HomeMy WebLinkAbout2002 02 25 Regular D Gas Station and Convenience Store Development Agreement
COMMISSION AGENDA
ITEM D
CONSENT
INFORMATIONAL
PUBLIC HEARING
REGULAR X
02/25/02
Meeting
MGR.~T
Authorization
REQUEST: City Manager requesting the City Commission to consider approval of a
development agreement with Ava Anthony, Inc. to construct a gas station and
convenience store at the corner of Hayes Road and SR 434 as part of a settlement
agreement with the developer relative to vested rights, including conceptual site
development, building, and landscape plans.
PURPOSE: The purpose of this agenda item is to have the Commission to determine if it
desires to go forward with a development agreement incorporating conceptual site
development, building, and landscape plans as part of a settlement agreement related to vested
rights of the subject property,
NOTE: The development agreement is being completed and will be available no later
than Friday February 22, 2002.
CONSIDERATION: Ava Anthony, Inc, desires to construct a gas station and convenience
store at Hayes Road and SR 434.
On December 10,2001 the City Commission received a report from the City Attorney advising
the Commission of his analysis of the developers claim of vested rights to construct a gas
station and convenience store at Hayes Road and SR 434.
The City Attorney advised that based upon the facts known to date that there are merits for and
against vested rights and suggested that it might be in the best interest of the parties to explore
a settlement agreement.
Based upon the City Attorney analysis the Commission directed the City Manager to work
with the developer to explore a design that might be acceptable to the City and the developer.
On January 28, 2002 the Commission gave conceptual approval to building plans with
comments, directed staff to continue working with the developer, and to bring back to the
Commission landscape plans for Commission consideration,
On February 11, 2002 the City Commission reviewed conceptual site development, building
and landscape plans and directed staff to work with Ava Anthony, Inc. incorporating
conceptual plans and other restrictions for Commission review.
FUNDING: None
RECOMMENDA TION: It is recommended that the Commission review the concept and
landscape plans and if acceptable direct the City Manager and City Attorney to prepare a
development agreement with Ava Anthony, Inc. for presentation at the next Commission
meeting incorporating the Commission comments,
ATTACHMENTS: The development agreement will be available no later than Friday,
February 22, 2002.
COMMISSION ACTION:
EISS P A 407 425 9596,' Feb-21-02 3:11PMj Page 5
Sent By: BROWN,WARD,SALZMAN&W ,..j Pa~e 14
407 423 4485 -> aROWN,WARD.SA~ZMAN&WEI55,PA;
Received: 2/21/02 1 :47PM; 1 lal014
02/21/02 THU 13:38 FA! 1 407 423 4495 LOWNDES DROSDICK
THIS INSTRUMENT WAS PllEPARIID BY
AND SHOULD BE RETURNED TO:
Aaron J. Gorovitz. Esquire
Lowndes, Drosdick. Doster, Kantor & Reed. P.A.
21 S North Eofa Drive
Post Office Box. 2809
Orlando, r:L 32802.2809
(407) 843-4600
';'OR RgCO~I)jNG DEPARTMENT USE ONLY
AGREEMENT
THIS AGREEMENT r'Agreement'j is made this _ day of , 2002,
between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipality ("City"),
whose address is City of Winter Springs City Hall, Attention: Planning Department, 1.126 East
S.R. 434, Winter Sprinis. Florida, 32708 and AVA ANTHONV, INC., a Florida corporation,
("A VA Anthony"), whose:: address is Attention: Kamil Gowni.
RECITALS
1. A VA Anthony is the developer of that certain teal property located in the City of
Winter Springs. Seminole County, Florida, mol'e particularly described as set forth on
Exhibit "An attached hereto and incorporated herein by this reference ("Property'').
2. The Property is located in the Redevelopment Overlay Zoning District
("Redevelopment District'') and is therefore part of the State Road 434 Corridor Vision Plan
pursuant to Chapter 20. Article VI. Division 3 of the W"mter Springs Code of Ordinances
("Code").
3. AVA Anthony desires to develop the east portion of the Property ('ISite") into a
gasoline station and convenience store facility ("Project'').
4. The Adjacent Site is that part of the Property to the west of the Site. At the time
of execution of this Agreement, there is no development plan in place for the Adjacent Site.
5. In 1999, AVA Anthony was issued building pennits by the City to construct a
gasoline station and convenience store and began construction on the Site.
03840!;1/8381 $I)J!l274/v6
5
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-21-02 3:11PM;
Rece1ved: 2/21/02 1~48PM; 1 407 4~~ 44~b .> ~HUWN.WA"Uj~ALLMANaW~~~~J~A;
02/21/02 THU 13:39 FAX 1 407 423 4495 LOWNDES DROSDICK
Page 6
....age 1::;'
~015
6. AVA Anthony dedicated a portion of the Site to the City for constructi.on of a l~
turn-lane on Hayc:s Road via a Public Purpose Warranty Deed recorded on August 17, 1999 in
Official.Records Book 3707. Page 0808 ofthe Public Records of Seminole County.
7. On July 24, 2001 the City passed Ordinance No. 200 1-13. which prohibits the
construction of g8501ine stations within 350 feet of one another ("Ordinance'), Section 7 of the
Or<tinance includes a vested rights clause. One of the primary purposes of the Ordinance, as set
forth in the '''whereas'' clauses of the Ordinance and as described in detail durini the discussions
hetd by the members of the City Commission when it considered and enacted the Ordinance, is
to ensure that the corridors within the City of Winter Springs remain aesthetically pleasing. The
pl.IlpOse is !!2! to favor one business over another business or one property owner over another
property owner or to allow one business to maintain a competitive advantage over another. The
City ftnds that the: Projeot, with the requirements set forth hereinafter in this Agreement would
comport and be consistent with the purpose of the Ordinance to ensure an aesthetically pleasing
development within the City limits.
8. A V A Anthony believes it is entitled to continue development of the Site based
among other things, on a vested rights determination pursuant to the Ordinance and an equitable
estoppel detennination based on common law. as evidenced by the memorandum submitted to
the City by A VA Anthony in October 2001.
