HomeMy WebLinkAboutMoss Park Partners, LTD. - Binding Land Use Covenant -2013 MARYANNE MORSE, CLERK OF CIRCUIT COURT
SEMINOLE COUNTY
BK 07982 Pgs 1851 - 1856; (6pgs)
Prepared By and Return To: CLERK' S # 2013032465
RECORDED 03/06/2013 10:34:20 AN
Anthony A. Garganese RECORDING FEES 52.50
City Attorney of Winter Springs RECORDED BY S Maguire
Brown,Garganese,Weiss&D'Agresta, P,A,
PO Box 2873
111 N.Orange Avenue, Suite 2000
Orlando,Florida 32802
(407)425-9566
agarganesea,Orlandolaw,net
BINDING LAND USE COVENANT
THIS BINDING LAND USE COVENANT (the "Agreement") is executed this I5±.
day of February, 2013, by MOSS PARK PARTNERS, LTD., a Florida limited partnership
("Owner"), whose address is 700 West Morse Boulevard, Suite 220, Winter Park, Florida 32789,
CITY OF WINTER SPRINGS, a Florida Municipal Corporation(the "City"), whose address is
1126 East S.R. 434, Winter Springs, Florida 32708.
WITNESSETH:
WHEREAS, Owner is the owner of real property located along State Road 434 within
the City of Winter Springs, Florida as more specifically described herein; and
WHEREAS, Owner filed a development permit application with the City requesting
approval of a mixed use conditional use permit to develop a commercial retail and residential
project on the subject property; and
WHEREAS, on July 23, 2012, the City Commission of Winter Springs approved the
conditional use application subject to several conditions including the condition that the Owner
agree to record a binding covenant against the subject property prohibiting certain C-1 zoning
district uses which were deemed to be incompatible with Owner's proposed mixed use project on
the subject property; and
WHEREAS, Owner voluntarily agrees with the aforementioned condition and desires to
voluntarily impose upon the subject property the binding land use covenant more specifically set
forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants contained herein, Owner and
City agrees as follows:
1. Recitals. The aforementioned recitals are true and correct and incorporated herein as
material terms of this Agreement.
City of Winter Springs
Moss Park Binding Land Use Covenant
1
2. Subject Property. The real property subject to this Agreement is legally described on
EXHIBIT "A," which is attached hereto and fully incorporated herein by this reference
("Property").
3. Restrictive Covenant. The following uses are hereby deemed binding restrictive
land use covenants and are strictly prohibited on the Property: Package stores, animal
hospitals/veterinary clinics, cleaners (except for on-site delivery/pick-up (cleaning required off-
site)), pet shops with on-site animal sales, and tobacco shops with on-site consumption of
products
4. Caution, The headings or captions of the sections and subsections contained in this
Agreement are for convenience and reference only, and do not, in themselves, have any legal
significance and shall not be afforded any.
5. Parties Bound. Following the recordation of this Agreement,the benefits and burdens of
this Agreement shall constitute a binding restrictive land use covenant running with the title to
the Property and all parts and parcels thereof, and this Agreement shall be binding upon and will
inure to the benefit of both the City and Owner, and the assigns and successors in interest to the
Property and all parts and parcels thereof.
6. Severability. If any provision of this Agreement is held to be unlawful by a court of
competent jurisdiction, the unlawful portion shall be deemed separate and distinct, and the same
shall not affect in any respect whatsoever the validity or enforceability of the remainder of the
Agreement. However, if the portion found to be unlawful results in the loss of a material benefit
by the owner as a result of the excising or removal of such unlawful provision, then the owner
may terminate the Agreement.
7. Notices. Any notice delivered shall be in writing and shall be deemed to be delivered
(whether or not actually received) when it is hand delivered to the manager, with respect to
Owner, and to the city manager, with respect to the City, at the respective address stated above;
upon receipt of such notice when deposited in the United States Mail, postage prepaid, certified
mail return receipt requested; or upon receipt of such notice when deposited with Federal
Express or other nationally recognized overnight or next day courier. The parties may amend the
notice address by providing the other with written notice of the same.
