HomeMy WebLinkAboutChau Family Holdings Inc. Second Modification to Develpment Agreement 2024 02 16Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst #2024017461 Book:10585 Page:1848-1858; (11 PAGES) RCD: 2/27/2024 2:57:34 PM
REC FEE $95.00
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
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
Winter Springs Medical Office
THIS SECOND MODIFICATION TO DEVELOPPT AGREEMENT ("Second
Modification") is made and executed this day of h&- .," a 'i" � , 2024, by and
between the CITY OF WINTER SPRINGS, a Florida Municipal Corpor ion ('City"), whose
address is 1126 East S.R. 434, Winter Springs, Florida 32708, a d CHAU FAMILY
HOLDINGS III, LLC, a Florida Limited Liability Company, whose address is 1287 Semoran
Boulevard, Suite 200, Orlando, FL 32807.
WITNESSETH:
WHEREAS, Developer is the owner of approximately 5.15 acres, more or less, of real
property located west of the intersection of Hacienda Drive and SR 434, in Winter Springs,
Seminole County, Florida, zoned C-1 (Neighborhood Commercial) more particularly described
herein ("Property"); and
WHEREAS, Developer previously entered into that certain Development Agreement
dated November 9, 2020, recorded in the Official Records of Seminole County, Book 9768, Page
982 (the "Development Agreement"), and that certain First Modification to Development
Agreement, recorded in the Official Records of Seminole County, Book 10573, Page 1323-1327;
and
WHEREAS, on November 16, 2020, the City approved the Final Engineering/Site Plan,
Aesthetic Plans for the Medical Office, Specimen Tree Removal, and certain Waivers from the
City Code for the First Phase of the Development in order to construct a Medical Office as well
as all associated common infrastructure for the entire development, which at the time included an
anticipated Assisted Living Facility, and Retail building in Phases Two and Three; and
WHEREAS, the Developer has applied for final engineering/site plan approval for the
second phase of the Development, which is now intended to be an independent living facility on
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chau Family Holdings III, LLC
Page 1 of 1 I
Book 10585 Page 1849
Instrument# 2024017461
the portion of the Property previously identified as Development Area 3 in the Development
Agreement; 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
August 13, 2019; and
WHEREAS, Section 20-29(c) of the City Code requires that all 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 Second Modification 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 34-20-30-5AW-0000-048A and is legally described in EXHIBIT "A",
attached hereto and fully incorporated herein by this reference ("Property").
4.0 Updated Proiect Description and Requirements. Developer shall, at its
expense, design, permit and construct an Independent Living Facility, which shall be
approximately 44,559 square feet in size, with 47-units and supporting parking and landscaping.
(Hereinafter the project description and requirements are referred to as the "Phase Two
Project").
The provisions of the Development Agreement shall remain intact and binding except to the
extent that they are modified in this Agreement. The "Overall Master Site Plan attached to the
Development Agreement shall be modified as provided herein, and shall be superseded and
replaced with the "Overall Master Site Plan' attached hereto as EXHIBIT "C" for convenience
and incorporated herein by this reference, which depicts the three "Development Areas": (1)
Development Area 1 (Medical Office, previously constructed), (2) Development Area 2 (Future
Building), and (3) Development Area 3 (Independent Living Facility).
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 2 of I 1
Book 10585 Page 1850
Instrument# 2024017461
The Developer shall construct the Phase Two Project in a manner consistent with the approved
Final Engineering/Site Plans and Aesthetic Plans are on file with the City with the following file
numbers and consistent with the requirements contained in this Agreement:
File No: 2023-0039 Final Engineering/Site Plans,
File No: 2023-0074 Aesthetic Review
Waivers that were previously approved by the City Commission in File No. WA2020-0020 for
the Overall Master Site Plan shall continue to apply.
5.0 Future Permitting, The Developer shall be required to obtain Final
Engineering/Site Plan approval and Aesthetic Review approval for Phase Three, as well as
building permits, as required by the Winter Springs City Code. Future permitting were
established in Section 4.1 of the Development Agreement and remain unchanged.
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. The Developer further agrees and
makes the following representations and warranties to the City:
A. The Developer is lawfully seized of the Property in fee simple and has full and lawful
authority to execute this Agreement and bind the Property as set forth herein.
B. The Property is free and clear of all mortgages and liens.
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.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 3 of 11
Book 10585 Page 1851
Instrument# 2024017461
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).
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.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings I1I, LLC
Page 4 of 11
Book 10585 Page 1852
Instrument# 2024017461
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 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 in accordance with the
timelines established in Section 4.1 of the Development 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.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 5 of 1 I
Book 10585 Page 1853
Instrument# 2024017461
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 Maieure. The "Force Majeure" provisions of the Development Agreement
are stricken and replaced as follows:
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.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chau Family Holdings III, LLC
Page 6 of 11
Book 10585 Page 1854
Instrument# 2024017461
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802
For Developer:
CHAU FAMILY HOLDINGS 111, LLC
Attn: True T. Nguyen
1287 Semoran Boulevard, Suite 200
Orlando, FL 32807
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 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 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
By: 2 sal` 11,E __,
Kevin McCann,, Mayor
Date: -",),//4,/ . t
ATTEST:
By:
Christian Gowan, City Cleric
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 7 of 11
Book 10585 Page 1855
Instrument# 2024017461
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
Date14.Garganese,
By:
ney for
the City of Winter Springs, Florida
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me by means of (A) physical
presence or (__) online notarization, this Wl' day of by Kevin
McCann, Mayor of the City of Winter Springs, Florida, a Florida nicipal corporation, on
behalf of the corporation, who is personally known to me or produced
as identification'.
