HomeMy WebLinkAboutcantwellgoldman_to_cocc_re_wave_dev_201905Law Offices of
CANTWELL & GOLDMAN, P.A.
www.cfglawoffice.com
Bradly Roger Bettin, Sr.
William H. Cantwell, II 1,2
Mitchell S. Goldman
Matthew J. Monaghan
Kimberly Bonder Rezanka
Michael Sjuggerud 3,4
Jay R. Thakkar
Board Certified Construction Lawyer and
Board Certified Business Litigation Lawyer
2 Also Member of West Virginia Bar
Also Member of District of Columbia
Bar, New York Bar, and Washington Bar
. ° Board Certified Real Estate Lawyer
May 1, 2019
Sent via email: D.Greene@cityofcapecanaveral.org
Mr. David L. Greene
City Manager
City of Cape Canaveral
100 Polk Avenue
Cape Canaveral, FL 32920
Coco- #10 '7/L4,9
MAY 16 2019
96 Willard Street, Suite # 302
Cocoa, FL 32922-7947
Telephone: (321) 639-1320
Facsimile: (321) 639-9950
Re: Wave Developments, LLC, 8801 Astronaut Boulevard, Cape Canaveral
Development Agreement for Wave Village
Dear Mr. Greene:
We represent Wave Developments, LLC, the owner of the Property reference above.
Enclosed please find Wave Developments, LLC's proposed Port of Call Development
Agreement ("DA"). As you are aware, this was submitted to the City in November of 2018. Our
Client received a revised version from the City Attorney in late February of 2019. Without any
discussions with our Client, the City struck the most important elements of the "negotiated" DA
— the signage, the shared parking, shared retention, the height and the phasing timeframes.
Additionally, it added a requirement of a "professional property management company" without
any definition of that phrase. While most of the changes are merely stylist, the striking of these
elements is not acceptable to our Client. However, our Client will accept the revisions to G.,
without the property management company requirement, below, and has included that in the DA
enclosed herein.
G. City agrees that the Vacation Apartment Rentals as part of a Port of
Call facility is are a permitted use under the applicable existing zoning
classification of the Property and that Vacation Apartment Rentals are
intended to be a temporary lodging alternative to a hotel. For purposes of this
Agreement, the term "Vacation Apartment Rental" shall mean a condominium
or apartment style building in Phases 2, 3 and 4 containing multiple dwelling
units of various size under common ownership. The size of units shall comply
with the minimum size requirements in the City Code and be a mix of studio
and one, two- or three -bedroom dwelling units. The dwelling units shall be
Mr. David L. Greene
May 1, 2019
page 2
rented or leased for monetary or other consideration for periods of one night
or longer to provide temporary lodging to tourists, travelling business
executives and employees, or other persons in need of temporary short-term
residences that are furnished and provide for kitchen uses in each unit.
As you know, the project received DRC approval on April 11, 2018. Our client
was advised to proceed to the Community Appearance Board, retained experts to assist
with that process, incurred professional fees and an application fee, then was told to
provide a Development Agreement before appearing at the CAB. Based upon the City's
Staffs recommendation, our Client delayed the CAB hearing, previously scheduled in
August of 2018. When we met with City Staff in August of 2018, the Staff was
agreeable to the items requested in the DA, as they were back in 2015. It appears that
there has been a "change of heart" by Staff as to allowable waivers in a DA, and this has
cost our Client much time and money.
Please calendar this Development Agreement for hearing before the City Council
within the next thirty (30) days. While our Client has been told that you do not believe
you are required to bring this to the City Council, we respectfully disagree. This form of
DA is completely consistent with waivers and approvals granted in other Development
Agreements approved by the City Council and our Client does not understand why its
development is being treated differently than others in the City. Additionally, our Client
has previously provided a $500 check to the City for a previous DA that was never
brought to City Council and this should be sufficient for any advertising fees for this
public hearing.
Thank you for your prompt attention to this matter.
Sincerely,
/ZI44 Ris&tka •
Kimberly Bonder Rezanka
KBR:plc
enclosure
cc: Anthony Garganese (via email to: agarganese@orlandolaw.net)
Client
Return to:
Kimberly B. Rezanka, Esq.
Cantwell & Goldman, P.A.
96 Willard Street, Ste. 302
Cocoa, FL 32922
PORT OF CALL
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made this day of
2019, by and between the City of Cape Canaveral, a Florida municipal corporation ("City"); and
Wave Developments, LLC, a Florida limited liability company authorized to conduct business in
Florida ("Owner").