9. The City Commission has received the memorandum submitted to the City by
A V A Anthony in October, 2001, and has also received detailed verbal and written input
addressing whether or not the Site is vested for installation of gasoline station improvements by
various members of its profeSSional staff over the course of five City Commission meetings held
during 2001 and 2002, The City Commission has considered all the written and verbal input and
the Commissioners recognize that there is a legitimate question of whether A V A Anthony's
vested rights and equitable estoppel claims are legally valid and would be upheld by a court of
competent jurisdiction. Further, the City Attorney has opined to the City Commission at several
City Commission meetings that there' are valid arguments for and against AVA Anthony's
equitable estoppel and vested rights claims, and that it is difficult to predict whether or not a
cowt of competent jurisdiction will uphold AVA Anthony's claims. A V A Anthony has advised
the City that if the City rejects AVA Antltony's vested ri&hts and equitable estoppel claims and
does not permit construction of the Project OD the Site then AVA Anthon)' will initiate litigation
in order to assert that it has vested rights and equitable estoppel as set forth in its memorandum,
and to compel issuance: of all required permits to construct and occupy and operate the Project.
10_ A VA Anthony and the City negotiated this Agreement in order to avoid the costs
and expenses of litigation over whether A V A Anthony is entitled to develop the Site based on
vested rights and equitable estoppel. and to avoid 1he uncertaitl results of such litigation.
Ll. The City has detennincd. that entering into this Agreement with respect to the Site
is in the best interests of the citi2ens of the City of Winter Springs.
2
0311409113818/S 1 9274N9
02121101
6
Sent By.' BROWN,'NARD,SALZMAN&WEISS,P.A.j 407 425 9596; Feb-21-02 3:12PM; pA Page 7
, 407 423 4495 .> aROWN.WARO.SA~ZMAN&WEISS, _; Page 18
Received: 2/21/02 1 :48PM; , raJ016
02/21/02 THU 13:39 FAX 1 407 423 4495 LOWNDES DROSDICK
12. A V A Anthony and tbe City desire to set forth and memorialize certain
understandings betwcm A V A Anthony and the City and the various conditions, development
standards and other obligations imposed by the City applicable to the proposed development of
the Property.
NOW THEREFORE, in consideration of the above premises, the promises and
provisions contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by both parries, the City and A VA Anthony agree
as follows:
1. IDcorporation of Recitals. The foreaoing recitals shall be and are hereby
incorporated into and made a part of this Agreement.
2. Vested RJtbf$. In accordance with Section 7 of the Ordinance and for purposes
of this Agreement, the City finds the gasoline station might be, but is not necessarily, vested. In
order to avoid the costs Ilnd expenses of litisation and the uncertain results of litigation the
parties are entering into this Agreement prior to the commencement of litigation by A VA
Anthony. The City reserves the right to make an additional and fonnal vested ri,ghts
dete:nnination if this Agreement is terminated as provided hereunder.
3. ~p)"oved Site Use. The City agrees to the USe of the Site for the following uses~
A. Gasoline facilities, which will include:
(i) Five (5) multigrade dispensers, each of which wil1 have two (2)
fueling stations; and
(ii) A lighted canopy, with a clearance of 14 feet and 6 inches over and
above the area which includes the fueling stations.
B. A convenience store building, which will include:
(i) Approximately 3,031 square feet ofretail space; and
(H) A food and coffee counter; and
(Hi) A food and ice cream counter.
C. The Project will include two driveways (one on State Road 434 and the
other on Hayes Road) and other facilities depicted in the Conceptual Plan attached bereto
as Exhibit "Bn and made a part hereof (the "ConceptUal Plan'').
D. At no time in the future will the Project include a drive through car wash.
4. CODcepmal Plan. A V A Anthony and the City agree that if A V A Anthony
develops the site as a gasoline station the Site shall be developed substantially in accordance with
3
038409/8381 BlSl92741v9
0:}J21101
7
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-21-02 3:12PM;
1 407 4~3 4495 -> BROWN,WARD, SALZMAN&WEIBB ,PA;
Rece1ved: 2/21/02 1:49PM; ~
02/21/02 TBU 13:39 FAl 1 407 423 4495 LOWNDES DROSDICK
Page 8/16
Page ,.,
@017
the Conceptual Plan, The parties speeifically acknowledge and agree that the Conceptual Plan
attached hereto lIS Exhibit "B" is a conceptual plan which has not been :finally engineered.
Accordingly, the parties acknowledge that there will be modifications and potential
enhancements to the Conceptual Plan, at the time the final engineering is completed and the
ordinAry site plan and engineering reViews by the City's professional staff are undertaken,
Nevertheless, the parties aaree that the final engineering for the Project will be substantially as
depicted on tht: Conceptual Plan.
S. Arehitectun of Facade. The City hereby approvClS Exhibit "C" attached hereto
and incorporated by this reference, which is an architectural rendering which includes the design,
configuration and material composition of the convenience store building and canopy facades for
the Project. The architecture:: of the Project shall be in substantial conformance with the
rendering attached as Exhibit "C." The parties acknowledge that additional architectural
enhancements might (b~ will not necessarily) be mutually agreed upon during the permitting
processes; AVA Anthony agrees to act reasonably in. consideration of any enhancements.
A V A Anthony and the City agree that, consistent with Exhibit "Clf, the fa~ade of the
Project shall include the following features:
A. A brick: exterior on the convenience store building
B. A brick entry portico on the front of the convenience store building
C. Brick columns at the fueling stations
D. A raised roofline with a tile roof on the convenience store building
E. Recessed brick areas on both sides and on the front of the convenience
store building
F. Decorative planters along the length of the front windows of the
convemence store designed to minimize the "floor to ceiling" look of the front windows,
and
G. A six (6) f001 brick waU, const.n1ctcd of the same material as the
convenience store building, along the rear property line.
6. LandscapiDg_ AVA Anthony hereby agrees to provide and maintain landscaping
and harclscaping on the Site. The landscaping shall be O1aintained in a first class condition. The
City acknowledaes and agrees that the conceptual landscape and hardscape plan for the project is
set fonh in Exhibit .'0", which conceptuallandseape and hardscape plan is acceptable to the
City. The landscaping and hardscaping on the Site shall be in substantial conformance with
Exhibit .'D~'.
