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HomeMy WebLinkAboutJDBS Winter Springs, LLC Chase Bank Conditional Use Development Agreement 2020 11 09 Grant Maloy, Clerk Of The Circuit Court& Comptroller Seminole County, FL Inst#2020134811 Book:9768 Page:969-980; (12 PAGES) RCD: 11/23/2020 8:25:06 AM REC FEE $103.50 t' THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony A.Garganese City Attorney of Winter Springs Garganese,Weiss,D'Agresta& Salzman,P.A. 111 N.Orange Avenue,Suite 2000 Orlando,FL 32802 (407)425-9566 FOR RECORDING DEPARTMENT USE ONLY DEVELOPMENT AGREEMENT JDBS Winter Springs,LLC (Chase Bank Conditional Use) THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this /(0/ day of ILkdJ�1Y A 2020, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ("City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and JDBS WINTER SPRINGS, LLC, a Florida Limited Liability Company, whose address is 10931 N Dale Mabry Hwy, Tampa, Florida 32618-4112. WITNESSETH: WHEREAS, Developer is the owner of approximately 0.70 acres, more or less, of real property located in the Winter Springs Town Center, T5 Transect, generally west of the intersection of Eagle Edge Lane and SR 434, Winter Springs, Seminole County, Florida, more particularly described herein("Property"); and WHEREAS, Developer has applied for a conditional use of a financial institution or bank in order to construct a local branch of Chase Bank with a drive-through on the Property; and WHEREAS, pursuant to Chapter 20 Zoning, Article II, Division 1, Section 20-29.1 of the Winter Springs City Code ("City Code"), a community workshop for the Project was held on February 20,2020; and WHEREAS, Section 20-29(c) of the City Code requires that all conditional uses shall be binding on the use of the subject property and, further,that as a condition of approval by the City Commission, all development projects requiring a community workshop pursuant to Section 20- 29(c) of the City Code shall be required to be memorialized in a binding development agreement; and DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 1 of 11 Book 9768 Page 970 Instrument#2020134811 WHEREAS,this Development Agreement shall be recorded against the property so that the terms and conditions of approval related to the Project shall run with the land; and NOW THEREFORE, in consideration of the mutual promises and covenants contained herein,the parties mutually agree as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2.0 Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3.0 The Property. The real property subject to this Agreement has a tax parcel identification number of 06-21-31-507-0000-0010 and is legally described in EXHIBIT "A", attached hereto and fully incorporated herein by this reference ("Property"). 4.0 Project Description and Requirements. Developer may, at its expense, design, permit and construct a local branch of Chase Bank with a drive-through, located in the City of Winter Springs Town Center. If constructed, the bank building and all public and private project infrastructure shall be constructed in a single phase. Hereinafter the project description and requirements are referred to as the "Project". Nothing in this Agreement shall be interpreted to impose an affirmative obligation upon the Developer to construct the Project, but should the Developer construct the Project, it shall do so in accordance with the terms of this Agreement. The Developer shall construct the Project in a manner consistent with the approved Conceptual Sketch attached hereto as EXHIBIT `B", which is fully incorporated herein by this reference. The Conceptual Sketch is intended to be the general blueprint which details key aspects of the future physical development of the Property. The Conceptual Sketch shall also serve as a necessary guide for future permit applications and permitting necessary to complete the construction of the Project. Developer shall have the obligation to further submit and obtain the City's approval of a final site plan and final engineering plans ("Final Engineering Plans") consistent with the Conceptual Sketch in all material respects and in compliance with the City Code. Developer acknowledges and agrees that the Conceptual Sketch was not created with specific surveyed dimensions and that during the Preliminary Site Plan and Final Engineering Plan process such dimensions shall be surveyed, duly engineered, and provided to the City for consideration under applicable City Codes. The Conceptual Sketch shall be subject to reasonable adjustments at the Final Engineering Plan phase in order to bring the Project into full compliance with the City Code, and as a result, the exact location, layout and dimensions of the building, landscaping, entrances, utilities, parking and other site improvements may vary slightly between approval of the Conceptual Sketch and approval of the Preliminary Site Plan and Final Engineering Plans. These changes shall be allowed as long as the changes are consistent with the development standards noted in this Agreement and preserve the general character of the development shown on the Conceptual Sketch. DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 2 of 11 Book 9768 Page 971 Instrument#2020134811 Specific conditions of approval for the conditional use include the following,which are also addressed in the City's staff report: DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 3 of 11 Book 9768 Page 972 Instrument#2020134811 • The Developer's Conceptual Sketch, as shown in EXHIBIT B, includes a common driveway access with the adjacent parcel, which will be constructed to straddle the Property's eastern property line. The adjacent parcel is intended to be a future Wendy's fast food restaurant, which itself is the subject of a certain Development Agreement recorded in the Official Records of Seminole County at Book 9538, Pages 745-755 ("Adjacent Parcel"). Therefore, the Developer has provided an executed Declaration of Covenants, Restricts and Reciprocal Easements Agreement, recorded in the Official Records of Seminole County at Book 9354, Pages 127-163, on May 14, 2019 ("Declaration"), which includes an easement for reciprocal ingress and egress between the Property and the Adjacent Parcel ("Access Easement"). Should the parties ever mutually desire to terminate the Access Easement set forth in the Declaration, prior to executing such termination, the parties shall be required to seek and receive consent from the City of Winter Springs and obtain an amendment to the future site plan and final engineering plans. • There shall be no retail sales of alcohol and no retail sales, manufacturing, or compounding of any products derived from the hemp plant or cannabis plant, including CBD (cannabidiol). 