RECITALS:
WHEREAS, this Agreement is a development agreement entered into pursuant to the
Florida Municipal Home Rule Powers Act, codified in Chapter 166, Florida Statutes; and
WHEREAS, the City recognizes the need to plan for orderly growth and development
and to attract tourism; and
WHEREAS, Owner is the current fee simple owner of record of certain real property
located a 8801 Astronaut Boulevard within the City of Cape Canaveral and more particularly
described herein ("Property"); and
WHEREAS, the 5.0 acre Property is currently developed with a retail and restaurant
center of approximately 16,800 square feet in area ("Phase I"), a putt -putt golf and arcade center,
related infrastructure and amenities, including ample parking; and
WHEREAS, in addition to the current retail and restaurant uses on the Property, Owner
desires to redevelop the Property in several phases into what will eventually be a "Port of Ca11"
complex featuring commercial, retail, vacation apartment rentals and other uses allowed by City
Code; and
WHEREAS, Owner intends the Port of Call facility to serve as a regional tourist, and
hospitality hub to the visitors and citizens of Cape Canaveral and the surrounding communities;
and
WHEREAS, Owner also desires to enhance the Property during development by
constructing Phase 2, Phase 3 and Phase 4 in a manner consistent with the standards and
requirements of the City's A1A Economic Opportunity Overlay District; and
WHEREAS, the City has determined that the proposed redevelopment of the Property is
consistent with and furthers the City's goals of encouraging and creating tourism, and creating
attractive, functional and lasting buildings and places; and
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Wave Developments, LLC
WHEREAS, the proposed redevelopment of the Property will add substantial value to the
City's ad valorem tax base and enhance, define and protect the commercial corridor and primary
entrance to the City of Cape Canaveral; and
WHEREAS, the City Council finds this Agreement to be consistent with the City's
Comprehensive Plan, Land Development Regulations, Visioning Statement and Sec. 102-48,
City Code, and appropriate for waivers and incentives as provided by in that Section; and
WHEREAS, the City and Owner believe it to be in the best interests of both parties to
enter into this agreement to effectuate the phased development of the Property, subject to the
terms and conditions agreed to hereunder; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
Section 1. Recitals. The foregoing recitals are true and correct and are hereby
incorporated herein by reference.
Section 2. Authority. This Agreement is entered into pursuant to the City's home
rule powers granted by the Florida Constitution and the Florida Municipal Home Rule Powers
Act.
Section 3. The Property. The real property subject to and bound by the terms of this
Agreement is legally described in Exhibit "A", attached hereto and fully incorporated herein by
this reference.
Section 4. Effective Date of Agreement. This Agreement shall be effective upon full
execution by both parties hereto; upon recording with the Clerk of the Court for Brevard County,
Florida ("Effective Date").
Section 5. Phased Development of Property. Owner shall develop the Property
pursuant to the terms and conditions of this Agreement and all applicable laws. Phase 1 f the
development has been completed, and the Property shall be further developed in three (3 Phases
as follows:
A. Phase 1— Retail and Restaurant Use. Phase 1 has been developed consis
the Site Layout Plan attached hereto as Exhibit "B".
ent with
B. Phase 2 —Additional Retail, Restaurant Uses, Vacation Apartment Rental Uses
and another permissible uses under the City Code. Phase 2 shall include the development of the
Property as a consumer retail service center inclusive of, but not limited to, restaurants, c6ffee
shops, gift shops, apparel stores, information centers, travel agencies, bicycle and other
equipment rental, other similar retail uses and Vacation Apartment Rentals for short-term and
long-term rentals.
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i. Plans. No later than two (2) years following the Effective Date, Owner
shall submit a site plan and architectural renderings, accompanied by the requisite fees, to
the City's Community and Economic Development Department for the Phase 2
development of the Property ("Phase 2 Plans"). The Phase 2 Plans shall be prepared in
compliance with the requirements of sections 110-222 and 22-44 of the Cape Canaveral
City Code, as may be amended. The conceptual plan for Phase 2 is depicted in the
rendering attached hereto as Exhibit "C".
(a) The City, through the DRC, has approved shared parking for Phase
1, 2, 3 and 4, pursuant, to the Wave Village Parking Analysis,
attached as Exhibit "F".
