HomeMy WebLinkAboutSecond Modification to Binding Developer's AgreementTHIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony A. Garganese.
City Attorney of Cape Canaveral
Brown, Garganese, Weiss & D'Agresta, P.A.
I I I N. Orange Avenue, Suite 2000
Orlando, FL 32802
(407) 425-9566
CAPE CARIBE
10
CFN 2014015850. OR B 7054 PAGE 2186,
Recorded 01/27/2014 at 02:33 PM, Scott Ellis, Clerk of
Courts, Brevard County
A Pgs 10
SECOND MODIFICATION TO
BINDING DEVELOPER'S AGREEMENT
THIS SECOND MODIFICATION TO BINDING DEVELOPER'S
AGREEMENT ("Second Modification") is made on this ,21"rday of January, 2014 by and
between the CITY OF CAPE CANAVERAL, a Florida Municipal Corporation ("City") and
CAPE CARIBE, INC., a Florida Corporation ("Owner") whose principal address is 1000
Shorewood Drive, Suite 200, Cape Canaveral, FL 32920.
WITNESSETH:
WHEREAS, this Agreement is a second modification to 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, Owner and City previously entered into that certain Binding Developer's
Agreement recorded on and with an Effective Date of April 22, 2010 in the Public Records of
Brevard County, Florida at Official Records Book 6152, Page 2042, as amended by that
certain Modification to Binding Developer's Agreement recorded on January 18, 2012 in
Official Records Book 6521, Page 1746 of the Public Records of Brevard County, Florida
(collectively referred to as "BDA"); and
WHEREAS, pursuant to Section 6.0 of the BDA, the Owner amended the Revised Site
Plan by submitting certain revisions to Building 5 as set forth in the signed and sealed site plan
— Building 5 prepared by Allen Engineering, Inc., dated August 26, 2013 and approved by and
on file at the City of Cape Canaveral, City Hall; which reduced the size of the building and the
number of units in Building 5 than was depicted in the Revised Site Plan; and
WHEREAS, Owner desires to further amend the Revised Site Plan by reducing the
size of Building 4 and the number of units in Building 4 as shown on the Revised Site Plan
and
adding a new Building 8 utilizing the units previously in Buildings 4 and 5 (without exceeding
the total units allowed in the Revised Site Plan or BDA) as depicted in the conceptual site
drawing attached hereto and referred to hereinafter; and
WHEREAS, Owner also desires to locate the new Building 8 on a portion of the
Property which is currently restricted by Ordinance No. 03-2008 for only recreational
amenities and parking uses; and
WHEREAS, in conjunction with this Second Modification, Owner has requested an
amendment to Ordinance No. 03-2008 to allow for the addition of Building 8 on the restricted
portion of the Property consisting of only dwelling units (as more specifically defined by
Section 110 -1, City Code) and subject to the terms and conditions of this Second Modification;
and
WHEREAS, Owner further desires to amend the development schedule as set forth in
the BDA due to current economic conditions; and
WHEREAS, the City and Owner believe it to be in the best interests of both parties to
enter into this Second Modification; and
WHEREAS, the City Council finds this Second Modification to be consistent with the
City's Comprehensive Plan and land development regulations.
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
powers granted by the Florida Constitution and the Florida Municipal Home Rule Powers Act.
3.0 Modification to Section 5.0 of the BDA. Section 5.0 of the BDA shall be
modified as follows (underlined type indicates additions to and strikethureu e indicates
deletions from the existing text of the BDA):
5.0 Duration of Agreement. This Agreement shall be binding on the
Property for a term of twenty five (25) 630) 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 2 of 9
4.0 Modification to Section 6.0 of the BDA. Section 6.0 of the BDA shall be
modified as follows (underlined type indicates additions to and -slid ke4u-,aL� type indicates
deletions from the existing text of the BDA):
6.0 Revised Site Plan. Owner agrees to develop the Property in accordance
with its revised 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
scaled 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 amended by the site plan for Building 5
prepared by Allen Engineering., Inc. dated August 26, 2013; revised on October 4, 2013 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. Additionally, the parties acknowledge that it is the
Owner's intention to further amend the Revised Site Plan consistent with the conceptual site
plan attached hereto as Exhibit "A" (-Concept Plan"') depicting the addition of Building 8
and the reduction in size of Buildings 4 and 5.