8. Entire Agreement. This Agreement constitutes the complete and entire agreement
between the parties with respect to the subject matter hereof and it supercedes all prior
agreements, arrangements or understandings,whether oral or written,regarding the same.
9. Modification. This Agreement may not be amended, changed or modified nor may any
material provisions hereunder be waived, except by a written document of equal dignity signed
by the Owner and the City after approval by the City's City Commission at a public meeting.
10. Effective Date; Term. This Agreement constitutes a mutual covenant running with
the land, and all successive future owners and assigns shall have the same right to invoke and
enforce its provisions as the original signers of this Agreement. This Agreement shall take effect
and be in full force when executed by the Owner and City and recorded in the Official Records
City of Winter Springs
Moss Park Binding Land Use Covenant
2
of Seminole County, Florida. It shall continue in force until such time it is terminated by mutual
agreement of the parties and a written release of this covenant is recorded in the same manner as
this Agreement.
11. Remedies and Enforcement. Owner for itself and on behalf of its successors, heirs,
assigns, legal representatives, lessees and transferees including, without limitation, any owners
and/or users of the Property understands, acknowledges and agrees as follows:
(a) City is an interested party to this Agreement and Owner consents to enforcement
by the City, administratively or at law or equity, of the restrictions, covenants, obligations and
agreements contained herein.
(b) Monetary damages would not be adequate or sufficient to compensate City for a
breach of any of the restrictions, covenants and/or obligations set forth in this Agreement.
Accordingly, in addition to any other remedies available to City administratively, at law or
equity, under this Agreement or otherwise, City may obtain a mandatory and/or prohibitory
injunction compelling Owner or any of its successors, heirs, assigns, legal representatives,
lessees and transferees to specifically perform and observe the restrictions, covenants, and
obligations contained in this Agreement or to remedy any failure on the part of Owner or any of
its successors, heirs, assigns, legal representatives, lessees and transferees including, without
limitation, any owners and/or users of the Property to perform or observe any such restriction,
covenant, obligation or agreement. If the City is successful in bringing an enforcement action
against Owner or any of its successors, heirs, assigns, legal representatives, lessees and
transferees for breach of this Agreement in a court of competent jurisdiction, the City shall be
entitled to reimbursement from Owner of prevailing party attorney's fees and costs.
(c) No right or remedy conferred upon City in this Agreement is intended to be
exclusive of any other right or remedy contained in this Agreement or at law or equity. Every
such right or remedy shall be cumulative and shall be in addition to each other right and remedy
contained in this Agreement or now or hereafter available to City at law, in equity, by statute or
otherwise.
(d) Before any party files any legal action against the other party in a court of
competent jurisdiction to enforce the terms and conditions of this Agreement on the account of a
breach, the non-breaching party shall provide the breaching party with written notice of the
breach and afford the breaching party seven (7) calendar days to cure the breach unless
additional time is granted. Failure to cure the breach within said time period shall constitute a
default of this Agreement entitling the non-breaching party to enforce this Agreement in a court
of competent jurisdiction.
12. Indemnification. Owner for itself and on behalf of its successors, heirs, assigns, legal
representatives, lessees and transferees including, without limitation, any owners and/or users of
the Property agrees that it shall indemnify and save City and its employees, attorneys, agents and
servants (collectively, the"Indemnitees") harmless from and against any and all liabilities, suits,
obligations, fines, damages, penalties, claims, costs, charges and expenses, including, without
limitation, court costs and reasonable attorneys' fees and disbursements, that may be imposed
upon, or incurred by, or asserted against, any of the Indemnitees resulting from the execution and
City of Winter Springs
Moss Park Binding Land Use Covenant
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delivery of this Agreement, the recordation thereof or the failure of Owner or any of its
successors, heirs, assigns, legal representatives, lessees and transferees including, without
limitation, any owners and/or users of the Property to perform or observe any restriction,
covenant, or obligation of this Agreement on its or their part to be performed or observed.
