HomeMy WebLinkAboutTuskawilla Retail Partners II, LLC - 2025 12 18 First Modification to Developmenet Agreement - KW WS Acquisition, LLC (Lot 3 Commercial Development - The Learning Experience)Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst #2025126968 Book:10955 Page:1757-1768; (12 PAGES) RCD: 12/22/2025 12:34:10 PM
REC FEE $103.50
THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony A. Gargancse
City Attorney of Winter Springs
Garganese, Weiss, D'Agresta & Salzman, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802
(407) 425-9566
FIRST MODIFICATION TO DEVELOPMENT AGREEMENT
KW WS ACQUISITION, LLC
(Lot 3 Commercial Development - The Learning Experience)
THIS FIRST MODIFICATION ,,* l O DEVELOPMENT AGREI ENT
("Agreement") is made and executed this day of .20=:_�, 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 KW WS ACQUISITION,
LLC, a Florida Limited Liability Company with its principal address at 2420 Enterprise Road,
Suite 201, Clearwater, FL 33763 ("Developer").
WITNESSETH
WHEREAS, Tuskawilla Retail Partners II, LLC is the fee simple owner of certain real
property located in the City of Winter Springs consisting of 8.11 acres, more or less, located
Southeast of the comer of Michael Blake Boulevard and East State Road 434, as more particularly
described herein (the "Property"); and
WHEREAS, the Property is subject to that certain Development Agreement dated March
10, 2015, and recorded in the Official Records of Seminole County at Official Record Book 8446
Page It 3 1, as modified by the First Modification of Development Agreement dated January 9,
2017, and recorded in the Official Records of Seminole County at Official Record Book 8852 Page
1719 (the "Original Development Agreements"), and the Property remains subject to the Original
Development Agreements; and
WHEREAS, the Property is also subject to that certain Development Agreement dated
August 25, 2025, and recorded in the Official Records of Seminole County at Official Record
Book 10887 Page 649 (the "Development Agreement"), executed in association with the City
DEVELOPMENT AGREEMENT -- FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page l of 12
Book 10955 Page 1758
Instrument# 2025126968
Commission's approval of the Sea Hawk Cove Extension Final Engineering Plans/The Blake
Commons final plat on June 23, 2025; and
WHEREAS, Tuskawilla Retail Partners II, LLC previously received City Commission
approval on June 23, 2025 of the Sea Hawk Cove Extension Final Engineering Plans/The Blake
Commons final plat to commence and construct site clearing and grading activities and the
common infrastructure for the commercial development to be located on the frontage of the
Property, including utilities extensions, stormwater collection facilities, and the extension of Sea
Hawk Cove for access and to further to subdivide the Property into three commercial frontage lots
(Lots 1-3) and a fourth lot intended for future residential development; and
WHEREAS, Developer KW WS Acquisition, LLC is the contract purchaser of Lot 3 of
the Blake Commons final plat; and
WHEREAS, Developer has separately applied for or authorized application for the
Conditional Use Approval, a Final Engineering/Site Plan Approval, Aesthetic Plan Approval, and
Waivers from the City Code to construct The Learning Experience daycare on Lot 3 of the Blake
Commons plat, an approximately 1.02-acre portion of the Property located at the southwestern
corner of the Property (the "Project Area"); and
WHEREAS, the Developer desires to construct The Learning Experience daycare on Lot
3 as one of the individual sites in the commercial development; and
WHEREAS, pursuant to Chapter 20 Zoning, Article II, Division 1, Section 20-29.1 of the
Winter Springs City Code ("City Code"), public hearing notices were mailed to all owners of real
property adjacent to and within approximately five -hundred (500) feet of the subject property and
all Homeowner's Associations on file within the City of Winter Springs on June 10, 2025, and a
Community Workshop for the Project was held on June 18, 2025; and
WHEREAS, Section 20-29(c) of the City Code requires that all conditional uses, site plans
and waivers shall be binding on the use of the subject property and, further, that as a condition of
approval by the City Commission, all development projects requiring a community workshop
pursuant to Section 20-29.1 of the City Code shall be required to be memorialized in a binding
Development Agreement; and
WHEREAS, this Development Agreement shall be recorded against the Project Area (Lot
3) so that the terms and conditions of approval related to the Project shall run with the land; and
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree as follows:
1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference.
