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HomeMy WebLinkAbout2023 08 28 Public Hearing 400 - Babyland Bilingual AcademyPUBLIC HEARINGS AGENDA ITEM 400 CITY COMMISSION AGENDA | AUGUST 28, 2023 REGULAR MEETING TITLE Babyland Bilingual Academy SUMMARY The proposed Babyland Bilingual Academy will be housed in one of the first floor commercial units of the existing Moss Park Apartments mixed use project that was approved in 2012. Land Use Covenants approved with the project did restrict the permitted uses on the site, but daycares were not restricted. Daycares have previously operated on the site in the same commercial space but have since ceased operation. Changes to the City’s Zoning Ordinance in April 2014 made daycares a Conditional Use rather than a permitted use. Due to this change, any daycare that wished to operate in the space after the ordinance change in April 2014 would require a Conditional Use. Building permits were issued in 2014 for interior build-out of the space to allow for a daycare. A Certificate of Occupancy for the space was issued on December 8, 2014, with the use classified as a daycare; the Certificate of Occupancy listed the capacity of the space at 92 occupants. The indoor space is approximately 3,000 sq. ft. which includes three separate areas for children, two restrooms, a breakroom for staff, and a reception area. There is also a fenced-in outdoor playground area. The number of children allowed will be determined by the Florida Department of Children and Families and is expected to be around 30 at most. Staff received a request for approval of a Business Tax Receipt (BTR) in summer 2022 but had to deny the BTR because there was not an approved Conditional Use for a daycare on the site. Babyland Bilingual Academy is seeking that Conditional Use approval, which would run with the land and therefore allow future daycares, subject to the conditions below and contained in the proposed Development Agreement, to operate on the site without going through the Conditional Use approval process again. Staff is recommending approval of the Conditional Use with conditions as outlined in the staff report. FUNDING SOURCE RECOMMENDATION Staff recommends that the City Commission hold a Public Hearing in order to make a determination regarding the Conditional Use request from Babyland Bilingual Academy to operate a daycare within an existing building in the C-1 Neighborhood 558 Commercial District. 559 PUBLIC HEARINGS AGENDA ITEM CITY COMMISSION Monday, AUGUST 28, 2023 | REGULAR MEETING TITLE Babyland Bilingual Academy – Conditional Use and Development Agreement. SUMMARY The Community Development Department requests that the City Commission hold a Public Hearing to consider the Conditional Use to permit a daycare in an existing building located in the C-1 Neighborhood Commercial District. General Information Applicant Babyland Bilingual Academy LLC Property Owner(s) Moss Park Partners, Ltd. Location 126 E State Road 434 Suite 1600 Tract Size ±1.15 Acres; use is within existing building Parcel ID Number 26-20-30-5AR-0D00-012S Zoning Designation C-1 Neighborhood Commercial District FLUM Designation Commercial Adjacent Land Use North: Apartments East: Sit-down restaurant South: SR 434 West: Bank Principal building setbacks Not applicable: existing building Development Standards Not applicable: existing building Development Permits Mixed Use Development on the site was approved on July 23, 2012. Binding Land Use Covenant restricted some uses from the property, but a daycare was not one of the restricted uses. Building permits for interior build out were issued in 2014 and a Certiflcate of Occupancy was issued for the built-out space as a daycare in December 2014. Development Agreement Development Agreement | Pending (Conditional Use) Code Enforcement Not applicable City Liens Not applicable 560 P U B L I C H E A R I N G S A G E N D A I T E M | M O N D A Y , A U G U S T 28, 2 0 2 3 | P A G E 2 O F 6 Background: The proposed Babyland Bilingual Academy will be housed in one of the flrst fioor commercial units of the existing Moss Park Apartments mixed use project that was approved in 2012. Land Use Covenants approved with the project did restrict the permitted uses on the site, but daycares were not restricted. Daycares have previously operated on the site in the same commercial space but have since ceased operation. Changes to the City’s Zoning Ordinance in April 2014 made daycares a Conditional Use rather than a permitted use. Due to this change, any daycare that wished to operate in the space after the ordinance change in April 2014 would require a Conditional Use. Building permits were issued in 2014 for interior build-out of the space to allow for a