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HomeMy WebLinkAboutCape Caribe Binding Developer's Agreement 2010 CFN 2010074847, OR BK 6152 PAGE 2042 I Recorded 04/22/2010 at 04:16 PM, Scott Ellis, Clerk of Courts, Brevard County # Pgs:17 i THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Katherine W. Latorre, Esq. Assistant City Attorney of Cape Canaveral Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Z � 7 3 Orlando, FL 32802 O (407) 425 -9566 FOR RECORDING DEPARTMENT USE ONLY i -7'. CAPE CARIBE BINDING DEVELOPER'S AGREEMENT THIS BINDING DEVELOPER'S AGREEMENT " "A reement is made b ( g ) by and between the CITY OF CAPE CANAVERAL, a Florida Municipal Corporation ( "City "), whose principal address is 105 Polk Avenue, Cape Canaveral, Florida 32920, and CAPE CARIBE, INC., a Florida Corporation ( "Owner "), whose principal address is 1000 Shorewood Drive, Suite 200, Cape Canaveral, Florida 32920. WITNESSETH: WHEREAS, this Agreement is a developer's agreement entered into pursuant to the Florida Municipal Home Rule Powers Act, codified in Chapter 166, Florida Statutes; and WHEREAS, Owner is the current fee simple owner of record of certain real property and holds easements over certain real property located within the City of Cape Canaveral and more particularly described herein ( "Property "); and WHEREAS, a certain portion of the Property, consisting of 27.71 acres of land, has an approved site plan dated June 27, 2001 for the development of phased hotel and resort condominium buildings, related infrastructure and amenities ( "Original Site Plan"); and WHEREAS, consistent with the Original Site Plan, Owner has commenced construction of the development known as "Ron Jon® Cape Caribe Resort," which currently consists of 206 hotel and resort condominium units, as well as two (2) parking garages and recreational 1 amenities on the Property; and WHEREAS, Owner desires to amend the Original Site Plan by adding 5.01 acres of real p roperty located adjacent to and directly west of the real property subject to the Original Site Plan; and WHEREAS, Owner also desires to revise the Original Site Plan by reducing the number of buildings and units and expanding amenities consistent with its revised site plan; and I DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 1 of 13 I i WHEREAS, consistent with applicable laws and ordinances, the City Council approved Owner's revised site plan on March 2, 2010, subject to, among other conditions, the approval and execution of this Agreement; and WHEREAS, given the unique character of the revised site plan, the City and Owner desire to address specific on -site and off-site concerns in this Agreement; and WHEREAS, the City Council finds this Agreement to be consistent with the City's Comprehensive Plan and land development regulations; 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 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: 1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2.0 Authority. This Agreement is entered into pursuant to the City's home rule p granted by the Florida Constitution and the Florida Municipal Home Rule Powers Act. 3.0 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. 4.0 Effective Date. This Agreement shall become effective immediately upon the occurrence of all of the following conditions precedent ( "Effective Date "): 4.1 The Land Use Ordinances, as defined in Section 16.0 herein, and the 1 Revised Site Plan becoming effective in accordance with Section 16.0; 1 4.2 The expiration of any and all appeal periods for any challenge to the Revised Site Plan; and ''¢ 4.3 The recordation of a fully executed original of this Agreement in the official records of Brevard County, Florida, at the expense of Owner. i 1 Should any of the foregoing conditions precedent fail to occur, this Agreement shall be null and i void. 1 5.0 Duration of Agreement. This Agreement shall be binding on the Property for a 1 term of twenty (20) years from the Effective Date unless sooner terminated pursuant to section 17.0 herein. Any extension to this Agreement shall be evidenced in a written amendment hereto, executed by both parties and approved by the City Council consistent with Section 22.0 herein. DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 2of13 i i 1 1 6.0 Revised Site Plan. Owner agrees to develop the Property in accordance with its r evised site plan, approved by the City Council on March 2, 2010 ( "Revised Site Plan"), effective consistent with Section 16.0 herein, and pursuant to the terms and conditions of this Agreement and all applicable laws. The Revised Site Plan is depicted on the signed and sealed i site plans prepared by Allen Engineering, Inc., dated April 1, 2008 (revised on February 25, 2009) and on file at Cape Canaveral City Hall. As a matter of convenience, and at the request of Owner, the Revised Site Plan may be amended from time to time by the City without further amendment to this Agreement. Any such amendment to the Revised Site Plan shall automatically be incorporated herein by this reference. 