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Home My WebLink About2023 10 23 Public Hearing 400 - Paintball at 1271 Belle AvenuePUBLIC HEARINGS AGENDA ITEM 400 CITY COMMISSION AGENDA | OCTOBER 23, 2023 REGULAR MEETING TITLE Paintball at 1271 Belle Avenue SUMMARY The subject property (approximately ±1.18 gross acres in size) is generally bounded to the north by State Road 434, to the east by commercial property, to the south by industrial property and to the west by Belle Avenue. Construction is not proposed for this site. The applicant intends to add items associated with the amusement activities such as obstacle barrels, netting, and wooden posts. The site is intended to be utilized without mass grading, stormwater, or landscaping modifications. The site currently contains a batting cage, building that served as a restaurant, and a stormwater pond. The applicant’s sole intent is to operate outdoor amusement activities on the site through a lease agreement with the property owner. The applicant neither plans nor desires to utilize the existing building. The Conditional Use application is for the sole purpose of providing outdoor amusement onsite. The existence of the batting cage is considered a nonconforming use within the General Commercial District (C-2). Increasing or extended a nonconforming use to occupy a greater area of land than was occupied is not allowed Per Chapter 9, Article XI of the City’s Code. The C-2 zoning district may allow for amusement, per Chapter 20, Article III, Division 8, as a use providing conditional use approval is granted. Therefore, the applicant seeks conditional use approval for amusement within the C-2 zoning district for amusement consisting of a paintball field, rock climbing wall, batting cages, and money vault machine. FUNDING SOURCE N/A RECOMMENDATION Staff recommends that the City Commission hold a Public Hearing for the Conditional Use application request from RJ Sports Enterprises Inc to operate outdoor amusement as a conditional use in the C-2 General Commercial District subject to conditions. 381 PUBLIC HEARINGS AGENDA ITEM CITY COMMISSION Monday, October 23, 2023 | REGULAR MEETING TITLE Paintball at 1271 Belle Avenue – Conditional Use Application SUMMARY The Community Development Department requests that the City Commission hold a Public Hearing to consider the Conditional Use Application for amusement activities in order for the applicant to provide a paintball fleld, rock climbing wall, batting cages, and infiatable money vault machine and associated Development Agreement. General Information Applicant Orenthius Grimsley, RJ Sports Enterprises Inc Property Owner(s) BK Sports Enterprises Inc Location 1271 Belle Avenue, Winter Springs, FL 32708 Tract Size ±1.18 Acres Parcel ID Number 04-21-30-511-0B00-0010 Zoning Designation General Commercial District (C-2) FLUM Designation Commercial Adjacent Land Use North: Neighborhood Commercial District (C-1) Vacant Former Winter Springs Golf Course East: General Commercial District (C-2) Auto Body South: Commerce Center Zoning District (C-C) Commerce Center West: Neighborhood Commercial District (C-1) Pawnshop Principle building setbacks (from property line) Front/principle plane: 25 ft. Rear: 10 ft. (from rear property line) Side: 25 ft. min, N/A (from side property line) Frontage buildout: N/A Development Standards Lot Width: N/A. Lot Depth: N/A. Lot Coverage: 75% max. N/A Development Permits Not applicable Development Agreement Proposed Development Agreement attached 382 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 O C T O B E R 23, 2 0 2 3 | P A G E 2 OF 9 Code Enforcement 2022CE000200 Alteration to the retention pond without permit 2022CE001647 Alteration to the building patio without permit (added post October 05, 2023 Planning & Zoning Board meeting) City Liens Yes; 2022CE000200 and 2022CE001647 (added post October 05, 2023 Planning & Zoning Board meeting) Notices On September 25, 2023 mailers were sent to property owners within 500 feet and a notice of the hearing was posted on the site on September 28, 2023 Background: The Community Development Department received an application from RJ Sports Enterprises Inc for Conditional Use to allow amusement activities on the site to include paintball, rock climbing, batting cages, and a money vault machine. Section 20-254(1) of the City Code provides that “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 zoning district. The subject property (approximately ±1.08 gross acres in size) is generally bounded to the north by State Road 434, to the east by commercial property, to the south by industrial property and to the west by Belle Avenue. Construction is not proposed for this site. The applicant intends to add items associated with the amusement activities such as obstacle barrels, netting, and wooden posts. The site is intended to be utilized without mass grading, stormwater, or landscaping modiflcations. The site currently contains a batting cage, building that served as a restaurant, and a stormwater pond. The applicant’s sole intent is to operate outdoor amusement activities on the site through a lease agreement with the property owner. The applicant neither plans nor desires to utilize the existing building. The