Without limiting the foregoing, AVA Anthony and the City agree that the Project shall
include the following features:
4
Ol84091BJ81S/SI92741v9
OU2ll02
8
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb.21.02 3:13PM;
ReC9.1.ved: 2/21/02 1 :49PM; ,1 407 423 44B:li -> eAOWN.WAHO,SALLMAN&WE:ISe,I"A;
02/21/02 THO 13;40 FAI 1 407 423 4495 LOWNDES DROSDICK
Page 9/16
Pag.. 1a
1aI018
A. Landscaping in the cIeoorative planters (i.e., appropriate plant material
and/or annuals) along the front windows of the convenience store as described in
Paragraph 5(1') above.
B. Landscaping along the front and. both sides of the convenience store
building as depicted in Exhibit "0".
C. Decorative planters (filled with appropriate plant materials and/or annuals?
at each fueling station under the canopy as depicted in Exhibit "D."
D.
annuals.
Landscaping along the n:aI' brick wall in the fann of trees, shrubs and
E. Landscaping facing 434 and Hayes Road that includes shrubs, annuals,
planters, and park bench.
F. In addition, although it is not depicted on the Conceptual Plan, the parties
acknowledge that 1hc sign feature at the comer of Hayes Road and S.R. 434 shall be
constructed with brick, and, in addition, there shall be a one foot high brick retaining wall
around the comer. Further, there shall be additional trees and shrubs planted also on SR
434.
7. Landscaping Maintenance. AVA Anthony and the City agree that A V A
Anthony will be required to reasonably maintain the landscaping on the Site at all times in a first
class condition and to promptly replace dead trees and shrnbs, all as required by this Agreement.
Further, A V A Anthony agrees to utili2:l:: a landscaping maintenance service to ensure that the
landscaping on the Site will be maintained in the future.
8. Li~btin~. AVA Anthony and the City agree that all lighting on the Site will be
directed inward towards the Site. so as to minimize or eliminate the effeets of glare on the
adjacent residential property. Canopy liShting on the Site will be recessed to provide maximum
lighted areas for customers while minimizing the effect of the lighting on the adjacent residential
areas. Glate from the canopy lighting onto the adjacent residential property shall be limited to a
maximum spillover ofO.S foot candles.
9, Si~ale. A V A Anthony and the City agree that all signage on the Site will meet
or exceed the standards provided in Section 20-486 of the Code. The monument sign to be:
located at the comer of 434 and Hayes will be constructed of the same brick material used to
consnuct the convenience store building.
10. Adjaeent Site. AVA Anthony and the City agree as follows with regard to the
Adjacent Site which is located to the west of the Property:
A. That at no time in the future will a drive through car wash be constructed
on the Adjacent Site.
5
()3&4091838181~ 1927'fy<)
0112\/02
9
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Feb-21-02 3:13PM;
Rece~ved: 2/21/02 1 ;4Y~M: 1 4ur 1~~ ~4~O -~ ~HVWN~"~HU~~~~~MANQ~~~~~~~A;
02/21/02 THU 13:40 FAl 1 407 423 4495 LOWNDES DROSDICK
Page 10/16
t""oI;ly~ It::I
@019
B. That the landscaping and architecture of the Adjacent Site wiJl be
compatible with the landscaping and architecture of the Site.
C. That a retention pond serving the entire Property will be constructed on
the Adjacent Parcel and maintained by AVA Anthony.
11. Non-Substantial ChanKell. Any non-substantial changes to the Conceptual Plan,
architectural faltade and/or landscaping plans depicted on Exhibits "B:' "C" and <tD" may be
approved by the City Manager. In the event that the City Manager determines that"';! proposed
change is substantial in nature, the change shall require the approval of the City Commission as
an amendment to this Agreement.
12. FiDancial. AVA Anthony agrees to timely pay to the City all fees associated with
the Project, including without limitation building pennit fees and impact fees, The parties
acknowledge that this specifically excludes certain fees and fines imposed in connection with
code violations some ofwbich are disputed and all of which are the subject of an application for
reduction of fUles heretofore filed by A VA Anthony.
13. ConcurreDt)'o The City acknowledges and agrees that it has adequate public
infiastructure capacity to serve all of the proposed development of the Site contemplated by this
Agreement. As a part of this Agreement, the City agrees to encumber and hereby acknowledges
that it has encumbered all public infrastructure capacities necessary to serve all of the proposed
development of the Site contemplated by this Agreement.
14. MUJlicl~aI Services, In connection with the development of the Site, the City
acknowledges that it has the available capacity and is in a position to provide the nec~saJY
municipal services to and for the benefit of the Site to the same extent that the same are provided
by the City to other businesses and properties within the City.
IS. Comprehensive Plan and Lalld Development ReKutations. The City expressly
finds and acknowledges that the clevelopmcnt required and set forth in Exhibits "B~" "C" and
"D" and in this Agreement is consistent with the City's Comprehensive Plan and ghall be
~istent with the City's Land Development Code in all respects.
16. Time is or the Essence. Time is hereby declared of the essence to the lawful
performance of the duties and obligations contained in this Agreement.
17. Authority. Each party hereto represents and warrants to the other that it has all
necessary power and authority to enter into, perform and consummate the terms of this
Agreement and that all acts, approvals, procedures and similar matters required in order to
authori2e the execution and delivery of this Agreement have been taken, obtained or followed, as
the case may be. and that upon the execution of this Agreement by both parties, this Agreement
shall be valid and bindi.n8 upon the parties hereto and their respectiv~ successol"S in interest OT
assigns. The individual executing this Agreement on behalf of A V A Anthony represents that he
has the authority to bin.d A V A Anthony and the Property to the terms and conditions hereof.