7.0 Status of Original Site Plan. The parties understand and agree that upon the 1 Effective Date, the Original Site Plan shall be replaced and superseded in its entirety by the Revised Site Plan and any development rights granted to Owner pursuant to the Original Site Plan shall be null and void. 8.0 Development Permitted on the Property. p rty. The Property is zoned R -3 Medium Density Residential ( "R -3 ") and C -1 Low Density Commercial ( "C -1 "). 8.1 R -3 Property. The permitted uses, allowable density and building 1 1 intensities and height for the portions of the Property zoned R -3 are set forth in sections 110 -311 through 110 -321 of the Cape Canaveral City Code, which sections are expressly incorporated herein by this reference. 1 8.2 C -1 Property. The permitted uses, allowable density and building intensities and height for the portions of the Property zoned C -1 are set forth in sections 110 -331 through 110 -339 of the Cape Canaveral City Code, which sections are expressly I incorporated herein by this reference. j 9.0 Public Facilities and Services. The Property will be served by City of Cocoa 1 water and City of Cape Canaveral sanitary sewer facilities. On -site design and construction of I said facilities shall be performed by Owner as part of its development of the Property in j accordance with the Revised Site Plan. 1 10.0 Phased Development. 10.1 Phasing. The Revised Site Plan depicts a total of seven (7) buildings i containing 600 hotel and resort condominium units. Consistent with the Original Site Plan and as of the Effective Date, Buildings 1 and 2 containing 206 units are constructed on the Property. Subject to the termination provisions set forth in Section 17.0 herein, Owner and City agree that Owner shall be permitted to phase the development of the remaining five (5) unconstructed buildings, designated as Buildings 3 through 7 ( "Remaining Buildings "), and containing a total of 394 units, in accordance with the i Revised Site Plan and pursuant to the following development schedule: 1 i DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 3 of 13 1 I 10.1.1 No later than two (2) years from the Effective Date, Owner shall submit the building permit application to construct the first building of the unconstructed Remaining Buildings. 1 10.1.2 No later than seven (7) years from the Effective Date, Owner shall submit the building permit application to construct the second building of the unconstructed Remaining Buildings. 1 10.1.3 No later than twelve (12) years from the Effective Date, Owner shall submit the building permit application to construct the third building of the unconstructed Remaining Buildings, provided that the first and second buildings of the Remaining Buildings are substantially complete or have received a 1 i certificate of occupancy. 1 10.1.4 No later than seventeen (17) years from the Effective Date, Owner shall submit the building permit application to construct the fourth building of the unconstructed Remaining Buildings, provided that the third building of the Remaining Buildings is substantially complete or has received a certificate of occupancy. 10.1.5 No later than twenty (20) years from the Effective Date, Owner shall submit the building permit application to construct the final building of the unconstructed Remaining Buildings, provided that the fourth building of the Remaining Buildings is substantially complete or has received a certificate of occupancy. Building permit applications submitted in satisfaction of this subsection 10.1 shall be substantially complete consistent with the requirements of applicable law. Within ten (10) days of receipt of any building permit application required by this subsection, the City's Building Official shall provide written notification to Owner regarding whether the application is complete or incomplete. In the event the application is deemed incomplete, the application deficiencies shall be specifically identified in the Building Official's written notification to Owner. Upon issuance of any building permit under this subsection 10.1, Owner shall diligently pursue the construction authorized by the permit 1 and shall maintain a valid and active permit pursuant to applicable law. i 1 10.2 Infrastructure. Owner shall ensure that the construction of all necessary infrastructure is completed in direct proportion to the phased development of the Remaining Buildings in order to service and support the completed development of the Remaining Buildings. All phased infrastructure installed shall be compatible and coordinated with existing infrastructure. As used in this subsection, the "infrastructure" shall include, but not be limited to, streets and roadways, sidewalks, street and common area lighting, utilities, drainage and stormwater systems, and parking. Further, upon completion of any structure and prior to the issuance of a certificate of occupancy, Owner shall be required to demonstrate that the completed development meets all applicable bulk regulations and supplementary district regulations required by the City Code. 1 DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 4 of 13 1 1 I 10.3 Concurrency. The City agrees to issue Owner an initial concurrency compliance certification for all levels of service of the various public facilities to support the specific impacts of the proposed development consistent with the requirements of Chapter 86 of the City Code. This certification shall reserve concurrency capacity for the Property for a period of seven (7) years from the Effective Date ( "Initial Concurrency "). J Notwithstanding the above, the Owner acknowledges that concurrency for Potable Water from the City of Cocoa may be reserved for a period less than seven (7) years, therefore the City agrees to reserve the maximum term available for the Property. 