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HomeMy WebLinkAboutMoss Park Partners LTD (Babyland) Development Agreement - 2023 08 28Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL Inst #2023088839 Book:10512 Page:1608-1616; (9 PAGES) RCD: 9/26/2023 2:35:15 PM REC FEE $78.00 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. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802 DEVELOPMENT AGREEMENT Daycare Conditional Use THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this day of ,1, ;� , 2023, by and between the CITY OF WINTER SPRINGS, a Florida Corporation ("City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and MOSS PARK PARTNERS, LTD., a Florida Limited Partnership ("Developer"), whose mailing address is 200 E. Canton Avenue, Suite 102, Winter Park, Florida 32789. WITNESSETH: WHEREAS, Developer is the owner of approximately 1.15 acres, more or less, of real property located at 126 East S.R. 434, Winter Springs, Florida 32708, generally located northwest of the intersection of East S.R. 434 and Costa Rica Drive, Winter Springs, Seminole County, Florida, more particularly depicted and legally described on Exhibit "A," attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, pursuant to Section 20-234(7) of the City of Winter Springs Code of Ordinances ("City Code"), a conditional use is required for daycare centers; and WHEREAS, Binding Land Use Covenants were executed for the Property on February 15, 2013, recorded at Official Record Book 7982 Page 1851, which restrict the types of uses permitted on the Property, but daycare centers are not among the listed restricted uses; and WHEREAS, the Developer has applied for a conditional use seeking conditional use approval to operate a daycare center on the Property; and WHEREAS, pursuant to Chapter 20 Zoning, Article II, Division 1, Section 20-29.1 of the City Code, a community workshop for the Project was held on July 27, 2023; and DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 1 of 9 Book 10512 Page 1609 Instrument# 2023088839 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 26-20-30-5AR-OD00-0125, and is legally described in Exhibit "A." 4.0 Project Description and Requirements. Developer may, at its expense, design, permit, renovate, and operate a daycare center not to exceed 3,050 square feet at the Property, in the commercial portion of the existing mixed -use development previously approved at a meeting of the City Commission of the City of Winter Springs held on July 23, 2012. Hereinafter the project description and requirements are referred to as the "Project." Specific conditions of approval for the conditional use include the following, which are also addressed in the City's staff report: A. The applicant shall apply for and receive issuance of a Business Tax Receipt from the City of Winter Springs prior to operating. B. The Conditional Use of a Daycare shall be restricted solely to one commercial suite of the subject property, which shall not exceed 3,050 square feet in size. Any further expansion shall require additional approval of a conditional use. 5.0 Future Permitting. 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 or Business Tax Receipt based upon and incorporating the conditional use is issued by the city within such two (2) years. 6.0. Representations of the Parties. The City and Developer hereby each represent and h7�►�/�11C�7�►�i�1�I11I_�f7s����1 City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 2 of 9 Book 10512 Page 1610 Instrument# 2023088839 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 Controlling Law and Venue. 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. 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 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. DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 3 of 9 Book 10512 Page 1611 Instrument# 2023088839 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 Rilzhts. 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 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 4 of 9 Book 10512 Page 1612 Instrument# 2023088839 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. 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 Developer fails to receive building permits or obtain a Business Tax Receipt for the Project within two (2) years of the Effective Date of this Agreement. In accordance with Section 20-36(a) of the City Code, the Developer may apply to the City Commission for a six-month extension of this Agreement, which may be granted upon good cause shown. In addition, if the aforementioned building permit is timely issued, and the building permit subsequently expires and the Project is abandoned or discontinued for a period of six months, the conditional use shall be deemed expired and null and void. 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. 25.0 Force Majeure. 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 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 5 of 9 Book 10512 Page 1613 Instrument# 2023088839 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. I I I N. Orange Avenue, Suite 2000 Orlando, FL 32802 For Developer: Moss Park Partners, Ltd. 200 E. Canton Avenue, Suite 102 Winter Park, Florida 32789 Attn: Paul Missigman Phone: 407-741-8505 Email: P.missigman@atlantichousing.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 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 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. DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 6 of 9 Book 10512 Page 1614 Instrument# 2023088839 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: By: Christian Gowan, City Clerk CITY SEAL til y' OF CO C' CITY OF WINTER SPRINGS Kevin McCann, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: ells t)&3 By: Anthony A. Garganese, City Attorney for the City of Winter Springs, Florida DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 7 of 9 Book 10512 Page 1615 Instrument# 2023088839 Signed, sealed and delivered in the presence of the following witnesses Si ature of Witness Le r ®' s S Printed Name of Witn ss Signature of Witness Printed Name of Witness STATE OF Moss Park Partners, Ltd., a Florida limited partnership By: Moss Park Managers, L.L.C., a Florida limited liability company, its gen partner COUNTY OF The foregoing instrument was acknowledged before me by means of () physical presence or (__) online notarization, this 16 day of ew 2023, byPaAJ Wcivvt", the K aA&eL5er of Moss Park Managers, LLC, a Florida limited liability company, the general partner of Moss Park Partners, Ltd., on behalf of the partnership, who is personally known to me or produced as identification. (NOTARY SEAL) LORI DEE HOLYCROSS MY COMMISSION # HH 338574 EXPIRES: April 6,2027 FR ( ry Public Signature) L -e I`r (Print Name) Notaiy Public, State of a 4, Commission No.: `°7 L-f My Commission Expires: 1k . ( 6 r 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 Moss Park Partners, Ltd. (Babyland Conditional Use) Page 8 of 9 Book 10512 Page 1616 Instrument# 2023088839 EXHIBIT A PROPERTY LEGAL DESCRIPTION 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, PERNORTH ORLANDO AS RECORDED IN PLAT BOOK 12, PAGES 10 AND t l OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; THENCE ALONG THE EAST RIGHT OF WAY OF MOSS ROAD N06055'33"W, A DISTANCE OF 338.05 FEET; THENCE DEPARTING SAID EAST RIGHT OF WAY LINE, RUN NORTH 85005'41" 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 84039155" EAST FOR A DISTANCE OF 260.70 FEET; THENCE RUN SOUTH 65028'03" EAST FOR AD TANCFOF 16.32 FEET; THENCE RIJN NORTH 84°39'55" EAST FOR A DISTANCE OF 10 1. 18 FEET; THENCE RUN SOUTH 05019' 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 84039'40" 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 06055'33" WEST FOR A DISTANCE OF 13 5.5 7 FEET TO THE POINT OF BEGINNING. LESS AND EXCEPT, THAT CERTAIN SITE INFRASTRUCTURE/SUBDIVISION IMPROVEMENTS CURRENTLY LOCATED ON, WITHIN, OR UNDER THE REAL PROPERTY BEING SEPARATELY CONVEYED TO CPG CONSTRUCTION, L.L,L,P., A FLORIDA LIMITED LIABILITY LIMITED PARTNERSHIP, BY BILL OF SALE OF EVEN DATE HEREWITH. DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 9 of 9