6
0384091&3118/5192741\19
02I2/J(l1
10
WEISS P A 407 425 9596; Feb-21 -02 3:13PM; _ Page 11/16
Sent By: BROWN,WARD,SALZMAN& ,.. j "+U, "+;0:'" ....,",Q .~ ~HV"'''.'Y''''HLJ.''A'''.LMAI'l''''VVt::'''''''.'''''A. t"'Qge;,:u
HeceJ..VOQ: ;.!/.n /U;.!, 1 'bU,",Mi 1 1aI020
02/21/02 THV 13:41 FAX 1 407 423 4495 LOWNDES DROSDICK
18. Brea.~h. In the event of a breach of this Agreement by either party hereto, the
other party hereto shall have all rights and remedies provided by law, including the right to seek
specific perfonnance of ~is Agreement. In the event of a breach of this Agreement by A VA
Anthony, after thirty (30) days of notice and opportunity to cure (or up to ninety (90) days jf
more time is r~onably required), the City retains the right to record a lien against the Property
and foreclose on the Property, provided that such right shall be subordinate only to institution~l
financing. In the event litiaation is brought by either party to enforce the provisions of this
Agreement, the prevailing party in such litigation shall be entitled, in addition to any other award
made by the court, to an award of its reasonable attorneys' fees and costs incurred in connection
therewith, at all trial and appeUate levels.
19. Anlendme.!!!. This ABTeement may be amended 01: terminated only by a written
instrument executed by the parties hereto or by their respective successors in interest or assigns. .
20, RecordinK. This Agreement shall be recorded by the City, at AVA Anthony's
expense, among the Publio Records of Seminole County, Florida. Notwithstanding anything to
the COJ1trary set forth herein, the recordation of this Asreement shall not constitute or impose any
liel) upon the title in the properties comprising the Property and shaJl instead only constitute
record notice of governmental regulations which govern the development and use of such
properties.
21. Development. After the effective date of this Agreement, AVA Anthony may
submit and prosecute with the City applications for engineerini approvals and development,
building and o<;cupancy pcnnitS and approvals consistent with the terms and conditions of this
Agreement AVA Anthony shall have the right to terminate this Agreement WltiJ such time final
engineering and construction plans are approved by the City Commission. and all necessary
building and development and occupancy pennits for the Project are issued.
Notwithstanding anything in this Agreement to the contrary, m the event A V A Anthony
determines not to construct a project which includes a gasoline station on the Site then A V A
Anthony shall have the unilateral right to terminate this Agreement. Thereafter, A V A Anthony
shall be entitled to develop the Property as if this Agreement had not been entered into.
Further, ifin the future AVA Anthony detennines to construct a project which includes a
gasoline station but there is not then another gasoline station within an air line distance of
350 feet (as described in the Ordinance), then if A V A Anthony has not commenced construction
of the buildings or gasoline station facilities pUl'SU&nt to this Agreement, then A V A Anthony
shall have the unilateral right to terminate this Agreement. There~) AVA Anthony shall be
entitled to develop the Property as if this Agreement had not been entered into.
22. SoverelllllJQmuaity. Nothing contained in this Agreement shall be constroed as
a waiver of the City's right 10 sovereign immunity under Section 168.28. Florida Statutes, or any
other limitation on the City's potential liability under state or ~era11aw.
7
03 &40918381815192 74N9
02f21IOZ
11
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Feb-21-02 3:14PMj
407 423 4495 -> BROWN,WARD.SA~ZMAN&WEr~~.PA;
Aece~ved: 2/21/02 1 :5DPM; 1
02/21/02 THU 13:41 FAX 1 407 423 4495 LOWNDES DROSDICK
Page 12/16
Page 21
~021
23. City's Police Power. AVA Anthony acJcnowledges and agrees 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.
24. Interpretation. The parties to this Agreement acknowledge and agree that all
parties have participated equally in the drafting of this Agr~ent, and no party shall be favored
or disfavored regarding interpretation of this Agreement in the event of a dispute between the
parties.
25, Permits, The failure of this Agreement to address any Partioular, city, eoUttt)',
state and federal pennit, condition. tenn or restriction shall not relieve AVA Anthony or the City
of the necessity of complying With the law governing said permitting req~ments, conditions,
term or restriction.
26. Third Party Rights. This Development Agreement is not a third party
beneficiary contract) and shall not in an)' way whatsoever create any rights on behalf of any third
party, except however, the rights and obligations hereunder run with and benefit the Property, as
provided below in paragraph 29,
27. Foree Majenre. The parties agree that in the event that the failure by either party
to accomplish any action requited hereunder Within a specified time period ("Time Period')
constitutes a default under the terms of this Agreement and, if any such failure is due to any
unforeseeable or unpredictable evept or condition beyond the control of such party, including,
but not limited to, acts of God. acts of government authority (other than the City's own acts), acts
of public enemy or war, riots, civil disturbances, power failure, shortages or labor OT materia13,
injunction or other court proceedings beyond, the control of such party, or severe adverse weather
conditions ("Uncontrollable Event''). then notwithstanding any provision of this Agreement to
the contrary, that failure shall not constitute a default under this Agreement and any Time Period
proscribed herewlder shall be extended by the amount of time that such party was unable to
perfonn solely due to the Uncontrollable Event.
28. Severability. If any provisions of chis Agreement are held to be illegal or invalid,
the other provisions of this Agreement shall remain in full fore and effect,
29. Successors and Assiena. This Agreement and the tenns and conditions hereof
shall be bindina upon and mute to the benefit of the City mid A V A An.thony and their respecti"e
successo~s in interest and assigns and shall be binding Upon the Property and shall run with the
title to the Property.
30. Mil!lceUaneoWl. A V A Anthony and the City agree that as a. condition to the City
issuing building pennits for the Project to A V A Anthony, AVA Anthony will reimburse
Antoinette Jardin for her cost to construct a fence between her property ilIld the Site, not to
exceed $1,000.00.
03~9f831111lJ5J!I274N9
02121102
8
12
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Feb-21-02 3:14PM;
Rece1ved: 2/21/02 1 :50PM. 1 407 42a 44a6 -> BRaWN.WAHU.~A~~MAN&W~~~~,~A;
02/21/02 THO 13:41 FAX 1 407 423 4495 LOWNDES DROSDICK
Page 13/16
~1lII'-lO <<<<
~022
IN WITNESS WHEREOF) the parties hereto have each CIlUSed these presents to be
executed by its undersigned officer thereunto duty authorized as of the day and year first above
wrinen.