(b) The height of Phase 2, Vacation Apartment Rental building, shall
be permitted to be 65 feet.
(c) The structures in Phase 1, 2, 3 and 4 shall be permitted to utilize
shared retention facilities and structures.
(d) The City will allow one (1) additional multi-user sign, similar in
size and area to the existing multi-user sign to be installed along
Astronaut Boulevard and one (1) multi-user sign on Central
Boulevard for advertisement of the four (4) separate buildings with
various uses, in Phase 1, 2, 3 and 4, as generally depicted on
rendering attached hereto as Exhibit "D".
(e) The City will allow wall signs for each retail or commercial tenant
and for each use of the buildings in the new Phases 2, 3 and 4, as it
has allowed for Phase 1. The area of the wall sign for each retail
or commercial tenant and for each use of the buildings will be
computed on the basis of one square foot of sign area for each
lineal foot of building frontage, retail or commercial tenant
frontage or use frontage. In no event shall the wall signage for
Phase 2 exceed 300 square feet.
ii. Plans Review. The Phase 2 Plans shall be subject to the applicable site
plan and community appearance application and review procedures of Articles VI and X
of Chapter 110 and Article III of Chapter 22, respectively, of the Cape Canaveral City
Code, as may be amended.
iii. Time Frames. Owner shall have 12 months from the date of its initial
submittal of the Phase 2 Plans to attain the final approval of same, and shall have 24
months from said final approval to complete the Phase 2 development of the Property.
Completion of Phase 2 shall be evidenced by the City's issuance of a certificate of
occupancy for the commercial structure and upon all necessary site work being
completed consistent with the approved Phase 2 Plans. At the written request of Owner,
the City Manager may grant extensions of time for Owner to attain plans or complete the
development as required by this subsection. Any such written request shall be submitted
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Development Agreement
Wave Developments, LLC
prior to the expiration of the applicable time period and shall demonstrate good cause
why the extension should be granted. The City Manager shall issue his approval or
denial of Owner's request in writing within five (5) business days of his receipt of same.
Following the expiration of any extensions of time that may be granted by the City
Manager, if Owner fails to complete the Phase 2 development, this Agreement shall
terminate pursuant to Section 10 herein.
C. Phase 3 — Additional Retail, Restaurant Uses Vacation Apartment Rental Uses
and another permissible uses under the City Code: Phase 3 shall include development of a new
structure or with uses similar to Phase 2 Property, and may be permitted and constructed along
with Phase 4.
i. Plans. No later than five (5) years following the Effective Date, Owner
shall submit a site plan and architectural renderings, accompanied by the requisite fees, to
the City's Community and Economic Development Department for the Phase 3
development of the Property ("Phase 3 Plans"). The Phase 3 Plans shall be prepared in
compliance with the requirements of sections 110-222 and 22-44 of the Cape Canaveral
City Code, as may be amended. The conceptual plan for Phase 3 is depicted in the
rendering attached hereto as Exhibit "E".
(a) The City, through the DRC, has approved shared parking for Phase 1, 2, 3
and 4, pursuant, to the Wave Village Parking Analysis, attached as
Exhibit "F".
(b) The height of Phase 3, Vacation Apartment Rental building shall be
permitted to be 65 feet.
(c) The structures in Phase 1, 2, 3 and 4 shall be permitted to utilize
shared retention facilities and structures.
(d) The City will allow wall signs for each retail or commercial tenant and for
each use of the buildings in the new Phases 2, 3 and 4, as it has allowed
for Phase 1. The area of the wall sign for each retail or commercial tenant
and for each use of the buildings will be computed on the basis of one
square foot of sign area for each lineal foot of building frontage, retail or
commercial tenant frontage or use frontage. In no event shall the wall
signage for Phase 3 exceed 300 square feet.
ii. Plans Review. The Phase 3 Plans shall be subject to the site plan and
community appearance application and review procedures of Articles IV and X of
Chapter 110 and Article III of Chapter 22, respectively, of the Cape Canaveral Code, as
may be amended.
iii. Time Frames. Owner shall have twelve months from the date of its initial
submittal of the Phase 3 Plans to attain the final approval of same, and shall have 24
months from said final approval to complete the Phase 3 development of the Property.
Completion of Phase 3 shall be evidenced by the City's issuance of a certificate of
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Development Agreement
Wave Developments, LLC
occupancy for the building, conference center and any other associated structure, and
upon all necessary site work being completed consistent with the approved Phase 3 Plans.