5.0 Modification to Section 10.1 of the BDA. Section 10.1 of the BDA shall be
modified as follows (underlined type indicates additions to and
type indicates
deletions from the existing text of the BDA):
10.1 Phersin,,. The Concept Revised Sit Plan depicts a total of Lilflit LS)
C,
seven (7) buildings containing 600 hotel and resort condominium units, The number of
units are calculated based on the number of Keys as defined below. The parties
acknowledge that some of the units constructed (or to be constructed) on the Property
have been (or will be) designed so that a portion of the unit inay be divided by a
lockable door into a separate smaller independent living and sleeping area known in the
industry as a ("Lock Out"). In Such case both the remaining portion cif the original unit.
and the Lock Out have independent sleeping and cooking facilities consisting of a
kitchen or kitchenette and both are acccqsible to the outside by a separate exterior door
with a separate key. The parties further acknowledge that in such cases both the
remaining portion of the original unit and the Lock Out shall be considered as two (2)
separate units for density calculation purposes under the City's Code and the
Agreement and each hereinafter shall be referred to as a key Consistent with
the Original Site Plan and as of the Effective Date, Buildings I and 2 containing 206
1�,es uiiits 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 developii-rent of the remaining six (6) five (5) unconstructed buildings,
designated as Buildings 3 through 8 -7 (-[Zeniaining Buildings"), and containing a total
of 394 LM tm4F,, in accordance with the Revised Site Plan and Concept Plan pursuant
to the f'ollowing development Schedule:
DEVELOPER'S AGREEMENT
City of Cape Camaveral / Cape Caribe, Inc.
Page 3 A'9
10-1.1 No later than five (5) years from the Effective Date, Owner shall
submit the building permit application to construct the first building of the
unconstructed Remaining Buildings.
10. 1.2 No later than ten (10) years from the Effective Date, Owner shall
submit the building permit application to construct the second building of the
unconstructed Remaining Buildings.
10.1.3 No later than fifteen (15) 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 certificate of occupancy.
10.1.4 No later than twenty (20) 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-five (25) years from the Effective Date,
Owner shall submit the building permit application to construct the fifth and
sixth buildings of the unconstructed Remaining Buildings, provided that the
fourth building of the Remaining Buildings is substantially complete or has
received a certificate of occupancy.
6.0 Modification to Section 10.3 of the BDA. Section 10.3 of the BDA shall be
modified as follows (underlined type indicates additions to and stikethmugh type indicates
deletions from the existing text of the BDA):
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 twelve (12) ien (10) years from
the Effective Date ("Initial Concurrency"). Notwithstanding the above, the Owner
acknowledges that concurrency for Potable Water from the City of Cocoa may be
reserved for a period less than twelve (12) ten (10) years, therefore the City agrees to
reserve the maximum term available for the Property.
7.0 Modification to Section 11.0 of the BDA. Section 11.5 is hereby adopted:
11.5 The City and the Owner acknowledge that the City has repealed Section
110-486, Resort Condominium, have adopted Section 110-491 (codified as 110-490.1)
Vacation Resort Campus and have amended Section 110-487, Rental Restrictions on
DEVELOPER'S AGREEMENT
City of Cape Canaveral / Cape Caribe, Inc.
Page 4 of 9
Dwelling Units. The City acknowledges that Ron JonO Cape Caribe Resort on the Property
is a Vacation Resort Campus, as delined, under Section 110-49.1 and the BDA, as amended
by this Second Modification and thereafter, shall be considered a master developirient
agreement pursuant to Section 110.491.
8.0 Addition of Section 37 of the BDA. Section 37.0 is hereby adopted:
37.0 Or(linance 16-2013. Owner has made an application to amend the certain
use restrictions set forth in Ordinance No. 03-2008 which restricts the use of approximately
1.2 acres of the Property. Building 8, which is proposed on the Concept Plan, is to be
located within this 1.2 acres of restricted use property. In conjunction with the approval of
this Second Modification by the parties, Ordinance 16-2013 was adopted by the City, with
the full consent of Owner, to allow for the construction of Building 8 containin dwelling
units as more specifically defined under Section 110 -1, City Code) consistent with those
CUITOIltlY existing on the PI-012erty in the buildings identified as Buildings I and 2 on the
Revised Site Plan. The dwelling units in Building 8 may include Lock Out units subjeci to
the provisions of Section 10. 1 herein.
