably be withheld by the other party. [SIGNATURES FOLLOW ON NEXT PAGEl Phase IT Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 8 of 9 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS ATTEST: By: John F. Bush, Mayor By: Andrea Lorenzo Luaces, City Clerk CITY SEAL Phase II Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 9 of 9 Signed, sealed and delivered in the presence of the following witnesses: IDC CALHOUN, INe. By: Printed Name: Title: Signature of Witness Printed Name of Witness Signature ofWitnoss Printed Name of Witness STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this , 2005, by of IDC CALHOUN, INe., a Georgia COrPOration, personally known to me or produced day of , as on behalf of said corporation. He is as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Phase II Development Agreement City of Winter Springs! IDC Calhoun, Inc. Page 10 of 9 EXHIBIT" A II Legal Description EXHmIT "B" Concept Plan EXHIBIT "C" Phase II A Concept Plan EXHIBIT "D" Phase II B Concept Plan