Conditional Use application is for the sole purpose of providing outdoor amusement onsite. The existence of the batting cage is considered a nonconforming use within the General Commercial District (C-2) because “amusement activities” requires a conditional use permit. Increasing or extending a nonconforming use to occupy a greater area of land than was occupied is not allowed Per Chapter 9, Article XI. However, the C-2 zoning district may allow for amusement, per Chapter 20, Article III, Division 8, as a use providing conditional use approval is granted. Therefore, the applicant seeks conditional use approval for amusement within the C-2 zoning district for amusement to include both the new proposed amusement uses of paintball, a rock climbing wall, and money vault machine, and to include the existing batting cages. The City Commission shall make a flnal decision on the application, to allow or deny the use within the General Commercial District. Public Notices: 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 on flle with the City Winter Springs (39 notices). 383 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 O C T O B E R 23, 2 0 2 3 | P A G E 3 O F 9 Notices for the September 6, 2023 Community Workshop were proofed for mailing on August 18, 2023. The notice incorrectly advertised the meeting location as 126 E State Road 434 Suite 1600, Winter Springs, FL 32708. The correct address, 1126 E State Road 434, Winter Springs, FL 32708, was posted on the door of the advertised location by staff on the meeting date. No interested parties were present at the advertised address to direct to the correct address. Notices for the October 5, 2023 Planning and Zoning Board and October 23, 2023 City Commission Meetings were proofed for mailing on September 22, 2023. Signage was posted on September 28, 2023. Analysis of Conditional Use (Sec. 20-33) & Final Engineering (Sec. 20-33.1) Criteria: The criteria for Conditional Uses and Final Engineering Plans are identical with one exception (Conditional Uses have one additional criteria). This section provides analysis of both the Conditional Use and Final Engineering criteria. Condition 13 listed below applies to the Conditional Use but not Final Engineering criteria. (a) Site and flnal engineering plans and the subdivision of land shall also be subject to the technical requirements set forth in Chapter 9 of the City Code. It is the intent of this section to apply to applications for site and flnal engineering plans and to any subdivision of land requiring a plat, if applicable, and does not include review and approval of a lot split application. Please see discussion below re garding technical requirements of Chapter 9. (b) Except in situations involving one (1) single-family home, the planning and zoning board shall be required to review all site and flnal engineering plan and subdivision of land applications and make a written recommendation to the city commission. Such recommendation shall include the reasons for the board's recommendation and show the board has considered the applicable criteria set forth in this section. (c) Upon receipt of the planning and zoning board's recommendation, the city commission shall make a flnal decision on the application. If the city commission determines that the planning and zoning board has not made a recommendation on an application within a reasonable period of time, the city commission may, at its discretion, consider an application without the planning and zoning board's recommendation. (d) Except in situations involving one (1) single-family home, all site and flnal engineering plan and subdivision recommendations and flnal decisions shall be based on whether the site and flnal engineering plan and subdivision of land complies with all the technical requirements set forth in chapter 9 of the City Code and the following criteria to the extent applicable: 384 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 O C T O B E R 23, 2 0 2 3 | P A G E 4 OF 9 (1) Whether the applicant has demonstrated the conditional use, 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 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 project proposes adding a paintball fleld setback 100 feet from the northern property line that is along State Road 434 (SR 434). The applicant has demonstrated the proposed use does not affect density, as the proposed use is for outdoor amusement only. The applicant intends to reduce the pressure of paintball guns from 285 psi to at most 190 psi to reduce potential noise level and i njury of players. Paintball ammunition to be utilized on the site will be non-toxic and biodegradable with no adverse impacts anticipated. The paintball playing area is to be contained by netting extending 12 feet in height, and safety equipment will be provided to participants. Hours of operation are proposed to be Tuesdays through Sundays 11:00am to 8:00pm. Originally, the applicant intended to operate by appointment only for the paintball fleld where walk in patrons would be allowed based on availability. The applicant has modifled this as a result of the October 05, 2023 Planning and Zoning Board meeting. Through Exhibit D, the statement dated October 10, 2023, the applicant