City of Daytona Beach Shores Life is Better Here A Premier, Friendly Place to Be

Transcription

1 City of Daytona Beach Shores Life is Better Here A Premier, Friendly Place to Be AGENDA CITY COUNCIL MEETING December 9, :00 p.m., Community Center, 3048 S. Atlantic Ave. Daytona Beach Shores, FL Upon being recognized, a member of the public shall proceed to the podium and give his or her name and address and may, thereafter, speak for a maximum of three minutes on any matter relevant to a specific agenda item. During Audience Comments, a member of the public may speak on any matter relevant to City business which is not on the agenda, for a maximum of three minutes in accordance with Section 2-1.1(d) and 2-2 of the City Code. In accordance with Section 2-2, during periods set aside for public discussion any person desiring to speak shall secure a form located at the agenda table, complete the form and present it to the City Clerk so the speaker can be recognized by the presiding officer. The use of profanity, obscene language, threats or any violent or abusive conduct by any person shall constitute a violation of this section. It shall be the duty of the Director of Public Safety, upon the order of the presiding officer at any such meeting, to forcibly, if necessary, evict any person violating the provisions of this section from the Council Meeting Hall. Any such violation shall subject the offender, upon conviction thereof, to a fine and/or imprisonment as prescribed by Section 1-8. CALL TO ORDER BY MAYOR ROLL CALL BY CITY CLERK CEREMONIAL MATTERS: PRAYER PLEDGE OF ALLEGIANCE 1. CEREMONIAL ITEMS, PRESENTATIONS AND PUBLIC NOTICES: BUSINESS OF THE CITY COUNCIL: ORDER OF BUSINESS 2. APPROVAL OF THE MINUTES: November 11, 2014 City Council Meeting 3. CONSENT AGENDA: Monthly Departmental Reports Board Appointments Authorization to amend the budget by $21,700 Approval to designate December 26 th as a holiday Approval to cancel January 13, 2015 council meeting END CONSENT AGENDA City Council 12/9/14 1 Page

2 4. REPORTS OF THE CITY ATTORNEY: 5. REPORTS OF THE CITY MANAGER: Stormwater presentation Dec OLD BUSINESS: 6. Ordinance AN ORDINANCE OF THE CITY OF DAYTONA BEACH SHORES, FLORIDA ENACTING A STATUTORY DEVELOPMENT AGREEMENT RELATING TO THE PROPERTY OWNED BY DIMUCCI COMPANY OF DAYTONA BEACH SHORES TOWER 14, LLC AND GENERALLY LOCATED AT 3797 SOUTH ATLANTIC AVENUE AND ASSIGNED TAX PARCEL IDENTIFICATION NUMBER BY THE VOLUSIA COUNTY PROPERTY APPRAISER SAID AGREEMENT BEING IN ACCORDANCE WITH THE PROVISIONS OF THE FLORIDA LOCAL GOVERNMENT DEVELOPMENT AGREEMENT ACT AS SET FORTH AT SECTIONS , FLORIDA STATUTES; PROVIDING FOR A SAVINGS PROVISION; PROVIDING FOR NON-CODIFICATION AND IMPLEMENTATION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. First Reading. NEW BUSINESS: 7. Resolution A RESOLUTION OF THE CITY OF DAYTONA BEACH SHORES, VOLUSIA COUNTY, FLORIDA WHICH IS ADOPTED AS A DEVELOPMENT ORDER UPON AN APPLICATION TO AMEND THE DAYTONA BEACH SHORES OFFICIAL COLOR PALETTE BY ADDING NEW COLORS, DECATUR BUFF, WHITALL BROWN AND IHOP COPPER TO THE PALETTE PURSUANT TO SECTION OF THE DAYTONA BEACH SHORES LAND DEVELOPMENT CODE; ACTING UPON AN APPEALS PREVIOUSLY APPROVED BY THE CITY COUNCIL OF DAYTONA BEACH SHORES; PROVIDING FOR FINDINGS; PROVIDING A SAVING PROVISION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. Public Hearing. 8. Approval for sign grant for Daytona Board Store at 2044 S. Atlantic Avenue 9. COUNCIL COMMENTS: 10. AUDIENCE REMARKS/PUBLIC COMMENTS: 11. ITEMS RECOMMENDED FOR THE NEXT AGENDA: 12. ADJOURNMENT: City Council 12/9/14 2 Page

3 Notice is hereby given to all interested parties that if a person should decide to appeal any decision made at the aforementioned meeting of the City Council, such person will need a recording of the proceedings conducted at such meeting, and for such purpose he or she may need to ensure that a verbatim record of the proceedings was made; such record to include testimony and evidence upon which any appeal shall be based. Please be advised that all City Council Meetings are recorded. Note: Individuals covered by the Americans with Disabilities Act of 1990 in need of accommodations for this public meeting should contact the Office of the City Clerk at 2990 S. Atlantic Avenue, Daytona Beach Shores, FL 32118, or telephone at least seven working days prior to the meeting. City Council 12/9/14 3 Page

4 Agenda item 1 PRESENTATIONS AND PUBLIC NOTICES:

5 MINUTES CITY COUNCIL MEETING November 11, S. Atlantic Ave. Daytona Beach Shores, FL Present: Mayor Harry Jennings, Vice-Mayor Peggy Rice, Council Member Jennie Celona, Council Member Henry Fehrmann, and Council Member Billie Wheeler. Staff: City Manager Michael Booker, City Clerk Cheri Schwab, City Attorney Lonnie Groot, Community Services Director Fred Hiatt, Finance Director Steve Whitmer, and Public Safety Director Stephan Dembinsky. Mayor Jennings called the meeting to order at 7:00 pm. 1-A Resolution A RESOLUTION OF THE CITY COUNCIL OF DAYTONA BEACH SHORES, VOLUSIA COUNTY, FLORIDA, ACCEPTING THE CANVASSING OF THE VOTES FOR THE GENERAL ELECTION IN THE CITY OF DAYTONA BEACH SHORES HELD ON NOVEMBER 4, 2014; DECLARING THE RESULTS OF THE GENERAL ELECTION FOR THE OFFICE OF MAYOR; DECLARING THE CITY SHALL BE THE JUDGE OF THE ELECTION SUBJECT TO REVIEW BY THE COURTS, AND PROVIDING AN EFFECTIVE DATE. CMBR WHEELER moved, seconded by CMBR CELONA to adopt Resolution on first reading. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 1-B SWEARING IN OF NEW COUNCIL MEMBERS The City Attorney swore in the council members for their new terms of office. 1-C ELECTION OF VICE-MAYOR CMBR Celona moved, seconded by CMBR Wheeler to nominate CMBR Rice as Vice Mayor. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 1-D CEREMONIAL ITEMS, PRESENTATIONS AND PUBLIC NOTICES: Employee Service Awards Director Dembinsky awarded the following service awards: Kelley Register - 20 years not present to accept Bill Frank -15 years not present to accept Michael Gavigan -10 years Rick Rademacher -5 years City Council 11/11/14 1 Page

6 Director Hiatt awarded the following service awards: Alex Smith - 5 years Tom Brown - 15 years 2. APPROVAL OF THE MINUTES: October 28, 2014 City Council Meeting CMBR FEHRMANN moved, seconded by CMBR WHEELER to approve the minutes of October 28, Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 3. CONSENT AGENDA: Appoint Gloria Groot to Culture & Entertainment Board as a regular member END CONSENT AGENDA CMBR CELONA moved, seconded by CMBR RICE to approve the consent agenda. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 4. REPORTS OF THE CITY ATTORNEY: None. 5. REPORTS OF THE CITY MANAGER: The City Manager thanked everyone for their help with the recent cookout. He announced a change in the opening for Publix. The new date is now November 22 nd. OLD BUSINESS: 6. Ordinance AN ORDINANCE OF THE CITY OF DAYTONA BEACH SHORES, FLORIDA, AMENDING THE MUNICIPAL CODE OF ORDINANCES, LAND DEVELOPMENT CODE; AMENDING APPENDIX G, AMENDING CHAPTER 14 ENTITLED ZONING REGULATIONS; BY CREATING A NEW SECTION ENTITLED ADMINISTRATIVE VARIANCES; PROVIDING FOR ENFORCEMENT AND PENALTIES; PROVIDING FOR A SAVINGS PROVISION; PROVIDING FOR CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY PROVIDING FOR CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE. Second Reading and Public Hearing. CMBR RICE moved, seconded by CMBR FEHRMANN to adopt Ordinance on second reading. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). City Council 11/11/14 2 Page