5.0 Future Permitting. Developer shall be required to, at minimum, receive final engineering and site plan approval and aesthetic plan approval prior to receiving any building permit for the Project. In accordance with Section 20-36 of the City Code, the conditional use shall expire two (2) years after the Effective Date of this Agreement unless a building permit based upon and incorporating the conditional use is issued by the city within such two (2) years. The conditional use shall expire two and one-half (2 1/2) years after the Effective Date of this Agreement unless the Developer has substantially commenced vertical construction of buildings, which shall at minimum include building foundations, within such two and one-half(2 %2)years. 6.0 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, constitute a legal, valid and binding obligation enforceable against the parties hereto. Upon recording of this Agreement in the Public Records of Seminole County, Florida, the Agreement shall be a binding obligation upon 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 himself and the Property to the terms and conditions set forth in this Agreement. 7.0 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 upon being duly recorded against the Property by the City. 8.0 Applicable Law: Venue. This Agreement shall be governed by and construed in DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 4 of 11 Book 9768 Page 973 Instrument#2020134811 accordance with the laws of the State of Florida. The venue of any litigation arising out of this Agreement shall be in Seminole County,Florida or,for federal court actions, in Orlando, Florida. 9.0 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. 10.0 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. 11.0 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. 12.0 Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 13.0 Recordation. Upon full execution by the Parties, this Agreement shall be recorded in the Public Records of Seminole County, Florida by the City. The Developer shall be responsible for all recording fees associated with this Agreement. 14.0 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. 15.0 Sovereign Immunity. The City intends to avail itself of sovereign immunity and other applicable limitations on City liability whenever deemed applicable by the City. Therefore, 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 two hundred thousand dollars ($200,000.00), 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 three hundred thousand dollars($300,000.00). DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 5 of 11 Book 9768 Page 974 Instrument#2020134811 16.0 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. 17.0 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. 18.0 Third-PaIU 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. 19.0 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. 20.0 Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, each party shall be responsible for their own attorney's fees and costs. 21.0 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 in accordance with the criteria of the City Code and the requirements 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, trailer, structure or unit if Developer is in breach of any term and condition of this Agreement. 22.0 Default. Failure by either party to perform each and every one of its obligations hereunder shall constitute a default, entitling the non-defaulting party to pursue whatever remedies are available to it under Florida law or equity including, without limitation, termination of this Agreement, an action for specific performance, and/or injunctive relief. Prior to any party filing any action as a result of a default under this Agreement, the non-defaulting party shall first provide the defaulting party with written notice of said default. Upon receipt of said notice, the defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the reasonable satisfaction of the non-defaulting party prior to filing said action. 23.0 Termination. In addition to termination as provided in Section 22.0 above, 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 for the Project within two (2) years of the Effective Date of this Agreement. Further, the City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if Developer fails to substantially commence vertical construction of buildings, which shall at minimum include building foundations, within two and one-half(2 '/2 ) years of the Effective Date of this DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 6 of 11 Book 9768 Page 975 Instrument#2020134811 Agreement. The Developer may apply to the City Commission for an extension of this Agreement, which may be granted upon good cause shown. 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 to the defaulting party as set forth in Section 22.0 above. If the City terminates this Agreement, the City shall record a notice of termination against the Property in the public records of Seminole County,Florida. 24.0 Indemnification and Hold Harmless. Developer shall be solely responsible for designing, permitting, constructing, operating and maintaining this Project. As such, Developer hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees and attorneys from and against all claims, losses, damages, personal injuries (including, but not limited to, death), or liability (including reasonable attorney's fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by Developer and Developer's contractor's and subcontractor's performance of design, permit and construction, and maintenance activities in furtherance of constructing the Project and maintaining the improvements of this Project. This indemnification shall survive the termination of this Agreement. 