10.3.1 Upon expiration of Owner's Initial Concurrency a new application shall be submitted by Owner and City shall provide an analysis of public facilities consistent with the requirements of Chapter 86 of the City Code. Provided adequate facilities are available, the City shall issue a new certification to reserve concurrency for an additional five (5) years ( "Second Concurrency "). 10.3.2 Upon expiration of Owner's Second Concurrency a new application shall be submitted by Owner and City shall provide an analysis of 1 public facilities consistent with the requirements of Chapter 86 of the City Code. Provided adequate facilities are available, the City shall issue a new certification to reserve concurrency for an additional five (5) years ( "Third Concurrency "). 10.3.3 Upon expiration of Owner's Third Concurrency a new application shall be submitted by Owner and City shall provide an analysis of public facilities consistent with the requirements of Chapter 86 of the City Code. Provided adequate facilities are available the City shall issue a new certification to reserve concurrency for an additional three (3) years. 11.0 Resort Condominium Status. 11.1 Notice of Intent. Owner and City acknowledge and agree that, consistent with section 110- 486(b)(5), Cape Canaveral City Code ( "City Code "), Owner has timely filed a notice of intent with the City Manager declaring Owner's intent to license certain existing and proposed units depicted on the Revised Site Plan as resort condominiums. 11.2 Original Site Plan Units. Upon the Effective Date, the existing 56 units contained within "Building 2," as identified on the Revised Site Plan, shall be considered "existing" consistent with section 110- 486(a), City Code. 11.3 Revised Site Plan Units. Upon the issuance of certificates of occupancy for Buildings 3 and 4, as identified on the Revised Site Plan, and upon the satisfaction of all building and fire code requirements applicable to resort condominiums, the 124 proposed units in Buildings 3 and 4 shall be granted preliminary certificates of 4 nonconforming status. 1 1 1 DEVELOPER'S AGREEMENT 1 City of Cape Canaveral / Cape Caribe, Inc. Page 5 of 13 j i 1 • I l 1 11.4 Site Plan Approval Deadline. The Revised Site Plan shall not be subject to the site plan approval deadline set forth in section 110- 486(b)(5)(i), City Code. 12.0 Tree Mitigation & Land Clearing. 12.1 Tree Mitigation. Owner and City expressly acknowledge and agree that 9 Owner's affiliate, Solana Lake, Inc. ( "Solana ") and the City are party to a Development Agreement dated November 6, 2003 for the construction of a residential condominium development, said Development Agreement being recorded in Brevard County Official Record Book 5115, Page 3331 ( "Solana Agreement "). Pursuant to Section 5 of the 1 Solana Agreement, Solana is required to mitigate the removal of trees that occurred during the development of Solana's condominium development. In addition, Owner is still obligated to mitigate the removal of trees associated with the Original Site Plan. Therefore, Owner agrees to satisfy all of Owner's and Solana's outstanding tree I mitigation obligations related to the Original Site Plan and the Solana Agreement, excluding mitigation obligations related to the New Site Plan Property, as defined in Section 12.2 below, as follows: 12.1.1 No later than 30 days following the Effective Date, Owner shall pay to the City as tree mitigation a sum of One Hundred Forty Thousand and no /100 Dollars ($140,000.00). Such sum shall be deposited into the City's tree bank and may be used at the City's sole discretion. 12.1.2 With the exception of the New Site Plan Property, as defined in p Section 12.2 below, the Revised Site Plan shall meet or exceed the minimum land 1 clearing and landscape requirements of the City Code, as the City Code existed on the date the Original Site Plan was approved. 1 12.2 Land Clearing on New Site Plan Property. The Revised Site Plan includes 5.01 acres of real property not included in the Original Site Plan ( "New Site Plan Property "), which is located adjacent to and to the immediate west of the real property subject to the Original Site Plan. With regard to land clearing and tree removal and replacement on the New Site Plan Property, Owner agrees that the New Site Plan 1 Property shall be designed and developed consistent with the current provisions of Chapter 102 of the City Code, as of the Effective Date of this Agreement. 13.0 Conservation Easement to City. Within 30 days of the Effective Date, Owner shall convey a statutory perpetual conservation easement to preserve trees in conformance with the provisions of Chapter 102 of the City Code, and in compliance with Section 12.2 above ( "Conservation Easement "), in favor of the City over the 0.95 acres, more or less, generally located to the south of the "West Parking Garage" and to the west of "Building 7," as identified on the Revised Site Plan. The real property subject to the Conservation Easement is legally I described in Exhibit "B," attached hereto and fully incorporated herein by this reference. The conservation easement shall be in accordance with Florida law and shall be on a form acceptable to Owner and the City Attorney. The City shall not be responsible for any maintenance or upkeep of the real property subject to the Conservation Easement. DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. 