HomeMy WebLinkAboutBK Sports Enterprises, Inc (Belle Ave Paintball Conditional Use) Development Agreement 2023 11 16Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst#2023105884 Book:10539 Page:1821-1831; (11 PAGES) RCD: 11/17/2023 3:02:30 PM
REC FEE $95.00
THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony A. Garganese
City Attorney of Whiter Springs
Garganese, Weiss, D'Agresta &
Salzman, P.A.
I I I N. Orange Avenue, Suite 2000
Orlando, FL 32802
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and executed this
/'� day of %��Ytrn(��r , 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 BK SPORTS ENTERPRISES, INC., a Florida Profit Corporation
("Owner"), whose principal address is 1271 Belle Avenue, Winter Springs, Florida 32708.
WITNESSETH:
WHEREAS, Owner is the owner of approximately 1.18 acres, more or less, of real
property located at 1271 Belle Avenue, Winter Springs, Florida 32708, generally located southeast
of the intersection of State Road 434 and Belle Avenue in Winter Springs, Seminole County,
Florida, more particularly depicted and legally described in Exhibit "A," attached hereto and
incorporated herein by this reference (the "Property"); and
WHEREAS, pursuant to Section 20-254(1) of the City of Winter Springs Code of
Ordinances ("City Code"), "amusement and recreational parks and centers (including golf driving
ranges, miniature golf courses, billiard halls, children's play centers, bowling alleys, and similar
uses)," require a conditional use permit in the C-2 (General Commercial) zoning district; and
WHEREAS, Orenthius Grimsley (the "Applicant"), has applied for a conditional use
permit, seeking to add to the amusement activities offered at the Property by incorporating
elements such as barrels, netting, and wooden posts to create obstacles for an outdoor paintball
field, rock climbing wall, batting cages, and money vault machine; and
WHEREAS, the Applicant intends to enter into a lease agreement with the Owner to
provide outdoor amusement at the Property; and
WHEREAS, pursuant to Chapter 20 Zoning, At II, Division 1, Section 20-29.1 of the
City Code, a community workshop for the Project was held on September 6, 2023; and
DEVELOPMENT AGREEMENT
City of Whiter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
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Book 10539 Page 1822
Instrument# 2023105884
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 04-21-30-511-OB00-0010, and is legally described in Exhibit "A."
4.0 Project Description and Requirements. Owner may, at its expense, design, permit,
renovate, and construct, an outdoor amusement center on the Property, consisting of a paintball
field, rock climbing wall, batting cages, and money vault machine. Hereinafter the project
description and requirements are referred to as the "Project."
The Owner 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.
Owner 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. Owner 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 frill 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 BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
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Book 10539 Page 1823
Instrument# 2023105884
4.1 Conditions. Specific conditions of approval for the conditional use include the
following, which are also addressed in the City's staff report:
A. The maximum pressure of paintball guns used on the Property shall be 190 PSI.
B. Paintball ammunition used on the Property shall be non -toxic and biodegradable.
C. The paintball range shall be surrounded on all sides by safety netting extending to
a minimum of 12 feet in height.
D. Safety equipment must be provided to all patrons participating in paintball.
E. The hours of operation for the paintball range shall be Tuesdays through Sundays
from 11:00 a.m. until 8:00 p.m.
F. The operators of the paintball range shall create and implement a security plan to
ensure the safety of patrons.
G. The Project shall be constructed in substantial conformance to the Conceptual
Sketch attached hereto as Exhibit B.
H. The addition of any impervious surface to the Property will be subject to a
stormwater management review and require approval. Further, no additional impervious
surface may be added until compliance with the City of Winter Springs Code Enforcement
Board's Order in Case No. 2022CE000200, recorded in the Official Records of Seminole
County, Book 10431, Page 209, is achieved and satisfaction of liens has occurred according
to City policy.
I. The restaurant on the site is currently closed. To the extent that the restaurant is
reopened in the future, adequate off-street parking shall be required in accordance with
Chapter 9, Article IV, Division 6 of the City Code to accommodate both the restaurant and
the conditional use authorized.