7 Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 7. Ordinance AN ORDINANCE OF THE CITY OF DAYTONA BEACH SHORES, FLORIDA, AMENDING THE MUNICIPAL CODE OF ORDINANCES, LAND DEVELOPMENT CODE; AMENDING APPENDIX G, CHAPTER 6 ENTITLED SIGNS AND ADVERTISING; BY AMENDING SECTION 6-9 ENTITLED DISTRICT REGULATIONS; AMENDING CHAPTER 8 ENTITLED ENVIRONMENTAL IMPACT, ARCHITECTURAL GUIDELINES, MANDATORY EXTERIOR COLOR STANDARDS AND TOWN CENTER DEVELOPMENT, BY AMENDING ARTICLE III ENTITLED TOWN CENTER DEVELOPMENT; AMENDING CHAPTER 14 ENTITLED ZONING REGULATIONS, BY AMENDING SECTION ENTITLED ESTABLISHMENT OF ZONING DISTRICTS, BY AMENDING SECTION ENTITLED GC-RD GENERAL COMMERCIAL REDEVELOPMENT DISTRICT, BY AMENDING SECTION ENTITLED TC-MUPUDE (TOWN CENTER MIXED USE PLANNED UNIT DEVELOPMENT EAST), BY AMENDING SECTION ENTITLED TC-MUPUDW (TOWN CENTER MIXED USE PLANNED UNIT DEVELOPMENT WEST), BY AMENDING SECTION ENTITLED OFF-STREET PARKING IN REDEVELOPMENT DISTRICTS; PROVIDING FOR A SAVINGS PROVISION; PROVIDING FOR CODIFICATION; PROVIDING FOR CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. Second Reading and Public Hearing. CMBR WHEELER moved, seconded by CMBR CELONA to adopt Ordinance on second reading. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. NEW BUSINESS: 8. Approval for Wells Fargo Paint Appeal CMBR Celona stated that she had spoken with David Rodriguez the Representative from Wells Fargo. He explained that if the appeal was denied, they could re-paint the building with existing colors on the palette that would be close to their initial color choices. CMBR Rice stated that she had driven to other cities to look at the color of commercial buildings. She thought the Wells Fargo in South Daytona was painted a lighter color that would be on our palette. Mr. Rodriguez stated it was the same colors as the building here in the Shores. He reiterated that the building is painted with environmental colors and felt it enhanced the city. CMBR Wheeler stated that she did not find the colors offensive. CMBR FEHRMANN moved, seconded by CMBR WHEELER to approve the paint appeal for Wells Fargo. Vote: Motion passed (summary: Yes = 3, No = 2). City Council 11/11/14 3 Page

8 Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, Mayor Harry Jennings. No: CouncilMember Jennie Celona, Vice Mayor Peggy Rice. 9. Approval for IHOP Paint Appeal CMBR FEHRMANN moved, seconded by CMBR WHEELER to approve the IHOP paint appeal. The IHOP representative was not present at the meeting. City Planner, Stewart Cruz, explained to the council that the applicant is willing to change the Liberty Red color to one that is on the existing color palette. They do not want to alter the shade of the copper as it is a corporate color they are using on their roof. The council began a discussion relating to corporate and franchise colors. It was decided to continue this discussion at the visioning workshop that will be held in January. CMBR FEHRMANN moved, seconded by CMBR WHEELER to amend the motion to only approve the copper color. Vote: Motion passed (summary: Yes = 3, No = 2). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, Mayor Harry Jennings. No: CouncilMember Jennie Celona, Vice Mayor Peggy Rice. CMBR FEHRMANN moved, seconded by CMBR WHEELER to approve the color Liberty Red. Vote: Motion passed (summary: Yes = 1, No = 4). Yes: CouncilMember Jennie Celona. No: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, Mayor Harry Jennings, Vice Mayor Peggy Rice. CMBR RICE moved, seconded by CMBR WHEELER to deny the IHOP paint permit appeal as it was written. Vote: Motion carried by unanimous roll call vote (summary: Yes = 5). Yes: CouncilMember Billie Wheeler, CouncilMember Henry Fehrmann, CouncilMember Jennie Celona, Mayor Harry Jennings, Vice Mayor Peggy Rice. 10. COUNCIL COMMENTS: CMBR Rice thanked the staff for helping with the cook out. CMBR Wheeler thanked everyone for keeping her family in their prayers. CMBR Celona thanked staff for the new handrails on the pavilion stairs. CMBR Fehrmann remarked on the new restrooms. Mayor Jennings announced that he would be attending a private function on Nov 19 th with the corporate officers of Publix and its employees. 11. AUDIENCE REMARKS/PUBLIC COMMENTS: Larry Volenec from FPL explained that he is now the Regional Manager for our area. He encouraged the council and citizens to direct any questions or concerns to his attention. He explained that FPL still maintained the lowest rates for power in Florida and they are looking to lower rates again in January. 12. ITEMS RECOMMENDED FOR THE NEXT AGENDA: None. City Council 11/11/14 4 Page

9 13. ADJOURNMENT: There being no further business to be considered, the meeting adjourned at approximately 7:49 pm. MAYOR HARRY H. JENNINGS CITY MANAGER MICHAEL T. BOOKER ATTEST: CITY CLERK, CHERI SCHWAB City Council 11/11/14 5 Page

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37 Reports of the City Attorney

38 Reports of the City Manager

39 STAFF REPORT FOR THE CITY COUNCIL OCTOBER 28, 2014 ORDINANCE NO: Ord (DiMucci Tower 14 Development Agreement) IMPACTED AREA: 3797 S. Atlantic Avenue (Tax Parcel ID ) OWNWER/APPLICANT DiMucci Company of DBS Tower 14, LLC STAFF CONTACT: Stewart Cruz, City Planner REQUEST: Approval of Ordinance , which would approve the proposed DiMucci Tower 14-Daytona Beach Shores Development Agreement A. BACKGROUND In 2005, the subject site located at 3797 S. Atlantic Avenue received site plan approval for the construction of a 65 high 28-unit multifamily residential development. The site plan in question however has since expired. On January 30, 2014 applicant/owner DiMucci Company of DBS Tower 14, LLC submitted development agreement application DA to the City. The proposed 10- year development agreement would permit the construction of a 10-unit, eleven story (115.4 high above grade) multifamily residential structure at the subject site. The subject vacant property is 100 wide. Due to the scale of the proposed project relative to the small lot, 11 deviations from the City s Land Development Code (LDC) are being requested. Several public benefits associated with the project are being proposed, including but not limited to a public bus stop seating easement and benches, the granting to the City the property s development rights to all units in excess of fifteen (15) units per acre and a grant of $25,000, which may be used toward the design of the City s new community center. Ordinance , if adopted, would approve the proposed development agreement and facilitate the afore-stated improvements and public benefits. B. DEVELOPMENT AGREEMENT REVIEW REQUIREMENTS Pursuant to Ordinance , Section Four, a development agreement must include and address certain items. As seen in Exhibit A attached, all applicable items are included in the development agreement. C. DEVELOPMENT AGREEMENT NOTICE REQUIREMENTS The development agreement was noticed pursuant to Ordinance , Section Six. In addition, the applicant has notified every individual condominium unit owner within the prescribed distance of the proposed development. Staff Report to the City Council Page 1 of 8 Ordinance October 28, 2014

40 D. REVIEW AND COMMENTS (1) DEVELOPMENT PROPOSAL The subject property is located at 3797 S. Atlantic Avenue. As seen in Figure 1 below, the site is currently vacant and situated south of the Zodiac Condominium, north of the Sanibel Condominium and east of the Atlantic Villas Condominium. The subject property has dimensions of 100 * 297 and contains acreage of Figure 1: Aerial View of 3797 S. Atlantic Avenue Zodiac Proposed Site Atlantic Villas Sanibel Source: Google Maps, 2014 The applicant has elected to develop the site pursuant to Sec of the LDC entitled RMF-1 Multifamily Residential District (High Density), for which the property is zoned. As such, the applicant has proposed a development agreement, which would permit the construction of a 10- unit, eleven story, high (above grade) multifamily residential structure at the subject site. The ground level would contain a parking garage, while the remaining 10 floors will contain one (1) residential unit per floor. The parking garage would be submerged approximately two (2) feet underground. Table 1 below provides a summary overview of the major LDC requirements prescribed by the LDC relative to the proposed development. Staff Report to the City Council Page 2 of 8 Ordinance October 28, 2014