now intends to allow reservations for the entire venue “mean[ing] that only those who have booked the package will be allowed entry, ensuring ample parking for everyone and creating a controlled environment for […] guests to celebrate their special occasion.” Staff will be present to ensure patrons participate safely. Lastly, the surrounding properties have similarly heavy commercial or industrial uses, such as auto body and used car sales, that is not predicted to impact neighboring areas. (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 conditional use 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: The size and shape of the site, the proposed access and internal circulation, and the design are adequate to accommodate the proposed outdoor amusement use. The lot is 1.18 acres wherein 5,500 square-feet of space will be utilized. The site contains 19 total parking spaces, with only 12 parking spaces included in the applicant’s lease, equipped with two (2) full access driveways with one along SR 434 and the other along Belle Avenue. A pedestrian sidewalk exists along the southern and western portions of the lot that, will allow patrons to walk to the access points of the attractions. Per Chapter 9, Article IV, Division 6, Section 9-277(17), one parking space per 75 percent of the number of employees, plus such additional spaces for patrons and visitors as shall be found by the planning and zoning board to be 385 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 O C T O B E R 23, 2 0 2 3 | P A G E 5 O F 9 necessary, in view of the type of use, its location and other governing factors of parking generation shall be required. Staff believes that the 12 existing parking spaces will be sufflcient for the site. During the October 05, 2023 Planning and Zoning Board meeting, the applicant updated the number of employees to four (4). Therefore, 3 parking spaces shall be dedicated for employees, leaving nine (9) parking spaces for guests. In accordance with Exhibit D, the applicant has agreed that the amusement attractions will be rented only as a package rather than individually so that the amount of vehicles can be controlled. During the Planning and Zoning Board hearing, the applicant testifled that a maximum of 8 to 10 people could be present on the paintball fleld at one time. A condition of approval has been added related to rental of the amusement attractions in their entirety rather than individually. In addition, staff notes that the restaurant located on the property is currently closed. To the extent that the restaurant is reopened in the future, adequate off-street parking in accordance with the City’s parking regulations will be required for both the conditional use and to accommodate the restaurant’s reopening. A condition of approval has been added to memorialize this requirement. (3) Whether the proposed use will have an adverse impact on the local economy, including governmental flscal impact, employment, and property values. Analysis: The development is not expected to have an adverse impact on the local economy, but to add to the local economy by means of activating the site for outdoor amusement/recreation. (4) Whether the proposed use will have an adverse impact on the natural environment, including air, water, and noise pollution, vegetation and wildlife, open space, noxious and desirable vegetation, and fiood hazards. Analysis: The use amusement use proposed for the site does not require construction, does not add permanent impervious surface(s), and is not anticipated, based on the information provided, to emit pollutants into the natural environment. Additionally, the City currently has a noise ordinance that restricts decibels ratings from 60-70 in commercial zones from 10:00 p.m. – 7:00 a.m. per Sec. 13-35. Noise levels are not anticipated to exceed the allowable noise decibels for this use during the restricted hours because the anticipated hours of operation are 11:00am to 8:00pm which are outside of the restricted time slot. (5) Whether the proposed use 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: It is not anticipated that the proposed development will have an adverse impact on any historic, scenic, or cultural resources, including views and vistas, and loss or degradation of cultural and historic resources. 386 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 O C T O B E R 23, 2 0 2 3 | P A G E 6 OF 9 (6) Whether the proposed use 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: The proposed site does not add permanent impervious surfaces, therefore stormwater considerations are not anticipated to be impacted. Based on the submitted site plan, the site is intended to be fully accessible. (7) Whether the 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: The applicant’s site plan and intended use is not anticipated to adversely affect trafflc fiow. Given the minimum anticipated trafflc generation, a trafflc report was not requested from the applicant. (8) Whether the proposed use will have an adverse impact on housing and social conditions, including variety of housing unit types and prices, and neighborhood quality. Analysis: The proposed development is not anticipated to have an adverse impact on housing and