At the request of Owner, the City Manager may grant extensions of time for Owner to
attain plans approval or complete the development as required by this subsection. Any
such written request shall be submitted prior to the expiration of the applicable time
period and shall demonstrate good cause why the extension should be granted. The City
Manager shall issue his approval or denial of Owner's request in writing within five (5)
business days of his receipt of same.
D. Phase 4 — Additional Vacation Apartment Rentals and Parking Garage:
Phase 4 shall include development of a new structure or with Vacation Apartment Uses and
Parking Garage, and may be permitted and constructed along with Phase 3.
i. Plans. No later than seven (7) years following the Effective Date, Owner
shall submit a site plan and architectural renderings, accompanied by the requisite fees, to
the City's Community and Economic Development Department for the Phase 4
development of the Property ("Phase 4 Plans"). The Phase 4 Plans shall be prepared in
compliance with the requirements of sections 110-222 and 22-44 of the Cape Canaveral
City Code, as may be amended. The conceptual plan for Phase 4 is depicted in the
rendering attached hereto as Exhibit "G".
(a) The City, through the DRC, has approved shared parking for Phase 1, 2, 3
and 4, pursuant, to the Wave Village Parking Analysis, attached as
Exhibit "F".
(b) The height of the Phase 4 shall be permitted to be 65 feet.
(c) The structures in Phase 1, 2, 3 and 4 shall be permitted to utilize
shared retention facilities and structures.
(d) The City will allow wall signs for each retail or commercial tenant and for
each use of the buildings in the new Phases 2, 3 and 4, as it has allowed
for Phase 1. The area of the wall sign for each retail or commercial tenant
and for each use of the buildings will be computed on the basis of one
square foot of sign area for each lineal foot of building frontage, retail or
commercial tenant frontage or use frontage. In no event shall the wall
signage for Phase 4 exceed 160 square feet.
ii. Plans Review. The Phase 4 Plans shall be subject to the site plan and
community appearance application and review procedures of Articles IV and X of
Chapter 110 and Article III of Chapter 22, respectively, of the Cape Canaveral Code, as
may be amended.
iii. Time Frames. Owner shall have twelve months from the date of its initial
submittal of the Phase 4 Plans to attain the final approval of same, and shall have 24
months from said final approval to complete the Phase 4 development of the Property.
Completion of Phase 4 shall be evidenced by the City's issuance of a certificate of
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Development Agreement
Wave Developments, LLC
occupancy for the building, conference center and any other associated structure, and
upon all necessary site work being completed consistent with the approved Phase 4 Plans.
At the request of Owner, the City Manager may grant extensions of time for Owner to
attain plans approval or complete the development as required by this subsection. Any
such written request shall be submitted prior to the expiration of the applicable time
period and shall demonstrate good cause why the extension should be granted. The City
Manager shall issue his approval or denial of Owner's request in writing within five (5)
business days of his receipt of same.
E. Applications for the development approvals required by this Section shall be
substantially complete at the time of submittal, consistent with the requirements of applicable
law. Within ten (10) business days of receipt of any application required by this section, City
staff shall provide written notification to Owner regarding whether the application is complete or
incomplete. In the event an application is deemed incomplete, the application deficiencies shall
be specifically identified in the City staffs written notification to Owner. Upon issuance of any
development order or permit under this section, Owner shall diligently pursue the construction
authorized by the permit consistent with the established time frames for each development phase
and shall at all times maintain a valid and active permit pursuant to applicable law.
F. Owner shall enter into an agreement with the City and Brevard County so that all
transportation impact fees paid by Owner to Brevard County shall be used solely to benefit the
appropriate infrastructure in the City.
G. City agrees that the Vacation Apartment Rentals as part of a Port of Call facility is
are a permitted use under the applicable existing zoning classification of the Property and that
Vacation Apartment Rentals are intended to be a temporary lodging alternative to a hotel. For
purposes of this Agreement, the term "Vacation Apartment Rental" shall mean a condominium
or apartment style building in Phases 2, 3 and 4 containing multiple dwelling units of various
size under common ownership. The size of units shall comply with the minimum size
requirements in the City Code and be a mix of studio and one, two or three bedroom dwelling
units. The dwelling units shall be rented or leased for monetary or other consideration for
periods of one night or longer to provide temporary lodging to tourists, travelling business
executives and employees, or other persons in need of temporary short-term residences that are
furnished and provide for kitchen uses in each unit.