daycare. A Certiflcate of Occupancy for the space was issued on December 8, 2014, with the use classifled as a daycare; the Certiflcate of Occupancy listed the capacity of the space at 92 occupants. The indoor space is approximately 3,000 sq. ft. which includes three separate areas for children, two restrooms, a breakroom for staff, and a reception area. There is also a fenced-in outdoor playground area. The number of children allowed will be determined by the Florida Department of Children and Families and is expected to be around 30-35 at most. Staff received a request for approval of a Business Tax Receipt (BTR) in summer 2022 but had to deny the BTR because there was not an approved Conditional Use for a daycare on the site. Babyland Bilingual Academy is seeking that Conditional Use approval, which would run with the land and therefore allow future daycares, subject to the conditions below and contained in the proposed Development Agreement, to operate on the site without going through the Conditional Use approval process again. Public Notices: Public Hearing Notices were mailed to all owners of real property adjacent to and within approximately flve-hundred feet (500) of the subject property and all Homeowner’s Associations within ½ mile (16 notices) on July 7. A Community Workshop was held on July 27, 2023. There were no objections raised at the Community Workshop regarding the proposed use. Analysis of Conditional Use (Sec. 20-33) Criteria: All Conditional Use recommendations and flnal decisions shall be based on the following criteria to the extent applicable: (1) Whether the applicant has demonstrated the site and flnal engineering plan and subdivision of land, including its proposed density, height, scale and intensity, hours of operation, building and lighting design, setbacks, buffers, noise, refuse, odor, particulates, smoke, fumes and other emissions, parking and trafflc-generating characteristics, number of persons anticipated using, residing or working under the 561 P U B L I C H E A R I N G S A G E N D A I T E M | M O N D A Y , A U G U S T 28, 2 0 2 3 | P A G E 3 O F 6 plan, and other off-site impacts, is compatible and harmonious with adjacent land uses, and will not adversely impact land use activities in the immediate vicinity. Analysis: The proposed use will be located within an existing building. The building is part of the larger Moss Park Apartments mixed use development, which was approved in 2012. Accordingly, the density, height, building and lighting design, setbacks, and buffers will remain unchanged from those approved in 2012. The building houses the existing space where daycares have previously operated. The applicant is not proposing to modify the existing square footage or capacity of the space. Staff does not anticipate any issues with noise, refuse, odor, particulates, smoke, fumes, or other emissions. Existing parking areas and ingress -egress will be utilized and the use is not anticipated to cause any problems or have any adverse impact on land uses in the immediate vicinity given that the daycare space will not be expanded beyond the historical use as a daycare. The proposed use will operate from 6:30 a.m. to 6:30 p.m. and will accommodate children from 4 weeks to 5 years old. (2) Whether the applicant has demonstrated the size and shape of the site, the proposed access and internal circulation, and the design enhancements to be adequate to accommodate the proposed density, scale and intensity of the site and flnal engineering plan requested. The site shall be of sufflcient size to accommodate design amenities such as screening, buffers, landscaping, open space, off-street parking, safe and convenient automobile, bicycle, and pedestrian mobility at the site, and other similar site plan improvements needed to mitigate against potential adverse impacts of the proposed use. Analysis: As previously stated, the proposed use will be housed within an existing building on an already developed site. Staff feels that the site is of sufflcient size and does not anticipate any adverse impacts because of the proposed use. Buffers and landscaping were analyzed back when the Moss Park Apartments mixed use project was approved in 2012 and they were deemed appropriate at that time. The indoor space for the daycare is approximately 3,000 sq. ft. and there is also an outdoor playground. The applicant’s lease of the space allocates 12 parking spaces, which is beyond the amount required under the City’s Code for any similar type of use. Parents will come and go throughout the day and must park to pick up or drop off their children and therefore trafflc circulation is not a signiflcant concern. (3) Whether the proposed site and flnal engineering plan