Signed., scaled and delivered in the
presence of the following witnesses:
CITY OF WlNTER SPRINGS,
FLORIDA, a Florida municipality
By:
Name:
Its:
Signature Dr WilnCSS
PrintfI)'pe Name o(Witness
Signatllre of WI mess
"CITY"
PrintrI'ype Nam~ ofWiln~s
A V A Anthony In~., a Florida corporation
SignaNl'e ofWitne$$
By:
Name:
Its:
PrintIType Name ofWilneSs
"A V A ANTHONY"
Sipature ofWitnesl
PrintlType Name of Witness
9
038409/83118/5 192 741v9
02121102
13
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Feb-21 -02 3:14PMj
Rece1ved: 2/21/02 , :~lPM; 1 4U' 4~~ 44~D -~ ~MUWNtWA~UJ~ALLMANaWe~~~.~A;
02/21/02 TBlT 13:42 FAX 1 401 423 4495 LOWNDES DROSDICK
Page 14/16
...age :.!:3
~023
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me this _ day of , 2002,
by , as of the City of Winter Springs,
Florida, a Florida municipality. on behalf of said municipality. He/she is personally known to
me or has produced as identification.
Printed Name:
Notary Public-State of Florida
Commission No.
My Commission Expires:
(NOTARIAL SEAL)
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me this _ day of . 2002,
by Kamil Gowni, as President of AVA Anthony. Inc., a Florida corporation, on behalf of said
corporation. He/she is personally known to me or has produced
as idcntifi~tion.
Printed Name:
Notary Public-State ofJilorida
Commission No.
My Commission Expires:
(NOTARIAL SEAL)
10
038409183111BlSI9214M
02121/02
14
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Feb-21-02 3:15PM; Page 15/16
Received: 2/21/02 1 :5'~M. 1 4U( 1-C!r.:t q..q.I:f~ ...,:1" IitHVVV......l''1AMU.~'''LLr.vo\l~ClI.''''c....~w,r'''j rt:Ayt1 c'"t'
02/21/02 TBU 13:42 FAX 1 ~07 423 4495 LOwNDES DR~SDICK ~024
ExmBIT A
(Legal Description of Property)
11
0384091831118/S I 92741v9
02l.W02
15
Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.;
407 425 9596;
Feb-21-02 3:15PM;
Page 16/16
DEAN, MEAD, EGE:RTON, BLOODWORTH, CAPOUANO & BOZARTH, P. A.
ATTOl'lNE'I'S "'NO COU Nl,;t;.LORS A,T LAW
P. O. BOX l,346
QRI "NOO. FLI,)A'I~A, 3zec;:.~.Jool\.
800 NOAT /"'f MAONOL..... AV(N\.tC
SUITE. I:!oOO
0...:1.....,,.,.00, "'LOFUO,A. )!El03
1407') 641 .,eoo
~A)( '4071 ....~:I. IEl..)1
WRITER'S E-MAIL ADDRESS
MUlA V11T@UcANML::AU.COM
www.dc~nmC3d.com
WRITER'S UIRECT nTi\L
(407) 428-513'1
foebruary 21, 2002
Anthony Garganese, Esquire
Brown Ward Salzman &. Weiss
Two Landmark Center
225 East Robinson Street, Suite 660
Orlando, Florida 3280 I
Via Hand Delivery
Re: Ava Anthony, Jne. - Proposed Gas Station/Convenience StOTI:
Location: Hayes Road and State Road 434
Dear Anthony:
Per our earlier discussions, please take notice that the Law Firm of Deall, Mead, Egl:rton,
Bloodworth, Capouano & Bozarth, P.A. represents Cumberland Fanns, Inc. regarding the above-
referenced matter. It is my understanding that as the City attorney for the City of Winter Springs, you
may recommend that the City Commission enter into development agreement with Ava Anthony, lnc
("Ava") which would allow Ava to build a gas station on it~ property despit.e the fact that Ordillltm.:c
No.2001-13 prohibits the construction of a new gas station within 350 feet of an existing gas station.
While Cumherland Farms dc.c;ircs to be a goo~ corpomte citizen of Winter Springs, it is
Cumberland Farms intontion to appeill uny development agreement and take whatever legal action is
necessary to ensure that the City's proximity ordinance is fully enforced. Our initial analysis oftlle facts
and circumstances surrounding Ava's desire to construct a gas station indicates that their ability to
prevail on a vested rights claim is tenuous. We believe that if the City enforces its ordinance and denies
a development order, Ava will be able to sell or develop its property in a manner acceptable to the City
lUld that it wiH be able to pay its code violation fines.
Please infonn the City Commission of Cumberland Farm's intention to support. the enforcement
of Ordinance No. 2001-13. Please do Dot hesitate to contact me should you have any questions regarding
this matter.
.:::p~~
Mark R. Leavitt
MRllhv
cc: Maureen Dickson
Ronald Sides
Ron Grabarek
Robert PeUigrini, Esquire
(1:\11 TIMRL\JIr\Gurguncsc:-2 - :/0-02. wpd
IHII.'J.:JJJ
DEAN
MEAD
I" 'n..., ...lIt-o:t
DiAN. MLAU, MINTON &. KLE:l....
,,. Cl:l'Cv"l:l~ l.:o.n~ fp
O['AN. MFAO. &,[L....(x)CL ~ Gcx.r.U........N
r-,e.. "1!!.."~UU.'."'I,..e '7700
16
6. AVA Anthony dedicated a portion of the Site to the City for construction of a left
turn-lane on Hayes Road via a Public Purpose Warranty Deed recorded on August 17, 1999 in
Official Records Book 3707, Page 0808 of the Public Records of Seminole County.
7. On July 24, 2001 the City passed Ordinance No. 2001-13, which prohibits the
construction of gasoline stations within 350 feet of one another ("Ordinance"). Section 7 of the
Ordinance includes a vested rights clause. One of the primary purposes of the Ordinance, as set
forth in the "whereas" clauses of the Ordinance and as described in detail during the discussions
held by the members .of the City C.ommissi.on when it c.onsidered and enacted the Ordinance, is
to ensure that the c.orridors within the City .of Winter Springs remain aesthetically pleasing. The
purpose is n.ot t.o fav.or .one business .over an.other business .or .one property owner .over an.other
pr.operty .owner or t.o all.ow .one business t.o maintain a c.ompetitive advantage .over an.other. The
City finds that the Project, with the requirements set f.orth hereinafter in this Agreement would
c.omp.ort and be c.onsistent with the purp.ose .of the Ordinance t.o ensure an aesthetically pleasing
development within the City limits.