Section 6. Annual Review and Inspection: Report. The City shall coordinate with
Owner to schedule an annual review and inspection of the Property by the City to determine if
Owner has demonstrated good faith compliance with the terms and conditions of this Agreement.
The annual review and inspection shall occur each year on or around the anniversary of the
Effective Date and the findings of the Building Official, Planning and Zoning Director, and
Community and Economic Development Director shall be memorialized in a written report
("Annual Report"), a copy of which shall be provided to Owner.
Section 7. Representations of the Parties. The City and Owner hereby each represent
and warrant to the other that it has the power and authority to execute, deliver and perform the
terms and provisions of this Agreement and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. This Agreement will, when duly
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Development Agreement
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executed and delivered by the City and Owner and recorded in the Public Records of Brevard
County, Florida, constitute a legal, valid and binding obligation enforceable against the parties
hereto and the Property in accordance with the terms and conditions of this Agreement. Owner
represents that it has voluntarily and willfully executed this Agreement for purposes of binding
the Property to the terms and conditions set forth in this Agreement.
Section 8. Successors and Assigns; Assignment. This Agreement, including any of
the rights and obligations contained herein, shall automatically be binding upon and shall inure
to the benefit of the City and owner and their respective successors and assigns. The terms and
conditions of this Agreement similarly shall be binding upon the Property and shall run with title
to the same. Owner shall not assign this Agreement without the prior written consent of the City,
which consent shall not be unreasonably withheld.
Section 9. Notice. Any notices required or permitted under this Agreement shall be
deemed to have been given if delivered by hand or overnight courier, or mailed by certified
registered mail with return receipt requested at the following addresses:
If to City:
Copy to:
If to Owner:
Copy to:
David L. Greene, City Manager
City of Cape Canaveral
201 Polk Avenue
Cape Canaveral, FL 32920
(321) 868-1320
Anthony A. Garganese, City Attorney
Garganese, Weiss, D'Agresta & Salzman, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802
(321) 425-9566
Wave Developments, LLC
Attn: Oshri Gal
280 West Central Boulevard
Cape Canaveral, Florida 32920
Kimberly B. Rezanka, Esq.
96 Willard Street, Ste. 302
Cocoa, FL 32922
Section 10. Termination. This Agreement shall terminate under the following
conditions:
A. The City shall have the unconditional right, but not obligation, to terminate this
Agreement if Owner fails to attain the plans approvals or to develop the Property consistent with
the time frames set forth in Section 5 herein, or has otherwise failed to comply with any material
term or condition of this Agreement. However, the City shall first deliver written notice and an
opportunity to cure as set forth in Section 25 herein.
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B. If this Agreement is terminated in accordance with this Section 10, the City shall
record a notice of termination in the public records of Brevard County, Florida.
C. Unless otherwise stated herein, upon termination of this Agreement, the City and
Owner shall have no further rights or obligations under this Agreement and all permits and
approvals granted by the City in furtherance of this Agreement shall be deemed terminated as
well, except previously issued and active building permits may continue in effect under the
Florida Building Code.
Section 11. Applicable Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The parties agree that venue shall
be exclusively in Brevard County, Florida, for all state disputes or actions which arise out of or
are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which
arise out of or are based upon this Agreement.
Section 12. Amendments. The parties hereto understand and agree that amendments
to this Agreement may be required in order to address the proposed Phase 2, Phase 3 and Phase
4 development of the Property and that additional terms and conditions may be imposed. This
Agreement shall not be modified or amended except by written agreement duly executed by both
parties hereto (or their successors or assigns).
Section 13. Entire Agreement; Exhibits. This Agreement and all attached exhibits
hereto supersede any other agreement, oral or written, regarding the Property and contain the
entire agreement between the City and Owner as to the subject matter hereof. The Exhibits
attached hereto and referenced herein are hereby fully incorporated herein by this reference.
Section 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.
Section 15. Recordation. No later than 14 days following the approval and execution
of this Agreement by both parties hereto, the City shall record this Agreement in the Public
Records of Brevard County, Florida. Owner agrees that it shall be responsible for all recording
fees and any other fees related to the delivery and recording of this Agreement.
Section 16. Relationship of the Parties. The relationship of the parties to this
Agreement is contractual and Owner is an independent contractor and not an agent of the City.
Nothing herein shall be deemed to create a joint venture or principal -agent relationship between
the parties and 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.
