HomeMy WebLinkAboutTab 74 JDBS Winter Springs LLC.pdfGrant Maloy Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst#20200i7112 600k:9538 Page:745-755; (11 PAGES) RCD: 2/14/2020 8:06:48 AM
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.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802
(407) 425-9566
DEVELOPMENT AGREEMENT
JDBS Winter Springs, LLC (Wendy's)
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this
day of 2020, by and between the CITY OF WINTER SPRINGS,
a Florida Municipal Corporati ("City"), whose address is 1126 East S.R. 434, Winter Springs,
Florida 32708, and JDBS WINTER SPRINGS, LLC, a Florida Limited Liability Company,
whose address is 10931 N Dale Mabry Hwy, Tampa, Florida 32618-4112.
WITNESSETH:
WHEREAS, Developer is the owner of approximately 0.59 acres, more or less, of real
property located in the Winter Springs Town Center, T5 Transect, generally west of the
intersection of Eagle Edge Lane and SR 434, Winter Springs, Seminole County, Florida, more
particularly described herein ("Property"); and
WHEREAS, Developer has applied for Final Engineering/Site Plan Approval, Aesthetic
Plan Approval, and certain Waivers from the Town Center Code in order to construct a•Wendy's
Restaurant with a drive -through on the 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
December 17, 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
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 1 of 11
Book 9538 Pa a 746
Instrument# 2G20017112
WHEREAS, the Developer has proposed to construct certain public and private
improvements on property that is not currently owned by the Developer, namely that portion of
Sea Hawk Cove known as "Tract D" per the Winter Springs Apartments Replat, Plat Book 82,
Pages 63 through 66; and
WHEREAS, the Developer shall be required to obtain the consent of the adjacent
property owner to construct the certain public and private improvements as described herein and
included as conditions of approval for the Project; 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
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 06-21-31-507-0000-0020 and is legally described in EXHIBIT "A",
attached hereto and fully incorporated herein by this reference ("Property").
4.0 Project Description and Requirements. Developer shall, at its expense,
design, permit and construct a 2,163 square -foot fast food restaurant with a drive -through and
outdoor patio on the Property, located in the City of Winter Springs Town Center. The
restaurant 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, Aesthetic Plans, and Waivers that are on file with the City with the
following file numbers and consistent with the requirements contained in this Agreement:
File No: ZP2019-00000007 - WENDY'S NO. 12660
Specific conditions of approval for the above -referenced Plans and Waivers
include the following, which are also addressed in the staff report for the Final Engineering/Site
Plans, Aesthetic Plans, and Waivers:
A. The Developer (JDBS Winter Springs) shall be required to obtain a
private easement to allow JDBS Winter Springs to plant, install, construct, maintain, and repair
landscaping, vegetation, and parallel parking spaces within the private right-of-way for that
portion of Sea Hawk Cove known as "Tract D" per the Winter Springs Apartments Replat, Plat
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 2 of 11
--r-------- - -- - -
Bock 9538 Page 747
Instrument# 2G20017112
Book 82, Pages 63 through 66, in a width sufficient to accommodate the proposed landscaping,
vegetation and parallel parking spaces as depicted in the Final Engineering Plans.
B. The Developer (JDBS Winter Springs) shall be required to obtain a public
easement in favor of the City of Winter Springs, in a form to be approved by the City Attorney,
to allow for the construction and maintenance of a sidewalk for public pedestrian access and use
within the private right-of-way for that portion of Sea Hawk Cove known as "Tract D" per the
Winter Springs Apartments Replat, Plat Book 82, Pages 63 through 66, in a width sufficient to
accommodate the proposed sidewalk as depicted in the Final Engineering Plans.
C. The Developer (JDBS Winter Springs) shall be required to obtain a public
easement in favor of the City of Winter Springs, in a form to be approved by the City Attorney,
to allow for public parking use of the parallel parking spaces within the private right-of-way for
that portion of Sea Hawk Cove known as "Tract D" per the Winter Springs Apartments Replat,
Plat Book 82, Pages 63 through 66. The Developer shall not be permitted to close the parallel
parking spaces on Sea Hawk Cove to the public, except for the purpose of making necessary
repairs and conducting maintenance and provided five (5) business days' notice is given to the
City. The Developer shall not be permitted to install signage labeling the parallel parking spaces
for Wendy's customer'use only, or for the sole use of any future business's customers.
D. The Developer shall obtain the easements described in Conditions of
Approval A-C prior to obtaining any building permits.
E. The Developer currently owns both the Property and the adjacent parcel,
intended to be a future site of a Chase Bank, which will share a common driveway access. The
common driveway access will be constructed to straddle the Property's western property line.
Therefore, should the Developer ever in the future sell or convey either the Property or the
adjacent parcel, Parcel ID 06-21-31-507-0000-0010, the Developer shall be required to reserve
an ingress and egress easement over the common driveway for the benefit of the remaining
parcel. Should the parties ever mutually desire to terminate said ingress and egress easement
over the common driveway, prior to executing such termination, the Parties shall seek and
receive consent from the City of Winter Springs and obtain an amendment to the site plan.