1 Page 6 of 13 4 I 14.0 North Atlantic Avenue Improvements. The Solana Agreement required Solana to construct certain roadway improvements on North Atlantic Avenue. As security for the 1 payment of Solana's obligations under the Solana Agreement, Solana was required to bond the roadway improvements in the amount of $30,000.00. Given that the roadway project has since i been postponed by the City to allow for future development of properties along North Atlantic Avenue, the City and Owner hereby agree that Owner shall pay the City a sum of Thirty Thousand and no /100 Dollars ($30,000.00) within thirty (30) days of the Effective Date, which sum the City, at its sole discretion, shall allocate toward beautification along North Atlantic Avenue. No later than ten (10) days following City's receipt of Owner's payment, the City shall return the original bond to Solana and Solana's obligations under Sections 2 and 3 of the Solana Agreement shall be deemed fully satisfied. 15.0 Stormwater Management. The Property is served by a stormwater system approved by the City and the Florida Department of Environmental Protection ( "DEP "). This stormwater system consists of a series of retention trenches, ponds and swales located on the Property and on the properties located immediately adjacent to the Property, commonly known i as "Solana Shores" and "Solana Lake ", which trenches and ponds cooperatively serve as the stormwater management system for the Property and the aforementioned adjacent properties ( "Stormwater System "). Based on drainage computations and exhibits provided by Allen Engineering, dated September 4, 2009, the City has determined the Stormwater System provides sufficient storage capacity as required by City Code for the Property depicted on the Revised Site Plan. However, the City is desirous to have Owner establish an Emergency Drawdown Plan to assure that excess stormwater can be removed from the Stormwater System in an expeditious manner prior to a Storm Event, as defined herein. In addition, the City desires the Owner to provide a permanent Stormwater Outfall for the Stormwater System. I I 15.1 Emergency Drawdown Plan. Owner shall use all reasonable efforts to establish an emergency drawdown plan ( "Plan") acceptable to the City to drawdown the water levels of the Stormwater System. Owner shall perform an emergency drawdown of the Stormwater System in accordance with its Plan prior to any hurricane, tropical storm, or any 100 -year storm event (defined as producing 11 or more inches of rainfall within a 24 -hour period) (collectively, "Storm Event ") forecast to affect the City of Cape Canaveral when the Stormwater System water levels are above the Plan elevation. Owner shall be responsible for securing, maintaining and operating the necessary equipment to i facilitate the pumping of excess stormwater from the Stormwater System and through the Canaveral Port Authority's ( "Port's ") stormwater system. 15.2 Stormwater Outfall. Prior to the issuance of a building permit for any new building shown on the Revised Site Plan, the Owner shall obtain a stormwater permit , modification from the DEP for the Stormwater System. Furthermore, the Owner's application for the stormwater permit modification shall include, but not be limited to, all supporting data, computations, design and construction plans to request a conversion of I the existing Stormwater System from a retention design to a detention design that provides for an outfall of the Stormwater System through the Port's stormwater system ( "Stormwater Outfall"). The Stormwater Outfall shall be designed as a permanent pump i 1 DEVELOPER'S AGREEMENT I City of Cape Canaveral / Cape Caribe, Inc. Page 7 of 13 i i I 1 system that automatically maintains the water levels in the existing Solana Lake and Solana Shore ponds. 15.3 Permit Approval. Owner shall be responsible for obtaining a revised stormwater permit from DEP prior to constructing any modifications to the Stormwater System. The City and Owner acknowledge and agree that all stormwater plans and modifications contemplated in Section 15.0 herein shall only include the Plan or the Stormwater Outfall and related improvements be completed by the Owner at such time that reasonable conditions of approval are obtained from both the DEP and the Port. 15.4 Other Conditions. The Plan and Stormwater Outfall shall be maintained on file at the City's Building Department and shall include documentation demonstrating that the DEP and the Port have perpetually authorized Owner to pump stormwater out of the Stormwater System through the use of the Port's public stormwater conveyance 1 system. Such authority to pump through the Port's system shall be demonstrated in a I perpetual, recorded easement in a form acceptable to Owner and the City Attorney. Upon issuance of a permit for Stormwater Outfall by DEP, the Owner, subject to Section 15.3, l shall be responsible for maintaining the Plan and Stormwater Outfall systems. Owner shall have the Stormwater and Outfall Systems inspected at least annually by a licensed engineer and shall provide the City with a written inspection report following each 1 inspection. 