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 2 of 12
Book 10955 Page 1759
Instrument# 2025126968
2.0 Authority and Conditions Precedent; Closing and Acquisition by Developer.
This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. The
Parties agree and understand that a condition precedent to this Agreement is acquisition of the
Project Area (Lot 3) by the Developer and the recording of the sale in the Public Records of
Seminole County, Florida. The Parties agree this Agreement will automatically terminate if the
Project Area is not conveyed and transferred to the Developer within one year of execution of this
Agreement by the Parties. As such, Developer shall keep the City fully apprised of the status of
said closing and shall faithfully and expeditiously complete the closing within one year of the
Effective Date of this Agreement.
3.0 The Proiect Area. The real property subject to this Agreement consists of Lot 3
of the Blake Commons plat and is legally described in EXHIBIT "A", attached hereto and fully
incorporated herein by this reference (the "Project Area").
4.0 Proiect Description and Requirements. Developer shall, at its expense,
design, permit and construct an approximately 10,000 square foot daycare facility with outdoor
play area and associated parking at the Project Area.
(Hereinafter the daycare project description and requirements are referred to as the "Project" or
the "Daycare").
The supporting infrastructure for the Project shall be constructed in accordance with the Sea Hawk
Cove Extension/Blake Commons final engineering plans approved by the City Commission on
June 23, 2025, and as approved in the Development Agreement for the Blake Commons in a single
phase and simultaneously with the Daycare.
The Developer shall construct the Project in a manner consistent with the approved Final
Engineering/Site Plans, Aesthetic Plans, Conditional Use and Waivers that are on file with the City
with the following file numbers and consistent with the requirements contained in this Agreement:
File No.: AERV-2025-0004
File No.: CONU-2024-0002
File No.: DVAG-2025-0008
File No.: FEDP-2024-0010
File No.: WAIV-2024-0003
File No.: WAIV-2025-0010
File No.: WAIV-2025-0012
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 3 of 12
Book 10955 Page 1760
Instrument# 2025126968
For convenience, a copy of the Overall Site Plan is attached hereto and fully incorporated herein
by this reference as EXHIBIT "B."
The City and Developer agree that the Winter Springs Comprehensive Plan, Multimodal
Transportation Element, Policy 1.11.3, requires the Developer of the Project to provide one (1)
mobility credit based on the net, new average daily trip generation projected for the Learning
Experience Project. In addition, the City and Developer agree that the Winter Springs
Comprehensive Plan, Multimodal Transportation Element, Policy 1.11.6, requires new
development, regardless of size, to provide operational improvements to the City's transportation
system to mitigate their impacts on the system, to ensure smooth traffic flow, and to aid in the
elimination of hazards, which may include contributions to the City's multimodal system. The
Developer has elected to provide a bicycle parking rack as a multimodal improvement to satisfy
the required mobility credit in accordance with the above -referenced Policies.
Specific conditions of approval for the above -referenced Site/Final Engineering Plans, Aesthetic
Review, Conditional Use, and Waivers include the following, which are also addressed in the staff
report for the Final Engineering/Site Plans, Aesthetic Plans, Conditional Use, and Waivers:
1. Approval of the Project is conditioned upon and contingent upon the approval
of the Sea Hawk Cove Extension/Blake Commons final engineering plans,
which provide for access, utilities, and stormwater drainage to the subject site.
2. Illuminated wall signage located above the entrance to the building and facing
Lot 4 of the Blake Commons plat must be turned off when the Daycare facility
is not open.
3. All grass areas on the Property shall use Bahia grass. No St. Augustine grass
or grass types with low drought tolerance shall be permitted.
4. Approval of the Project is conditioned upon the recordation of the Blake
Commons final plat.
5.0 Future Permitting. Developer shall be required to receive building permits and
substantially commence vertical construction of buildings, which shall at minimum include
building foundations, for the Project on Lot 3 within two (2) years of the Effective Date of this
Agreement. City shall not unreasonably withhold its consent to any building permit application,
provided such applications are consistent with the provisions of this Agreement.