Section 17. Sovereign Immunity. Notwithstanding any other provision set forth in this
Agreement, nothing contained in this Agreement shall be construed as a waiver of the city's right
to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the
City's potential liability under state or federal law. As such, the City shall not be liable, under
this Agreement for punitive damages or interest for the period before judgment. Further, the
City shall not be liable for any claim or judgment, or portion thereof, to any one person for more
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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).
Section 18. City's Police Power. Owner agrees and acknowledges that the City
hereby reserves all police powers granted to the City by law. In no way shall this Agreement be
construed as the City bargaining away or surrendering its police powers.
Section 19. 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.
Section 20. 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.
Section 21. Specific Performance. Strict compliance shall be required with each and
every provision of this Agreement. The parties agree that failure to perform the obligations
provided by this Agreement shall result in irreparable damage and that specific performance of
these obligations may be obtained by a suit in equity.
Section 22. Attorney's Fees. In connection with any arbitration or litigation arising
out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees
and costs through all appeals to the extent permitted by law
Section 23. Time is of the Essence. Time shall be of the essence for each and every
provision contained herein.
Section 24. 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.
The failure of this Agreement to address any particular City, County, State and/or Federal
permit, condition, term or restriction shall not relieve Owner or the City of the necessity of
complying with the law governing said permitting requirement, condition, term or restriction.
Without imposing any limitation on the City's police powers, the City reserves the right to
withhold, suspend, or terminate any and all certificates of occupancy for any building if Owner is
in breach of any term or condition of this Agreement.
Section 25. Default: Opportunity to Cure. Should either party desire to declare the other
party in default of'any term and condition of this Agreement, the non -defaulting party shall
provide the defaulting party a written notice of default. The written notice shall, at a minimum,
state with particularity the nature of the default, the manner in which the default can be cured,
and a reasonable time period of not less than thirty (30) days in which the default must be cured.
No action may be taken in a court of law on the basis that a breach of this Agreement has
occurred until such time as the requirements of this paragraph have been satisfied.
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Section 26. 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, terrorism, 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"), but excluding customary business
and economic conditions or events, 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. The extended time period shall be agreed to in
writing by the parties and said agreement shall not be unreasonably withheld by either party.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date
first above written.
ATTEST:
By:
Mia Goforth,
City Clerk
CITY:
City of Cape Canaveral,
A Florida municipal corporation.
By:
David L. Greene, City Manager
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Cape Canaveral,
Florida, only
(CITY SEAL) Date:
By:
Anthony A. Garganese, City Attorney
For the City of Cape Canaveral, Florida
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of , 2019, by David
L. Greene and Mia Goforth, well known to me to be the City Manager and Assistant City
Manager/City Clerk respectively, of the City of Cape Canaveral and acknowledged before me
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that they executed the foregoing instrument on behalf of the City of Cape Canaveral, as its true
act and deed, and that they were duly authorized to do so.
Signed, sealed and delivered in the
presence of the following witnesses:
Notary Public
Print Name
Notary Public, State of Florida
Commission No.:
My Commission Expires:
OWNER:
Wave Developments, LLC,
a Florida limited liability company,
By:
Signature of Witness Oshri Gal, Manager
Printed Name of Witness
Date:
Signature of Witness
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of , 2019, by Oshri
Gal, as Manager of Wave Developments, LLC acknowledged before me that they executed the
foregoing instrument on behalf of the City of Cape Canaveral, as its true act and deed, and that
they were duly authorized to do so.
Notary Public
Print Name
Notary Public, State of Florida
Commission No.:
My Commission Expires:
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12
Legal Description
A parcel of land situate in Section 15, Township 24 South, Range 37 East, the City of
Cape Canaveral, Brevard County, Florida, being more particularly described as follows:
Commence at the intersection of the North line of the South 3316.80 feet of said Section
15 and the West right-of-way line of State Road A1A, a 100.00 foot right-of-way; thence
S 37° 22' 24" E., along said West right-of-way line, for a distance of 1255.12 feet to the
Point of Beginning; thence continue S 37° 22' 24" E. for a distance of 452.06 feet to a
point of curvature of a curve, concave Westerly, having a radius of 25.00 feet; thence
Southeasterly and Southwesterly, along the arc of said curve and the Northerly right-of-
way line of Central Boulevard, undedicated, having a width of 100. 00 feet, thru a central
angle of 100° 00' 12", for a distance of 43.63 feet; thence continue along said Central
Boulevard right-of-way, S. 62° 37' 48" W. for a distance of 336.52 feet to a point of
curvature of a curve, concave Northerly, having a radius of 561.05 feet; thence
South-westerly, along the arc of said curve, thru a central angle of 14° 57' 08", for a
distance of 146.42 feet; thence N. 37° 22' 24" W. for a distance of 374.37 feet; thence N.