41 Table 1: Major Land Development Requirements Comparison Table Criteria LDC Requirement Proposed Criteria Met Building Height 110 above average road crown (max) No Setbacks* N-42.1 (min) 12 No S-42.1 (min) 22 No E-50 (min) 77 Yes W-30 (min) 69 Yes Visual 30% through the full depth of the property 34%; no Yes; No Corridor/Breezeway & the provision of a public walkway (min) walkway Lot Coverage 35% (max) 26.5% Yes Parking 15 stalls (min) 25 stalls Yes Green Area 30% (min) 34% Yes NOTE: * A building of height would require setbacks of 42.1 on each side OR a minimum of 22 on one side when the difference is added to the other side yard setback. In addition to the above, the proposed development also does not meet several other LDC requirements relating to landscaping and vehicular use areas. Consequently, a total of 12 deviations are being requested (see Sec. D.4 of this staff report). (2) ARCHTECTURAL The City does not have any architectural standards less the Town Center District. This project is not located in said district; despite this, the applicant appears to be proposing a design and architectural scheme beyond that of typical developments in the City. However, the proposed building colors include DiMucci Green (roof and trim), which is not located on the City s Official Color Palette. By approving the development agreement the City would authorize the use of the DiMucci Green as proposed. (3) STAFF AND BOARD REVIEW COMMUNITY SERVICES Fred Hiatt, Director / Building Official The Director has reviewed the development agreement and has no comments. PUBLIC SAFETY Terry Griffiths, Commander / Fire Marshal The Commander has reviewed the development agreement and he has no objections at this time. ENGINEERING Jennifer Deal, P.E. - Tetra Tech HAI The development agreement does not require engineering review. BEAUTIFICATION ADVISORY BOARD Statutory Development Agreements pursuant to Ordinance do not require Beautification Advisory Board review. Staff Report to the City Council Page 3 of 8 Ordinance October 28, 2014

42 PLANNING AND ZONING BOARD Statutory Development Agreements pursuant to Ordinance do not require Planning and Zoning Board review. (4) PUBLIC PURPOSE/BENEFITS & LAND DEVELOPMENT CODE DEVIATIONS DA Reference No. Sec. Five (a) Sec. Five (b) Sec. Five (c) Sec. Five (d) Sec. Five (e) Sec. Four(a)(6)A Sec. Four(a)(6)B Sec. Four(a)(6)C Sec. Four(a)(6)D Sec. Four(a)(6)E Sec. Four(a)(6)F Public Purposes/Benefits Provided by Deviations from the Land Development Owner Code to allow: An monetary amount equal to the value of the landscaping requirements for which relief has been granted. The construction of a unique project which may give rise to additional projects of a similar nature within the City and spur on other beneficial development. Dedication of a public bus stop easement & seating area. A grant of $25,000, which may be used toward the design of the City s new community center. A grant to the City of all development rights to all units in excess of the fifteen (15) units per acre approved with regard to the subject property. This is a creative planning strategy that would reduce the impact on public infrastructure including but not limited to traffic, schools, potable water and sewer treatment. To allow the construction of parking rows without required terminal landscape islands. To allow the construction of vehicular use area without the required perimeter landscape strip, ten feet (10 ) in width, abutting rights-of-way. To allow the construction of vehicular use area without the required perimeter landscape strip, five feet (5 ) in width, abutting the interior lot line of an adjacent property. To allow the construction of vehicular parking without the required maneuver depth of 15. Relief from the CITY s Mandatory Exterior Color Standards to allow DiMucci Green, which is not on the City s Official Color Palette. To allow the construction of a building above the average crown of the road. Staff Report to the City Council Page 4 of 8 Ordinance October 28, 2014

43 Sec. Four(a)(6)G To allow the construction of a building with height of with side yard setbacks of 15 and 25 on the north and south respectively Sec. Four(a)(6)H To allow a visual / breezeway corridor without the construction of a public beach access walkway. Sec. Four(a)(6)I To allow sills, unenclosed balconies, roof overhands and stairways into the required setbacks as depicted on the plans beyond the three and a half foot maximum requirement. Sec. Four(a)(6)J To allow only a single loading zone on the premises. Sec. Four(a)(6)K To allow a driveway width to exceed the 34 wide maximum standard. Sec. Four(a)(6)L To allow trash storage facilities to be accessible by means of a driving lane with a straight line maneuvering distance less than the required fifty-five (55) feet. E. ADDITIONAL FINDINGS (1) CONSISTENCY WITH THE COMPREHENSIVE PLAN UPDATE 2020 According to the City s Adopted Comprehensive Plan (2020) Future Land Use Map, the future land use (FLU) classification of the subject property is High Intensity, which permits residential multifamily and hotel/motel developments. However, consistent with the afore-stated High Intensity FLU classification, Comprehensive Plan Policy requires a minimum residential density of 35.1 units per acre for properties with the high density designation and specifically, a minimum of 24 units on the subject site. The subject property only has a density of 15 units per acre and 10 units total on site. Therefore, the proposed development is inconsistent with the City s Adopted Comprehensive Plan (2020) Policy As seen in Sec. Four (d) of the development agreement a comprehensive plan amendment to address this issue is proposed. If approved the development agreement would not become effective until such comprehensive plan amendment is adopted and effective as provided by law. (2) CONSISTENCY WITH THE LAND DEVELOPMENT CODE The subject property is located in the T-RMF-1 dual zoning district. The applicant is proposing a development per the RMF-1 Multifamily Residential District (High Density) development standards, which permits multifamily residential development. However, Sec of the LDC requires a density greater than 35 units per acre. The proposed development only has a density of 15 units per acre. Therefore, the proposed development is inconsistent with the City s LDC Sec but is generally consistent with the intent and purpose of the LDC. As seen in Sec. Four (d) of the development agreement a Land Development Code amendment may be needed to address this issue is proposed. If approved the development agreement would not become effective until such Land Development Code amendment (if necessary) is adopted and effective as provided by law. Staff Report to the City Council Page 5 of 8 Ordinance October 28, 2014

44 (3) REQUIRED AMENDMENTS TO THE COMPREHENSIVE PLAN AND/OR LAND DEVELOPMENT CODE Considering the inconsistency with the City s Adopted Comprehensive Plan (2020) Policy , Sec. Four (d) of the development agreement proposes a comprehensive plan amendment to address the minimum required density issue. Further, Sec. 24 of the development agreement restricts the effective date of the agreement until such time that the appropriate amendments to the City s Comprehensive Plan and LDC are made final and effective. F. STAFF RECOMMENDATION Pursuant to Ordinance , the City Council, in its sole and exclusive discretion, may enter into development agreements. Deviations from the provisions of the City s LDC may be granted as part of an approval of a development agreement when the City Council finds that such approval will result in creative planning strategies and the implementation of development approvals that enhance benefits to the public while ensuring that private property rights are protected. In addition, the City Council may provide for any conditions, terms, restrictions or other requirements determined to be reasonably necessary for the public health, safety or welfare of City residents and property owners. Staff Report to the City Council Page 6 of 8 Ordinance October 28, 2014

45 EXHIBIT A ID Descriptions Required in Development Agreement (per Ordinance ) Finding 1 Legal Description and Ownership Items are included in the agreement. 2 Duration of Agreement (not to exceed thirty years) The term of the agreement is ten (10) years. 3 Development Uses Permitted The proposed use is multifamily residential. 4 Documents required to comply with criteria cited in NA LDC 5 Description of Public Facilities servicing the The site currently has development; schedule access necessary public facilities (potable water, sewer, transportation). All connections/improvements necessary to serve the development will be at the cost of the developer. 6 Instrument to secure construction of new public No new public facility is facilities proposed. 7 A description of any reservation or dedication of A public bus stop seating land for public purposes. 8 Conveyance of land to the City in discharge of the obligation of any impact fee or other similar obligation. 9 Description of all development permits approved or needed to be approved for the development of the land, which description shall specifically include, but not be limited to, the following: Any required Comprehensive Plan amendments or changes in land use designations or changes in zoning classifications/districts assigned to property. Notation of any required submissions to or approvals from any agencies with competent jurisdiction over any aspect of the proposed development. 10 (a) Consistency with the City's Comprehensive Plan and the general purpose and intent of the land development regulations of the City. (b) If easement is proposed. No conveyance of land to the City is proposed. Agreement states normative permits will be reviewed during the development process. Comprehensive plan amendments and land use changes are proposed subsequent to the adoption of this agreement. However, the agreement will not become effective until amendments are adopted. The City is the primary regulatory body for the development proposed, however, ancillary approvals from other regulatory agencies such as the FDEP and County of Volusia. (a) The City s Comprehensive Plan permits multifamily Requirement Met Yes Yes Yes NA Yes NA Yes NA Yes Yes Yes Yes Staff Report to the City Council Page 7 of 8 Ordinance October 28, 2014

