HomeMy WebLinkAbout2012 11 19 Regular 603 Amberly Developers AgreementCOMMISSION AGENDA
ITEM 603
November 19, 2012
Special Meeting
Informational
Consent
Public Hearings
Regular
X
KS
RS
City Manager Department
REQUEST:
Community Development Department- Planning Division requests the City Commission
consider approval of the Amberly Developer's Agreement (DA), a 36 -unit single - family
development located on Dovera Drive, north of Red Bug Lake Road, within the Oviedo
Marketplace PUD (and Development of Regional Impact).
SYNOPSIS:
The applicant, KB Home, is requesting approval of a Developer's Agreement (DA) for a 36
unit single - family development located on Dovera Drive, north of Red Bug Lake Road
within the Oviedo Marketplace PUD (and Development of Regional Impact). The
Developer's Agreement (DA) establishes the ability to allow the owner to construct both a
sales office and up to four (4) model homes on the property to be used for the customary
temporary marketing and sales activities prior to platting.
CONSIDERATIONS:
FUTURE LAND USE AND ZONING DESIGNATION
FLU: Mixed Use
Zoning: Planned Unit Development
APPLICABLE LAW & PUBLIC POLICY
Home Rule Powers
Florida Statutes
City of Winter Springs Comprehensive Plan
City of Winter Springs Code of Ordinances
Oviedo Marketplace Parcel 14B Second Implementation Agreement
Regular 603 PAGE 1 OF 3 - November 19, 2012
CHRONOLOGY
• March 26, 2012 — City Commission approved a revision to the Oviedo Marketplace
Parcel 14B Second Implementation Agreement in order to add fee simple, single -
family residential units, as an authorized residential use on Parcel 14B of the Oviedo
Marketplace PUD (and Development of Regional Impact).
• May 14, 2012 — City Commission approved both a Concept Plan and Aesthetic
Review of Parcel 14B — Oviedo Marketplace subdivision
• July 23, 2012 — City Commission approved both the Final Engineering Plan and
Aesthetic Review for Parcel 14B- Amberly Oviedo Marketplace.
• October 2012 — Final Plat submittal for City staff review.
DISCUSSION:
A Developers Agreement (DA) has been reviewed by staff, the applicant, and the City
Attorney. Pertinent elements of the DA are as follows:
The applicant seeks the ability to construct both a sales office and up to four (4) model
homes on the property to be used for the customary temporary marketing and sales activities.
The applicant requests that the City permit early construction of the model homes upon
completion of stabilized access to the model home center and adequate means of fire
protection from a city approved source of water.
The development of the property shall be in accordance with the Final Engineering Plan and
Aesthetic Review Plans approved by the City Commission on July 23, 2012. The model
homes shall remain under owner's ownership and control until such time as a final
certificate of occupancy for each unit is issued.
The model homes 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. The model center shall comply with all applicable state and city regulations
regarding accessibility.
Occupancy of the model home units shall be limited to the sales and marketing efforts for
the project until a final certificate of occupancy is issued for such units. It is intended that
the model homes can be shown by sales staff to prospective buyers as long as the building
official has issued the temporary certificate of occupancy and the model is not staffed
continuously. KB Home desires the ability to erect an ADA accessible tent and /or portable
restrooms onsite for use by prospective buyers and KB Home staff prior to final
certifications of water and sewer infrastructure.
As the project development is completed, the model home units shall be converted into
permanent residential units for sale.
FISCAL IMPACT:
The purpose of this agenda item is to approve the Amberly Developer's Agreement (DA), a
36 -unit single - family development located on Dovera Drive, north of Red Bug Lake Road,
within the Oviedo Marketplace PUD (and Development of Regional Impact). There is no
Regular 603 PAGE 2 OF 3 - November 19, 2012
immediate fiscal impact directly associated with this agenda item. The newly constructed
homes will pay ad valorem taxes. The potential tax revenue of the proposed project is as
follows:
Fee Simple Single Family Residential Units — 36 units
Units 2,450 square feet assessed at 90 square foot: $7,938,000 assessed tax value
$7,938,000/1000 7,938.00
$7,938.00 (2.5600) = $20,321.28
$20,321.28 (less the 4% statutory discount) $19,508.43 tax revenue
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and
the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City's Website, LaserFiche, and the City's
Server; has been sent to applicable City Staff, Media/Press Representatives who have
requested Agendas /Agenda Item information, Homeowner's Associations/Representatives
on file with the City, and all individuals who have requested such information. This
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at five (5) different locations around the
City. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
The Community Development Department - Planning Division recommends that City
Commission approve the Amberly Developer's Agreement (DA).