25.0 Force Majeure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time Period") constitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority(other than the City's own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages of labor or materials, government mandated quarantine or travel bans; government mandated closures, disruption, breakdown, delayed production or interruption for any period of time; interruptions to transportation, or the use of equipment, labor, or materials, including, without limitation, the closure of government buildings, airports, harbors, railroads, or pipelines, or other infrastructure due to worldwide or regional pandemic or other health related event disruptions, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. The extended time period shall be agreed to in writing by the parties and said agreement shall not be unreasonably withheld by either party. 26. Notice. Whenever either party desires to give notice to the other, notice shall be sent by hand delivery or certified mail,return receipt requested, and shall be sent to: For the City: Shawn Boyle, City Manager City of Winter Springs 1126 East S.R. 434 DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 7 of 11 Book 9768 Page 976 Instrument#2020134811 Winter Springs, Florida 32708 With additional notice to: Anthony A. Garganese, City Attorney Garganese, Weiss, D'Agresta& Salzman,P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802 For Developer: JDBS WINTER SPRINGS, LLC 10931 N. Dale Mabry Hwy., Tampa, FL 33618 Attn: Bryan Schultz Phone: 813 760-2621 b.schultzkoceanbleu rg_oup.com copy to: Graham Legal Group,PLLC 1000 Legion Place, Suite 1200 3208C E. Colonial Drive, Box 292 Orlando,Florida 32803 Attn: Jesse E. Graham, Jr. Phone: 407-230-6449 Email: igraham@grahamleizalgri).com WEN-ACQUISITIONS, LLC 1100 Park Central Blvd. South, Suite 3300 Pompano Beach,FL 33064 Attn: Sauris Lugo/Jhonny Mercado Phone: 561-997-6002 Email: slugogjaerestgroup.com/jmercadogiaerestgroup.com copy to: Raul Gastesi, Esq. Gastesi&Associates, P.A. 8105 NW 155"'Street Miami Lakes,FI. 33016 Phone: 305-801-1292 Email: r asg tesingastesi.com Either party may freely modify their respective contact person and address contained in this Paragraph by providing written notice of the modification to the other party. Any Notice given as provided herein shall be deemed received as follows: if delivered by personal service, DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 8 of 11 Book 9768 Page 977 Instrument#2020134811 on the date so delivered; and if mailed, on the third business day after mailing. 27.0 Assignment. Prior to completing the construction of the Project and reaching final build-out of the Project,Developer shall not assign this Agreement without the prior written consent of the City. Such assignment shall also require the written approval of the City by amendment to this Agreement, which shall not require a public hearing and shall not be unreasonably withheld. However, Developer shall be entitled to assign its rights and obligations under this Agreement to: (a) a parent, subsidiary, or affiliated entity in which Developer or its members are members or interest holders, or (b) JPMorgan Chase Bank, National Association, without City consent, provided that the City is given notice of such assignment in accordance with Section 26.0 herein. Any assignment authorized by this subparagraph shall require the assignee to be a formal signatory to this Agreement and fully assume all of Developer's obligations, commitments, representations, and warranties under this Agreement. In any assignment, the rights and obligations contained herein shall be binding on successors in interest to the Property, and the terms and conditions of this Agreement shall bind and inure to the benefit of the parties hereto and any respective successors and assigns. IN WITNESS WHEREOF,the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS By: Charles L cey,Mayo Date: L / ATTEST: By: Christian Gowan,lateFi City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only CITY SEAL By: li bony . Garganese, City Attorney "•••••.© _ for the City of Winter Springs,Florida DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 9 of 11 Book 9768 Page 978 Instrument#2020134811 Signed, sealed and delivered in the JD B WIN R SPRIN"Cw presence of the following witnesses: c Prin and title:_1i� 46le Signature of Wit ss Date: 77,31,20z6 o`/1/ cSl�Z Printed Name of Witness Signature bfWitness a4 " Printed Name of Witness JOSHUAC HORROCKS STATE OF rL-ok 1 flp * *MY COMMISSION#GG 055965 Na o EXPIRES:January 17,2021 COUNTY OF #1 LLS J8Q9& C.# 9lFOF F°�Bonded Thru Budget Notary Services The foregoing instrument was acknowledged before me by means of (�) physical presence or( .....) online notarization,this 31 day of J OLLI 2020, by jos6Pµ-bi 6t72t- AW6, the M412 of JDBS Winter 8prings, LLC, a limited liability company, on behalf of the company, who is sonally known me or produced as identification. DEVELOPER IS HEREBY ADVISED THAT SHOULD DEVELOPER FAIL TO FULLY EXECUTE, AND DELIVER TO THE CITY, THIS AGREEMENT WITHIN THIRTY (30) DAYS FROM THE DATE THAT THE CITY COMMISSION APPROVES THIS AGREEMENT, THIS AGREEMENT, AND THE DEVELOPMENT PERMIT APPROVALS REFERENCED HEREUNDER, SHALL AUTOMATICALLY BE DEEMED NULL AND VOID. DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 10 of 11 Book 9768 Page 979 Instrument#2020134811 EXHIBIT A PROPERTY LEGAL DESCRIPTION LOT 1, WSTC OCEAN BLEU. ACCORDING TO .THE MAP OR PLAT THEREOF. AS RECORDED IN PLAT BOOK 84, PACES 37 AND 38, PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA. DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 10 of 11 Book 9768 Page 980 Instrument#2020134811 EXHIBIT B CONCEPTUAL SKETCH 3 ti SS !i t -. r gg ( jr,Via'.. s } Lil2.3IIiZP.�.5� EtY{�1d' r fs I ii P1 [[ AS lni, � � .- "q t45. td jjMq gp �a�Y. � t { 3': 3 �# � 's!� � JY t �-k'�� k }� I •.+ y � •'S,.. t�, v E v S Rts _ DEVELOPMENT AGREEMENT City of Winter Springs and JDBS Winter Springs,LLC(Chase Bank Conditional Use) Page 11 of 11