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HomeMy WebLinkAboutThe Foundry Church, Inc.; Ellianos Coffee Development Agreement 2024 01 08Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL Inst #2024003087 Book:10563 Page:1608-1617; (10 PAGES) RCD: 1/10/2024 2:40:21 PM 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. I I I N. Orange Avenue, Suite 2000 Orlando, FL 32802 (407)425-9566 DEVELOPMENT AGREEMENT THE FOUNDRY CHRUCH, INC. (Ellianos Coffee) THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this day of 20231by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporate n ("City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and The Foundry Church, Inc. (formerly the Metro Church of Christ, Inc.), a Florida Not For Profit Corporation, ("Developer") whose address is 1491 E State Road 434, Suite 101, Winter Springs, Florida 32708. WITNESSETH: WHEREAS, Developer is the owner of approximately 8.35 acres, more or less, of real property with an address of 1491 E. State Road 434, Winter Springs, Florida, located in the Tuscawilla PUD, generally west of the intersection of State Road 434 and Vistawilla Drive, fronting SR 434, in Winter Springs, Seminole County, Florida, more particularly described herein ("Property"); and WHEREAS, Developer has authorized Ellianos, LLC (Ellianos Coffee Company) to apply for Final Engineering/Site Plan Approval and Aesthetic Plan Approval in order to construct a drive -through coffee shop within the parking lot of the existing Church 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 September 6, 2023; and WHEREAS, Section 20-29(c) of the City Code requires that all site plans 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- DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 1 of 10 Book 10563 Page 1609 Instrument# 2024003087 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 WHEREAS, the Property described herein is a portion of Parcel 1 C of Tract 15 of the Tuscawilla PUD and is subject to the Settlement Agreement set forth in Ordinance 489 and recorded at Official Records Book 2277, pages 0464 through 0500, Public Records of Seminole County, Florida, as well as that certain Developer's Agreement for Tuscawilla Tract 15 Parcel 1- C, recorded at Official Records Book 3574, Page 0529, Public Records of Seminole County, Florida, and is also within the SR 434 Corridor Overlay District; and WHEREAS, the parties concur that this Development Agreement and the proposed coffee shop should be construed as consistent with the Agreements described above; and WHEREAS, Metro Church of Christ, Inc. purchased the Property in 2005 and filed documents with the Florida Secretary of State evidencing a name change to The Foundry Church, Inc., in 2021; 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 tax parcel identification number 05-21-31-505-0000-0020 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 or its authorized tenant shall, at its expense, design, permit and construct an 800± square -foot drive -through coffee shop and associated parking, landscaping, and drive -through aisles on the Property. The coffee shop 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"). The Developer shall construct the Project in a manner consistent with the approved Final Engineering/Site Plans and Aesthetic Plans that are on file with the City with the following file numbers and consistent with the requirements contained in this Agreement: File No. SP2023-0034 File No. AR2023-00000035 DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 2 of 10 Book 10563 Page 1610 Instrument# 2024003087 For convenience, a copy of the Overall Site Plan is attached hereto and fully incorporated herein by this reference as EXHIBIT `B." Specific conditions of approval for the above -referenced Plans include the following, which are also addressed in the staff report for the Final Engineering/Site Plans and Aesthetic Plans: A. The use of ground -mounted or monument signs shall remain restricted as set forth in the Developer's Agreement for Tuscawilla Tract 15 Parcel 1-C, recorded at Official Records Book 3574, Pages 0532 through 0533, Public Records of Seminole County, Florida. 5.0 Future Permitting. 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. 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. DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 3 of 10 Book 10563 Page 1611 Instrument# 2024003087 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. 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. DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 4 of 10 Book 10563 Page 1612 Instrument# 2024003087 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 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. DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 5 of 10 Book 10563 Page 1613 Instrument# 2024003087 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 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: Anthony A. Garganese, City Attorney Garganese, Weiss, D'Agresta & Salzman, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802 For Developer: Christopher Potts, PE JBPro Gainesville 3530 NW 43`d Street Gainesville, FL 32606 DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 6 of 10 Book 10563 Page 1614 Instrument# 2024003087 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. ATTEST: y: Christian Gowan, City Cleric CITY SEAL �>11TER �. G ?„0A �l1101 IZV t: CITY OF WINTER SPRINGS By: �W. Kevin McCann, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date4thon I By: . Garganese, City Attorney for the City of Winter Springs, Florida DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 7 of 10 Book 10563 Page 1615 Instrument# 2024003087 Signed, sealed and delivered in the presence of the following witnesses: a AA A" SiAAturc of Wt ss r—�,l Printed Name of Witness iv •nat c o rtncss Pnnt4Name of Witness STATE OF F k d f i dG COUNTY OF ncn vlQe- THE FOUNDRY CHURCH, INC. ca QJL'� Print name and title: Met Lsf�E�' Date: The foregoing instrument was acknowledged before me by means of (_,,� physical presence or (_) online notarization, this S day of t , 202-3'; 20Z� by jc l Q24icAS t�I�t{�$the ��j��;��� :p 5 orof the Foundry Church, Inc., a Florida not for profit corporation on behalf of the corporati no who is personally known to me or produced F LE) L� as identification. (NOTARY SEAL) Notary Public Slat* of Florida Chloe Jeudy t My Commission NH 149884 Expires 10/112027 n�-,1-A�� (No Public Stgnatur CV)10e- d udLu (Print Name) Notary Public, State of F (ow'[ CA Commission No.: H H Nt4 q (:�, g t-i My Commission Expires: to j i l ZO VI 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 Metro Church of Christ, Inc. Page 8 of 10 Book 10563 Page 1616 Instrument# 2024003087 EXHIBIT A PROPERTY LEGAL DESCRIPTION Lot 2 of TUSCAWfLLLA TRACT 15, PARCEL 1-C, according to the Plat thereof, as recorded In plat hook 56, Pages 29 through 32, inclusive, of the Pnbilc Records of Seminole County, Florida. TOGFTHRR WITH: Those non-exclusive easements rights for gravity sewer line, lift station and sewer fore a main over and accross Lot 1 of TUSCAWILLA TRACT 15, PARCEL 1-C, according to the Plat thereof:, as recorded In Plat Book 56, Pages 29 through 32, inclusive of the Public Records of Seminole County, Florida, as described in that certain Cross Easement Agreement for TUSCAWILLA TRACT 15, PARCEL 1-C, by and between Robert A. Yeager, individually and as Trustee and ZP No. 56, Limited Partnership, a Morida limited partnership, dated January 13,1999 in Official Records Book 3574, Page 564, as amended in Officia I Records Book 3582, Page 1443 of the Public Records of Seminole County, Florida. DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 9 of 10 Book 10563 Page 1617 Instrument# 202-4003087 EXHIBIT B OVERALL SITE PLAN .7 4 Ion DEVELOPMENT AGREEMENT City of Winter Springs and Metro Church of Christ, Inc. Page 10 of 10 W8 LU U- LL O rL Sr F w Cn z