46 amendments are required to the Comprehensive Plan or land development regulations, such amendments shall be specifically identified. residential uses in the subject zoning district. However, the proposed development density is less than the minimum required by the Comprehensive Plan and Land Development Code. At a minimum, the City s Comprehensive Plan will need to be amended to permit the proposed density of the development. This is reflected in the agreement. 11 A statement indicating compliance with law. This agreement complies 12 A finding that the terms and conditions of the development agreement benefit the public interest. 13 A description of any LDC deviations that have been granted. with Ord The agreement lists several public benefits including but not limited to a public bus stop seating easement and benches, the granting of the property s development rights to the City of all units in excess of fifteen (15) units per acre and the sum of $25,000, which may be used toward the design of the City s new community center. Applicant is requesting 11 deviations from the City s LDC. 14 A description of any vested rights in the property. Vested rights exist as prescribed by law. Yes Yes Yes NA Staff Report to the City Council Page 8 of 8 Ordinance October 28, 2014

47 ORDINANCE AN ORDINANCE OF THE CITY OF DAYTONA BEACH SHORES, FLORIDA ENACTING A STATUTORY DEVELOPMENT AGREEMENT RELATING TO THE PROPERTY OWNED BY DIMUCCI COMPANY OF DAYTONA BEACH SHORES TOWER 14, LLC AND GENERALLY LOCATED AT 3797 SOUTH ATLANTIC AVENUE AND ASSIGNED TAX PARCEL IDENTIFICATION NUMBER BY THE VOLUSIA COUNTY PROPERTY APPRAISER SAID AGREEMENT BEING IN ACCORDANCE WITH THE PROVISIONS OF THE FLORIDA LOCAL GOVERNMENT DEVELOPMENT AGREEMENT ACT AS SET FORTH AT SECTIONS , FLORIDA STATUTES; PROVIDING FOR A SAVINGS PROVISION; PROVIDING FOR NON-CODIFICATION AND IMPLEMENTATION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, upon application by Dimucci Company Of Daytona Beach Shores Tower 14, LLC, and agreement, the City of Daytona Beach Shores has considered and processed and the City Council of the City of Daytona Beach Shores has approved an enacted a Development Agreement, as set forth in the Exhibit to this Ordinance (which Exhibit is incorporated herein by this reference thereto as if fully set forth herein verbatim), pursuant to the Florida Local Government Development Agreement Act as set forth at Sections through , Florida Statutes; and WHEREAS, the City of Daytona Beach Shores has complied with all requirements and procedures of Florida law in processing and advertising this Ordinance; and WHEREAS, this Ordinance is consistent with the goals, objectives and policies of the Comprehensive Plan of the City Daytona Beach Shores. NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF DAYTONA BEACH SHORES, FLORIDA THAT: SECTION ONE: FINDINGS. (a). The findings of the Development Agreement between the City of Daytona Beach Shores and Dimucci Company Of Daytona Beach Shores Tower 14, LLC, as set forth in the Exhibit to this Ordinance, are hereby ratified and affirmed. (b). The City Council of the City of Daytona Beach Shores has ensured that this Ordinance was appropriately noticed, that the public and the applicant were afforded administrative due process and the full opportunity to be heard, that the evidence and arguments submitted in regard to this Ordinance were fully and appropriately considered, and that the decision to enact this ordinance was based upon controlling law including, but not limited to, State statutory law, the 1 P age

48 provisions of the Comprehensive Plan of the City Daytona Beach Shores and the provisions of the Land Development Code of the City Daytona Beach Shores. SECTION TWO: APPROVAL AND ENACTMENT OF DEVELOPMENT AGREEMENT. The Development Agreement between the City of Daytona Beach Shores and Dimucci Company Of Daytona Beach Shores Tower 14, LLC, as set forth in the Exhibit to this Ordinance, is hereby approved and enacted. SECTION THREE: SAVINGS. The prior actions of the City of Daytona Beach Shores relating to the regulation of lands and development activities within the City including, but not limited to, the property which is the subject of the Development Agreement, whether by and between the City of Daytona Beach Shores and Dimucci Company Of Daytona Beach Shores Tower 14, LLC, or otherwise, as set forth in the Exhibit to this Ordinance, are hereby ratified and affirmed. SECTION FOUR: NON-CODIFICATION AND IMPLEMENTATION. (a). The provisions of this Ordinance shall not be made a part of the Code of Ordinances of the City of Daytona Beach Shores, Florida. (b). The City Manager is hereby authorized to take any and all actions necessary to implement the provisions of this Ordinance. SECTION FIVE: CONFLICTS. All ordinances or parts thereof in conflict with this Ordinance are hereby repealed to the extent of such conflict. SECTION SIX: SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance, or application hereof, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion or application shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. SECTION SEVEN: EFFECTIVE DATE. This Ordinance shall take effect immediately upon enactment; provided, however, that the Development Agreement which relates to this Ordinance shall take effect only in accordance with its terms. CITY OF DAYTONA BEACH SHORES, FLORIDA HARRY H. JENNINGS, MAYOR MICHAEL T. BOOKER, CITY MANAGER CHERI SCHWAB, CITY CLERK 2 P age

49 Approved as to form and legality: LONNIE GROOT, CITY ATTORNEY Passed on first reading this day of, Adopted on second reading this day of, P age

50 Prepared by: Lonnie N. Groot, Esquire Stenstrom, McIntosh, Colbert & Whigham, P.A Heathrow Park Lane Suite 4001 Lake Mary, Florida (407) Return to: Ms. Cheri Schwab City Clerk City of Daytona Beach Shores City Hall 2990 South Atlantic Avenue Daytona Beach Shores, Florida Tax Parcel Identification Number: (Full) (Short) DIMUCCI COMPANY OF DAYTONA BEACH SHORES TOWER 14 LLC/ CITY OF DAYTONA BEACH SHORES DEVELOPMENT AGREEMENT PERTAINING TO DEVELOPMENT OF 3797 SOUTH ATLANTIC AVENUE PROPERTY THIS DEVELOPMENT AGREEMENT is made and entered into on the Effective Date described below, between DIMUCCI COMPANY OF DAYTONA BEACH SHORES TOWER 14 LLC, a Florida limited liability company, registered and authorized to conduct business in the State of Florida, whose local business address is 51 Dunlawton Avenue, Port Orange, Florida 32127, and whose corporate address is 285 West Dundee Road, Palatine, Illinois 60074, the legal and equitable owner of the real property to which this Development Agreement relates, hereinafter referred to as the PROPERTY OWNER, and the City of Daytona Beach Shores, Florida, a municipal corporation of the State of Florida, holding tax exempt status, whose mailing address is 2990 South Atlantic Avenue, Daytona Beach Shores, Florida 32118, hereinafter referred to as CITY. WITNESSETH: WHEREAS, the PROPERTY OWNER is the owner of real property located in Daytona Beach Shores and address as 3797 South Atlantic Avenue in Daytona Beach Shores as more particularly described in Exhibit A which property is assigned by the Volusia County Property Appraiser Tax Parcel Identification Number: (Full) or (Short) and is referred to from time-to-time as the premises in this Development Agreement; and WHEREAS, the premises is the real property which is the subject of the site plan and architectural drawing referenced herein; and 1

51 WHEREAS, the PROPERTY OWNER and the CITY have a mutual great interest in developing a high quality and high value condominium on the premises to benefit the economy and well-being of the CITY as a general matter and in a manner which provides for public benefits of a nature that warrants approval; and WHEREAS, the CITY desires to provide economic and other benefits to the citizens of the CITY in order that they may enjoy a high quality of life with convenient public services and a tax base which adequately funds such services; and WHEREAS, Section , Florida Statutes, provides that the CITY shall adopt and enforce land development regulations for the purpose of implementing its Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020) and protecting the public health, safety and general welfare; and WHEREAS, pursuant to the Florida Local Government Development Agreement Act as set forth at Sections through , Florida Statutes, local governments are authorized to adopt, by ordinance, procedures and requirements whereby a local government may consider and enter into a development agreement with any person having a legal or equitable interest in real property located within the local government s jurisdiction and the CITY enacted Ordinance to implement the provisions of the referenced statutory provisions which Ordinance is now codified in the provisions of Chapter 15, Land Development Code (Sections 15-1 through Section 15-12); and WHEREAS, the actions taken herein are consistent with the provisions of Sections 15-1 through Section of the City s Land Development Code and, without limiting the generality of the foregoing, the deviations approved herein are consistent with the controlling provisions of law and sound and generally accepted land use planning practices and principles; and WHEREAS, the lack of certainty in the approval of development can result in a waste of economic and land resources; discourage sound capital improvement planning and financing; escalate the cost of housing and development; and discourage commitment to comprehensive planning and the CITY and the PROPERTY OWNER desire to engage in sound and long range planning with regard to the premises in a manner that protects the investment backed expectations and rights of the PROPERTY OWNER while providing for an array of benefits to the citizens of the CITY; and WHEREAS, development agreements entered into pursuant to the Florida Local Government Development Agreement Act, strengthen the public planning 2

