HomeMy WebLinkAboutFisher Eye Properties, LLC Development Agreement - 2023 08 14_AgreementGrant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst #2023084500 Book:10505 Page:1894-1903; (10 PAGES) RCD: 9/13/2023 8:42:01 AM
REC FEE $86.50
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
DEVELOPMENT AGREEMENT
FISHER EYE PROPERTIES, LLC
(Vision Source Optometry)
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this
A day of s t- , 2023, 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 FISHER EYE PROPERTIES, LLC, a Florida Limited Liability Company,
("Developer") whose address is 690 Long Lake Drive, Oviedo, Florida 32765.
WITNESSETH:
WHEREAS, Developer is the owner of approximately 0.79 acres, more or less, of real
property located in the T-C Town Center District, T5 Transect, Urban Center Zone, generally
located on the Southeast corner of Tuskawilla Road and Tree Swallow Drive, just North of the
McDonald's, in Winter Springs, Seminole County, Florida, more particularly described herein
("Property"); and
WHEREAS, Developer has applied for a Conditional Use, Final Engineering/Site Plan
Approval, Aesthetic Plan Approval, Waivers, and a Variance from the City Code in order to
construct a two-story optometry office 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"), public Hearing Notices were mailed to all owners
of real property adjacent to and within approximately five -hundred (500) feet of the subject
property and all Homeowner's Associations on file within the City of Winter Springs on March
27, 2023, and a Community Workshop for the Project was held on April 11, 2023; and
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 1 of 10
Book 10505 Page 1895
Instrument# 2023084500
WHEREAS, Section 20-29(c) of the City Code requires that all conditional uses, site
plans and waivers 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 20-29.1 of the City Code shall be required to be memorialized in a
binding Development Agreement; and
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 06-21-31-506-0000-0060 and is legally described in EXHIBIT "A",
attached hereto and fully incorporated herein by this reference (the "Property").
4.0 Project Description and Requirements. Developer shall, at its expense,
design, permit and construct a 10,000 square -foot, two-story, optometry office building on the
Property, located in the City of Winter Springs Town Center. The optometry office building and
supporting infrastructure and parking shall be constructed in a single phase.
(Hereinafter the project description and requirements are referred to as the "Project").
The Developer shall construct the Project in a manner consistent with the approved Conditional
Use, Final Engineering/Site Plans, Aesthetic Plans, Waivers and Variance that are on file with
the City with the following file numbers and consistent with the requirements contained in this
Agreement:
File No: Conditional Use CU2023-00000026
File No. Site Plan Review/Final Engineering SP2022-0050
File No. Waiver WA2023-00000028
File No. Aesthetic Review AR2023-00000027
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 2 of 10
Book 10505 Page 1896
Instrument# 2023084500
Specific conditions of approval for the above -referenced
following, which are also addressed in the staff report
Engineering/Site Plans, Aesthetic Plans, Waivers and Variance;
Plans and Waivers include the
for the Conditional Use, Final
A. 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).
B. All grass areas on the Property shall use Bahia grass. No St. Augustine
grass or grass types with low drought tolerance shall be permitted.
C. The subject property shall be used for an optometry office. Any other
proposed use would require an amendment to this agreement.
5.0 Future PermittinL. Developer shall be required to receive building permits and
substantially commence vertical construction of buildings, which shall at minimum include
building foundations, for the Project within two (2) years of the Effective Date of this
Agreement.
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
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.
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 3 of 10
Book 10505 Page 1897
Instrument# 2023084500
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).
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.
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 4 of 10
Book 10505 Page 1898
Instrument# 2023084500
18.0 _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.
19.0 Specific Performance and Enforcement. 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. The failure to timely
comply with any mandatory condition of this Agreement shall further constitute a violation of the
City's Code of Ordinances and shall be subject to enforcement action as described therein
including, but not limited to, enforcement before the City's Code Enforcement Board under
Chapter 2, Article III, Division 2. — Code Enforcement.
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. 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 vertical construction of buildings, which shall at minimum
include building foundations, for the Project within two (2) years of the effective date of this
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 above. If the City terminates
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 5 of 10
Book 10505 Page 1899
Instrument# 2023084500
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 Ma.ieure. 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 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 ("Force
Majeure 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 Force Majeure 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. The City Manager
shall have the authority to grant an extended Time Period. An extension of any Time Period for
reasons of a Force Majeure Event shall be requested solely as provided in this Section.
Developer hereby waives and relinquishes the right to notify the City of the intent to exercise the
tolling and extension of any permit related to the Project, including Time Periods under this
Agreement, development orders, and building permits, available under Section 252.363, Florida
Statutes, as the result of a declaration of a state of emergency issued by the Governor for a
natural emergency.
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:
City Manager
City of Winter Springs
1126 East S.R. 434
Winter Springs, Florida 32708
With additional notice to:
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 6 of 10
Book 10505 Page 1900
Instrument# 2023084500
Anthony A. Garganese, City Attorney
Garganese, Weiss, D'Agresta & Salzman, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802
For Developer:
Fisher Eye Properties, LLC
Attn: David Fisher
690 Long Lake Drive
Oviedo, Florida 32765
Phone: 407-462-3738
Email: dr_dave@visionsourceoviedo.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, 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 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 parent, subsidiary, or affiliated entity in which Developer or its
members are members or interest holders 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
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 7 of 10
Book 10505 Page 1901
Instrument# 2023084500
Kevin McCann, Mayor
ATTEST:
By: ` / J,
Christian Gowan, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
CITY SEAL Date:
By:
Anthony A. Garganese, City Attorney for
t the City of Winter Springs, Florida
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DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 8 of 10
Book 10505 Page 1902
Instrument# 2023084500
Signed, sealed and delivered in the
presence of the following witnesses:
r
Si nlhire of itr�ss
Ib dJ
Printed Name of Witness
---41�1'
ireof Wime
Printedame of Witness
STATE OF 90)6 dQ
COUNTY OF
FISHER EYE PROPERTIES, LLC
Print name and title: a i5 oillix 'en
Date:
The foregoing instrument was acknowledged before me by means of physical
presence r online notarization, 1 t is day of n 2023,
by , the �� + of FISHER EYE PROPERTIES, LLC, a
limited liability company, on behalf of h company, who is personally known to me or produced
as identificatio .
(NOTARY SEAL) 14f
lubU c S gn*df
'6n
(Print Name)
.►F "', JADE SYMONE ANDERSON Notary Public, State of
Notary Public - State of Florida
a` Commission d HH 105747 Commission No.:HN
�0 My Comm. Expires Dec 8, 2025
Bonded through National Notary Assn, My Commission Expires: T
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 Fisher Eye Properties, LLC.
Page 9 of 10
Book 10505 Page 1903
Instrument# 2023084500
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
Lot 6, WINTER SPRINGS APARTMENTS — A REPLAT, recorded in Plat Book 82, Pages 63
through 66, inclusive, Public Records of Seminole County, Florida.
DEVELOPMENT AGREEMENT
City of Winter Springs and Fisher Eye Properties, LLC.
Page 10 of 10