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HomeMy WebLinkAbout861E434, LLC (Dunkin Donuts) Developer's Agreement 2014 12 14 MARYAMME MORSE, MMINOLE COMITY CLERK OF CIRCUIT COURT i COMPTROLLER BK 08461 Pgs 0191 - 1981 (Spgs) CLERK' S # 2015046645 RECORDED 04/30/2015 10 ?2i28 AM RECORDINS FEES 69.50 RECORDED BY H DeVor• THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown,Garganese,Weiss&D'Agresta,P-A. l l l N.Grange Avenue,Suite 2000 orlando,FL 32802 (407)425-9566 2pa Pinx 26=' FOR RECORDING DEPARTMENT USE ONLY DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and executed this day of December, 2014, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and 861E434, LLC, a Florida limited liability company ("Developer"), whose address is 524 Carnation Drive, Winter Park, Florida 32792. WITNESSETH: WHEREAS, this Agreement is related to certain real property located in Seminole County, Florida, with a property address of 861 East State Road 434, Winter Springs, Florida and a tax parcel identification number of 35-20-30-503-OA00-0000, and more particularly legally described on EXHIBIT "A", which is hereby fully incorporated herein by this reference (the "Property"); and WHEREAS,the Property is currently zoned PUD and is designated"commercial"on the Stone Gable PUD Master Plan, which was approved by the City Commission of Winter Springs on March 10, 1997 ("Master Plan"), and. WHEREAS, the Developer desires to purchase the Property in order to permit the construction of a four unit commercial retail building consisting of a Dunkin Donuts unit and three other retail units, as more specifically described herein; and WHEREAS, in furtherance of this desire, the Developer has filed with the City several development permit applications seeking approval of final engineering plans and aesthetic review for the proposed four unit commercial retail building which is generally described above; and WHEREAS, the City Commission desires to approve the applications which were specifically submitted by the Developer pursuant to the terms and conditions set forth under this Agreement; and Developer's Agreement City of Winter Springs and 861 E434.LLC. Page 1 of 7 Book8461/Pagel91 CFN#2015046645 NOW THEREFORE, in consideration of the mutual promises and covenants contained herein,the parties mutually agree as follows: 1.0 Recitals: Effective Date. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. The Effective Date of this Agreement shall be the date on which the last party hereto timely and fully executes this Agreement("Effective Date"). 2.0 Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3.0 Acquisition of Property. Developer agrees to purchase the Property within six (6) months of the Effective Date of this Agreement. Developer may request a six (6) month extension of this time period upon written request to the City. The extension will not be unreasonably withheld for good cause shown by the Developer. Upon acquisition,the Developer shall provide written notice of said acquisition to the City. If Developer fails to complete the purchase within said time period (as may be extended by the City), this Agreement shall automatically be deemed null and void and terminated. 4.0 Project Descri tion. Upon purchase of the Property, the City and Developer agree that the Property shall be developed as one commercial retail building consisting of a maximum of four separate tenant units: one (1)unit for a Dunkin Donuts (or other similar coffee shop/retail use) and three (3) additional retail units). Development of the Property shall be in conformance with applicable law and the Final Engineering Plans and Aesthetic Review Package submitted to the City by the Developer and approved by the City Commission on December 8, 2014 ("Development Plans"). A true and exact copy of the Development Plans, as may be amended from time to time pursuant to the Winter Springs City Code ("City Code"), shall be maintained at City Hall and shall hereby be deemed fully incorporated herein by this reference. 5.0 Additional Development Conditions. Development of the Property shall also be subject to the following additional conditions: A. Drive Through Screening. For purposes of buffering the sound related to the Dunkin Donuts drive through (e.g., vehicle noise and electronic menu order box), the Developer shall construct and maintain, in good condition, a six (6) foot solid opaque screen running along the entire southern and eastern edges of the drive thru lane from the menu order box station to the pickup window. The opaque screen shall be constructed of a six foot high decorative screen covered with living, fast growing, climbing vines which are deemed suitable by the City's arborist for the purposes stated herein. B. Landscape Buffering. For purposes of buffering sound and artificial light from the Property which may be directed towards the adjacent residential uses located within the Stone Gable PUD, the Developer shall maintain the existing oak trees located along the southern and eastern perimeter of the Property. In addition, the Developer shall plant and maintain additional landscaping as required by the Development Plans including the landscaping (including under story trees) required along the southern and eastern boundaries. If any of the existing oak trees or additional landscaping die or become seriously diseased after the Effective Date, the Developer's Agreement City of Winter Springs and 861F434,LLC. Page 2 of 7 Book84611Page192 CFN#2015046645 Developer shall replace the dead or seriously diseased oak tree(s) with a similar oak tree (minimum 100 gallon container size), or additional landscaping with substantially similar plant material,in accordance with the planting and grading requirements set forth in the City Code. C. Dunkin Donuts Hours of Business Operation. The Dunkin Donuts shall not be open for transacting business with customers between the hours of 11:00 P.M. to 5:00 A.M. Notwithstanding, employees are permitted to work during these hours for the limited purpose of closing the business for the evening and preparing the business for opening in the morning. D. Shield Lighting. All light poles and building mounted lighting installed on the Property must have fixtures that are down-mounted to mitigate light spill-over to adjacent properties. E. Uses on the Property. Developer acknowledges and agrees that the Development Plans were approved by the City Commission based on the Developer's proposed use for the Property of a Dunkin Donuts (or other similar coffee shop/retail use) and three additional retail units. Any other uses which may be permitted on the Property by the Master Plan shall be subject to further review by the City in accordance with the requirements set forth in the City Code. 