52 process, encourage sound capital improvement, planning and financing; assist in assuring that there are adequate capital facilities to support development; encourage private participation in comprehensive planning; and reduce the economic cost of a development by providing assurances to a developer that, upon receipt of a development permit, the developer may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement; and WHEREAS, development agreements are contracts negotiated between project proponents and public agencies that govern the land uses that may be allowed in a particular project and, although subject to negotiation, allowable land uses must be consistent with the local planning policies formulated by the legislative body (the CITY s City Council) through its general plan, and consistent with any applicable specific plan; and WHEREAS, neither the PROPERTY OWNER nor the CITY, as the local government with land use regulatory authority over lands located within the CITY, is required to enter into a development agreement and, when entered, the allowable land uses and other terms and conditions of approval are negotiated between the parties, subject to the CITY s ultimate approval, but while a development agreement must advance the CITY s local planning policies, it may also contain provisions that vary from otherwise applicable zoning standards and land use requirements; and WHEREAS, development agreements are, essentially, a planning tool that allows public agencies greater latitude to advance local planning policies, sometimes in new and creative ways and, as such, development agreements may be viewed as an alternative to the traditional development approval process which, in practice, it is commonly used in conjunction with; and WHEREAS, the public will benefit from the project to be implemented by means of this Development Agreement by resulting in a substantially increased tax base resulting from the development of the property with a very low density of development resulting with concomitant minimal impacts upon public services and infrastructure and, accordingly, CITY expenses for services will be very low and the impact on infrastructure will be negligible when development of the subject project is consummated; and WHEREAS, the City Council of the CITY finds it is in the best interest and welfare of the citizens of the CITY to approve this Development Agreement with the terms and conditions set forth herein; and WHEREAS, the City Council of the CITY has determined that the terms and conditions of this Development Agreement are in the best interests of the public health, safety and welfare of the citizens of the CITY and provide for specific public benefits; and 3

53 WHEREAS, the City Council of the CITY hereby finds and concludes that the provisions of this Development Agreement are consistent with the CITY s Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020) and will result in the provision of enhanced economic development within the CITY and will be consistent with the general purpose and intent of the land development regulations of the CITY and the CITY s Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020) when actions are taken by the CITY as set forth in this Development Agreement; provided, however, it is recognized that the development set forth herein cannot be implemented absent such amendatory actions; and WHEREAS, the City Council of the CITY hereby finds and concludes that taking action as set forth in this Development Agreement is consistent with the provisions of Sections 15-1 through Section of the City s Land Development Code; and WHEREAS, the City Council of the CITY hereby finds and concludes that the written and other objections to this Development Agreement have been considered fully, but it is specifically noted, in terms of rejecting those arguments, that, among other bases for rejection, the provisions of Sections 15-1 through Section of the City s Land Development Code were enacted after the provisions of the City s Land Development Code that were cited as authority were enacted and the later-in-time provisions of a code, of course, take precedence over any previously enacted codal provisions; and WHEREAS, while the City Council of the CITY is cognizant of the impacts of development upon other property owners and works diligently to ensure that development is compatible in accordance with sound and generally accepted land use planning practices and principles, it is noted that Attorney General of Florida Advisory Legal Opinion Number: AGO 95-78, dated December 7, 1995, issued to Mr. Daniel J. Bosanko, Assistant County Attorney, St. Johns County Board of County Commissioners, stated that [t]he Bert J. Harris, Jr., Private Property Rights Protection Act, Chapter , Laws of Florida, 1 does not provide for recovery of damages to property that is not the subject of governmental action or regulation, but which may have incidentally suffered a diminution in value or other loss as a result of the regulation of the subject property ; and WHEREAS, the City Council of the CITY has weighed and evaluated the property rights and the reasonable use of property with regard to all parties involved in this matter including, but not limited to, any development exactions that are obtained and not obtained in the context of this Development Agreement; and 1 See, Sections , 70.51, 70.80, , and , Florida Statutes. 4

54 WHEREAS, the City Council of the CITY has found and determined that the public benefits deriving from the approval of this Development Agreement and the development contemplated herein would substantially benefit the citizens of the CITY and the public in general; and WHEREAS, the CITY has complied with all requirements and procedures of Florida law in processing and advertising this Development Agreement; and WHEREAS, this Development Agreement, given the contingency set forth herein, is consistent with the goals, objectives and policies of the Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020). NOW, THEREFORE, in consideration of the foregoing, and the premises and the promises, covenants and agreements herein contained, and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties the PROPERTY OWNER and CITY agree as follows: SECTION 1. RECITALS/FINDINGS. (a). The recitals, set forth above, are true and correct and form a material part of this Development Agreement upon which the parties have relied. (b). The findings, set forth above, are, and constitute the administrative and quasi-judicial findings of the City Council of the CITY and form a material part of this Development Agreement upon which the parties have relied. (c). The City Council of the CITY and the PROPERTY OWNER desire that a high value development occur on the subject property which may spur on other unique developments of a high quality nature on the beachside of the CITY. SECTION 2. PREMISES. (a). The PROPERTY OWNER hereby designates, and the CITY hereby accepts, the following described tract of real property as the legal description for the premises for the purposes of this Development Agreement: See attached Exhibit A to this Development Agreement. (Volusia County Property Appraiser Tax Parcel Identification Number: (Full) or (Short)). (b). The legal entity having legal or equitable ownership of the premises is the PROPERTY OWNER. 5

55 SECTION 3. SITE PLAN/ARCHITECTURAL DRAWING FOR DEVELOPMENT. (a). The attached site plan for development of the premises (Exhibit B ) is hereby approved by the terms and conditions of this Development Agreement. (b). The attached architectural drawing for development of the premises (Exhibit C ) is hereby approved by the terms and conditions of this Development Agreement. SECTION 4. TERMS AND CONDITIONS RELATIVE TO THE PREMISES. (a). In addition to all other covenants, obligations, duties and responsibilities set forth herein, the PROPERTY OWNER is approved for the following development on the premises: (1). The development uses, including setbacks, population densities, building intensities and building heights, as set forth on the site plan approved in Section 3(a) of this Development Agreement. (2). The development uses, including setbacks, population densities, building intensities and building heights, as set forth on the site plan approved in Section 3(a) of this Development Agreement comply with criteria for development approved in this Development Agreement and the applicable provisions cited in the land development regulations of the CITY applicable to the development project on the premises. (3). The public facilities that will service the development of the premises shall continue as the premises are currently served although sewer service from the City of Daytona Beach may be provided in lieu of the services being provided by the City of Port Orange as determined by the CITY. All necessary public facilities shall be available concurrent with the impacts of the development. (4). Impact and permitting fees and other funding requirements for the project on the premises are as established by controlling law on the date of approval of this Agreement by the CITY shall be met in the normative course and processes of development. (5). All development permits normatively needed to be approved for the development of the premises shall be subject to the review and approval processes during the course of the development of the premises including, but not limited to, submissions to or approvals from Volusia County; the State of 6