13. Venue; Jurisdiction. This Agreement shall be governed by the laws of Florida. Venue
for any dispute shall be Seminole County, Florida.
IN WITNESS WHEREOF, Owner and City have hereunder set their respective hand
and seal the day and year first above written.
Signed, sealed and delivered in
the presence of: MOSS PARK PARTNERS, LTD.,
a Florida limited partnership
By: Moss Park Managers, L.L. .,
Print Name: a Florida limited liabil' ' company,
TINA Skim-` its general p. riser
iOff A.r _....— V By:
Print Name: i r- aw—, Name: :.,1_�AMR ..
Title: M. s ager
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 144'h day of
, 2013 by -Pc�v.,_\ 00_ , as Manager of Moss Park
Managers, L.L.C., a Florida limited liability compy, as general partner of MOSS PARK
PARTNERS, LTD., a Florida limited partnership, on behalf of the company and partnership, and
who is personally known to me or has produced
as identification.
(914041111P12
CYNTHIA LEE PIURKOSKI ri,
Pri�'� ame:
•*z MY COMMISSION EE217570 Notary Public, State of Florida
EXPIRES July 31,20113
(407}3004 53
Commission No.FlooldoNoimesregscom
My commission expires:
City of Winter Springs
Moss Park Binding Land Use Covenant
4
Signed and ealed in the CITY OF WINTER SPRINGS,
Presenc,- s '. a Florida municipal co ation
' ' -- By.
K 7Z-tni S City Manager
'ri cr. e: ,e o'7 .sTt-1/6)4.3''1
iliA
Print Nam-: .,.,, 1,4.1.r olt'i--
STATE OF FLORIDA
COUNTY OF S8 YI i(1 D le)
The foregoing instrument was acknowledged before me this �5+� day of ill V,t,A. , 2013,by
Kevin L. Smith, as City Manager of the City of Winter Springs, who-is ersona y ':I own o i-
or has produced as identification.
My commission expires: LI 1 1511 g 0
Si atur e of Notary Public
_, , 4 DANIELLE M.HARKER
I.; ,•, . MY COMMISSION II EE 082240
•, ;, b/ 1 LQ N
K e
r
Print Name of Notary Public
Approved as to Form and Sufficiency for
The City of Winter Springs Only:
Anthony A. Garganese, City Attorney
City of Winter Springs
Moss Park Binding Land Use Covenant
5
EXHIBIT"A"
A portion of Section 34, Township 20 South, Range 30 East, Seminole County, Florida being
more particularly described as follows:
COMMENCING at the intersection of the East right of way line of Moss Road and the centerline
of Longwood-Oviedo Road, per North Orlando as recorded in Plat Book 12, Pages 10 and 11 of
the Public Records of Seminole County, Florida; thence along the East right of way of Moss
Road N06°55'33"W, a distance of 338.05 feet; thence departing said East right of way line, run
North 85°05'41" East for a distance of 290.07 feet; thence run South 06°55'33" East for a
distance of 160.27 feet to the POINT OF BEGINNING; thence run North 84°39'55" East for a
distance of 260.70 feet; thence run South 65°28'03" East for a distance of 16.32 feet; thence run
North 84°39'55" East for a distance of 101.18 feet; thence run South 05°19'19" East for a
distance of 127.36 feet to a point on the Northerly right of way of State Road 434; thence run
South 84°39'40" West, along said Northerly right of way line, for a distance of 372.24 feet;
thence departing said Northerly right of way line, run North 06°55'33" West for a distance of
135.57 feet to the POINT OF BEGINNING.
City of Winter Springs
Moss Park Binding Land Use Covenant
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