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HomeMy WebLinkAboutDraft PD (Atlantic Breeze) THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Cape Canaveral Garganese, Weiss, & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32802 (407)425-9566 [DRAFT 8/1/2017] CITY OF CAPE CANAVERAL PLANNED DEVELOPMENT AGREEMENT—ATLANTIC BREEZE THIS Planned Development Agreement ("Agreement") is made and entered into this day of , 2017, by and between Atlantic Breeze of Cape Canaveral, LLC ("Developer"), a Florida limited liability company, and the City of Cape Canaveral ("City"), a Florida municipal corporation. RECITALS: WHEREAS, this Agreement is related to certain real property, consisting of two parcels totaling 1.772 acres with tax parcel identification numbers 24-37-14-00-520 and 24-37-14-00-548, and more particularly legally described on EXHIBIT which is fully incorporated herein by this reference ("Property"); and WHEREAS,the Property is currently zoned C-1 Low Density Commercial with a Commercial Future Land Use Designation; and WHEREAS, the Developer desires to purchase the Property in order to permit the construction of a Mixed-Use Planned Development ("PD") consisting of approximately 7,500 square feet of retail space and 10 covered parking spaces on the first floor;four residential units and five live/work units tied to the retail space on the second floor; ten residential units on the third floor; and six residential units on the fourth and fifth floors;and WHEREAS, in furtherance of this desire, the Developer has filed with the City Rezoning and Community Appearance Review Applications for the Mixed-Use PD generally described above; and WHEREAS, the City's PD requirements are governed by Chapter 110 Zoning, Article XI Planned Developments; and WHEREAS, planned mixed-use development uses are considered permitted uses in a planned development zoning district pursuant to an approved land use plan and pursuant to Sec. 110-722(3), provided that complementary and compatible residential uses will produce a reasonable living environment; and WHEREAS, pursuant to Sec. 110-741, the Developer has submitted a Concept Plan; and WHEREAS, further pursuant to Sec. 110-741(c), comments and statements made by city officials as part of the concept plan review are non-binding unless memorialized in a written agreement approved by the city council,and City staff shall not make a formal recommendation regarding the proposed project at the time of concept plan review, unless the application is accompanied by a written development agreement; and WHEREAS, the Developer seeks to enter into this Agreement to obtain, regarding the Concept Plan, a formal recommendation of approval from City staff and formal, binding approval b Council; andy the City WHEREAS, the Planning and Zoning Board held a special public meeting on August 2, 2017, recommending approval of the Concept Plan; and WHEREAS, City staff similarly have formally recommended approval of the Concept Plan; and WHEREAS, the City Council hereby finds that this Agreement is consistent with the City's Comprehensive Plan and City Code, and that the terms, conditions, restrictions, and requirements set forth in the Concept Plan and herein in this Agreement are adopted as a condition of future development of the Property, which may be further refined consistent with this Agreement through approval of a separate Land Use Plan pursuant to Sec. 110-742; and NOW, THEREFORE, in consideration of the terms and conditions set forth in this Agreement, the City and the Developer agree as follows: 1. INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are fully incorporated herein by reference as a material part of this Agreement. 2. AUTHORITY. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. ACQUISITION OF PROPERTY As a condition precedent to obtain and exercise the land use development rights and benefits set forth in this Agreement, the Developer agrees to purchase and close on the Property within ninety(90) days of the Effective Date of this Agreement. The Developer may request a three (3) month extension of this closing time period upon written request to the City Council. The extension will not be unreasonably withheld for good cause shown by the Developer. The Developer shall keep the City informed of the date, time and place of the closing. Upon closing and acquisition of the Property,the Developer shall provide written notice of said closing and acquisition to the City no later than three (3) business days of the closing. If the Developer fails to complete the closing and purchase within said time period (as may be extended by the City), this Agreement shall automatically terminate and be deemed null and void, and the parties will then have no further responsibilities or obligations under this Agreement. 