56 Florida, Departments of Economic Opportunity, Environmental Protection, Transportation, or such other department or agency of the State as may be applicable; the United States Army Corps of Engineers; the St. Johns River Water Management District; the United States Environmental Protection Agency or any other Federal departments or agencies with competent jurisdiction over any aspect of the approved development of the premises. (6). The following deviations are being granted by the CITY pursuant to the terms and conditions of this Development Agreement with regard to the provisions of the CITY s land development regulations: (A). Relief from Section of the CITY s Land Development Code, entitled Landscape Design Standards, to allow the construction of parking rows without the required terminal landscape island; provided, however, that the PROPERTY OWNER shall pay to the CITY an amount equal to the value of the reduced landscaping resulting from the deviation, as reasonably calculated by the CITY, which sum shall be paid prior to the first building permit being issued by the CITY under this Development Agreement and which sum shall be used by the CITY to landscape other areas of the City of Daytona Beach Shores as deemed appropriate by the CITY. (B). Relief from Section of the CITY s Land Development Code, entitled Landscape Design Standards, to allow the construction of vehicular use areas without the required perimeter landscape strip, ten feet (10 ) in width, abutting rights-of-way; provided, however, that the PROPERTY OWNER shall pay to the CITY an amount equal to the value of the reduced landscaping resulting from the deviation, as reasonably calculated by the CITY, which sum shall be paid prior to the first building permit being issued by the CITY under this Development Agreement and which sum shall be used by the CITY to landscape other areas of the City of Daytona Beach Shores as deemed appropriate by the CITY. (C). Relief from Section of the CITY s Land Development Code, entitled Landscape Design Standards, to allow the construction of vehicular use areas without the required perimeter landscape strip, five feet (5 ) in width, abutting the interior lot line of an adjacent property; provided, however, that the PROPERTY OWNER shall pay to the CITY an amount equal to the value of the reduced landscaping resulting from the deviation, as reasonably calculated by the CITY, which sum shall be paid prior to the first building permit being issued by the CITY under this Development Agreement and which sum shall be used by the CITY to landscape other areas of the City of Daytona Beach Shores as deemed appropriate by the CITY. (D). Relief from Section of the CITY s Land Development Code, entitled Dimensional Requirements for Off-Street Parking, to allow the construction of vehicular parking without the required maneuver depth of fifteen 7

57 feet (15 ) upon such being certified as safe, in conformity with sound and generally accepted engineering practices and principles, by a Florida licensed engineer engaged by the PROPERTY OWNER. (E). Relief from the CITY s Mandatory Exterior Color Standards as set forth at Chapter 8, Article II, Environmental Impact, Architectural Guidelines, Mandatory Exterior Color Standards and Town Center Development of the CITY s Land Development Code (in accordance with the architectural drawing for the premises attached as Exhibit C ). (F). Relief from Section of the CITY s Land Development Code, which limits building height in the RMF-1 District to 110 feet above the average crown of the road to allow the construction of the building height to feet above the average crown of the road. (G). Relief from Section of the CITY s Land Development Code, which requires side (interior) yard setbacks of feet for a building with height of feet in the RMF-1 District to allow for a yard setback of 11 feet. (H). Relief from Section of the CITY s Land Development Code, which requires a 30% visual/breezeway corridor unencumbered with any structure through the full depth of the property in the RMF-1 District and requires the construction of a seven (7) foot wide public walkway from South Atlantic Avenue to the beach within the corridor and an irrigated landscape area of no less than three (3) feet in depth along the entire length of the walkway in order to allow for a 22% visual/breezeway corridor. The City Council of the CITY has concluded that, based upon the location of the premises and the other beach access points proximate to the premises which are available for public use, there is no public need and for the granting of a seven (7) foot wide public walkway from South Atlantic Avenue to the beach for the benefit of the CITY by the PROPERTY OWNER. (I). Relief from Section of the CITY s Land Development Code, which requires a minimum green area of 30% in the RMF-1 District to allow a 24.7% green area. (J). Relief from Section of the CITY s Land Development Code, which requires at least two loading zones for residential developments with a gross floor area above one-hundred thousand (100,000) square feet to allow only a single loading zone on the premises. (K). Relief from Section of the CITY s Land Development Code, which requires that driveway widths with medians cannot exceed thirtyfour (34) feet in width to allow the driveway to exceed this standard as depicted in the site plan (Exhibit B ). 8

58 (L). Relief from Section of the CITY s Land Development Code, which requires trash storage facilities to be accessible by means of a driving lane with a straight line maneuvering distance of fifty-five (55) feet with such access not meeting this standard as depicted in the site plan (Exhibit B ). (b). The failure of this Development Agreement to address a particular permit, condition, term or restriction shall not relieve the PROPERTY OWNER of the necessity of complying with the laws governing said permitting requirements, conditions, terms or restrictions. (c). The CITY recognizes that the development of the premises by the PROPERTY OWNER will result in the PROPERTY OWNER owning and holding vested rights in the premises which are the subject of this Development Agreement and which include the construction of a multifamily residential structure and it is anticipated that said use will be in place on the premises for a lengthy period of time and the CITY hereby recognizes and affirms said vested rights and the investment backed expectations of the PROPERTY OWNER with regard to the premises in that regard. (d). The CITY and the PROPERTY OWNER agree that, in order for this Development Agreement to be effective, the PROPERTY OWNER must apply to the CITY to amend the Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020), to allow the lower density of approximately 15 units per gross acre on the subject property. In that regard, the CITY agrees to undertake the amendment process in good faith as reasonably soon as practicable in accordance with controlling law. The CITY also recognizes that the CITY may also need to consider the amendment of the CITY s Land Development Code to allow a density of 15 units per acre either, generally, or as a site-specific matter. The PROPERTY OWNER recognizes that, under controlling law including, but not limited to, administrative due process principles, the requirement of fair proceedings in the quasi-judicial context, the proceedings of the Volusia Growth Management Commission and the requirements of open government result in the actions needed to make this Development Agreement effective; the CITY cannot, and will not, guarantee approval by the CITY in any manner or implication or the ultimate approval of the land use process and, to that end, the CITY reserves all of its legislative and police powers. SECTION 5. PUBLIC BENEFITS. (a). As set forth in this Development Agreement, the PROPERTY OWNER shall provide funds of an amount equal to the value of the landscaping requirements for which relief has been granted herein. (b). The CITY also recognizes that the development of the subject property, as proposed in this Development Agreement, is of a unique nature and the project which may give rise to additional projects of a similar nature within the 9

59 jurisdictional limits of the CITY and spur on other beneficial development. (c). The PROPERTY OWNER shall dedicate to the CITY, or such other entity as the CITY may determine, an easement, in a form approved by the City Attorney, providing for an area where bus stop seating (benches approved by the CITY) shall be installed by the PROPERTY OWNER at the expense of the PROPERTY OWNER, all as depicted on the site plan (Exhibit B ). (d). The PROPERTY OWNER shall pay to the CITY the sum of Twenty- Five Thousand Dollars ($25,000) which sum shall be paid as follows: Twelve- Thousand Five-Hundred Dollars ($12,500) at the time of the first building permit being issued for the development of the premises and Twelve-Thousand Five- Hundred Dollars ($12,500) at the time of the first certificate of occupancy relating to the development of the premises; provided, however, that, notwithstanding the foregoing, the total amount of Twenty-Five Thousand Dollars ($25,000) shall be paid upon demand by the CITY upon the award of a contract for design of the CITY s new community center. (e). Upon the issuance of the first building permit to implement the project proposed in this Development Agreement, the PROPERTY OWNER shall grant to the CITY, in a form approved by the City Attorney, all development rights to all units in excess of the fifteen (15) units per acre approved with regard to the subject property. SECTION 6. REASONABLE APPROVAL. In those instances in this Development Agreement in which a party s approval, consent or satisfaction is required, then it shall be implied that such action shall be exercised in a reasonable manner and within a reasonable time frame. SECTION 7. REMEDIES. Each party shall have any and all remedies as permitted by law; provided, however, that the parties agree to provide for positive dialogue and communications if disputes or disagreements arise as to the interpretation or implementation of this Development Agreement. If disputes or disagreements arise as to the interpretation or implementation of this Development Agreement, the CITY and PROPERTY OWNER agree to mediate the issues before seeking any other remedies. SECTION 8. TIME IS OF THE ESSENCE. Time is of the essence of the lawful performance of the duties and obligations contained in this Development Agreement. The parties covenant and agree that they shall diligently and expeditiously pursue their respective 10

60 obligations set forth in this Development Agreement. SECTION 9. HEADINGS/CAPTIONS. All sections and descriptive headings in this Development Agreement are inserted for convenience only, and shall not affect the construction or interpretation hereof. SECTION 10. FORCE MAJEURE. No party shall be considered in default in performance of its obligations hereunder to the extent that performance of such obligations, or any of them, is delayed or prevented by Force Majeure. Force Majeure shall include, but not be limited to, hostility, revolution, civil commotion, strike, epidemic, fire, flood, wind, earthquake, terrorism, hurricane, explosion, any law, proclamation, regulation, or ordinance or other act of government, or any act of God or any cause whether of the same or different nature, existing or future; provided that the cause whether or not enumerated in this Section is beyond the control and without the fault or negligence of the party seeking relief under this Section. SECTION 11. DEVELOPMENT AGREEMENT BINDING; RUNS WITH THE LAND. (a). This Development Agreement shall be binding upon and inure to the benefit and burden of the successors in interest, transferees and assigns of the parties. Each party hereto represents to the other that it has undertaken all necessary actions to execute this Development Agreement, and that it has the legal authority to enter into this Development Agreement and to undertake all obligations imposed on it. The signatories hereof represent that they have the requisite and legal authority to execute this Development Agreement and bind the respective parties herein. (b). This Development Agreement touches and concerns the premises and shall run with the land and shall be binding upon and inure to the benefit and burden of the parties hereto and their respective successors and assigns. SECTION 12. EXHIBITS. All exhibits to this Development Agreement are hereby incorporated into this Development Agreement by this reference thereto. SECTION 13. PUBLIC RECORDS. The PROPERTY OWNER shall allow public access to all documents, papers, letters or other materials subject to the provisions of Chapter 119, Florida Statutes, and other controlling law and which have been made by PROPERTY 11