ATTACHMENTS:
A. Amberly Developer's Agreement
B. Oviedo Marketplace Parcel 14B Second Implementation Agreement
Regular 603 PAGE 3 OF 3 - November 19, 2012
•
014:§4?'..151:0
3
qttitio diva (to- Igilft7
:14.0 .e1 01;41attim:
r'a " '' : D
.'i(y,'�lV Yx�� v :+_ Y. {b'iiilR> ➢"#3 d: *fl ��( `'{S �
att
;NICi:.',OPti.,t.i.eigii3t
iffieftgadq,.....-4.11NRAVigitAfk
•tr.:01445Frfirii
N331 t;id
Wigiirirtgc, WWI
iba;i160.04
"ONO 1:::4frifficlar
,r1415,g) alma
•
IgigriktAiNiAti
1St vAkti Vii!
_
oe'!}4" �Y�.! 3 fy1
451 pA
07(:-.*1
Br
P# ;
A,
4'}`'0.,-
7a '
(tiff,
ItiN11,9 a:OPITAIRlis
ori
irroAri FillliVa.aligzi
•
Rib
k'oriz110"4:0.Titgl
,3:54.0Y,111D5,191$, -tevviii:KalailiOnWIS,
•
ZEi'siiii4
tN1 F; 0. =Afp
vadri:191i,
•
V14 0.:k-,7"11t. s
tgAi
'39f' " -�.'^' ,... ^• ar a6- 'Y`- x:+5r -� fir.`
:.
S
4
ti
',ONO 1145444.
rt n'o:Y
ot,g§L:
}
e.
s!A 41'14qcr-V
.;14-0i1
•
•
MP
.;4 PIM 611 itq
rfirir-4, :41k,
•
t
4T.v.tpt::11.t.-4.10.!1-4,-,41.?1
lo
p.t,k‘,i., ' * 4
Atrintritki;: .1t4 11:
„INVIAtt.
7 pi
k.
14 P.6 0'441
sYik
:OW VA I,
•
thilateklY �
•
s
fi
4 pia � vats.
•
TM
jaµ
ggitifi UP'
*4 U
I, limp
1.441gftpiififlAs.
•
F;V:
.a
Cra
i'ek,V115) ;Zit
h A`
2 the �,� 't. z" ..., -• 7
'0.42:0•05,5Emrittg
o
',110V16,L
•
�.r 5 �.
{t.,..
.13floya
nK1d0a 4dy,5_ 'Y
12V y:„?4 'k4$: " : "'140:44'+yo- h l'01.: Et4 3? ',I 15.1.a c.° fr '{*Y. 01V''
•
-y Y
If' kw
v
iirirkgikliftf--#'01BUNINkr"5"
{
rftyrikti r";.1-
x
OY
Mira
0,1.4
gorify
10 1
v
StZ:
At tftelillaw
•S' •:11 :A, I 8
47' • 'Ir-71. • •
IiItI
701.04SYY'..,!
•
6V14.541, h •
41, 4 i.;;,10) ir
,,,blifpNr,1.4,71fRoWtttilt,
,fW
',CI '11 -"A
c _-
7, re 46g
"irAfir.:4,
•
•
•
. ..
+ H i
�� _ . �w� •k�s�as --" � :�fi- -� ; �:,'�' Asa f� — � ��1d °' — "'�. �'- '"'"''
rr }�~!!
�.x°4f`'<
a may;° • :•
1.,1 A eikt' Ptc.ii's:*,i,;;
;4
t {�
k
1 �i� � 0 n � a,
,:_af ,� �
Prepared By:
Katherine W. L atorre
Winter Springs Assistant City Attorney
Brown, Garganese, Weiss & D'Agresta, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802-2873
(407) 425 -9566
OVIEDO MARKETPLACE PARCEL 14B
SECOND IMPLEMENTATION AGREEMENT
THIS SECOND IMPLEMENTATION AGREEMENT ( "Agreement ") is entered into as
of the 26th day of March, 2012, between the CITY OF WINTER SPRINGS, a Florida municipal
corporation ( "City "), and THE VIERA COMPANY, a Florida corporation ( "Developer ").