and subdivision of land will have an adverse impact on the local economy, including governmental flscal impact, employment, and property values. Analysis: The proposed use will provide an additional daycare option for the community and as such will be a net positive. Additionally, the operation will require 10 total staff, which will result in increased economic activity in the community. (4) Whether the proposed site and flnal engineering plan and subdivision of land will have an adverse impact on the natural environment, including air, water, and 562 P U B L I C H E A R I N G S A G E N D A I T E M | M O N D A Y , A U G U S T 28, 2 0 2 3 | P A G E 4 OF 6 noise pollution, vegetation and wildlife, open space, noxious and desirable vegetation, and fiood hazards. Analysis: The proposed use will be located within an existing building and therefore will not have an adverse impact on the natural environment. (5) Whether the proposed site and flnal engineering plan and subdivision of land will have an adverse impact on historic, scenic, and cultural resources, including views and vistas, and loss or degradation of cultural and historic resources. Analysis: There are no known cultural or historic resources on the site. (6) Whether the proposed site and flnal engineering plan and subdivision of land will have an adverse impact on public services, including water, sewer, stormwater and surface water management, police, flre, parks and recreation, streets, public transportation, marina and waterways, and bicycle and pedestrian facilities. Analysis: All public utilities and facilities are currently in place to service the proposed conditional use. It is not anticipated that the proposed use will create any adverse impact on public services. (7) Whether the site and flnal engineering plan and subdivision of land, and related trafflc report and plan provided by the applicant, details safe and efflcient means of ingress and egress into and out of the neighborhood and adequately addresses the impact of projected trafflc on the immediate neighborhood, trafflc circulation pattern for the neighborhood, and trafflc fiow through immediate intersections and arterials. Analysis: There will be no additional trafflc projected as part of the proposed improvement. Means of ingress and egress for the site or neighborhood will not be altered. The site was approved as a mixed-use development back in 2012 and trafflc impacts were considered at that time. The intersection of Moss Road and SR 434 is a lighted intersection and will handle any increased trafflc fiow as a result of the proposed use. (8) Whether the proposed site and flnal engineering plan and subdivision of land will have an adverse impact on housing and social conditions, including variety of housing unit types and prices, and neighborhood quality. Analysis: The proposed use will be located within an existing building and as such will not have an adverse impact on housing or social conditions. (9) Whether the proposed site and flnal engineering plan and subdivision of land avoids signiflcant adverse odor, emission, noise, glare, and vibration impacts on adjacent and surrounding lands regarding refuse collection, service delivery, parking and loading, signs, lighting, and other sire elements. 563 P U B L I C H E A R I N G S A G E N D A I T E M | M O N D A Y , A U G U S T 28, 2 0 2 3 | P A G E 5 O F 6 Analysis: The proposed use will not produce adverse odor, emissions, noise, glare, or vibrations and will not have an adverse impact on refuse collection, parking and loading, etc. (10) Whether the applicant has provided an acceptable security plan for the proposed establishment to be located on the site and flnal engineering plan and subdivision of land that addresses the safety and security needs of the establishment and its users and employees and minimizes impacts on the neighborhood, if applicable. Analysis: The proposed use will operate from 6:30 a.m. to 6:30 p.m. and will accommodate children from 4 weeks to 5 years old. Staff will always be on-site during operating hours and the building is not open to the public. Daycares are also heavily regulated by the Florida Department of Children and Families. City Staff does not anticipate any concerns regarding safety of the site or the surrounding area. (11) Whether the applicant has provided on the site and flnal engineering plan and subdivision of land an acceptable plan for the mass delivery of merchandise for new large footprint buildings (greater than twenty thousand (20,000) square feet) including the hours of operation for delivery trucks to come into and exit the property and surrounding neighborhood, if applicable. Analysis: This criterion is not applicable. (12) Whether the