8. A V A Anthony believes it is entitled t.o c.ontinue devel.opment .of the Site based
among other things, on a vested rights determinati.on pursuant t.o the Ordinance and an equitable
est.oppel determinati.on based .on c.omm.on law, as evidenced by the mem.orandum submitted t.o
the City by AVA Anthony in October 2001.
9. The City C.ommissi.on has received the mem.orandum submitted t.o the City by
A V A Anthony in October, 2001, and has also received detailed verbal and written input
addressing whether .or n.ot the Site is vested far installation .of gasoline station improvements by
vari.ous members .of its pr.ofessional staff .over the c.ourse .of five City Commissi.on meetings held
during 2001 and 2002. The City C.ommission has considered all the written and verbal input1 and
the C.ommissi.oners rec.ognize that there is a legitimate questi.on .of whether A V A Anthony's
vested rights aad eq'litahle eEt9flflel claims are legally valid and w.ould be upheld by a c.ourt .of
competent jurisdicti.on. Further, the City Attorney has .opined t.o the City C.ommissi.on at several
City C.ommissi.on meetings that there are valid arguments far and against A V A Anth.ony's
eql,1itable eEt9ppel and vested rights claims, and that it is difficult t.o predict whether or n.ot a
c.ourt .of c.ompetent jurisdicti.on will uph.old A V A Anth.ony's claims. A V A Anth.ony has advised
the City that if the City rejects A V A Anthony's vested rights :u~d eql,1itahle eEtGpp€1 claims and
does not permit construction of the Project on the Site then A V A Anthony will initiate 'litigation
in .order t.o assert that it has vested rights and equitable est.oppel as set f.orth in its memorandum,
and to compel issuance of all required permits to construct and occupy and operate the Project.
10. A V A Anth.ony and the City neg.otiated this Agreement in order t.o av.oid the casts
and expenses of litigati.on .over whether A V A Anth.ony is entitled to develop the Site based on
vested rights and eql,1itahle eEt9flflel, and t.o av.oid the uncertain results .of such litigati.on.
11. Furthermore, based on the memorandum described above (and recognizing
certain factual errors set out in the memorandum), and based on input from its
professional staff and the public at various City Commission meetings, the City finds that it
is equitably estoppel from halting completion of the Project on the Site and therefore the
City is required to issue permits and A V A Anthony is entitled to complete construction of
the Pro.iect on the Site.
3
038409/83818/519274/v 1 0
02/25/02
12. The City has determined that entering into this Agreement with respect to the Site
is in tllebest interests of the citizens of the City of Winter Springs. The City further
acknowled~es that entering into this A~reement is an exercise of its discretionary power
based on the totality of the circumstances and the advice of counsel.
13~. A V A Anthony and the City desire to set forth and memorialize certain
understandings between A V A Anthony and the City and the various conditions, development
standards and other obligations imposed by the City applicable to the proposed development of .
the Property.
NOW THEREFORE, In consideration of the above premIses, the promIses and
provisions contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by both parties, the City and A V A Anthony agree
as follows:
1. Incorporation of Recitals. The foregoing recitals shall be and are hereby
incorporated into and made a part of this Agreement.
2. Vested Ri~hts. In accordance with Section 7 of the Ordinance and for purposes
of this Agreement, the City finds the gasoline station might be, but is not necessarily, vested. In
order to avoid the costs and expenses of litigation and the uncertain results of litigation the
parties are entering into this Agreement prior to the commencement of litigation by A V A
Anthony. The City reserves the right to make an additional and formal vested rights
determination if this Agreement is terminated as provided hereunder.
3. Approved Site Use. The City agrees to the use of the Site for the following uses:
A. Gasoline facilities, which will include:
(i) Five (5) multigrade dispensers, each of which will have two (2)
fueling stations; and
(ii) A lighted canopy, with a clearance of 14 feet and 6 inches over and
above the area which includes the fueling stations.
B. A convenience store building, which will include:
(i) Approximately 3,031 square feet of retail space; and
(ii) A food and coffee counter; and
(iii) A food and ice cream counter.
C. The Project will include two driveways (one on State Road 434 and the
other on Hayes Road) and other facilities depicted in the Conceptual Plan attached hereto
as Exhibit "B" and made a part hereof (the "Conceptual Plan").
D. At no time in the future will the Project include a drive through car wash.
4
038409/83818/519274/vI0
02/25/02
C. That a retention pond serving the entire Property will be constructed on
the Adjacent Parcel and maintained by A VA Anthony.
11. Non-Substantial Changes. Any non-substantial changes to the Conceptual Plan,
architectural fayade and/or landscaping plans depicted on Exhibits "B," "C" and "D" may be
approved by the City Manager. In the event that the City Manager determines that a proposed
change is substantial in nature, the change shall require the approval of the City Commission as
an amendment to this Agreement.
12. Financial. A V A Anthony agrees to timely pay to the City all fees associated with
the Project, including without limitation building permit fees and impact fees. The parties
acknowledge that this specifically excludes certain fees and fines imposed in connection with
code violations some of which are disputed and all of which are the subject of an application for
reduction of fines heretofore filed by AVA Anthony.
13. Concurrency. The City acknowledges and agrees that it has adequate public
infrastructure capacity to serve all of the proposed development of the Site contemplated by this
Agreement. As a part of this Agreement, the City agrees to encumber and hereby acknowledges
that it has encumbered all public infrastructure capacities necessary to serve all of the proposed
development of the Site contemplated by this Agreement.
14. Municipal Services. In connection with the development of the Site, the City
acknowledges that it has the available capacity and is in a position to provide the necessary
municipal services to and for the benefit of the Site to the same extent that the same are provided
by the City to other businesses and properties within the City.