9.0 Modification to Section 15.0 of the BDA. Sections 15.0, 15.1 and 15.4 are
modified and 15.2 and 15.3 are deleted as Follows (underlined type indicates additions to and
type indicates deletions from the existing text of the BDA):
15.0 Stormwater Management. The Property is served by a storinwater
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
I
swales located on the Property and on the properties located immediately adjacent to
the Property, commonly known as "Solaria Shores" and "Solana Lake", �AT]Jieh trenches
and, ponds cooperatively serve as the storrnwater management system for the Property
and the aforementioned adjacent properties ( "Stormwater System"). Based on drainage
computations and exhibits provided by Allen Engineering elated 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 Ernergency Drawdown Plan to assure that
excess storniNvater can be removed frorn the Stormwater System in an expeditious
manner prior to a, Storni, Event, as defined lierein. flie
. r 4,11 Q4
( -A'flef 11'0 pf-ON-1-le R I'le Mormwater System.
15.1 Emergenq �Dravrcloivn Plan. Owner has shall use all i-easoilable effel-ts,
4f) established an emergency drawdowii plan ("Plan") and has obtained approval From
DEP pursuant to the Environmental Resource Permit No. ERP05-0151977-006-EM
issued by the Florida Department of Environmental Protection dated July 14, 2011
whicl► is 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 witli its Plan prior to any IlUrricane, tropical storm, or any 100 -year storin
event (defined as producing 11 or niore inches of rainfall within a 24-hour period)
DEVELOPER'S AGREEMEN]"
City ol'C'ape Canaveral / Cape Caribe, Inc.
Page 5 ol'9
(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
facilitate the pumping of excess stormwater from the Stormwater System and through
the Canaveral Port Authority's ("Port's") stormwater system.
15.2 &epwfi�wkf- ut
0 faW. Prior- to the issuanee of a building peFfflit fer- afly
new building shown en the Revised Site Plan, the Owner- shall ebtffin a steffflweteF
PeMit MO-di—A-0-ati-0-ft fiaffl- t-h-60 -QV-IP fer- thO Steffn'Atftter- S5-SWFA. PUFtheFMON, th-e
Owner's applieatie% fef the sfeFmwater- pemit medifleation shall inelude, but net be
limited
, to all suppeFting data, eemputations, design and senstFustien plans tO Fequest a
I . )f the e*Wing Swa:qwater- 859tem fi;em a retention design to a detemian
desigH 4hat provides &r- 141; 01-141:611. A-f- the Steffmx&ater- System thr-euo the Peft's
sfer-m%tafer- sy-s; s:-A .6-Stermwater Owfall"). The Stei;mwater- Ougall shall be designed
as a peFmanen4 ptimp system that alltomatieelly maiwains the water- levels in the
existing Solana I.-4Ee and Solana Sher-e ponds.
15.32 P�eqcpofk 4ppi-eiw� OwneF shall be responsible fer obtaining a revised
stenawater- peFmit &efn DEP prior- to eenstmeting any medifieati-e-as te th-p- Sfeffflwater-
System. The City and Ownef aeknowledge and affee that all stem+water- p! RS —Aft�d
medifieefiem eentefople4ed in Seetien 15.0 herein shall only ifie-lud-e- th-e- Plan or. 4he
Stem,rwater- Outfall and related impr-evements be eempleted by the Ownei-7at seeh tifne
thAt PA;q
efappFeval ffe eblained from both the DEP and the PeFt.
15.42 Other Conditions. The Plan an4 SteFmwater- Outfell 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 system. Such authority to pump through the Port's system
shall be demonstrated in a perpetual, recorded easement in a form acceptable to Owner
and the City Attorney. Upon issuanee of a peFmit for StefmwateF Ougell by DEP-,4-ihe
Owner-, subjeet to See4ion 15.3-, shall be responsible for maintaining the Plan and
StermweAer- Outfigl systems. Owner- shall have the Stormwater AWN! Systems
inspected at least annually by a licensed engineer and shall provide the City with a
written inspection report following each inspection.