applicant has demonstrated that the site and flnal engineering plan and subdivision of land have been designed to incorporate mitigative techniques and plans needed to prevent adverse impacts addressed in the criteria stated herein or to adjacent and surrounding uses and properties. Analysis: The proposed use will be located within an existing building. When the Moss Park Apartments mixed use development was approved in 2012, mitigative techniques to reduce and prevent adverse impacts on adjacent and surrounding properties were considered at that time. (13) If the proposed conditional use is a residential use, whether the elementary, middle, and high schools (K-12) that will be initially assigned to the residential project by the school district at the time the city commission considers flnal approval of the conditional use have both sufflcient capacity, are in close proximity to the project so as to make each of the assigned schools accessible and convenient (e.g. walking distance, travel time, private and public transportation, and quality of route environment) to the majority of the school population that will be drawn from the project, and promote and support the integration of future residents of the project into the existing City of Winter Springs community in a sustainable manner. Analysis: This criterion does not apply as the proposed use is a daycare. 564 P U B L I C H E A R I N G S A G E N D A I T E M | M O N D A Y , A U G U S T 28, 2 0 2 3 | P A G E 6 OF 6 (14) Whether the applicant has agreed to execute a binding development agreement required by city to incorporate the terms and conditions of approval deemed necessary by the city commission including, but not limited to, any mitigative techniques and plans required by City Code. Analysis: The applicant has no objection to executing a binding development agreement. Applicable Law, Public Policy, and Events: Florida Statutes 163.2511-163.3246: Growth Policy; County and Municipal Planning; Land Development Regulation (Provides that land development regulations for municipal planning be consistent with the Comprehensive Plan). Home Rule Powers City of Winter Springs Comprehensive Plan City of Winter Springs Code of Ordinances Ch. 20, Sec. 20-33. Conditional Uses. Planning & Zoning Board: The Planning and Zoning Board recommended approval by a 5-0 vote with the recommended conditions below. Staff Recommendation: Staff recommends that the City Commission approve the Conditional Use to allow for the operation of a daycare on the subject property subject to the following conditions: 1. The applicant shall agree to and execute a binding Development Agreement prior to operating a daycare on the subject property. 2. The applicant shall apply for and receive issuance of a Business Tax Receipt from the City of Winter Springs prior to operating. 3. 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. Attachments: Exhibit A – Overall Site Plan (2014) Exhibit B – Detailed Site Plan (2014) Exhibit C – Certiflcate of Occupancy Exhibit D – Conditional Use Application 565 BABYLAND BILINGUAL ACADEMY 566 ABOUT US •Serving the Winter Park and surrounding communities, our school incorporates the most modern technologies in education. Our facility was designed to offer a friendly and welcoming atmosphere, prepared to provide a perfect learning environment for your child. 567 WINTER SPRINGS BRANCH PLAN •Babyland plans to serve Winter Springs and surrounding communities, from Monday through Friday 6:30 am – 6:30 pm. •Approximal building/DCF capacity 30-45 students. •Accepts School Readiness, Voluntary Pre-Kindergarten (VPK), and has a contract with the Food Program to better serve the community. • Spanish and Portuguese are additional languages provided in our curriculum. 568 THE FACILITY Our school has six classrooms, two playgrounds, one computer lab and one cafeteria. Each classroom is equipped with age-appropriate learning curriculum and tools such as projectors, computers and tablets. The outdoor playground is securely planned with up-to- date safety equipment with education in mind. Our computer lab is equipped with computers and tablets which help students to explore, create, connect, and build digital literacy. 