6.0 Representations of the Parties. The City and Developer hereby each represent
and warrant to the other that it has the power and authority to execute, deliver and perform the
terms and provisions of this Agreement and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. This Agreement will, when duly executed
and delivered by the City and Developer, constitute a legal, valid and binding obligation
enforceable against the parties hereto. Upon recording of this Agreement in the Public Records of
Seminole County, Florida, the Agreement shall be a binding obligation upon the Project Area in
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 4 of 12
Book 10955 Page 1761
Instrument# 2025126968
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 Project
Area 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 Project Area, and
shall run with title to the same upon being duly recorded against the Project Area by the City.
8.0 Applicable Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The venue of any litigation arising out of this
Agreement shall be in Seminole County, Florida or, for federal court actions, in the Middle District
of Florida, Orlando Division.
9.0 Amendments. This Agreement shalt not be modified or amended except by written
agreement duly executed by both parties hereto (or their successors or assigns) and approved by
the City Commission.
10.0 Entire Agreement; Exhibits. This Agreement and all attached exhibits hereto
supersede any other agreement, oral or written, regarding the Project Area, except as otherwise
provided herein, 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 and closing on the Project Area
by the Developer, 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 Relationshiv 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 parry 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
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 5 of 12
Book 10955 Page 1762
Instrument# 2025126968
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 and Enforcement. 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. The failure to timely comply
with any mandatory condition of this Agreement shall further constitute a violation of the City's
Code of Ordinances and shall be subject to enforcement action as described therein including, but
not limited to, enforcement before the City's Code Enforcement Board under Chapter 2, Article
III, Division 2. — Code Enforcement.
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, tern or restriction.
Without imposing any limitation on the City's police powers, the City reserves the right to
withhold, suspend or terminate any and all certificates of occupancy for any building, trailer,
structure or unit if Developer is in breach of any term and condition of this Agreement.
22.0 Default. Failure by either party to perform each and every one of its
obligations hereunder shall constitute a default, entitling the non -defaulting party to pursue
whatever remedies are available to it under Florida law or equity including, without limitation,
termination of this Agreement, an action for specific performance, and/or injunctive relief. Prior
DEVELOPMENT AGREEMENT FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 6 of 12
Book 10955 Page 1763
Instrument# 2025126968
to any party filing any action as a result of a default under this Agreement, the non -defaulting party
shall first provide the defaulting party with written notice of said default. Upon receipt of said
notice, the defaulting party shall be provided a thirty (30) day opportunity in which to cure the
default to the reasonable satisfaction of the non -defaulting party prior to filing said action.
23.0 Termination. The City shall have the unconditional right, but not obligation, to
terminate this Agreement, without notice or penalty, if Developer fails to receive building permits
and substantially commence vertical construction of buildings, which shall at minimum include
building foundations, for the Project within two (2) years of the effective date of this Agreement.
The Developer may apply to the City Commission for an extension of this Agreement, which may
be granted upon good cause shown. In addition, the City shall have the right, but not obligation,
to terminate the Agreement if Developer permanently abandons construction of the Project,
provided, however, the City shall first deliver written notice and an opportunity to cure to the
defaulting party as set forth in Section 22 above. If the City terminates this Agreement, the City
shall record a notice of termination against the Property in the public records of Seminole County,
Florida.
24.0 Indemnification and Hold Harmless. Developer shall be solely responsible for
designing, permitting, constructing, operating and maintaining this Project. As such, Developer
hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees
and attorneys from and against all claims, losses, damages, personal injuries (including, but not
limited to, death), or liability (including reasonable attorney's fees and costs through all appellate
proceedings), directly or indirectly arising from, out of, or caused by Developer and Developer's
contractor's and subcontractor's performance of design, permit and construction, and maintenance
activities in furtherance of constructing the Project and maintaining the improvements of this
Project. This indemnification shall survive the termination of this Agreement.
25.0 Force Maieure. The parties agree that in the event that the failure by either party
to accomplish any action required hereunder within a specified time period ("Time Period")
constitutes a default under the terms of this Agreement and, if any such failure is due to acts of
God, acts of government authority (other than the City's own acts), acts of public enemy or war,
riots, civil disturbances, power failure, shortages of labor or materials, injunction or other court
proceedings beyond the control of such party, or severe adverse weather conditions ("Force
Majeure Event"), then, notwithstanding any provision of this Agreement to the contrary, that
failure shall not constitute a default under this Agreement and any Time Period proscribed
hereunder shall be extended by the amount of time that such party was unable to perform solely
due to the Force Majeure Event. The extended Time Period shall be agreed to in writing by the
parties and said agreement shall not be unreasonably withheld by either party. The City Manager
shall have the authority to grant an extended Time Period. An extension of any Time Period for
reasons of a Force Majeure Event shall be requested solely as provided in this Section. Developer
hereby waives and relinquishes the right to notify the City of the intent to exercise the tolling and
extension of any permit related to the Project, including Time Periods under this Agreement,
development orders, and building permits, available under Section 252.363, Florida Statutes, as
the result of a declaration of a state of emergency issued by the Governor for a natural emergency.