1 16.0 Approval of Land Use Ordinances Required. Owner understands and agrees that in order for certain portions of the Property to be developed consistent with the uses proposed on the Revised Site Plan, the City's approval and adoption of Comprehensive Plan Amendment Ordinance 02 -2008 and Rezoning Ordinance 03 -2008 (collectively "Land Use Ordinances ") is required. Therefore, the Revised Site Plan shall not become effective unless and until the Land Use Ordinances are adopted by the City Council and become effective in accordance with the requirements of applicable law, including being subject to any appeal or challenge. The City's approval of the Revised Site Plan and this Agreement shall not bind or require the City to adopt the Land Use Ordinances, but the City shall ensure that said ordinances are efficiently processed through the requisite staff review and public hearings. l 17.0 Termination. This Agreement shall terminate under the following conditions: 17.1 Upon the expiration of the term as set forth in Section 5.0 herein, this P p , Agreement shall automatically terminate. 1 17.2 The City shall have the unconditional right, but not obligation, to terminate this Agreement if Owner fails to develop the Property consistent with the schedule set forth in Section 10.0 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 paragraph 34.0 herein. 17.3 If this Agreement is terminated in accordance with this Section 17.0, the City shall record a notice of termination in the public records of Brevard County, Florida. 1 DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 8 of 13 1 1 1 17.4 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. 18.0 Annual Review & Inspection; Report. The City's Building Official and Planning & Development Director 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 and Planning & Development Director shall be memorialized in a written report ( "Annual Report"), a copy of which shall be provided to Owner. Further, the Annual Report shall be presented annually to the City Council at a duly held City Council meeting. 19.0 Representations of the Parties. The City and Owner hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by the City and Owner 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. 20.0 Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Owner and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 21.0 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. 22.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns). 23.0 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 1 hereto and referenced herein are hereby fully incorporated herein by this reference. DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 9 of 13 i 1 24.0 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 25.0 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. 26.0 Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Owner is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties and 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. 27.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed ' g g d as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars ($200,000.00). 28.0 City's Police Power. Owner agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. d 29.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 1 30.0 Third - Party Rights. Except for the benefits bestowed upon Solana under Sections 12.0 and 14.0 herein, 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. 31.0 Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 32.0 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 1 DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 10 of 13 1 33.0 Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the Effective Date. 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 the Revised Site Plan, or any and all certificates of occupancy for any building or unit, if Owner is in material breach of any term and condition of this Agreement. 34.0 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. 35.0 Force Maieure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ( "Time Period ") constitutes a default under the terms of this Agreement and, if any such failure is due to 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. 36.0 Public Advertising; Costs. Owner agrees that it shall be solely responsible for any and all legal advertisement costs related to the adoption, amendment or termination of this Agreement. 