4. DEVELOPMENT STANDARDS. The following development standards shall apply to the Property and shall be deemed incorporated into the planned development zoning designation approved for the Property for purposes of controlling the future development of the Property: (a) Intent and Purpose• The intent and purpose of this Agreement is to require the Property to be developed in accordance with development standards which are unique to the Property, as specifically set forth herein and the Concept Plan. The Property shall be developed with a mix of multi-family residential land uses and limited commercial uses which are compatible to residential uses. In addition,the land uses allowed on the Property shall be integrated and developed as a whole to provide continuity and to create a compact and walkable mixed use environment that is compatible with the surrounding area. Further,the Property shall be developed to provide a compatible transition to and connectivity with adjacent existing and future land uses, particularly any residential zoning districts adjacent and surrounding the Property. (b) Concept Plan• The Property shall be developed as a mixed use project in furtherance of this Agreement and in substantial conformance, as provided in Paragraph 5 below, with the Concept Plan depicted on EXHIBIT 'B" attached hereto and incorporated herein by this reference ("Plan"). The Plan is intended to be t ral blueprint which details key aspects of the future physical development of the Property. The Plan shall also serve as a necessary guide for future permit applications and permitting. Specifically and in accordance with Sec. 110-741(b)of the Code,the development of the Property shall also be subject to the following conditions: i• Permitted Land Use Types. The Planned Development shall consist of a mixed- use development with neighborhood friendly retail or other commercial uses as further described below on the first floor; live/work units and residential apartment units on the second floor; and residential apartment units on the third through fifth floors. Subject to applicable City Code requirements and restrictions,the uses permitted in the retail/commercial first floor space shall be limited to the following: - Retail shops including related sales and display rooms - Personal service and wellness establishments such as hair and nail salons,health spas, licensed massage therapist, aromatherapy, and skin and body therapy - Professional offices, studios, medical or dental clinics (not including pain management clinics),small personal service laboratories such as Labcorp,general offices, business and professional schools and similar uses conducive to supporting the customary and traditional needs of a residential neighborhood - Restaurants ii. Number of residential units. The gross residential density of the project shall be 17.5 units per acre. Given a 1.772-acre site, a total of 31 residential units shall be permitted. Four residential units and five live/work units tied to the retail space via stairwell shall be allowed on the second floor. Ten residential units shall be allowed on the third floor,and six residential units shall be allowed on the fourth and fifth floors. iii. Floor area for commercial, office or industrial uses. The commercial space shall be approximately 7,500 square feet in size, located on the first floor. iv. Maximum building height. The building height shall be limited to 65 feet high (five stories)from finished grade in front of the building, provided that the fourth and fifth floors shall be stepped back fourteen feet from the front elevation of the first three floors as depicted on the Concept Plan. v. Phasing Schedule. The Project shall be completed in a single phase. 3 vi. Proposed method of providing public facilities. Water service shall be provided by the City of Cocoa. Sanitary sewer service shall be provided by the City. Water and sewer facilities shall comply with all applicable technical specifications of the utility provider. vii. Spill lights. All light poles and building-mounted lighting installed on the Property shall be down-mounted to mitigate light spill-over to adjacent properties. Lights used in the parking lot shall utilize either solar or LED technology. viii. Automobile Parking. Although the Concept Plan currently provides that 79 parking spaces will be constructed, required automobile parking spaces may be reduced by up to 15 percent from the requirements otherwise established in Sec. 110-491 of the City Code, in recognition of the project's location on a public bus line and the pedestrian-friendly nature of the development. Up to twenty (20) percent of the required off-street automobile parking spaces may be constructed with minimum dimensions of 9 feet wide by 18 feet long. A minimum of two(2)electric automobile recharge stations will be installed in the parking area. ix. Bicycle parking. Bicycle parking will be provided in a secure,convenient location for residents and customers, at a ratio of not less than 1 space per business and 1 space per 5 residential units. The parking area shall include bicycle racks in a style deemed reasonably acceptable to the City so bicyclist will have a secure place to lock their bikes. x. Pocket Park. The pocket park and its associated improvements designated on the Concept Plan in the southeast portion of the property, shall be available for use by the general public. xi. Outdoor dining and minor music or family oriented entertainment will be allowed on the patio area between the building and the parking area on the east side of the building. a. Minor music or family oriented entertainment is allowed provided it does not cause a nuisance and provided the entertainment is presented by groups of three (3) or fewer performers without electronic amplification, loud and unreasonable noise, any light that creates a safety hazard, or other noxious effects. The hours of minor music or family oriented entertainment shall be limited between the hours of 10:00 AM to 9:00 PM. b. Outdoor dining areas. Outdoor dining areas shall be permitted on the private sidewalk area adjacent to and directly abutting a restaurant located in the building. However,the outdoor dining area shall not reduce the walkable sidewalk width to less than five(5)feet.Tables, chairs, umbrellas, and similar items shall be stored in the interior of the restaurant or in a similar enclosed area because of inclement weather. c. In order to preserve the pedestrian orientation of the storefront or pedestrian retail area, all servicing, loading, and solid waste collection shall take place off-street away from pedestrian walkways,generally in bays provided in the alleys or in screened, internal, rear spaces if alleys are not available. 