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HomeMy WebLinkAboutBK Sports Enterprises, Inc (Belle Ave Paintball Conditional Use) Development Agreement 2023 11 16Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL Inst#2023105884 Book:10539 Page:1821-1831; (11 PAGES) RCD: 11/17/2023 3:02:30 PM REC FEE $95.00 THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony A. Garganese City Attorney of Whiter Springs Garganese, Weiss, D'Agresta & Salzman, P.A. I I I N. Orange Avenue, Suite 2000 Orlando, FL 32802 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this /'� day of %��Ytrn(��r , 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 BK SPORTS ENTERPRISES, INC., a Florida Profit Corporation ("Owner"), whose principal address is 1271 Belle Avenue, Winter Springs, Florida 32708. WITNESSETH: WHEREAS, Owner is the owner of approximately 1.18 acres, more or less, of real property located at 1271 Belle Avenue, Winter Springs, Florida 32708, generally located southeast of the intersection of State Road 434 and Belle Avenue in Winter Springs, Seminole County, Florida, more particularly depicted and legally described in Exhibit "A," attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, pursuant to Section 20-254(1) of the City of Winter Springs Code of Ordinances ("City Code"), "amusement and recreational parks and centers (including golf driving ranges, miniature golf courses, billiard halls, children's play centers, bowling alleys, and similar uses)," require a conditional use permit in the C-2 (General Commercial) zoning district; and WHEREAS, Orenthius Grimsley (the "Applicant"), has applied for a conditional use permit, seeking to add to the amusement activities offered at the Property by incorporating elements such as barrels, netting, and wooden posts to create obstacles for an outdoor paintball field, rock climbing wall, batting cages, and money vault machine; and WHEREAS, the Applicant intends to enter into a lease agreement with the Owner to provide outdoor amusement at the Property; and WHEREAS, pursuant to Chapter 20 Zoning, At II, Division 1, Section 20-29.1 of the City Code, a community workshop for the Project was held on September 6, 2023; and DEVELOPMENT AGREEMENT City of Whiter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 1 of 11 Book 10539 Page 1822 Instrument# 2023105884 WHEREAS, Section 20-29(c) of the City Code requires that all conditional uses shall be binding upon 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 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. 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 04-21-30-511-OB00-0010, and is legally described in Exhibit "A." 4.0 Project Description and Requirements. Owner may, at its expense, design, permit, renovate, and construct, an outdoor amusement center on the Property, consisting of a paintball field, rock climbing wall, batting cages, and money vault machine. Hereinafter the project description and requirements are referred to as the "Project." The Owner 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. Owner 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. Owner acknowledges and agrees that the Conceptual Sketch was not created with specific surveyed dimensions and that during the 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 frill 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 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 BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 2 of 11 Book 10539 Page 1823 Instrument# 2023105884 4.1 Conditions. Specific conditions of approval for the conditional use include the following, which are also addressed in the City's staff report: A. The maximum pressure of paintball guns used on the Property shall be 190 PSI. B. Paintball ammunition used on the Property shall be non -toxic and biodegradable. C. The paintball range shall be surrounded on all sides by safety netting extending to a minimum of 12 feet in height. D. Safety equipment must be provided to all patrons participating in paintball. E. The hours of operation for the paintball range shall be Tuesdays through Sundays from 11:00 a.m. until 8:00 p.m. F. The operators of the paintball range shall create and implement a security plan to ensure the safety of patrons. G. The Project shall be constructed in substantial conformance to the Conceptual Sketch attached hereto as Exhibit B. H. The addition of any impervious surface to the Property will be subject to a stormwater management review and require approval. Further, no additional impervious surface may be added until compliance with the City of Winter Springs Code Enforcement Board's Order in Case No. 2022CE000200, recorded in the Official Records of Seminole County, Book 10431, Page 209, is achieved and satisfaction of liens has occurred according to City policy. I. The restaurant on the site is currently closed. To the extent that the restaurant is reopened in the future, adequate off-street parking shall be required in accordance with Chapter 9, Article IV, Division 6 of the City Code to accommodate both the restaurant and the conditional use authorized. J. The amusement activities approved herein shall be made available to the public by reservation only and shall not be individually reserved in order to properly control the number of vehicles present on the property. 5.0 Future Permitting. Owner 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 ''/z) years after the Effective Date of this Agreement unless the Owner has substantially completed the installation of the Project, which shall include erection of DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, hic. (Belle Avenue Paintball Conditional Use) Page 3 of I I Book 10539 Page 1824 Instrument# 2023105884 the paintball field netting and posts and rock wall, within such two and one-half (2 ''/2) years. 