52° 37' 36" E. for a distance of 500.00 feet to the Point of Beginning.
EXHIBIT "A"
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PAVING, GRADING, AND DRAINAGE AS -BUILT FOR BEACH WAVE
VP A/ WILL
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I T T T T
EXHIBIT "B"
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CERTIFIED TO:
DOUG WILSON
ENTERPRISES INC. '
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EXISTING REQUIRED PARKING
PROPOSED REQUIRED PARKING
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REQUIRED PARKING TOTAL
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TAtAA SPACES REOIMCR 1Y SPACES
PROVIDED PARKING TOTAL
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TOTAL SPACES PROV10E2 119 SPACES
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PRELIMINARY
EXHIBIT "C"
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PHASE 2 CONCEPT PLAN
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EXHIBIT "D"
1'
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GRAPHIC SCALE
1 Do nue 10 n
EXISTING REQUIRED PARKING
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REQUIRED PARKING TOTAL
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TOTALSPACES REWIRED: ifl SPACE
PROVIDED PARKING TOTAL
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TOTALSPACESPROVtED IN SPACES
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PRELIMINARY
EXHIBIT "E"
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Village
PHASE 3 CONCEPT PLAN
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Via email: moshwavevillaqe.com
Ref: 4596.01
TECHNICAL MEMORANDUM
To: Mosh Gal
From: Matthew West, AICP
Subject: Wave Village Parking Analysis, City of Cape Canaveral, FL
Date: May 11 th, 2018
INTRODUCTION
LTG, Inc. (LTG) has been retained by Wave Developments, LLC. (the CLIENT), to perform a shared parking
analysis associated with a multi -tenant residential, retail, and restaurant development known as Wave Village (the
PROJECT) located at the intersection of SR A1A (Astronaut Boulevard) and W. Central Boulevard in the City of
Cape Canaveral. The existing/proposed development is composed of four phases described in Table 1. The site
when built -out will provide 264 paved parking spaces.
The methodology and procedures used in this analysis are consistent with the guidelines of the City of Cape
Canaveral.
ANALYSIS
The existing and proposed uses for each of the four phases are shown in Table 1. LTG consulted the Cape
Canaveral Land Development Regulations for off-street parking requirements and the Urban Land Institute's (ULI)
Shared Parking, Second Edition, software to determine shared parking requirements.
For the purposes of providing a conservative analysis, the storage and gym space shown on the Client's
conceptual plan are calculated as additional retail space. Additionally, there is a proposed pool bar which is
treated as an accessory use to tenants of the residential development. Therefore, the pool bar does not generate
additional parking demand. This analysis assumes that the residential development is a short-term vacation rental
product, and as such, the City will permit required parking to be calculated as if the units were hotel rooms. This
is exhibited in Tables 2 and 3.
LT
EXHIBIT "F"
Engineering
[% Planning
Mosh Gal
May 11th, 2018
Page 2
Table 1
Existing and Proposed Uses
Wave Village
Phase
Use
Size
Unit
Existing
1
Retail
10,000
Square Feet
Restaurant
4,600*
Square Feet
Storage
2,200
Square Feet
Proposed
2
Residential
32
Units (rooms)
Retail
5,400
Square Feet
Restaurant
2,700
Square Feet
Restaurant
2,000
Square Feet
3
Residential
32
Units
Retail
8,950
Square Feet
4
Residential
40
Units
*1,800 SF of existing Arcade being converted to proposed Restaurant
Table 2 shows the total unadjusted parking requirements for Table 1 uses based on the City of Cape
Canaveral Code.
