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HomeMy WebLinkAboutImpower, Inc Development Agreement - 2023 08 28Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL Inst #2023084501 Book:10505 Page:1904-1913; (10 PAGES) RCD: 9/13/2023 8:42:03 AM 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. 11 I N. Orange Avenue, Suite 2000 Orlando, FL 32802 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this day of , 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 IMPOWER, INC., a Florida Not for Profit Corporation ("Developer"), whose address is 2290 N. Ronald Reagan Blvd, Suite 116, Longwood, Florida 32750. WITNESSETH: WHEREAS, Developer is the owner of approximately 13.61 acres, more or less, of real property located at 580 Old Sanford Oviedo Road, Winter Springs, Florida 32708, generally northwest of the intersection of Wade Street and Old Sanford Oviedo Road, 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 20-261(3) of the City of Winter Springs Code of Ordinances ("City Code"), a conditional use is required for halfway houses, group homes, and similar uses; and WHEREAS, a conditional use was approved for this property in 2007 to allow for the construction of a classroom building at The Grove Counseling Center (now IMPOWER, Inc.); and WHEREAS, the Developer has applied for a conditional use seeking an expansion of the existing mental health counseling facility for the renovation and construction of a 2,500 square foot addition to an of the existing building 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 June 7, 2023; and DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 1 of 10 Book 10505 Page 1905 Instrument# 2023084501 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 34-20-30-5AW-0000-0040, and is legally described in Exhibit "A." 4.0 Project Description and Requirements. Developer may, at its expense, design, permit, renovate, and construct a 2,500 square foot addition to an existing building on the southeast corner of the Property. 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 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. Developer 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. Developer 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 full 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 IMPOWER, Inc. (The Grove Conditional Use) Page 2 of 10 Book 10505 Page 1906 Instrument# 2023084501 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 not increase the number of beds beyond the 48 beds currently licensed by the State of Florida without seeking further approval for an expansion of the Conditional Use. 5.0. Future Permitting. Developer 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 1/2) years after the Effective Date of this Agreement unless the Developer has substantially commenced vertical construction of buildings, which shall at minimum include building foundations, within such two and one-half (2 %2) years. 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 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. DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 3 of 10 Book 10505 Page 1907 Instrument# 2023084501 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. 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 IMPOWER, Inc. (The Grove Conditional Use) Page 4 of 10 Book 10505 Page 1908 Instrument# 2023084501 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, terin 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. 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 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 Developer fails to substantially commence vertical construction of buildings, which shall at minimum include building foundations, within two and one-half (2 '`/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 22.0 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. 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 constricting 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 IMPOWER, Inc. (The Grove Conditional Use) Page 5 of 10 Book 10505 Page 1909 Instrument# 2023084501 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: 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 Developer: IMPOWER, INC. 2290 N. Ronald Reagan Blvd Suite 116 Longwood, Florida 32750 Attn: Phone: Email: DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 6 of 10 Book 10505 Page 1910 Instrument# 2023084501 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. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS CITY SEAL By: aQ� Kevin McCann, Mayor 1 ,• Date: r t- a a4.' Q� � r I) • .,.a a ATTEST: By Christian Gowan, City Cl rk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. /-I By:`( Anthony A. Garganese, City Attorney DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 7 of 10 Book 10505 Page 1911 Instrument# 2023084501 Signed, sealed and delivered in the presence of the following witnesses: gi ure of Witness Print Name of Witness • nature o Witness mc,.ee 7 Print Name of 'Witness IMPOWER, INC. r' int name and title: (r-ey 6- ey Date: %"/ - ��►Y�ii'' NAYELI REYNOSO ,? Notary Public • State of Florida Commission N HH 426514 ov My Comm. Expires Jul 26, 2027 Bonded through National Notary Assn, STATE OF A10 cl COUNTY OF Vic The foregoing instrument was acicnowledge before me by means of [>] physical presence or [ ] online notarization, this day of � , 2023, by Annoy � sl C' , the o IMPOWER, Inc., a Florida Not for Profit wh Corporation, on behalf of t e corporation, o is personally known to me or produced as identification. 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 IMPOWER, Inc. (The Grove Conditional Use) Page 8 of 10 Book 10505 Page 1912 Instrument# 2023084501 EXHIBIT A Property Legal Description Lot 4 and Lot 5, ENTZMINGER FARMS, Addition #2, according to the Plat thereof as recorded in flat Book 5, Page 9, Public Records of Seminole County, Florida, less the west 50 feet of said. Lot 4. RBSBRVXXG Alit7► EXCUMING therefrom, however, a reversionary interest unto Grantor, its successors or assigns, the entire fee simple interest in the event said property shall cease to be utilized for charitable, public purposes with the primary purpose of serving the needs of youth of Seminole County, Florida; also reserving a reversionary interest unto Grantor in the event Grantee, its successors or assigns, shall be unable or unwilling to ,meet lien or mortgage encumbrances against the property or otherwise fail to cure any liens of defaults under such encumbrances. t"ill VING also unto Grantor a reversionary interest of the rice simple interest to said property if it is transferred unto a gay.a ts]ae1tal agent, authority or municipality. DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 9 of 10 Book 10505 Page 1913 Instrument# 2023084501 k EXHIBIT B Conceptual Sketch Sfrl Wk (EXISIMI \L RMWMAW" MON DEVELOPMENT AGREEMENT City of Winter Springs and IMPOWER, Inc. (The Grove Conditional Use) Page 10 of 10