61 OWNER and delivered to the CITY in conjunction with this Development Agreement and shall adhere to the controlling provisions of State law relating to public records. SECTION 14. EQUAL OPPORTUNITY. The PROPERTY OWNER agrees that it will not discriminate against any employee or applicant for employment for work relating to the services provided under this Development Agreement because of race, color, religion, sex, age, national origin or disability and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demoting or transfer; recruitment advertising; layoff or termination; rates of pay or their forms of compensation; and selection for training, including apprenticeship. SECTION 15. CONFLICT OF INTEREST. The PROPERTY OWNER agrees that it will not commit any act that would cause or create a conflict of interest as defined by Chapter 112, Florida Statutes, to exist or occur in the performance of its obligations pursuant to this Development Agreement with the CITY. SECTION 16. COMPLIANCE WITH LAWS AND REGULATIONS. In performing pursuant to this Development Agreement, the PROPERTY OWNER shall abide by all statutes, ordinances, rules, and regulations pertaining to, regulating the acts contemplated to be performed herein, including those now in effect and hereafter adopted that are consistent with this Agreement. This provision shall include, but not be limited to, the provisions of the CITY s land development regulations and the codes and ordinances of the CITY. The permit and impact fees that are applicable to this development on the date of CITY approval shall prevail throughout the project. Any violation of said statutes, ordinances, rules or regulations which continues after notice and an opportunity to cure could constitute a material breach of this Development Agreement. In the unlikely event that any violation should occur, the PROPERTY OWNER shall be given sixty (60) days written notice of the violation to allow the PROPERTY OWNER to cure before any adverse action would be contemplated. The CITY and the PROPERTY OWNER agree to cooperate with each other in a harmonious relationship throughout this project. SECTION 17. NOTICES. (a). Whenever either party desires to give notice unto the other, notice may be sent to: 12

62 For the CITY: Mr. Mike Booker City Manager City of Daytona Beach Shores 2990 South Atlantic Avenue Daytona Beach Shores, Florida For the PROPERTY OWNER: Mr. Anthony Dimucci 51 Dunlawton Avenue Port Orange, Florida (b). Either party may change the address for notification by providing written notice of such change to the other party. SECTION 18. INTERPRETATION/APPLICABLE LAW/VENUE. The laws of the State of Florida shall govern this Development Agreement. Any legal action necessary arising out of the Development Agreement will have its venue in Volusia County and the Development Agreement will be interpreted according to the laws of Florida. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other further exercise thereof. Waiver of a default shall not be deemed a waiver of any subsequent defaults. The specific provisions of this Development Agreement shall prevail over the generality of the foregoing. In any action or proceeding required to enforce or interpret the terms of this Development Agreement, venue shall be in the Seventh Judicial Circuit Court in and for Volusia County, Florida. SECTION 19. CONSTRUCTION OR INTERPRETATION OF THE DEVELOPMENT AGREEMENT. This Development Agreement is the result of bona fide arm s length negotiations between the parties and all parties have contributed substantially and materially to the preparation of the Development Agreement. Accordingly, this Development Agreement shall not be construed or interpreted more strictly against any one (1) party than against any other party both parties having participated in the drafting of this Development Agreement. Whenever a decision is provided for herein which is to be made by the CITY or the PROPERTY OWNER, such decision must be in writing in order to be binding upon the CITY or PROPERTY OWNER. 13

63 SECTION 20. ENTIRE DEVELOPMENT AGREEMENT/MODIFICATION. (a). This Development Agreement constitutes the complete, integrated and entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, contracts or understandings, whether oral or written, between the parties relating thereto, all of which have been integrated herein. This Development Agreement may not be amended, changed, or modified and material provisions hereunder may not be waived, except by a written document, of equal dignity herewith and signed by all parties to this Development Agreement. (b). If the City Council of the CITY finds, on the basis of substantial competent evidence, that there has been a failure to comply with the terms of this Development Agreement, this Development Agreement may be revoked or modified by the City Council upon affording the PROPERTY OWNER administrative due process rights in accordance with controlling law. (c). This Development Agreement may be amended or canceled by mutual consent of the parties to the agreement or by their successors in interest; provided, however, that a substantial modification of this Development Agreement shall, in the CITY s sole discretion, require approval by the City Council in accordance with the procedures set forth in Chapter 15, Land Development Code. (d). If State or Federal laws are enacted after the execution of this Development Agreement, which are applicable to and preclude the parties compliance with the terms of this Development Agreement, this Development Agreement shall be modified or revoked as is necessary to comply with the relevant State or Federal laws. SECTION 21. THIRD PARTY BENEFICIARIES/TRANSFERABILITY. (a). The CITY shall not be liable to any person, firm or corporation who contracts with or provides goods or services to the PROPERTY OWNER in connection with services provided by the PROPERTY OWNER to the CITY; and there is no contractual relationship, either expressed or implied, between the CITY and any other person, firm, or corporation supplying any work, labor, services, goods or materials to the PROPERTY OWNER as a result of its services to the CITY hereunder. This Development Agreement is solely for the benefit of the formal parties to this Development Agreement and no right or cause of action shall accrue by reason hereof to, or for the benefit of, any third party as no third party is a formal party hereto. Nothing in this Development Agreement, expressed or implied, is intended or shall be construed to confer upon or give any person or entity any right, remedy or claim under or by reason of this Development Agreement or any provisions or conditions hereof, other than the parties hereto and their respective representatives, successors and assigns 14

64 as set forth herein. (b). This Development Agreement is transferable. However, so long as the land or structure located on the premises or any portion thereof covered under this Development Agreement continues to be used for the purposes for which it was issued, then no person (including successors and assigns of the person(s) or entity(ies) who obtained this Development Agreement) may make use of the premises except in accordance with the conditions and requirements of this Development Agreement. The provisions of this Development Agreement run with and burden the real property to which it relates until released or amended in accordance with formal action of the CITY or as otherwise set forth herein. SECTION 22. ATTORNEYS FEES AND COSTS. In the event of any action to enforce the terms of this Development Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees, paralegals fees, and costs incurred, whether the same be incurred in an administrative hearing or action, pre-litigation negotiation, litigation at the trial level, or upon appeal. SECTION 23. SEVERABILITY. If any one or more of the covenants or provisions of this Development Agreement shall be held to be contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall, for any reason whatsoever, be held invalid, then such covenants or provisions shall be null and void, shall be deemed separable form the remaining covenants or provisions of this Development Agreement, and shall, in no way, affect the validity of the remaining covenants or provisions of this Development Agreement. SECTION 24. EFFECTIVE DATE/TERMINATION; PERIODIC REVIEW OF DEVELOPMENT AGREEMENT. (a). This Development Agreement shall take effect on the date that this Development Agreement is fully executed by the parties and is recorded in the Official Records (Land Records) of Volusia County, Florida; provided, however, that this Development Agreement shall not be effect such as to allow development on the premises consistent with its terms and conditions unless and until an amendment to the Comprehensive Plan of the City Daytona Beach Shores (Comprehensive Plan (Update) 2020), to allow the lower density of approximately 15 units per gross acre on the subject property and any amendment to the CITY s Land Development Code that the CITY may determine to be necessary become final and effective. 15

65 (b). This Development Agreement shall be in effect for a period of ten (10) years, but may be extended by mutual consent of the CITY and the PROPERTY OWNER. Any request for an extension shall be subject to the public hearing process necessary for the initial approval of said Development Agreement; provided, however, that the CITY has concluded that the vested rights of the PROPERTY OWNER and the investment backed expectations of the PROPERTY OWNER warrant a renewal and continuation of the development approved for the premises herein. (c). Pursuant to Section , Florida Statutes, prior to the completion of the project and at the issuance of a certificate of completion by the CITY, the CITY shall review this Development Agreement as well as at least once every twelve (12) months to determine if there has been demonstrated good faith compliance with the terms of the Development Agreement as determined by the CITY in accordance with such processes and procedures that the CITY utilizes while affording the PROPERTY OWNER administrative due process. SECTION 25. COUNTERPARTS. This Development Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same document. SIGNATURE PAGES FOLLOW 16