F. The Developer shall add a decorative railing for safety purposes along the
sidewalk located between the parking lot and the drive -through window.
G. The trees proposed to be planted in the public right-of-way by the
Developer shall be subject to the obligation of ongoing maintenance and replacement for the first
two years following planting, at the Developer's expense. If the City determines, after
reasonable inspection, that any tree has become severely diseased or damaged to the point that
the viability of the tree has been significantly compromised, the Developer shall be required to
replace the tree. In the event that Developer fails to perform the necessary maintenance, repairs
or replacements of any of the trees, the City shall have the right, but not obligation, to conduct
said maintenance, repairs or replacements and recover the actual cost thereof from the
Developer. Prior to exercising that right, the City shall provide the Developer written notice and
an explanation of the specific default and at least thirty (30) days in which to cure the default. If
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 3 of 11
Book 9538 Page 748
Instrument# 2C 20017112
Developer fails to cure the default by the end of the cure period, the City may exercise its rights
to maintain and replace at any time thereafter.
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.
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.
DEVELOPMENT AGREEMENT
City of Winter Springs and 7DBS Winter Springs, LLC.
Page 4 of 11
Book 9538 Pa a 749
Instrument# 2G20017112
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 lmmuni . 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 Ci '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.
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
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 5 of 11.
Book 9538 Page 750
Instrument# 2020017112
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 parry 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.
25.0 Farce Nlaieure. 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 any
unforeseeable or unpredictable event or condition beyond the control of such party, including,
but,not limited 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
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 6 of 11
Book 9538 Page 751
Instrument# 2CY20017112
conditions ("Uncontrollable 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 Uncontrollable 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.
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:
Shawn Boyle, 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:
JDBS WINTER SPRINGS, LLC
10931 N. Dale Mabry Hwy.,
Tampa, FL 33618
Attn: Bryan Schultz
Phone: 813 760-2621
b. schu ltz(i4oce anbl eu group _ ca m
copy to:
Graham Legal Group, PLLC
1000 Legion Place, Suite 1200
3208C E. Colonial Drive, Box 292
Orlando, Florida 32803
Attn: Jesse E. Graham, Jr.
Phone: 407-230-6449
Email: igraharrt@ULiamlegalglp.com
WEN -ACQUISITIONS, LLC
1100 Park Central Blvd. South, Suite 3300
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 7 of 11
Book 9538 Page 752
Instrument# 2020017112
Pompano Beach, FL 33064
Attn: Sauris Lugo / Jhonny Mercado
Phone:561-997-6002
Email: slugo@jaerestgroup.com / 'mercado -aerest u .com
copy to:
Raul Gastesi, Esq.
Gastesi & Associates, P.A.
8105 NW 155t' Street
Miami Lakes, FI.33016
Phone: 305-801-1292
Email: rgastesi@gastesi.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. 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:11-12, Zzlezzl��,0462
C a es Lacey, Ma
ATTEST:
By:
Christian Gowan, Interim City Clerk
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LL"C:_ -_
Page 8 of 11
Book 9538 Page 753
Instrument# 220017112
APPRO VTD AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
CITY SEAL DateOA.Garganese,
By:
City Attorney for
the City of Winter Springs, Florida
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 9 of 11
Boost 9538 Page 754
Instrument# 2C20017112
Signed, sealed and delivered in the
presence of the following witnesses:
Signature of Witness
r3etniw-rd
Printed Name of Witness
Signature of -taws
Printed Name o Witness
STATE OF FLW-,elb
COUNTY OF 2.
Date: I f 131 IZC',70
The foregoing instrument was acknowled ed before me by means of�lphy 'cal resence
or p online notarization, this day of�,eA] A kt , 2020, by, 1��(�� � ��tg� ]j] v
the _.%)')C�%L of_J a jas A4:,51ZLC, a limited liability company, on
behalf of the company, who ' erson y kno to me or produced
as identification.
(NOTARY SEAL)
00n* JOSHUAGHORAOCifS
' MY COMMISSION 0 W 055065
* � E1(P1RE5:.larwary 17, 2Q21
�'EaF °° Sanded Thru Budpe4 WWY SeNIMS
(No lio Signature)
t c)
No Public, State of�.1�1I]
Commission No.: Gi65��� (�
My Commission Expires: 1/
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 JDBS Winter Springs, LLC.
Page 10 of 11
Book 9538 Pacqe 755
Instrument# 2G20017112
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
Wendys 12660-121.8 East State Road 434, Winter Springs, FL
LOT 2, WSTC OCEAN BLEU, ACCORDING TO PLAT THEREOF, RECORDED IN PLAT
BOOK 84, PAGES 37 AND 38, PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA.
CONTAINS 25,677 SQUARE FEET OR 0.590 ACRES MORE OR LESS.
DEVELOPMENT AGREEMENT
City of Winter Springs and JDBS Winter Springs, LLC.
Page 11 of 11
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