1 1 [EXECUTION PAGES FOLLOW] I i i i 1 I 1 1 DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 11 of 13 1 1 t I 1 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY: City of Cape Canaveral, a Florida municipal corporation. By: C© & d2 y 1 Rocky Randels, Mayor ATTEST: (_,-- f By: — �� /_ Mia G o£o h O ty Clerk i e . . " , / r A , ' " .,, ;!t APPROVED AS TO FORM AND LEGALITY ;' , 4 / '`' t ;' II, F or the use and reliance of the City of Cape Canaveral w% r Canaveral, � N, ' ` , `,- Florida only w CI' Y,Et ; Date: / _ B �'', Ci "r �y ' ' y Anthony A. Garganese, City Attorney for i t „ •,y, . ,"°. - the City of Cape Canaveral, Florida 4 STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument was acknowledged before me this 7 day of MIrGI, , 2010, by Rocky Randels and Mia Goforth, well known to me to be the Mayor and Acting City Clerk respectively, of the City of Cape Canaveral and 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 SEAL) 1 �� kA (Notary Pu is Signature) /� ✓� 1 ANGELA M. ) r� I /w ef'SD1 s . APP I (Print Name) , MY COMMISSION # DD 5290 EXPIRES: Apru 13, 2oto Notary Public, State of F I,,; 1 , 1 ;, 1nd1M M ”' Commission No.: DID S Z 9 0/ 3 My Commission Expires: N / t 3 ) / D i i 1 1 1 DEVELOPER'S AGREEMENT C ity of Cape Canaveral / Cape Caribe, Inc. ) Page 12 of 13 i ) 1 Signed, sealed and delivered in the OWNER: presence of the foll ■/' ng witnesses: Cape Caribe, Inc., � — a Florida Corporation. Signature of Witness II )3°"-iL----- P a of Witness By. / i / act t re-J' .(y. /) t (Print Name and Title) Signatu Wit Date: 1 /// q / /6 1 DV wielr Printed Name of Witness 1 STATE OF \ `. \ a,0. COUNTY 6P Q S 6. The foregoing instrument was acknowledged before me this \ day of , 2010, 'Z 0iNf■i ta _co,n4\ity, as vi Qc6„QC-k of Cape Caribe, Inc., a Florida Corporation, on behalf of said company. He is personally knnwri to mP or produced as identification. (NOTARY SEAL) `'C)(• 1 i,i 0 (Notary P c Si atu BILLIE JO GENTRY (Print Name) 4 s NOTARY PUBUC Notary Public, State of t' cam._ IP - S TATE OF FLORA Commission No : ` � O�S'3�� j ;.... ~ Come* 000953406 My Commission Expires: \7)11e9 9 Expires 3/31/3014 1 I 1 I 1 1 8 g 1 f 1 tl DEVELOPER'S AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 13 of 13 ) 1 i SKETCH TO ACCOMPANY DESCRIPTION NOT A BOUNDARY SURVEY Property Owned by Cape Corlbe, Inc. PORT CANAVERAL POINT OF COMMENQENENT NORTHWEST CORNER OF SECTION 14 � w'R NMENT L E 1 RTH LINE OF SECTION 14 1 t ' ! N.89'45'43$ 1.307.56' . 411 NMEg y. -'POINT OF BEGINNING ° JETTY PARK N.8 T1.60 GOVERNMENT LOT t. s2 IV" tN .v4 N.89'45'4,1e 1,500.34' 0 a • C SUBJECT 35 PARCEL ACRES ± 1 k46 251.32 — S. 45433V. 962.78 _ } ikl lrL 1 lc ��gpp jEr: I Y 0 44 -30"5 i w X5:00 . 13'27% 49/ C; A-27J 9 8� t 271.75 £2 75 2 Sgg'.�74 Q "1•41:051V. SOLANA SHORES f SOLANA LAKES P Z3i42' .R r 6 7" t1B o g ' S 19'588 58- �V 2 1 CH. +114.26 R 4y ii " id N CN 3 X2 4.58' W No�yE 77�y Rr �, / � p { y� Y D A � 5 5 " 8 �^ O F SHOREW000 ORNE .� ; (\ � R 8 1Z r ' , .7* N. 05 A J 14 A CONDOMINIUM COs f iNk 1 ,w.. t:4,62 • s8j 11• ug }y am VILLAGES AT SEAPORT ABBREVIATIONS: N R = RADIUS D = DELTA ANGLE il EXHIBIT "A" A = ARC LENGTH SHEET 1 OF 2 CH = CHORD CH. BRG. = CHORD BEARING PREPARED BY: R \ LLEN SCAM: 1 " =40' o b , nglneenng, Inc. E SURVEYORS - ENGINEERS u 125 250 500 GRAPHIC SCALE loon 108 DDO'E LANE (P.O. BOX 321321) I COCOA BEACH, FLORIDA 32932 -1321 N TELEPHONE: (321)783 -7443 FAX: (321)783 -5902 8 CERTIFICATE OF AUTHORIZATION if LB 266 0' 3. SEE SHEET 2 OF 2 FOR DESCRIPTION, 2 SURVEYOR'S CERTIFICATION AND SURVEYOR'S NOTES 1. PREPARED AND CER77FIED FOR: DAM: 02 -24 -10 DRAWN BY :: KSC CAPE CARIBE, INC. JOB NO. 980129 SCALE: 1".---500' i DESCRIPTION NOT A BOUNDARY SURVEY Property Owned by Cope Coribe, Inc A portion of Section 14, Township 24 South, Range 37 East, Brevord County, Florida, being more particularly described as follows: Commence at the Northwest corner of said Section 14; thence N89'43'34"E, along the North line of said Section 14, a distance of 2,639.94 feet, to the North 1/4 Corner of sold Section 14; thence N89 45'43 "E, along said , o distance of 11.60 feet, to the POINT OF BEGINNING of the herein described parcel ;; thence continue N89 45'43 "E, along sold North line of said Section 14, o distance of 1,307.56 feet, to Northwest corner of Government Lot 1 of said Section 14; thence S0129'01 "E, along the West line of said Government Lot 1, a distance of 260.06 feet; thence N8945'43 "E, a distance of 1,80034 feet; thence 52134'26 "W, a distance of 34.41 feet; thence S242225 "W, a distance of 222.11 feet; thence 525'0733 "W, a distance of 214.03 feet; thence S2677'25 "W, a distance of 40.16 feet; thence N6820'23 "W, a distance of 581.68 feet; thence S8946 33 "W, a distance of 435.12 feet; thence S0073'27 "E, a distance of 271.75 feet; thence S8948'06 "W, o distance of 161.58 feet, to a point of intersection with o non - tongent curve, concave Westerly, having a radius of 14Z43 feet and a central angle of 45'35'53; thence Southerly, along the arc of said curve to the right, a distance of 117.33 feet (said arc subtended by a chord bearing S19'58'58"W, a distance of 114.26 feet), to o point of intersection with a non- tangent line; thence S8947'42 "W, a distance of 233.42 feet, to a point of intersection with o non - tangent curve, concave Northeasterly, having a radius of 116.07 feet and a central angle of 1209'23 "; thence Northwesterly, along the orc of said curve to the right a distance of 24.63 feet (said arc subtended by a chord bearing N3674'05 "W, o distance of 24.58 feet), to a point of Intersection with a non - tangent curve, concave Southwesterly, having o radius of 63.73 feet and a central angle of 77'45'08; thence Northwesterly, along the arc of said curve to the left, a distance