4 • xii. Planter/flower boxes. Planter/flower boxes shall be utilized throughout the patio area between the building and the parking area. Vegetation shall be maintained in accordance with Sec. 34-99, paragraphs (1)and(2)of the City Code. 5. FUTURE PERMITTING. The Developer shall have the obligation to further submit and obtain the City's approval of a Land Use Plan as provided in Sec. 110-742 of the Code and final site plan and final engineering plans ("Final Engineering Plans"). Such Land Use Plan shall be consistent with the Concept Plan in all material respects and in compliance with the City Code. The Concept Plan 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 buildings, landscaping, rights-of-way, recreational amenities, and stormwater areas may vary slightly between Concept Plan approval 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 Concept Plan. 6. JOINDER OF MORTGAGE HOLDERS. To the extent applicable, the Developer shall be required to obtain a written joinder from all mortgage holders that have a recorded mortgage on the Property prior to the date that this Agreement is recorded. The joinder shall be in recordable form and shall evidence the mortgage holder's consent that the terms and conditions of this Agreement shall survive any foreclosure of their respective mortgage recorded against the Property. A copy of the recorded joinder shall be promptly delivered to the City upon recordation. 7. NOTICES. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter designated,or(b)upon receipt of such notice,when deposited in the United States mail,postage prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a nationally recognized overnight courier service, e.g. Federal Express, UPS, Airborne, Express Mail etc., addressed to a party at the other address as specified below or from time to time by written notice to the other party delivered in accordance herewith. DEVELOPER: [INSERT] CITY: David Greene City Manager City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Phone(321) 868-1220 Fax(321)868-1248 5 • With a copy to: Anthony A. Garganese, Esq. Garganese, Weiss &D'Agresta, P.A. 111 N. Orange Ave, Suite 2000 Orlando, Florida 32801 Phone: (407)425-9566 Fax: (407)425-9596 E-mail: agarganese@orlandolaw.net 8. DEFAULTS. Failure by either party to perform each and every one of its obligations hereunder shall constitute a default, entitling the non-defaulting o pursue whatever remedies are available to it under Florida law or equity including,without limitation,arty tn 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 receipt of said notice,the defaulting party with written notice of said default. Upon the default to the reasonable satisfaction of thel non-defauprovidelting thirty(30)day opportunity in which to cure g party prior to filing said action. 9. SUCCESSORS AND ASSIGNS. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. All subsequent purchasers of all or part of the Property shall be considered assignees subject to the requirements of this Agreement. 10. APPLICABLE LAW• VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The venue for any legal action instituted to enforce or interpret any provision of this Agreement shall be in Brevard County,Florida for state action and Orlando, Florida for any federal action. 11. POLICE POWER. 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. The Property shall be subject to all applicable City ordinances and other applicable laws. 12. AMENDMENTS. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto. Amendments shall be recorded in the same manner as Section 17 of this Agreement. 13. ENTIRE AGREEMENT. This Agreement supersedes any other agreement, oral or written, regarding the future development of the Property and contains the entire agreement between the City and Developer as to the subject matter hereof. 14. 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. 15. EFFECTIVE DATE. This Agreement shall become effective upon approval by the City Council of Cape Canaveral and execution of this Agreement by both parties. 16. TERMINATION. In addition to the termination provided in Paragraph 3 above, this Agreement shall terminate should the City Council fail or decline to adopt a Land Use Plan filed by the Developer within two (2)years of the Effective Date, or its adoption is timely appealed,and a final order has been issued quashing the adoption by a court of competent jurisdiction. Should either of these occur, 6 this Agreement shall be deemed null and void. Further, the City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if the Developer fails to file a (61,3site/construction plan application and substantially commence construction of the Project withinee TV( 1 years from the date of the City Council's approval of any Land Use Plan for planned development zoning. 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 Paragraph 8 above. If the City terminates this Agreement or the Agreement is deemed null and void as provided hereunder, and the Agreement has been recorded in accordance with paragraph 17 herein,the City shall record a notice of termination against the Property in the public records of Brevard County, Florida. 