6.0 Representations of the Parties. The City and Owner 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 Owner, 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. Owner 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 Owner 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 Controlling Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for any action in State court shall be in Seminole County, Florida. Venue for any action in Federal court shall be in Orlando, Forida. 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 and 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 Owner 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 frill execution by the Parties, this Agreement shall be recorded in the Public Records of Seminole County, Florida by the City. The Owner 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 Owner 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 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 4 of 11 Book 10539 Page 1825 Instrument# 2023105884 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. Owner 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 -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. 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 Owner 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 Owner 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 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 5 of 11 Book 10539 Page 1826 Instrument# 2023105884 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 ding 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 Owner 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 Owner fails to substantially complete the installation of the Project, which shall include erection of the paintball field netting and posts and rock wall, within two and one-half (2 1/2) years of the Effective Date of this Agreement. The Owner 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 Owner 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. Owner shall be solely responsible for designing, permitting, constructing, operating and maintaining this Project. As such, Owner 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 Owner and Owner'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 Maieure. 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 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 6 of 11 Book 10539 Page 1827 Instrument# 2023105884 reasons of a Force Majeure Event shall be requested solely as provided in this Section. Owner 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: Phil Hursh, Interim City Manager City of Winter Springs 1126 East S.R. 434 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 Owner: BK Sports Enterprises, Inc. 1271 Belle Avenue Winter Springs, Florida 32708 Attn: Rich Boyd Phone: (631) 294-7633 Email: Richboyd513@yahoo.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, Owner 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. Any assignment authorized by this subparagraph shall require the assignee to be a formal signatory to this Agreement and fully assume all of Owner'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 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 7 of 11 Book 10539 Page 1828 Instrument# 2023105884 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: Kevin McCann, Mayor Date: // //, 4-T ATTEST: -01 By:4Li��— C •tstian Gowan, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. By: - Ant on A. Garganese, City Attorney Signed, sealed and delivered in the presence of the following witnesses: Signature of Witness Print Name of Witness ignature o AV i t n e s s CITY SEAL BK SPORTS ENTERPRISES, INC. Date: DEVELOPMENT AGREEMENT City of Waiter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 8 of 11 Book 10539 Page 1829 Instrument# 2023105884 7J51tRTM IA AVvW(VI Print Name of Witness STATE OF Cjdr►d, i, COUNTY OF jCM i nZJ C The foregoing instrument was acknowledged before me by means of [XI physical presence or[ ]on] ine nota •ization, this ) ! day of X-10 c nbor , 2023, by �l Cixt �' D� ' , theme' es ►'d e-n -f o aFlorid t for Profit Cor oration, on behalf of the corporation, wh ispersona )6., own5 Ak produced Fib- Corporation, i ver bete nsdts identification. �Lead-#,vl X �-A),�1�z � l� OWNER IS HEREBY ADVISED THAT SHOULD OWNER FAIL ��ULLY V 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. UGBY E11&�Pubuc, State otOFlor�d4 � Notary Commissiontt My comm. expires June iT, 02- [THEE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 9 of I I Book 10539 Page 1830 Instrument# 2023105884 19►:i11] Y II1 Property Legal Description Lots 1, 2, & 3, Block B, less that portion deed to the State of Florida for state road S-434 in Official Records Book 1087, Page 132, Johnson's Poultry Farms, according to the Plat Book 6, Page 8, Public Records of Seminole County, Florida. DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 10 of 11 Book 10539 Page 1831 Instrument# 2023105884 Y ] 6 I i. r.11n Mobile Rxk 4=. Glellhel6lfall10 • OISTRtif,E FPNCr ®:.. • oa rT.. - p,4fv-a BAU 1 PAINTBAI I N.c NC rS PCREENEO N®t11ng e,M ri41 be ,2 feet hl@h. with fhs -tll.9g oovering AR -A yo r x s [N the Bald, al pelntWls shoWd remain Inside the field area. TOE 0- N11 20 HIUH M--7 Rxx. WALL INFO Y , TYPICAL PAINT BALL FIELD CJBSTAC LES Operallrg H01:rs CASH ,u3E 300'-FI iFro Tuesday Sunday g� PI:;NI- TABL FSAA.QNr PAINT MILL 11 D0Rfn-800pm �Jg RJ SRORTSHEAVEN C7RLAN O JWS ENGINEERING SERVICES. PA 11. l—ft..-I—.'ly Flamm bra-41�6 c e BK. SPORTS EN`fERPRISES, INC. b 9(cwziarsgf 1-11f * w.�--na * ne 1271 Belle Ave. P120POSED EQ[JII-MENT PLACEMENT .A A-li I:.laan srpANr , slze -,rw=-mom 7r�.rw Winter 5 s FL 32708-2965 Ll, A IWO �r PLANNER 4x7 BANNEli TO PLACE ON FENCE � �• �B Al2:i �a^ALE ir.i DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 11 of 11