10.0 Modification to Section 18.0 of the BDA. Section 18.0 of the BDA shall be
modified as follows (underlined type indicates additions to and stiikethmu type indicates
deletions from the existing text of the BDA):
18.0 Annual Review & Inspection, Report. At the discretion of the City, the
City's Building Official and Planning & Development Director shall coordinate with Owner
to schedule an- a 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 pursuant to this Agreement shall occur eaeh
DEVELOPER'S AGREEMENT
City of Cape Canaveral / Cape Caribe, Inc.
Page 6 of 9
year- en of: aratind th- --y of the Eff-eeti:N,e Date no :More frequently than annually and
the findings of the Building Official and Planning & Development Director shall be
memorialized in a written report "Annual RepefH, a copy of which shall be provided to
-41 --
Owner. — 4-1- A -,mmal R�oi-t shall be pi-esenied annually to the City Geaneil ail, a duly
held City Ceuriel" meeting, The annual inspection permitted unclor this Section shall not be
construed or inteD?reted in any way to limit the City's right to inspect the Property for other
purposes in accordance with the City's police Powers.
11.0 Recordation, This Modification shall be recorded in the public records of
Brevard County, Florida, and shall run with the land.
12.0 Miscellaneous. All terms and conditions of the BDA and other development
approvals by the City for the project, which are not expressly and specifically modified by this
Second Modification, S11811 Continue to rernain in ftill force and effect. For purposes of future
contract interpretation purposes, the BDA and the Second Modification shall collectively be
referred to as the "Agreement"
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
dates indicated.-below. .
By:
Angel(i Apperson, , ty Clerk
CITY:
City of Cape Canaveral,
a Florida municipal corporation
By: a.
"
Rocky Randels, Mayor
Date:
APPROVED AS TO FORM AND
LEGALITY
For the use and reliance of the
City of Cape Canaveral, Florida
Only
tlDate.,
B Y: ZYA1<--1
AWnf-ho'lly A. Garganese
City Attorney, for the
City of Cape Canaveral, Fl.
DBICLOPER'S AGRE'EMENT
City of Cape Caiiaveral / Cape Caribe, Inc.
Page 7 c)1'9
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this 00—day of
2014 by Rocky Randels and Angela Apperson, well known to ine to be the Mayor and City
Clerk respectively, of the City of Cape Canaveral and acknowledged before ine that they
executed the foregoing instrument on behalf of the City of Cape Canaveral, as its ti-Lie act and
deed, and that they were duly authorized to do so.
'Iry Public Si nature
MIA GOFORTH
q
Notary Public - State of Florida
4
(NO Comm, Expires May 16, 2017
Commission # EE 866939
Bonded Through National Nolary Assn,
Signed, sealed and delivered in
the presence of the following witnesses:
Signature of Witness
:n
David L Greene
Printed Name of Wit ' s
Signature of Witness
Z�)
Ken Ward
Printed Narne of Witness
Mia Goforth
Print Name
Notary Public, State of Florida
Commission No.: EE 866939
My Conunission Expires: May 16, 2017
OWNER:
Cape Caribe, Inc.,
A Florida CoUmoration
By:
.10 R. Grandlich,
It's Vice President
Date: //7, //i
IDEVELOPER'S AGREEMENT
City of Cape Canaveral / Cape Cal-ibe, 111C.
Page 8 of
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this 2-( $— day of
—' avvtl-e& 2014 by John R. Grandlich, as Vice President of Cape Caribe, 111c., a Florida
Corporation, on behalf of said company. He is personally known to me or produced
of as identification.
ANGELA M. APPERSON
My COMMISSION # DO 980218
EXPIRES. April 13, 2014
Banded Thru Notary Public Underwrites
(NOTARY SEAL)
Notary Public SignakA
Angela M. Apperson
Print Name
Notary Public, State of Florida
ConimissionNo.:DD 980218
My Commission Expires: April 1.3, 2014
DEVELOPER'S AGREEMENT
City oFCape Canaveral / Cape Car-ibe, Ine.
Page 9 or9
groimmorwrom
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