(NOTARY SEAL)
r"v� %
F; ��'_
®ted
LINSEY D STANFORD
Notary Public . State of Florida
Commission N HH 2O7460
Dec 14, 2025
My Comm. Expires
through National Notary Assn.
Signed, sealed and delivered in the
presence of the following witnesses
Si ture of Witness
�-r_r�M
Printed Name of Witness
STATE OF PI
COUNTY OF ;
(Print Name)
Notary Public, St e of
Commission No.:
My Commission Expires:
CHA AMILY HOLDINGS I, LLC
Print name and title:
Date: Z If
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 8 of I I
Book 10585 Page 1856
Instrument# 2024017461
The foregoing instrument was acknowledged before me by mea s of (�� physical
presence or O online notarization, this I day of r ® 2021,
by S010 LOMthe of Chau Family Holdings 141, LLC, a
limited liability company, on behalf of the company, who is personally known to me or produced
L as idePtification.
(NOTARY SEAL)
NAYEII REYN050
Notary Public • State of Ficr',.
Commission s HH 42651.
My Comm. Excires Jul 26. 202,
r3on�adthroughNatscral NOtar; Ass'
(Notary
(Print Name) 0 Q
Notary Public, State of
Commission No.:
My Commission Expires: 2027
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.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 9ofII
Book 10585 Page 1857
Instrument# 2024017461
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
LEGAL DESCRIPTION - WINTER SPRINGS MEDICAL OFFICE
THAT PART OF LOTS 48 AND 49, ENTZMINGER FARMS ADDITION NO. 2, AS RECORDED IN PLAT BOOK 5,
PAGE 9, PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, DESCRIBED AS FOLLOWS: FROM THE
INTERSECTION OF THE SOUTHERLY RIGHT OF WAY LINE OF STATE ROAD NO. 434 AND THE EASTERLY
RIGHT OF WAY LINE OF MOSS ROAD; RUN SOUTH 88°23'42" EAST ALONG SAID SOUTHERLY RIGHT OF
WAY LINE OF STATE ROAD NO. 434 A DISTANCE OF 999.34 FEET TO THE POINT OF CURVATURE OF A
CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 1330.00 FEET; THENCE RUN EASTERLY ALONG
THE ARC OF SAID CURVE 343.80 FEET THROUGH A CENTRAL ANGLE OF 14°48'38" FOR THE POINT OF
BEGINNING; THENCE CONTINUE EASTERLY ALONG THE ARC OF SAID CURVE 96.35 FEET THROUGH A
CENTRAL ANGLE OF 04°09'03" TO THE POINT OF TANGENCY; THENCE RUN NORTH 72°38'37" EAST
759.88 FEET; THENCE LEAVING SAID SOUTHERLY RIGHT OF WAY LINE OF STATE ROAD NO. 434, RUN
SOUTH 17°21'23" EAST, 21.40 FEET; THENCE NORTH 72°38'37" EAST, 34.00 FEET; THENCE SOUTH
17°21'23" EAST, 173.60 FEET; THENCE SOUTH 32°36'44" EAST, 57.01 FEET; THENCE SOUTH 72°38'37"
WEST 808.88 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE NORTHERLY AND HAVING A
RADIUS OF 1580.00 FEET; THENCE RUN WESTERLY ALONG THE ARC OF SAID CURVE 114.46 FEET
THROUGH A CENTRAL ANGLE OF 04°09'03" TO A POINT; THENCE LEAVING SAID CURVE RUN NORTH
13°12'20" WEST 250.00 FEET TO THE POINT OF BEGINNING.
TOTAL AREA - CONTAINS 224,508 SQUARE FEET OR 5.1539 ACRES MORE OR LESS.
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chan Family Holdings III, LLC
Page 10 of 11
Book 10585 Page 1858
Instrument# 2024017461
EXHIBIT C
OVERALL MASTER SITE PLAN
9
GRAPHIC SCMA
nr FUTURE
0.0 USE
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WD
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SITY
20RN ZONM
CONSTR CTWN PLAN
INDEPENDENT LIATNG FACILITY FEG drFRALL MASTER SITE PLAT'
EAST STATE ROAD 33d Gt7
I, NTERSPRINGS.RORIDA '�. ^-+�•e .", T'•' 'a",' C5A �. �'��� `
SECOND MODIFICATION TO DEVELOPMENT AGREEMENT
City of Winter Springs and Chau Family Holdings III, LLC
Page I I of 11