Table 2
City of Cape Canaveral Unadjusted Parking Requirements
Wave Village
. Use
Size
Units
Ratio
Parking Required
Commercial/Retail/Non-restaurant
24,350
Square
Feet
1 space per 300 SF
81 spaces
Storage
2,200
Square
Feet
1 space per 300 SF
7 spaces
Restaurant
9,300
Square
Feet
1 space per 100 SF
93 spaces
Residential
104
Units
1.083 spaces per unit
113 spaces
Total:
294 spaces
LTG
Engineering
& Planning
Mosh Gal
May 11'h, 2018
Page 3
Based on the findings shown in Table 2, the City of Cape Canaveral's Code requires a minimum of 294 off-
street parking spaces when considering the proposed uses individually without adjustment. Since there is
not a storage use in the City of Cape Canaveral's Zoning code, the proposed storage space in Phase 1 was
calculated as retail space in Table 2.
Using the parking requirements from Table 2, LTG utilized the ULI Shared Parking Model to estimate the
minimum number of parking spaces required to support the development program in the peak demand
month, which the model calculates as Late December. The Client has confirmed that the residential units are
to be calculated as hotel rooms. In the model, Community Shopping Center was used for retail, gym, and
storage, Family Restaurant was used for restaurant, and Hotel -Leisure was used for residential. The results
of the model are shown in Table 3.
LTG
Engineering
& Planning
Mosh Gal
May 11'h, 2018
Page 4
Table 3
Shared Parking Demand Summary
Peak Month: Late December-- Peak Period: 12 PM, Weekend
SHARED PARKING DEMAND SUMMARY
PEAK MONTH: LATE DECEMBER - PEAK PERIOD: 12 PM,
WEEKEND
Peak Hr
Peak Mo
Estimated
Peak Hr
Project Data
Base
Adj
Adj
Parking
Adj
Land Use
Quantity Unit
Rate Unit
12 PM
Late December
Demand
12 PM
Community Shopping Center (<400 kaf)
26,550
sf GLA
2.68
/ksf GLA
0.90
0.80
51
0.80
Employee
0.65
/ksf GLA
1.00
0.90
15
1.00
Family Restaurant
9,300
sf GLA
8.57
/ksf GLA
1.00
0.95
76
1.00
Employee
1.43
/ksf GLA
1.00
1.00
13
1.00
Hotel -Leisure
104
rooms
0.90
/rooms
0.65
1.00
61
0.65
Restaurant/Lounge
sf GLA
10.00
/ksf GLA
1.00
0.95
0
1.00
Conference CtrlBanquet (20 to 50 sq ft/gue
sf GLA
30.00
/ksf GLA
0.65
1.00
0
0.65
Convention Space (>50 sq ft/guest room)
sf GLA
20.00
/ksf GLA
1.00
0.00
0
1.00
Employee
0.00
/rooms
1.00
1.00
0
1.00
Customer
188
Employee
28
Reserved
0
Total
216
Shared Parking Reduction: 25%
• Total Base Rate per Cape Canaveral Land Development Regulations and Customer vs. Employee demand per Urban Land Institute Shared Parking Manual, Second Edition
/ksf GLA. Per 1,000 square feet of gross leasable area
A LT
Engineering
eertrrg
K Planning
Mosh Gal
May 11th,2018
Page 5
Table 3 shows the associated shared parking demand, which the model has as 25% weekend parking
reduction attributed to shared parking. This shared parking is from the various uses which require unique
parking demands by hour of the day. The time and month of late December has the highest peak parking
demand and was shown here for a conservative parking estimate. The ULI model estimates a peak parking
demand of 216 at 12:00 p.m. on a weekend in late December.
CONCLUSION
As noted above and based on the ULI shared parking formulas used in the model calculations, the shared parking
provisions result in a 25% reduction of weekend parking demand. The weekend parking demand calculated is
216. Given that 264 parking spaces will be provided by the Client's development, the supply will meet the
demand. A future option considered by the Client is an offsite cruise line parking lot, which may provide additional
parking for Wave Village provided a valet service.
I affirm, by affixing my signature below, that the findings contained herein are, to my knowledge, accurate and
truthful and were developed using current procedures standard to the practice of professional planning.
Name: Matthew West, AICP
Signature:
717
Date: Mav 11th, 2018
Engineering
& Planning
•
a
d
. . GRAPHIC SCALE
EXISTING REQUIRED PARKING
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REQUIRED PARKING TOTAL
133.3310cc..1.3/a3.31;3331.3........Q .,D. a3
TOTAL SPAcas REamREa 313 SPAS
PROVIDED PARKING TOTAL
• b,rDaTDfJ. 131.33. .3•X,. r.•.CL.
TOTAL SPACES PROMO®: DM SPACES
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•
PRELIMINARY
EXHIBIT "G"
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