of 86.49 feet (said arc subtended by o chord bearing N6671'54 "W, a distance of 80.00 feet), to a point of intersection with a non - tangent curve, concave Northeasterly, having a radius of 35.40 feet and a central ongle of 10679'44"; thence Northwesterly, along the arc of said curve to the right, o distance of 65.70 feet (said arc subtended by o chord bearing N54'00'44"W, a distance of 56.67 feet), to point of intersection with a non - tangent line; thence S89'46'33"W, a distance of 31.11 feet, to the Easterly and Southerly right of way of Shorewood Drive o roadway easement 66 feet In width; thence the following 4 courses along the Easterly and Southerly right of way line of sold Shorewood Drive: (1) S0129'01 "E, a distance of 721.17 feet; (2) S89'45'43"W, a distance of 456.45 feet; (3) S0026'53 "W, a distance of 102.77 feet; (4) 58952 21 "W, a distance of 603.15 feet, to the west line of those lands owned by Cape Coribe, inc.; thence NO129'01 "W, along said West line, a distance of 66.02 feetTo the Northerly right of way of said Shorewood Drive; thence the following 6 courses along the Northerly and Westerly right of way line of said Shorewood Drive :: (1) N8952 21 "E, a distance of 406.67 feet; (2) N58 58'12 "E, a distance of 200.00 feet; (3) N8945'43 "E, a distance of 380.57 feet, to the point of curvature of a curve, concave Northwesterly, having a radius of 35.00 feet and o central angle of 9174'44 "; (4) Northeasterly, along the arc of sold curve to the left, a distance of 55.74 feet, to a point of tangency, (5) N01'29'01 "W, a distance of 818.09 feet, to the point of curvature of a curve, concave Southwesterly, having a radius of 35.00 feet and a central angle of 8845'16;• (6) Northwesterly, along the arc of said curve to the left, a distance of 54.22 feet, to a point of tangency and a point on the North line of Solana Lakes a Condominium; thence S89'45'43"W, along said North line, a distance of 962.78 feet; thence NO129 01 "W, a distance of 66.02 feet; thence S89'45'43"W, a distance of 251.32 feet; thence N00'42'17 "W, a distance of 500.02 feet, to the POINT OF BEGINNING; Containing 35.95 acres, more or less. SURVEYOR'S NOTES: 1. THIS IS NOT A SURVEY. 2. The bearings shown are based on bearing of N89'43'34"E along the north line of Section 14. 3. • Denotes a change in direction (no corner found or set). SEE SHEET 1 OF 2 FOR THE SKETCH TO ACCOMPANY THIS ©ESCRIP7ION. EXHIBIT "A" SHEET 2 OF 2 PREPARED BY: SURVEYOR'S CER7If7CA710N: LLE l hereby certify that the attached Property Description was prepared under my direction, in accordance " with all applicable requirements of j the "Minimum Technical Standards, for land surve % g in the State of E Inc. ngineering, Florida, described in Chapter 61G17 -6, Florida • • inistrotiti'e �\ pursuant to Chapter 472.027, Florida Statute.. 1 . SURVEYORS - ENGINEERS ALL' E i l 9' ' c INC. ry 106 DIXIE LANE (P.O. BOX 321321) o COCOA BEACH, FLORIDA 32932 -1321 B / _ _� co TELEPHONE: (321)783 -7443 FAX: (321)783-5902 Not valid without the signature rOBER M. MON CERTIFICATE OF AUTHORIZATION # LB 266 and the original raised seal of a P'OFESS •N, SURVEYOR & Florida licensed surveyor and mapper. MAPP r' 3 FLORIDA REG/STRA 770N No. 4262 2. PREPARED AND CER77FIED FOR: 1. CAPE CARIBE, INC. JOB NO. 980129 I DATE: 02 -24 -10 SKETCH TO ACCOMPANY DESCRIPTION NOT A BOUNDARY SURVEY TREE CONSERVA 710N EASEMENT POINT OF COMMENCEMENT N.W. CORNER OF SECTION 14 -24 -37 N89'43 34 N.89'45 1 • , 2,630.94' 11.60' NORTH LINE OF SECTION 14 -24 -37 POINT OF BEGINNING N0 C7 1�4 CORNER O tl S CTIO 14-24-37 i■ ,‘; CAPE CARIBE, INC. 4 SCALE: 1'=000' - N 89'45', jr2 "E 69.46 N.89'4530 "E. 61.11111111.11111 �� 54.5' U 4 0 25 50 100 100 C> > N.89'g5'42"E. GRAPHIC SCALE r . 15.31 N •• 0 SUBJECT PARCEL °o a b CONTAINS 0.95 ACRES ± p O o 1.30 2 •'v`' N.89'45'41 "E. 2.33' � 5:89'45 251.32' ;.. • • • J 0 � s .• i Ai ABBREVIATIONS: p0 LL Cz —" R— RADIUS oo<d " D= DELTA ANGLE N 1 A— ARC LENGTH o 6.89'45'43"W. 192.93' t• -4 2 SOLANA LAKES CURVE TABLE LINE TABLE 4 R=4.50' R =6 5P' S•00'14 Li L2 07 E. S.00'14 rE. D= 90'0001' O. 43'4027" 0-82'54 1,1 9.67' A- 54.19' A =33.90' A =93.33 EXHIBIT "B" C4 05 C6 N.89 43'x: S.00 5 127 E SHEET 1 OF 2 R =4.50' R =4.50' " R- 15.00' 18.91' 15.55' D= 46 D =90'00 00 D-53•1733' A= 36.56' A =7.07' A =8.72' N.899 ' E. N.00 PREPARED BY: C7 08 C9 15.50' R =34. R= 50.00' R =82.00' L7 L8 O A LLEN A 250 77 " D A 22 6 D A 40'1 S.5678'09 14.0 "W S 8�Q ai ngineering, Inc. L9 L10 , S00'1417'E: N.89 a~ 1 1, 35.00' 50.67' a) Lf1 SURVEYORS - ENGINEERS S 00 E 8 0.75' 106 DIXIE LANE (P.O. BOX 321321) N COCOA BEACH, FLORIDA 32932 -1321 TELEPHONE: (321)783 -7443 FAX: (321)783 -5902 c CER71F7CA OF AUTHORIZAnON if LB 266 3. SEE SHEET 2 OF 2 POI? DESCRIPTION, 2 SURVEYOR'S CER7IF/CA770N AND SURVEYOR'S NOTES. 