15. Comprehensive Plan and Land Development Regulations. The City expressly
finds and acknowledges that the developinent required and set forth in Exhibits "B," "C" and
"D" and in this Agreement is consistent with the City's Comprehensive Plan and shall be
consistent with the City's Land Development Code in all respects.
16. Time is of the Essence. Time is hereby declared of the essence to the lawful
performance of the duties and obligations contained in this Agreement.
17. Authority. Each party hereto represents and warrants to the other that it has all
necessary power and authority to enter into, perform and consummate the terms of this
Agreement and that all acts, approvals, procedures and similar matters required in order to
authorize the execution and delivery of this Agreement have been taken, obtained or followed, as
the case may be, and that upon the execution of this Agreement by both parties, this Agreement
shall be valid and binding upon the parties hereto and their respective successors in interest or
assigns. The individual executing this Agreement on behalf of A V A Anthony represents that he
has the authority to bind A V A Anthony and the Property to the terms and conditions hereof.
18. Breach. In the event of a breach of this Agreement by either party hereto, the
other party hereto shall have all rights and remedies provided by law, including (without
limitation) the right to seek specific performance of this Agreement, mandamus and injunctive
relief. In the event of a material breach of this Agreement by A V A Anthony, after thIrty (30)
7
038409/83818/519274/vlO
02/25/02
..
days of notice and opportunity to cure (or up to ninety (90) days if more time is reasonably
required), the City ret:iiaE shall have the ri~ht to impose fines a~ainst the owner of fee simple
title to the Site in an amount not to exceed $250 per day. If the fines are not paid within
thirty (30) days after they are due, then the City shall have the nght to record a hen agamst
the Property and toreclose on the Property, proVIded that such right shall be subordinate only to
institutional financing. In the event litigation is brought by either party to enforce the provisions
of this Agreement, the prevailing party in such litigation shall be entitled, in addition to any other
award made by the court, to an award of its reasonable attorneys' fees and costs incurred in
connection therewith, at all trial and appellate levels.
19. Amendment. This Agreement may be amended or terminated only by a written
instrument executed by the parties hereto or by their respective successors in interest or assigns.
20. Recordin~. This Agreement shall be recorded by the City, at A V A Anthony's
expense, among the Public Records of Seminole County, Florida. Notwithstanding anything to
the contrary set forth herein, the recordation of this Agreement shall not constitute or impose any
lien upon the title in the properties comprising the Property and shall instead only constitute
record notice of governmental regulations which govern the development and use of such
properties.
21. Development. After the effective date of this Agreement, A V A Anthony may
submit and prosecute with the City applications for engineering approvals and development,
building and occupancy permits and approvals consistent with the terms and conditions of this
Agreement. A V A Anthony shall have the right to terminate this Agreement until such time final
engineering and construction plans are approved by the City Commission, and all necessary
building and development and occupancy permits for the Project are issued.
Notwithstandin~ anything in this A~reement to the contrary, includin~ without
limitation para~raph 11 above, so lon~ as the existin~ ~asoline station facility located
within 350 feet of the Site is open for the ~asoline business, A V A Anthony shall only
develop ~asoline facilities on the Site strictly in compliance with the terms and conditions of
this A~reement.
Notwithstanding anything in this Agreement to the contrary, in the event A V A Anthony
determines not to construct a project which includes a gasoline station on the Site then A V A
Anthony shall have the unilateral right to terminate this Agreement. Thereafter, A V A Anthony
shall be entitled to develop the Property as if this Agreement had not been entered into.
Further, if in the future A V A Anthony determines to construct a project which includes a
gasoline station but there is not then another gasoline station within an air line distance of
350 feet (as described in the Ordinance), then if AVA Anthony has not commenced construction
of the buildings or gasoline station facilities pursuant to this Agreement, ~ A V A Anthony
shall have the unilateral right to terminate this Agreement. Thereafter, A V A Anthony shall be
entitled to develop the Property as if this Agreement had not been entered into.
8
038409/83818/519274/vl0
02/25/02
31. Settlement. The parties acknowledge that this Agreement has been entered
into forsettlement purposes and shall be inadmissible in the event of litigation of the
vesting and/or equitable estoppel issue described above.
IN WITNESS WHEREOF, the parties hereto have each caused these presents to be
executed by its undersigned officer thereunto duly authorized as of the day and year first above
written.
Signed, sealed and delivered in the
presence of the following witnesses:
CITY OF WINTER SPRINGS,
FLORIDA, a Florida municipality
Signature of Witness
By:
Name:
Its:
Print/Type Name of Witness
Signature of Witness
"CITY"
Print/Type Name of Witness
A VA Anthony Inc., a Florida corporation
By:
Name:
Its:
Signature of Witness
Print/Type Name of Witness
"AVA ANTHONY"
Signature of Witness
Print/Type Name of Witness
10
038409/83818/5 I 9274/v 1 0
02/25/02
I-
""
L&J
E
0-
M
o
...
....
rij
...
0'
0'
I
M
I
N
CI
:-
~
w
""
~
lD
./
CI
:-
.g
./
C)
o
,..
.....
i.\~"~. I. ~
.':;}\~ ~.
./~:.' ..
,," .
. .
-.
.,
RAISED
CONCRETE
SIDEWALK
r.
RECOVERE
1" PIPE
CONCRE~
APRON: t=
--
~HA1J:..
PAVEMENT
L
~
CONCRETE
-
--
--
J
~
ONE-STORY
CONCRETE BLOCK
FINISH FLOOR
ELEV = 39.00
..
;'1_. .:v..:
;.,
d
CO
ROUGH PAVEMENT
'.
,
--
--
--
--
--
--
---
---
--
-
~
r=
9:~
~ ~
~ 0
in 0)
d ....
Q)
...
-
---
---
--
I
)(
I
I
Joe
I
~ I
.
", >C
N I
..
....
S" I
,....
.-
z I
I
I
><
I
--
...
6. SOliD YELLOW STRIPE
6" YELLOW SKIP STIPE
;-
~
..