J. The amusement activities approved herein shall be made available to the public by
reservation only and shall not be individually reserved in order to properly control the
number of vehicles present on the property.
5.0 Future Permitting. Owner 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 ''/z) years after the Effective Date of this Agreement unless the
Owner has substantially completed the installation of the Project, which shall include erection of
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, hic. (Belle Avenue Paintball Conditional Use)
Page 3 of I I
Book 10539 Page 1824
Instrument# 2023105884
the paintball field netting and posts and rock wall, within such two and one-half (2 ''/2) years.
6.0 Representations of the Parties. The City and Owner 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 Owner, 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. Owner 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 Owner 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 be governed by the laws of the State
of Florida. Venue for any action in State court shall be in Seminole County, Florida. Venue for
any action in Federal court shall be in Orlando, Forida.
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 Owner 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 frill execution by the Parties, this Agreement shall be recorded in the
Public Records of Seminole County, Florida by the City. The Owner 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 Owner 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
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
Page 4 of 11
Book 10539 Page 1825
Instrument# 2023105884
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. Owner 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 Federal permit,
condition, term or restriction shall not relieve Owner 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 Owner 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
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
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Book 10539 Page 1826
Instrument# 2023105884
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 ding 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 Owner 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 Owner fails to substantially
complete the installation of the Project, which shall include erection of the paintball field netting
and posts and rock wall, within two and one-half (2 1/2) years of the Effective Date of this
Agreement. The Owner 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 Owner 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. Owner shall be solely responsible for designing,
permitting, constructing, operating and maintaining this Project. As such, Owner 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 Owner and Owner'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 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
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
Page 6 of 11
Book 10539 Page 1827
Instrument# 2023105884
reasons of a Force Majeure Event shall be requested solely as provided in this Section. Owner
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 Owner:
BK Sports Enterprises, Inc.
1271 Belle Avenue
Winter Springs, Florida 32708
Attn: Rich Boyd
Phone: (631) 294-7633
Email: Richboyd513@yahoo.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, Owner 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 Owner'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
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
Page 7 of 11
Book 10539 Page 1828
Instrument# 2023105884
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:
Kevin McCann, Mayor
Date: // //, 4-T
ATTEST: -01
By:4Li��—
C •tstian Gowan, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida, only.
By: -
Ant on A. Garganese, City Attorney
Signed, sealed and delivered in the
presence of the following witnesses:
Signature of Witness
Print Name of Witness
ignature o AV i t n e s s
CITY SEAL
BK SPORTS ENTERPRISES, INC.
Date:
DEVELOPMENT AGREEMENT
City of Waiter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
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Book 10539 Page 1829
Instrument# 2023105884
7J51tRTM IA AVvW(VI
Print Name of Witness
STATE OF Cjdr►d, i,
COUNTY OF jCM i nZJ C
The foregoing instrument was acknowledged before me by means of [XI physical presence
or[ ]on] ine nota •ization, this ) ! day of X-10 c nbor , 2023, by
�l Cixt �' D� ' , theme' es ►'d e-n -f o aFlorid t for Profit
Cor oration, on behalf of the corporation, wh ispersona )6.,
own5 Ak produced
Fib- Corporation,
i ver bete nsdts identification.
�Lead-#,vl X �-A),�1�z � l�
OWNER IS HEREBY ADVISED THAT SHOULD OWNER FAIL ��ULLY V
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.
UGBY
E11&�Pubuc, State otOFlor�d4
� Notary
Commissiontt
My comm. expires June iT, 02-
[THEE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
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Book 10539 Page 1830
Instrument# 2023105884
19►:i11] Y II1
Property Legal Description
Lots 1, 2, & 3, Block B, less that portion deed to the State of Florida for state road S-434 in
Official Records Book 1087, Page 132, Johnson's Poultry Farms, according to the Plat Book
6, Page 8, Public Records of Seminole County, Florida.
DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
Page 10 of 11
Book 10539 Page 1831
Instrument# 2023105884
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DEVELOPMENT AGREEMENT
City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use)
Page 11 of 11