social conditions, as the proposed use is that of amusement. (9) Whether the proposed use 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. Analysis: The properties adjacent to the subject site are zoned commercial and industrial. Therefore, the proposed use is not anticipated to emit odors, noise, glares, or vibrations that will adversely impact adjacent properties. (10) Whether the applicant has provided an acceptable security plan for the proposed establishment that addresses the safety and security needs of the establishment and its users and employees and minimizes impacts on the neighborhood, if applicable. Analysis: A security plan was deemed necessary as the site is to be utilized for amusement during the hours of 11:00am to 8:00pm in a conflned area delegated to proposed activities. The applicant’s staff will be present to ensure patrons participate safely within the playing areas. Additionally, the site provides a gated entry that, once access is granted, would allow patrons to walk to the attraction. (11) Whether the applicant has provided an acceptable plan for the mass delivery of merchandise for new large footprint buildings (greater than twenty thousand 387 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 O C T O B E R 23, 2 0 2 3 | P A G E 7 OF 9 (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: Not applicable for the proposed use. (12) Whether the applicant has demonstrated that the conditional use and associated site plan 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 applicant has considered reducing the pressure ratings of paintball ammunition, incorporated netting to contain said ammunition as well as to contain the playing fleld area. (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 is not applicable as the project is commercial in nature. (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: A binding development agreement is attached hereto. Water and Sewer: Water and sewer service are to be provided by management. Stormwater: The proposed amusement conditional use does not add permanent impervious surfaces to the site. The existing onsite stormwater pond is not anticipated to be impacted. Transportation: 388 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 O C T O B E R 23, 2 0 2 3 | P A G E 8 OF 9 The site contains 19 parking spaces with ingress/egress access provided from SR 434 and Belle Avenue. Twelve parking spaces are available onsite parallel to Belle Avenue for patrons of the amusement use, and the applicant intends to coordinate appointments with patrons that will not only mitigate usage of the available attractions, but also onsite parking. Parking Analysis: Twelve of nineteen available parking spaces will be utilized for the amusement use proposed for the site. The applicant is not anticipated to add any buildings to the site. The existing building has been closed for a matter of months and will not be utilized by the applicant. The use is now expected to have 4 employees, requiring 3 parking spaces. The existing batting cages have 7 cages, which at most would necessitate 7 parking spaces. In addition, the available parking spaces will be further mitigated by means of broadening the scope of reservation appointments from the only the paintball fleld to the entire venue. This will allow the owner to further control the number of vehicles on the property for that use. Staff believes this would be equivalent to a rotation of 12 parking spaces in total for the conditional amusement uses on the site. Procedural History: August 23, 2023 Conditional Use Application | CU2023-0036 September 06, 2023 Community Workshop October 05, 2023 Planning & Zoning Board/Local Planning Agency Recommendation on Conditional Uses (Ferrante/Shafer, 5-0) Applicable Law, Public Policy, and Events: City of Winter Springs Comprehensive Plan City of Winter Springs Code of Ordinances Ch20, Sec. 20-33. Conditional Uses. City of Winter Springs Comprehensive Plan. Fiscal Impact: Approval of the conditional use for amusement provides opportunities for activating the subject site. 389 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 O C T O B E R 23, 2 0 2 3 | P A G E 9 OF 9 Staff Recommendation: Staff recommends that the City Commission approve the Conditional Use to allow amusement, subject to the following conditions: 1. Execution of the proposed development agreement. 2. Substantial conformance to the Conceptual Sketch attached hereto as Exhibit B. 3. 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 Offlcial Records of Seminole County, Book 10431, Page 209, is achieved and satisfaction of liens has occurred according to City policy. 4. The maximum pressure of paintball guns used on the Property shall be 190 PSI. 5. Paintball ammunition used on the Property shall be non-toxic and biodegradable. 6. The paintball range shall be surrounded on all sides by safety netting extending to a minimum of 12 feet in height. 7. Safety equipment must be provided to all patrons participating in paintball. 8. The hours of operation for the paintball range shall be Tuesdays through Sundays from 11:00 a.m. until 8:00 p.m. 9. The operators of the paintball range shall create and implement a security plan to ensure the safety of patrons. 10. 