WITNESSETH:
WHEREAS, the purpose of this Agreement is to implement the Oviedo Marketplace
Development of Regional Impact ( "DRI ") Development Order for the development of Parcel 14B;
and
WHEREAS, Developer is the owner in fee simple of certain real property known as "Parcel
14B" containing approximately 11.265 acres subject to development, more or less, located in the City
of Winter Springs within the Oviedo Marketplace DRI, legally described herein ( "Property "); and
WHEREAS, the Property is subject to that certain City of Winter Springs DRI Development
Order for Oviedo Marketplace (formerly Oviedo Crossing) dated November 12, 2001 and recorded
January 17, 2002 in Official Records Book 4298, Page 1855 of the Public Records of Seminole
County, Florida ( "Winter Springs DO") as amended by that certain First Amendment to the DRI
Development Order for Oviedo Marketplace dated February 27, 2006 and recorded May 3, 2006 in
Official Records Book 06228, Page 1402, of the Public Records of Seminole County, Florida ( "First
Amendment to Winter Springs DO") and as implemented by that certain Oviedo Marketplace Parcel
14B Implementation Agreement dated October 29, 2009 and recorded November 19, 2009 in Book
7290, Page 1801, Public Records of Seminole County, Florida (the "First Implementation
Agreement "). The Winter Springs DO, the First Amendment to Winter Springs DO and the First
Implementation Agreement are hereinafter collectively referred to herein as the "Development
Order"; and
WHEREAS, the Property is zoned P.U.D. in accordance with the Code of ordinances, City
of Winter Springs, Chapter 20, Article IV, Planned Unit Developments, Division 2. Part A. Planned
Unit Developments, which such zoning classification authorizes residential dwelling units and
supportive commercial and/or industrial land uses so long as they are complimentary to and
compatible with each other; and
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 1 of 8
WHEREAS, the Development Order authorizes "Residential" development on the Property;
and
WHEREAS, Developer has requested that the City authorize the development of the
residential portion of the Property as fee simple, detached single family units; fee simple, attached
townhome or condominium residences; an independent living facility; an assisted living facility; or any
combination of these uses, pursuant to the terms and conditions of this Agreement; and
WHEREAS, the City and Developer desire to memorialize their mutual understanding and
agreement as to the character and scope of the "Residential" development of the Property consistent
with the terms of the Development order; and
WHEREAS, the City finds that fee simple, detached single family units; fee simple, attached
townhome or condominium residences; an independent living facility; and/or an assisted living facility,
subject to the limitations set forth herein, are consistent with the Property's development designation
of "Residential" as set forth in the Development Order and further, that such uses are complimentary
to and compatible with the other uses allowed on the Property pursuant to the Development Order
and with existing development adjacent to the Property; and
WHEREAS, the City desires to provide Developer with a certain amount of flexibility related
to the residential development so that the Property may be developed with a blend of uses to meet a
variety of the City's needs, while ensuring that any such development does not become inconsistent
with the City' s previous approval for residential development; and
WHEREAS, to insure that any residential development now or hereafter constructed on the
Property is complementary to and compatible with other uses allowed on the Property pursuant to the
Development Order and with existing development adjacent to the Property, the City has requested
that Developer place further restrictions on the Property to prohibit non - complementary and
incompatible residential uses on the Property; and
WHEREAS, the City is authorized to regulate the development of the Property; and
WHEREAS, Developer is agreeable to further restricting the Property to insure that any
residential development now or hereafter constructed on the Property is complementary to and
compatible with the other permitted and existing uses on the Property and consistent with the
Development Order.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($1O.00) and other
valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the City, the
parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference as a material part of this Agreement.
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 2 of 8
2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home
Rule Powers Act.
3. Property. The Property subject to the terms and conditions of this Agreement is
legally described in Exhibit "A," attached hereto and fully incorporated herein by this reference.
4. Residential Development. The City hereby finds that fee simple, detached single
family units; fee simple, attached townhome or condominium residences; an independent living facility
("ILF"); an assisted living facility ("ALF"); or any combination of same, subject to the limitations set
forth herein, are consistent with the "Residential" use designation on the Property. Developer shall
develop the 100 residential units authorized on the Property by the Development Order, subject to the
following limitations and conditions:
A. Authorized Residential Uses. Residential development on the Property shall be
limited to the following uses and any uses not specifically stated in this subsection shall be
strictly prohibited on the Property:
equal:
i. Single Family Units. Single family units shall be fee simple, detached single
family residences.
ii. Townhomes or Condominiums. Townhomes or condominium units shall
be fee simple attached residences.
iii. ILF. For purposes of this Agreement, an ILF shall mean and refer to a
residential housing project for older persons which is developed, marketed and
administered to restrict residents under a specific age and containing units intended
for occupancy by at least one (1) person of a specific age or older, all in a manner
which is lawful and in full compliance with all federal, state and local laws, ordinances
and requirements applicable to housing projects for older persons. The term "ILF" for
purposes of this Agreement shall not include residential development which is not age
restricted in accordance with the laws referenced above, even if said development may
be marketed to retired persons or is predominantly composed of older or retired
residents.
iv. ALF. For purposes of this Agreement, an ALF is defined as any building,
or buildings, or distinct part of a building, whether operated for profit or not, which
undertakes, through its ownership or management, to provide housing, meals, and one
or more personal services for a period exceeding 24 hours to one (1) or more adults
who are not relatives of the owner or administrator.
B. Residential Units. As used in this section, each one (1) "residential unit" shall
i. 0.56 fee simple, detached single family residential units;
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 3 of 8
ii. One (1) fee simple, attached townhome or condominium residential unit;
iii. 1.54 ILF units; or
iv. 3.15 ALF beds.