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 and recorded in the Public Records of Seminole County, Florida,constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. Developer represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. 7.0 Successors and Assigns. Upon being recorded in the Public Records of Seminole County, Florida, this Agreement shall automatically be binding upon and shall inure to the benefit of the City and Developer and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 8.0 Applicable.Law: Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree that venue shall be exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. 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. Dcvciop&s Agreement City of Winter Springs and 861E434,LLC. Page 3 of 7 Book8461/Pagel 93 CFN#2015046645 10.0 Entire A reement• Exhibits. This Agreement and all attached exhibits hereto supersedes any other agreement, oral or written, regarding the Property and contains 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 beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement_ 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_ This Agreement shall be recorded in the Public Records of Seminole County,Florida. 14.0 Joinders of Mortgage Holders. To the extent applicable; the Developer shall be required to obtain a written joinder from all mortgage holders that may have a recorded mortgage upon the Property prior to the date that this Agreement is recorded on the Property. The joinder shall be in recordable form and shall evidence the mortgage holder's consent that the terms and conditions of this Agreement shall survive any foreclosure of their respective mortgage recorded against the Property. A copy of the recorded joinder shall be promptly delivered to the City upon recordation or upon request by the City. 15.0 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. 16.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, 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). 17.0 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. Dm,elopefs Agreement City of Winter Springs and 861E434,LLC. Page 4 of 7 Book8461/Pagel 94 CFN#2015046645 18.0 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. 19.0 Third-Party Rights. This Agreement is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 20.0 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. 21.0 Attorney's Fees_ In connection with any arbitration or litigation arising out of this Agreement, each party agrees to bear their own attorney's fees and costs. 22.0 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. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction_ Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement until the breach is cured. 23.0 Default, Opportunity to Cure. Should either party desire to declare the other party in default of any term and condition of this Agreement, the non-defaulting party shall provide the defaulting party a written notice of default. The written notice shall, at a minimum, state with particularity the nature of the default, the manner in which the default can be cured, and a reasonable time period of not less than thirty (30) days in which the default must be cured. No action may be taken in a court of law on the basis that a breach of this Agreement has occurred until such time as the requirements of this paragraph have been satisfied. 24.0 Termination. The Developer acknowledges and agrees that the Development Plans and this Agreement were approved by the City Commission based on conditions that existed upon the Effective Date. As such, the City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if Developer fails to receive building permits and substantially commence construction of development project within three (3) years of the Effective Date of this Agreement. In addition, the City shall have the right, but not obligation, to terminate the Agreement if Developer permanently abandons construction of the development project, provided, however, the City shall first deliver written notice and an opportunity to cure as set forth in Paragraph 23.0 herein. If the City terminates this Agreement, the City shall record a notice of termination in the public records of Seminole County,Florida. 25.0 Force Mai eure., 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") Developer's Agreement City of Winter Springs and 861 E434,LLC. Page 5 of 7 Book8461/Pagel 95 CFN#2015046645 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, 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_ IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS By: Char e Lacey, Mayor ATTEST: By: An a t renzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY t• For the use and reliance of the City of Winter Springs, Florida only. '( ' SEAL. P0 Date: h ,. F © : •�, . Anthony A. Garganese, City Attorney for ' Cy the City of Winter Springs,Florida 10 ►, gyp• •. .•• _ h Develope's Agreement City of Winter Springs and 861 E434,TLC. Page 6 of 7 Book8461/Pagel 96 CFN#2015046645 Signed, sealed and delivered in the 861E434,LLC, a Florida limited liability company presence of the following witnesses: By: Timothy Cloe, as Authorized Member Signature of Witness -'D4ni- O_ C1v4 Printed Name of Witness Date: Signature of VMtness y Printed NamIrdf Witness STATE OF H 0 iAA COUNTY OF The foregoing instrument was acknowledged before me this day of P,r 2014, Timothy Cloe, as Authorized Member of 861E434,LLC, a Florida limited liability company, on behalf of said company. He is personally know to me or produced as identification. (NOTARY SEAL) T� _ (N21ary Public signature) �,�Y• RACH L L. GARFiETT � C�lg i L. NOTARY PUBLIC (Print Name) STATE C'F TEXAS Notary Public, State of--remas 1,1y Comas.09.04-20-20t5 Commission No.: My Commission Expires: 20 5 DEVELOPER IS HEREBY ADVISED THAT SHOULD DEVELOPER FAIL TO FULLY EXECUTE, AND DELIVER TO THE CITY, THIS AGREEMENT WITHIN SIXTY (60) 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. Developer's Agreement City of Winter Springs and 861E434,LLC. Page 7 of 7 Book8461/Pagel 97 CFN#2015046645 LEGAL DESCRIPTION Tract A, Stone Gable, Plat Book 54, Pages 13 & 14 EXHIBIT "A " Book8461/Pagel 98 CFN#2015046645