1. PREPARED AND CER77FIED FOR: DATE 02 -24 -10 DRAWN BY KSC CAPE CARIBE, INC. JOB NO. 980129 SCALE: 1"=100' I 1 1 I i . .1 ' DESCRIPTION NOT A BOUNDARY SURVEY TREE CONSERVA77ON EASEMENT An easement to be used for tree conservation purposes only, lying in Section 14, Township 24 South, Range 37 East, Brevard County, Florida, being more particularly described as follows: Commence at the Northwest corner of said Section 14; thence N8943'34 "E, along the North line of said Section 14, a distance of 2,639.94 feet, to the North 1/4 corner of sold Section 14; thence N8945'43 "E, along the North line of said Section 14, a distance of 11.60 feet, to the Northwest corner of the Cope Coribe, Inc. property; thence S0042'17 "E, along the West line of said property, a distance of 291.27 feet, to the POINT OF BEGINNING of the herein described easement; thence N89 45'52 "E, a distance of 69.46 feet; thence 50074'07 "E, a distance of 9.67 feet; thence N8945'30"& a distance of 54.51 feet; thence S0074'15 E, a distance of 8.25 feet, to a point of intersection with a non - tangent curve, concave Northeasterly, having o radius of 34.50 feet and a central angle of 90'00'01"; thence Southeasterly, along the arc of sold curve to the left, a distance of 54.19 feet (said arc subtended by a chord bearing S4574'17 "E, a distance of 48.79 feet), to a point of tangency, thence N8945'42 "E, a distance of 15.31 feet; thence S0074'17 "E, a distance of 106.00 feet; thence N8945'43 "E, a distance of 18.91 feet, to the point of curvature of a curve, concave Southwesterly, having a radius of 4.50 feet and a central angle of 71'54'44; thence Southeasterly, along the arc of sold curve to the right, a distance of 5.65 feet, to a point of intersection with o non - tangent curve, concave Northeasterly, having a radius of 64.50 feet and a centrol angle of 8254'11 thence Southeasterly, along the arc of said curve to the left, a distance of 93.33 feet (said arc subtended by a chord bearing S5946'40 "E, a distance of 85.40 feet), to o point of reverse curvature with a curve, concave Southwesterly, having a radius of 4.50 feet and a central angle of 11642'07, thence Southeasterly, along the arc of said curve to the right, a distance of 9.17 feet, to o point of intersection with o non- tangent line ;; thence S00 5127 "E, a distance of 15.55 feet; thence N89 45 43 "E, a distance of 91.00 feet; thence N0074'17 "W, a distance of 15.50 feet, to the point of curvature of a curve, concave Southeasterly, having a radius of 4.50 feet and o central angle of 90'00'00; thence Northeasterly, o/ong the arc of sold curve to the right, a distance of Z07 feet, to a point of intersection with o non - tangent line; thence N8945'41 "E, o distance of 2.33 feet, to a point of intersection with a non- tangent curve, concave Southwesterly, having a radius of 34.50 feet and o central angle of 564226; thence Southeasterly, along the arc of said curve to the right, a distance of 34.15 feet (said arc subtended by a chord bearing S6153'04'E, a distance of 32.77 feet), to a point of intersection with a line radial to said curve; thence 55628'09 "W, a distance of 14.07 feet, to a point of intersection with a non - tangent curve, concave Northerly, having a radius of 15.00 feet and a central angle of 33'1733 thence Westerly, along the arc of said curve to the right, a distance of 8.72 feet (said arc subtended by a chord bearing 57306'56 "W, a distance of 8.59 feet), to a point of tangency, thence S89454311/, o distance of 50.67 feet; thence S00'14'17 "E, a distance of 35.00 feet; thence N89 45'43'E, a distance of 50.67 feet, to the point of curvature of o curve, concave Northerly, having a radius of 50.00 feet and a central angle of 25'44'29"; thence Easterly, along the arc of said curve to the left, a distance of 22.46 feet, to a point of Intersection with o non-tangent curve, concave Northerly, having a radius of 82.00 feet and a central angle of 31'4076; thence Easterly, along the arc of said curve to the left, o distance of 45.33 feet (said arc subtended by a chord bearing S7424'09'E, a distance of 44.75 feet), to a point of intersection with o line radial to said curve; thence S0074'17 "E, a distance of 0.75 feet, to the southerly line of said property, thence the following 3 courses along said southerly line: (1) S8945'43 "W a distance of 192.93 feet; (2) N0129'01 "W, a distance of 66.02 feet; (3) 58945'43 "W, a distance of 251.32 feet, to the Southwest corner of said property, thence N0042'17 "W, along the West line of said property, o distance of 208.75 feet, to the POINT OF BEGINNING; Containing 0.95 acres, more or less. SURVEYOR'S NOTES: 1. THIS IS NOT A SURVEY. 2. The bearings shown are based on a bearing of N8943'34 "£ along the North line of Section 14. 3. • Denotes a change in direction (no corner found or set). EXHIBIT "B" SEE SHEET 1 OF 2 FOR THE SKETCH TO ACCOMPANY THIS DESCRIPTION. SHEET 2 OF 2 SURVEYOR'S CER77FICA77ON: 4 PREPARED BY: m LLE w I hereby certify that the attached Property Description ryas prepared under my direction, in accordance with all applicable requirements of the "Minimum Technical Standards," for land sure•_' g in the State of q \ � ngineering Inc Florida, described in Chapter 61617 -6, Florida • in/strati. Code, co, `�� pursuant to Chapter 472.027, Florida Statute. / o al SURVEYORS - ENGINEERS AL G / " , 'C o 106 DIXIE LANE (P.O. BOX 321321) COCOA BEACH, FLORIDA 32932 -1321 : Y. ` �' a TELEPHONE: (321)783 -7443 FAX (321)783 -5902 Not valid without the signature "OBE', T :ALMON CERTIFICATE OF AUTHORIZATION if LB 266 and the original raised seal of a 'ROFESSI • SURVEYOR & Florida licensed surveyor and mapper. M "'ER 3. FLORIDA R GISTRA AON No. 4262 2. PREPARED AND CERTIFIED FOR: 1 • CAPE CARIBE, INC. JOB NO. 980129 I DATE:: 02 -24 -10 _ . ` i i