DEVELOPMENT AGREEMENT FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 7 of 12
Book 10955 Page 1764
Instrument# 2025126968
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:
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:
KW WS Acquisition, LLC
Attn: Richard Kerper, Manager
2420 Enterprise Road, Suite 201
Clearwater, FL 33763
rk(@kwequit
(727)723-0254
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, which consent shall not be unreasonably withheld, conditioned or delayed.
Such assignment shall require the written approval of the City by amendment to this Agreement,
which shall not require a public hearing and shall not be unreasonably withheld. However,
Developer shall be entitled to assign its rights and obligations under this Agreement to a parent,
subsidiary, or affiliated entity in which Developer or its members are members or interest holders
without City consent, provided that the City is given notice of such assignment in accordance with
Section 26.0 herein. Any assignment authorized by this subparagraph shall require the assignee
to be a formal signatory to this Agreement and fully assume all of Developer's obligations,
commitments, representations, and warranties under this Agreement. In any assignment, the rights
and obligations contained herein shall be binding on successors in interest to the Project Area, and
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 8 of 12
Book 10955 Page 1765
Instrument# 2025126968
the terms and conditions of this Agreement shall bind and inure to the benefit of the parties hereto
and any respective successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date
first above written.
CITY OF WINTER SPRINGS
Kevin McCann, Mayor
ATTEST:
By:
Christian Gowan, City Cler
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
CITY SEAL
Date:
By:
Anthony A. Garganese, City Attorney for
the City of Winter Springs, Florida
DEVELOPMENT AGREEMENT — FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 9 of 12
Book 10955 Page 1766
Instrument# 2025126968
Signed, sealed and delivered in the KW WS
presence of the following witnesses: F190 I
UISITION, LLC, a
Viability company
Print nam . e k
5i ture of Witness k ,�✓
Title:
Printed Namc of Witness
Y-- `AcG _y/Ld STJ
Address of Witness
Signature of Witness "
�1&4 h l,-ern Yd a I f
Printed Name of Witness
-3153 i.a nA track Df-, f* 223
Address of Witness
Cl earyya+e , (:' (- 33 -7(n 1
Date: 12, JJ , 20
The foregoing instrument was acknowledged before me by means of hysical pre se ce or
online notarization, this 1.sl' day of Dec,uA6,4 , 20 , by ,a PiiE
the (Y lwa� g . of KW WS ACQUISITION, LLC, a Florida limited liability compa y,
on behalf of the company, who is personally known to me or produced
as identification.
(NOTARY SEAL)
KATHLEEN WOLO
p Notary Public -State of Florida
•. Commission IF HH 536800
%??r�'��?c` My Commission Expires
August 25, 2028
4&486'v) V
(Notary Public Signa e)
k1ft4h(een t (-F
(Print Name)
Notary Public, State of Oorjja,
Commission No.: (-1 E 1 5a1.8 op
My Commission Expires: - Wag f,2
DEVELOPMENT AGREEMENT - FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 10 of 12
Book 10955 Page 1767
Instrument# 2025126968
EXHIBIT A
PROJECT AREA LEGAL DESCRIPTION
Lot 3, BLAKE COMMONS, according to the map or plat thereof, recorded in the Plat Book 91,
Page 65, Public Records of Seminole County, Florida.
DEVELOPMENT AGREEMENT— FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page I l of 12
Book 10955 Page 1768
Instrument# 2025126968
1, v
EXHIBIT B
OVERALL SITE PLAN
YS4w :: �•
DEVELOPMENT AGREEMENT - FIRST MODIFICATION
City of Winter Springs and KW WS Acquisition, LLC
Page 12 of 12
I'll
as
Q
uuar
i
t� a