C. Combination of Residential Development. Developer may develop the Property in
any combination of the authorized residential uses set forth above provided the total number
of residential units does not exceed 100 total units and provided the total daily residential trip
generation does not exceed 642 trips pursuant to the ITE, Trip Generation, 7th Edition (as
applied to 100 approved townhome units for Land Use 230).
D. Conversion of Residential Development. Upon completion of the residential
development of the Property, Developer shall be prohibited from converting any portion of
the residential development to another residential use authorized by this Agreement without
the prior, written consent of the City Commission.
5. Compliance with Ordinances and Regulations. Developer shall comply with all
ordinances and regulations of the City (including, but not limited to, the City Land Development
Regulations), which are applicable to the development of the Property.
6. Representations of the Parties. The City and Developer hereby each represent and
warrant to the other that it has the power and authority to execute, deliver and perform the terms and
provisions of this Agreement and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement. This Agreement will, when duly executed and delivered by the
City and Developer 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. Developer represents that it has
voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms
and conditions set forth in this Agreement
7. Successors and Assigns. This Agreement shall automatically be binding upon and
shall inure to the benefit of the City and Developer and their respective successors and assigns. The
terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with
title to the same.
8. 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.
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 4 of 8
9. 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.
10. Entire Agreement; Exhibits. This Agreement and all attached exhibits hereto
supersede any other agreement, oral or written, regarding the Property and contain the entire
agreement between the City and Developer as to the subject matter hereof. The Exhibits attached
hereto and referenced herein are hereby fully incorporated herein by this reference.
11. Severability. If any provision of this Agreement shall be held 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.
12. Effective Date. This Agreement shall become effective upon approval by the City
Commission and execution of this Agreement by both parties hereto.
13. Recordation. This Agreement shall be recorded in the Public Records of Seminole
County, Florida.
14. Relationship of the Parties. The relationship of the parties to this Agreement is
contractual and Developer is an independent contractor and not an agent of the City. Nothing herein
shall be deemed to create a joint venture or principal -agent relationship between the parties, and
neither party is authorized to, nor shall either party act toward third persons or the public in any
manner, which would indicate any such relationship with the other.
15. Sovereign Immunity. Notwithstanding any other provision set forth in this
Agreement, nothing contained in this Agreement shall be construed as a waiver of the City' s right to
sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's
potential liability under state or federal law. As such, the City shall not be liable, under this
Agreement for punitive damages or interest for the period before judgment. Further, the City shall
not be liable for any claim or judgment, or portion thereof, to any one person for more than one
hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when
totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out
of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00).
16. City's Police Power. Developer agrees and acknowledges that the City hereby
reserves all police powers granted to the City by law. In no way shall this Agreement be construed as
the City bargaining away or surrendering its police powers.
17. 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.
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 5 of 8
18. 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.
19. 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.
20. 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.
21. Development Permits. Nothing herein shall limit the City's authority to grant or deny
any development permit applications or requests subsequent to the effective date of this Agreement.
The failure of this Agreement to address any particular City, County, State and/or Federal permit,
condition, term or restriction shall not relieve Developer or the City of the necessity of complying
with the law governing said permitting requirement, condition, term or restriction. Without imposing
any limitation on the City' s police powers, the City reserves the right to withhold, suspend, or
terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any
term and condition of 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.
23. Termination. The City shall have the unconditional right, but not obligation, to
terminate this Agreement, without notice or penalty, if Developer fails to receive building permits and
substantially commence 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
Developer permanently abandons construction of the Project, provided, however, the City shall first
deliver written notice and an opportunity to cure as set forth in Section 22 herein. If the City
terminates this Agreement, the City shall record a notice of termination in the public records of
Seminole County, Florida.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed
as of the day and year first written above.
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page6of8
ATTEST:
By
Andrea Lorenzo - Luaces, City Clerk
CITY SEAL
CITY OF WINTER SPRINGS, a Florida
municipal corporation.
By:
Charles Lacey, Mayor
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
Date:
By:
Anthony A. Garganese, City Attorney for
the City of Winter Springs, Florida
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 7 of 8
Signed, sealed and delivered in the THE VIERA COMPANY, a Florida corporation.
presence of the following witnesses:
Signature of Witness
Printed Name of Witness
Signature of Witness
Printed Name of Witness
By:
Print Name:
Title:
Date:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2012, by
, as of THE VIERA COMPANY, a Florida
corporation, on behalf of said company. He /She is personally known to me or produced
as identification.
(NOTARY SEAL)
(Notary Public Signature)
(Print Name)
Notary Public, State of
Commission No.:
My Commission Expires:
Second Implementation Agreement
City of Winter Springs 1 The Viera Company
Page 8 of 8