LONGWOOD - OVIEDO ROAD (S.R. 434)
EXISTING 5' CONCRETE SIDEWALK
REMOVE CONCRETE DR~VE APRON ANp
CONSTRUCT 2' CURB & GUTTER & 5 SIDEWALK
GRASS PARKWAY RECONSTRUCT EXISTING CURB INLET
... TO A TYPE .'V PER mOT INDEX 221
CONSTRUCT CURB INL REFER TO SHT. 3
TYPE P5 PER INDEX 211
(REFER TO SHT. 3)
..
37'
REMOVE 87 LF OF EXISTING
2' CONCRETE CURB & GUTTER
AND 68 LF OF SIDEWALK
183.35'
PROPOSED 10'
UTILITY EASEMENT in
~ -r;TAI
MONUMENT
SIGN
--
'R8..5'
;."...,,>
.l
,
I,
\
\
EDGE Of' ASPHALT
AREA PAVING'
15 IF 4. DOUBLE
YElLOW STRIPING
.,
..
'-,
~
~ b
~ 0
~ c:i
c( co
Cl. N
~
;i
~ . j
..........
~...... .
FUTURE RETAIL
"" ....
"'~~'"
.','\
.,'
I
STORE
30.0' BUILDING SETBACK UN
~
~I
~.
~I
....
z
~
~
I,
W><
· I ~CX)
",
NI~
.. 0)
N:#)
~I
(/)/
RECOVERED
4"X4" CONCRETE
MONUMENT
LOT 11
30.00'
)(
..,. .
. ,'.
\~ )~~~
N 72-38'37- E
MilL AND RE-STRIPE CENTER TURN LANE
PER FOOT INDEX 17346, SCHEME 1
..
..
6. DOUBLE YEllOW STRIPE
...
J-
..
2.... WHITE STRIPE
-€
,
75' TRANSITION
~
50' TURN STORAGE
REMOVE CONRETE DRIVE APRON
AND CONSTRUCT 2' CURB & GUTlER
AH~ 5' CONCREn: S10EW~GRASS PARKWAY
~ J
,c ';
.
S 54.07'23---:r!
23.94'
CISTlNG 5' SIDEWALK
~. -I
LOT 30
473.41
290.07'
N
...
-
15.0' BUILDING SETBACK LINE
me: DAiA:
SITE ADDRE:SS:
............
'~
. I
: I
d
:.l.
--
I
1 9.65'
.26.92'
--
--
--
--
--
-.....
--
...
DRY DETENTION
POND
RASS/PARKWA Y
I
.,.
/
'b
o
d
N
(TYP
. 'U811C
. PAY
/PHONES
COIN-OPERA TE
VACUUM ON 6"
CONCRETE PAD WI
FILLED PIPE BOLLARD
COIN-OPERATE
AIR/WA TER ON 6"
CONCRETE PAD WI
fillED PIPE BOLLARD
~
------
'. 3.5". .
. .' .0. :.. :.o'.:~. .. . .... . ~ "0. . .. . '.
. "~.. .....:...co -.: ..': - :,. '.. ....It . .' ... .'..... ....
o' .' . "'.' . . J .... . "0".... . 00...
. .
-...
0"99 ",3' ..=1".=1'
".=1"5 ~~O~
ft ~ j 380..L8 I
u .'~ ~ N08A3HO
s~i G380d08d ..1
...) I ) i 1'8
.:~ '0'0 ~O'O ~~ ___
/
"
CONSTRUCT
CON ETE APRON
20'
25'
33.55'
______ '- :YJ.~LO"
~
~
ElX:r- OLASP iAL T
AREA PI~G
R20
OVE 59 LF OF EXISTING
, CONclETE CURB & GUTTER
D 44/LF OF SIDEWALK
T HAl/DICAP SIDEWALK
ER F[f)T INDEX 515
DE OF CURB
....c~......
-
--
20.35'
UMPSrER -- __
(SEE DETAIL SHT.) ___
31.uf
---
1.5'
...........
en
,..
u)
-
---
--
--
,
S 72-38'37- W
~
"'28 IF' OF 8' CMU
SCREENING WALL
15.0' TEMPORARY CONSTRUCTION EASEMENL (SEE D~l SHT.) _
EIOS11NG 4' OlAIN
LINK FENCE
- r T'- -
I I LOT 14
) J
</
LOT 12
LOT 13
CURRENT ZONING:
CONCEPTUAL
SITE PLAN
DATED: FEB 2002
HAYES & SR 434
WINTER SPRINGS, FL
437.16'
--
__ . 1.2'
-- RECOVERED 4 "X4.
C~RtXE MONUMENT
--------~--
--
POINT OF BEGINNI Z
SET 5/8" IRON I
RECOVERED IRON I
SHANNON #4670,
0.29' E & 0.38' ~
I
I
I
I
I
I
I
I
I
I
I
I
LEGEND:
o NUMBER OF 10 X 20' PARKING SPACES.
~
LOT 15
POINT OF COMMENCEMENT
NORTHEAST CORNER LOT 51
ENTMINGER FARMS ADDITION NO. 2
PLA T BOOK 5, PAGE 9
701 EAST STATE ROAD 434
WINTER SPRINGS. FLORIDA
C-1
2.03 ,*teRES
63.51% .
MUL T1-PRODUCT DISPENSER (MPD) ON 4'x 8'
DOGBONE ISLAND WITH RAISED TRAFFIC ENDS.
EXHIBIT B
LEGAL DESCRIPTION:
A PART OF LOTS 30 AND 51 PLUS THE VACATED STREET BETWEEN SAID
LOTS, ENTZMINGER FARMS ADDITION NO.2, ACCORDING TO THE PLAT.
THEREOF AS RECORDED IN PLAT BOOK 5, PAGE 9, OF THE PUBLIC RECORDS
OF SEMINOLE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGIN 25 FEET NORTH AND 50 FEET WEST OF THE NORTHEAST CORNER OF
SAID LOT 51; THENCE RUN S 72 .38'37" W 437.1 FEET; THENCE RUN N
17"21'23" W 190.5 FEET; THENCE RUN N 72.38'37" E 493.41 FEET; THENCE
RUN SOUTH 198.65 FEET TO THE POINT OF BEGINNING. (LESS ROAD RIGHT
OF WAY.)
DESCRIPTION FURNISHED BY CLIENT.
.
PROPOSED CHEVRON
FACILITY
...
...
SIDEWALK