17. RECORDATION. Upon the City's receipt of written notice from the Developer that closing on the Property has occurred pursuant to Paragraph 3 herein, the City shall record this Agreement in the Official Records of Brevard County, Florida. Upon recordation, this Agreement shall run with the land and be binding on successors of title to the Property. 18. RELATIONSHIP OF THE PARTIES. The relationship of the Parties to this Agreement is that the City is a regulatory agency under the laws of Florida for purposes of zoning real property within its jurisdiction and issuing development orders in furtherance thereof. Developer intends to develop the Property which is subject to the City's jurisdiction and has agreed to the terms, conditions, restrictions, and requirements under this Agreement and is an independent property developer and not an agent of the City. In addition, any work performed by the Developer regarding the design, permitting, and construction of public improvements that will be conveyed to the City are being performed as an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 19. SOVEREIGN IMMUNITY. The City intends to avail itself of any and all applicable protections of sovereign and other immunities or limitations on the City's potential liability provided under state and federal law in any claim or legal action made against the City and its employees and officials related to or arising out of 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 any other limitation on the CITY's potential liability under state and federal law. 20. 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 of this Agreement in the event of a dispute between the parties. 21. 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. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve the Developer or the City of the necessity of complying with the law governing said permitting requirements,conditions,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 or unit owned by Developer if Developer is in breach of any term or condition of this Agreement. 7 22. 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. 23. WAIVER. The waiver by any party of a breach of any shall not operate or be construed as a waiver of any other provision of the Agreement orhis of any future breach of the provision so waived. 24. INDEMNIFICATION. Developer hereby agrees to indemnify, release, and hold harmless the City and its council members,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 construction and other Project activities in furtherance of this Agreement and any and all permits issued hereunder. This indemnification shall survive the termination of this Agreement. 25. 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 any unforeseeable or unpredictable event 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 of labor or materials, 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 hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. 26. ATTORNEY'S FEES. Each party shall bear their own attorney's fees and costs related to this Agreement. 27. UNITY OF TITLE. The Developer agrees that it shall enter into a separate Unity of Title Agreement with the City, in a form approved by the City Attorney, which shall be recorded following approval of a Land Use Plan, in the event that such a Plan is approved by the City Council. IN WITNESS WHEREOF, the Developer and the City have executed this Agreement in form sufficient to bind them as of the Effective Date. [Signature Page Follows] 8 Signed, sealed and delivered in the presence of: Two witnesses required by Florida Law WITNESSES: ATLANTIC BREEZE OF CAPE CANAVERAL, LLC Its: Print Name: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 2017 by as of Atlantic Breeze of Cape Canaveral,LLC,who is personally known to me or who has produced as identification. Notary Public PRINT/TYPE NAME: Notary Public in and for the County and State last aforesaid. My Commission Expires: Serial No., if any: WITNESSES: CITY OF CAPE CANAVERAL, FL Print Name: David L. Greene, City Manager Print Name: STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument was acknowledged before me this David L. Greene, as City Manager of Cape Canaveral, Florida, who is y of ,nally known to 01mme by who has produced personally or as identification. Notary Public PRINT/TYPE NAME: Notary Public in and for the County and State last aforesaid. My Commission Expires: Serial No., if any: EXHIBIT A Legal Description COMMONWEALTH LAND TITLE INSURANCE COMPANY TITLE COMMITMENT No. 6136252, DATED DECEMBER 12, 2016: The South 70 yards (South 210) feet of the Southwest quarter of the Southwest quarter of Section 14, Township 24, Range 37, except that part lying East of Canaveral County Road, as described in Deed Book 341, Page 7, and Deed Book 341, Page 9 of the Public Records of Brevard County, Florida; and except that portion of the Southwesterly corner of the above described property, heretofore granted to the State of Florida for Use and benefit of the State Road Department of Florida. Less and except lands described in Official Records Book 4328, Page 3848, Warranty Deed recorded in Official Records Book 4328, Page 3851, Special Warranty Deed recorded in Official Records Book 7621, Page 1480 and Special Warranty Deed recorded in Official Records Book 7621, Page 1484. EXHIBIT B { conem Plan 12