569 INFANTS CLASSROOM 570 TODDLERS CLASSROOM 571 PRESCHOOL I CLASSROOM 572 PRESCHOOL II-A CLASSROOM 573 PRESCHOOL II-B CLASSROOM 574 VPK CLASSROOM 575 PLAYGROUND 1 576 PLAYGROUND 2 577 COMPUTER LAB 578 CAFETERIA 579 OUR PROGRAMS FULL-TIME AND PART-TIME HOURS BEFORE AND AFTER SCHOOL PROGRAM BILINGUAL CURRICULUM FREE VPK PART-TIME 580 EXTRACURRICULAR CLASSES BALLET SOCCER BUILDING FAITH PORTUGUESE CLASS 581 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 1 of 9 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 ________________________, 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 MOSS PARK PARTNERS, LTD., a Florida Limited Partnership (“Developer”), whose mailing address is 200 E. Canton Avenue, Suite 102, Winter Park, Florida 32789. W I T N E S S E T H: 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 FOR RECORDING DEPARTMENT USE ONLY 582 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 2 of 9 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-0D00-012S, 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 583 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 3 of 9 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. 584 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 4 of 9 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. 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 585 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 5 of 9 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 586 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 6 of 9 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: Moss Park Partners, Ltd. 200 E. Canton Avenue, Suite 102 Winter Park, Florida 32789 Attn: __________________ Phone: __________________ Email: __________________ 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. 587 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 7 of 9 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: _________________________ Kevin McCann, Mayor Date: __________________________ ATTEST: By: __________________________ Christian Gowan, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. By: ________________________________ Anthony A. Garganese, City Attorney Signed, sealed and delivered in the Moss Park Partners, Ltd. presence of the following witnesses: ______________________________ Print name and title: _____________ ____________________ ______________________________ Signature of Witness Date: ____________________ ____________________ Print Name of Witness ____________________ Signature of Witness ____________________ Print Name of Witness 588 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 8 of 9 STATE OF _________________________ COUNTY OF _______________________ The foregoing instrument was acknowledged before me by means of [ ] physical presence or [ ] online notarization, this day of ______________, 2023, by ___________________, the ________________ of Moss Park Partners, Ltd., a Florida Not Limited Partnership, on behalf of the corporation, who 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. 589 DEVELOPMENT AGREEMENT City of Winter Springs and Moss Park Partners, Ltd. (Babyland Conditional Use) Page 9 of 9 EXHIBIT A PROPERTY LEGAL DESCRIPTION 590 REVISIONSDATE3 5••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••THREE STORYAPARTMENTBUILDING #3THREE STORY MULTI-USE BUILDING14X14BRICK PAVERSSOD10'x10'SANDBOXW/ COVERSODSOD(NIP)FLAGSTONEAREABRIDGESCORE ON 2"CENTERSSINGLE POSTSHADESSINGLE POSTLARGE ROCKPITDIGGING(5) 4' CEDARSHED12'x12' TREX DECK12'x12' PERGOLASITE BUILTCEDAR LOGBENCHCEDAR LOGBENCHINSTALL NEW 6' HIGH ALUMINUM FENCE(6' HIGH)8'x8'IN BETWEEEN COLUMNSINSTALL NEW 4' FENCENEW 5' WIDE GATE(4' HIGH)NEW EXTERIORTO MATCH EXISTINGN EW 5' W IDE G ATECONC.PROPOSED PLAYGROUNDWITH AMENITIES FOREXPLORING AND IMAGINATION(SEE SHT. 4)futrue Irblich School(first floor)4.21.14first editionNO PARKING TO BE INDICATEDWITH SIGNAGE TO ALLOW EASEOF ACCESS TO REAR OF BUILDINGPEDESTRIAN WALK PATH TOREAR OF BUILDING591 REVISIONSDATE4 5--futrue Irblich School(first floor)(6' HIGH)NEW 5' WIDE GATE4.21.14first edition592 FINAL CERTIFICATE OF OCCUPANCY CITY OF WINTER SPRINGS 1126 East State Road 434 Winter Springs, Florida 32708-2799 Permit Number: 201400415 Parcel Number: 2620305AR0D00012S Site Address: 126 E 434 SR 1600 Lot: 012 Zone: C-1 Occupancy Group: DAYCARE Use Classification: DAYCARE (EDUCATIONAL) Construction Type: VA Occupant Load: 92 Sprinkler System: YES Sprinklers Required: YES Parcel Owner: MOSS PARK PARTNERS LTD Owner Address: P O BOX 940279 MAITLAND, FL 32794 The Building Official reserves the right to suspend or revoke a Certificate of Occupancy under this provision of the code whenever the Certificate is issued in error or on the basis of incorrect information supplied or if it is determined by the Building Official that the building is in violation of any ordinance or any provisions of the code. Christy Garred for Joe Crum 12/8/14 JOE CRUM, BUILDING OFFICIAL DATE This Certificate issued pursuant to the requirements of the 2010 Florida Building Code certifying that, at the time of issuance, this structure was in compliance with the various ordinances of the City of Winter Springs regulating building construction or use for the following: 593 594 595 596 597 598 599 600