66 IN WITNESS WHEREOF, the parties have executed this Development Agreement on the date stated below their signature. Attest: SHORES CITY OF DAYTONA BEACH Cheri Schwab, City Clerk Harry Jennings, Mayor Date: Michael T. Booker, City Manager Approved as to form and legality: Lonnie Groot, City Attorney [Signatures continue on next page] 17

67 Witnesses: DIMUCCI COMPANY OF DAYTONA BEACH SHORES TOWER 14 LLC Signature of Witness Printed name of witness By: Anthony Dimucci Managing Member Date: Signature of Witness Printed name of witness STATE OF FLORIDA ) COUNTY OF VOLUSIA ) ACKNOWLEDGMENT I HEREBY CERTIFY that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared Anthony Dimucci, Managing Member of Dimucci Company of Daytona Beach Shores Tower 14 LLC and he acknowledged executing the same in the presence of two subscribing witnesses freely and voluntarily and they are personally known to me or provided as identification. WITNESS MY HAND and official seal in the County and State last aforesaid this day of, Notary Public; State of Florida Printed Name: My commission expires: 18

68 City of Daytona Beach Shores Community Services Department 2990 South Atlantic Avenue Daytona Beach Shores, FL Telephone (386) TO: FROM: CC: SUBJECT: Michael T. Booker City Manager Stewart Cruz City Planner Fred Hiatt Director/Building Official Resolution : Amendment to the Daytona Beach Shores Official Color Palette Reference Wells Fargo & IHOP Paint Permit Appeal DATE: December 9, 2014 On November 11, 2014 the Daytona Beach Shores City Council approve Paint Permit Appeal applications PAP and PAP to add Decatur Buff, Whitall Brown and IHOP Copper unto the Daytona Beach Shores Official Color Palette (OCP). Pursuant to Section of the City s Land Development Code, a resolution to amend the OCP subsequent to a successful appeal application, which introduces a new color not found on the OCP, is required. Resolution realizes the aforementioned requirement.

69 RESOLUTION NO A RESOLUTION OF THE CITY OF DAYTONA BEACH SHORES, VOLUSIA COUNTY, FLORIDA WHICH IS ADOPTED AS A DEVELOPMENT ORDER UPON AN APPLICATION TO AMEND THE DAYTONA BEACH SHORES OFFICIAL COLOR PALETTE BY ADDING NEW COLORS, DECATUR BUFF, WHITALL BROWN AND IHOP COPPER TO THE PALETTE PURSUANT TO SECTION OF THE DAYTONA BEACH SHORES LAND DEVELOPMENT CODE; ACTING UPON AN APPEALS PREVIOUSLY APPROVED BY THE CITY COUNCIL OF DAYTONA BEACH SHORES; PROVIDING FOR FINDINGS; PROVIDING A SAVING PROVISION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Article VIII, Section 2, Constitution of the State of Florida, authorizes the City of Daytona Beach Shores to exercise any power for municipal purposes except as otherwise provided by law; and WHEREAS, the City of Daytona Beach Shores, on March 22, 2006 adopted Ordinance Number which established Mandatory Exterior Color Standards, including an application process and an Official Color Palette (OCP) for the City of Daytona Beach Shores, an appeal process and a manner in which to add a color to the OCP; and WHEREAS, Ordinance Number is codified in Part II, Code Of Ordinances of the City of Daytona Beach Shores, Appendix G, Land Development Code, Chapter 8 (Environmental Impact, Architectural Guidelines, Mandatory Exterior Color Standards And Town Center Development, Article II, Mandatory Exterior Color Standards); and WHEREAS, on November 11, 2014 the City Council of the City of Daytona Beach Shores held a public hearing and approved paint permit appeal applications PAP and PAP ; and WHEREAS, the approval of paint permit appeal applications PAP and PAP requires the addition of Decatur Buff, Whitall Brown and IHOP Copper unto the OCP for the City of Daytona Beach Shores; and WHEREAS, Section of the City s Land Development Code requires a resolution to amend the OCP subsequent to a successful appeal application which introduces a new color not found on the OCP; and WHEREAS, the action taken in this Resolution constitutes final action of the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE Res Page 1 of 4

70 CITY OF DAYTONA BEACH SHORES, FLORIDA, AS FOLLOWS: SECTION ONE: FINDINGS. (a). The City staff report and City Council agenda memorandum relating to this matter are hereby adopted as if fully set forth herein. (b). The City of Daytona Beach Shores has complied with all requirements and procedures of Florida law in processing and advertising this Resolution. (c). The foregoing recitals (whereas clauses) are hereby adopted as the findings of the City Council of the City of Daytona Beach Shores and incorporated into this Resolution as if set forth in haec verba. Likewise, the findings made at the City Council hearing on this matter are adopted as findings and are incorporated into this Resolution as if set forth in haec verba. SECTION TWO. AMENDMENT OF THE DAYTONA BEACH SHORES OFFICIAL COLOR PALETTE (OCP). The City Council hereby amends the OCP by adding Decatur Buff, Whitall Brown and IHOP Copper (Exhibit A) to the OCP as base colors and the subject application is approved and this Resolution shall constitute an approval development order. SECTION THREE. SAVINGS. The prior actions of the City of Daytona Beach Shores relating to the regulation of colors and the City s OCP are hereby ratified and affirmed. SECTION FOUR: CONFLICTS. All resolutions or parts thereof in conflict with this Resolution are hereby repealed to the extent of such conflict. SECTION FIVE. If any section, subsection, sentence, clause, phrase, or portion of this Resolution, or application hereof, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion or application shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. SECTION SIX. EFFECTIVE DATE. its adoption. This Resolution shall take effect immediately upon CITY OF DAYTONA BEACH SHORES, FLORIDA By: Mayor, Harry Jennings ATTEST: Res Page 2 of 4

71 By: Michael T. Booker, City Manager Cheri Schwab, City Clerk APPROVED AS TO FORM AND LEGALITY: By: Lonnie Groot, City Attorney Passed and adopted on first reading this day of, Posted this day of, Res Page 3 of 4

72 EXHIBIT A Res Page 4 of 4

73 City of Daytona Beach Shores Community Services Department 2990 South Atlantic Avenue Daytona Beach Shores, FL Telephone (386) TO: FROM: CC: SUBJECT: Michael T. Booker Stewart Cruz City Planner Fred Hiatt Director Nonconforming Sign Removal Incentive Grant Application 2044 S. Atlantic Avenue, Daytona Board Store DATE: December 9, 2014 A. SUMMARY The City received the above-subject completed Nonconforming Sign Removal Incentive Grant Application (Exhibit A attached) on April 4, 2014 (completed on October 29, 2014) from Todd Ayres, owner of the Daytona Board Store. The subject business is located at 2044 S. Atlantic Avenue and has 6,000 square feet of commercial floor area (Exhibit B). The sign grant would be used to assist the owner (Bart Beninati Realty, Inc.) with the costs associated with replacing the existing nonconforming sign (Exhibit C) with a new monument sign (Exhibit A). B. GRANT REQUIREMENTS Exhibit D attached provides an analysis of the program eligibility requirements and other program parameters. As seen in the exhibit, the application meets all of the grant criteria. The lowest total sign cost provided was provided by Don Bell Signs at $8,431. However, that particular sign as proposed does not meet the current sign standards. The second lowest quote is from Sign Center at $8,500. The applicant s preferred option is Central Signs with a sign quote of 10,900. If approved, the applicant would qualify for $3,500. On November 20, 2014 the Beautification Advisory Board recommended approval of the subject sign grant application with the applicant s preferred option. C. STAFF RECOMMENDATION Staff recommends approval of the subject grant application with the preferred option (Central Signs) in the amount of $3,500 on the condition that the new sign meets all the requirements of the applicable City sign standards. Page 1 of 5

74 EXHIBIT A Page 2 of 5

75 EXHIBIT B 2044 S. Atlantic Avenue: Aerial View Daytona Board Store Castaways Resort Source: Volusia County PALMS, S. Atlantic Avenue: Street View Source: GoogleMaps, 2014 Page 3 of 5

76 EXHIBIT C 2044 S. Atlantic Avenue: Nonconforming Sign Source: GoogleMaps, 2014 Page 4 of 5