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. 11. 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. Attachments: Exhibit A - Application Exhibit B – Conceptual Sketch Exhibit C – Site Plan Exhibit D – Statements Exhibit E – Signatures of Support Exhibit F – Aerial Map and Site Photos Exhibit G – Development Agreement Exhibit H – Public Notices and Addresses Exhibit I – Code Enforcement and Fine Information 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 1 of 11 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 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 BK SPORTS ENTERPRISES, INC., a Florida Profit Corporation (“Owner”), whose principal address is 1271 Belle Avenue, Winter Springs, Florida 32708. W I T N E S S E T H: 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, Article II, Division 1, Section 20-29.1 of the City Code, a community workshop for the Project was held on September 6, 2023; and FOR RECORDING DEPARTMENT USE ONLY 414 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 2 of 11 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 04-21-30-511-0B00-0010, 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 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. 415 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 3 of 11 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 ½) years after the Effective Date of this Agreement unless the Owner has substantially completed the installation of the Project, which shall include erection of 416 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 4 of 11 the paintball field netting and posts and rock wall, within such two and one-half (2 ½) 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 full 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 417 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 5 of 11 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 418 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 6 of 11 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 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 ½) 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 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 419 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 7 of 11 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: 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, 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 420 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 8 of 11 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: _________________________ 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 BK SPORTS ENTERPRISES, INC. presence of the following witnesses: ______________________________ Print name and title: _____________ ____________________ ______________________________ Signature of Witness Date: ____________________ ____________________ Print Name of Witness ____________________ Signature of Witness 421 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 9 of 11 ____________________ Print Name of Witness 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 IMPOWER, Inc., a Florida Not for Profit Corporation, on behalf of the corporation, who is personally known to me or produced _______________ as identification. OWNER IS HEREBY ADVISED THAT SHOULD OWNER 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. [THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 422 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 10 of 11 EXHIBIT A 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. 423 DEVELOPMENT AGREEMENT City of Winter Springs and BK Sports Enterprises, Inc. (Belle Avenue Paintball Conditional Use) Page 11 of 11 EXHIBIT B Conceptual Sketch 424 5949 CHESWOOD CT ORLANDO, FL 32817‐3289 535 SPRING CLUB DR ALTAMONTE SPG, FL 32714‐5911 STE 300 CORAL GABLES, FL 33146‐1832 #22 WINTER SPGS, FL 32708‐5356 400 HOLTEN AVE STATEN ISLAND, NY 10309‐4031 315 S MAPLE AVE SANFORD, FL 32771‐1193 40 SHEOAH BLVD # 26 WINTER SPRINGS, FL 32708‐5327 20 SHEOAH BLVD #15 WINTER SPGS, FL 32708‐5355 2975 BLUFFTON CV OVIEDO, FL 32765‐8436 105 WINDMILL WAY LONGWOOD, FL 32750‐3842 8450 FATHOM DR BALDWINSVILLE, NY 13027‐8901 # 2B COCONUT GROVE, FL 33133‐3504 #104 PALM HARBOR, FL 34685‐6113 1529 SUNSHINE TREE BLVD LONGWOOD, FL 32779‐2752 4430 DORIS DR NEW SMYRNA, FL 32169‐4102 # 2B COCONUT GROVE, FL 33133‐3504 #21 WINTER SPGS, FL 32708‐5356 901 W STATE ROAD 434 WINTER SPGS, FL 32708‐5789 APT 16 WINTER SPGS, FL 32708‐5355 # A‐1 VESTAL, NY 13850‐3575 400 E LAKE MARY BLVD SANFORD, FL 32773‐7125 #25 WINTER SPGS, FL 32708‐5357 1720 LIGHTSEY RD ST AUGUSTINE, FL 32084‐8229 437 PINE HILL RD LEONIA, NJ 07605‐1419 3783 N COUNTY ROAD 426 GENEVA, FL 32732‐9770 #201 WINTER SPGS, FL 32708‐5703 PO BOX 195771 WINTER SPGS, FL 32719‐5771 374 TERRACE DR OVIEDO, FL 32765‐7775 2808 BUTLER BAY DR N WINDERMERE, FL 34786‐6112 #532 APOPKA, FL 32703‐4960 # 11 WINTER SPGS, FL 32708‐5355 10135 WATERVIEW DR OCEAN CITY, MD 21842‐9636 11864 BATELLO LN ORLANDO, FL 32827‐7100 835 W STATE ROAD 434 WINTER SPGS, FL 32708‐2303 349 AGNES ST ORLANDO, FL 32801‐3855 PO BOX 195065 WINTER SPGS, FL 32719‐5065 1271 BELLE AVE WINTER SPGS, FL 32708‐2965 # 2B COCONUT GROVE, FL 33133‐3504 PO BOX 3270 WINDERMERE, FL 34786‐3270 425 426 427 428 429 430 431