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HomeMy WebLinkAboutPort of Call Development Agreement 1-9-2013CFN 2013006219, OR BK 6775 PAGE 1538, Recorded 01/09/2013 at 02:25 PM, Scott Ellis, Clerk of Courts. Brevard County Return to: # Pgs:12 City of Cape Canaveral Attn: City Clerk P.O. Box 326 Cape Canaveral, FL 32920 PORT OF CALL DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made this day of 12 i sa> d -t, 2012, by and between the City of Cape Canaveral, a Florida municipal corporation ("City"); and 8600 Astronaut Properties LLC, a foreign 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 at 8600 Astronaut Boulevard within the City of Cape Canaveral and more particularly described herein ("Property"); and WHEREAS, the 5.51 -acre Property is currently developed and includes a two-story commercial structure approximately 63,000 square feet in area, which is now vacant, as well as related infrastructure and amenities, including ample parking; and WHEREAS, with Owner's permission, the Property is currently being used by Cocoa Beach Motel, Inc., d/b/a Radisson Resort at the Port, for passenger transportation services; and WHEREAS, in addition to the current passenger transportation service available on the Property, Owner desires to redevelop the Property in several phases into what will eventually be a "Port of Call" complex featuring commercial, retail, transportation services and hotel facilities; and WHEREAS, Owner intends the Port of Call facility to serve as a regional tourist, hospitality, and transportation services hub to the visitors and citizens of Cape Canaveral and the surrounding communities; and WHEREAS, Owner also desires to enhance the Property during redevelopment by improving it consistent with the standards and requirements of the City's AIA Economic Opportunity Overlay District; and Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 1 of 11 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 WHEREAS, the proposed redevelopment of the Property will add substantial value to the City's ad valorem tax base and enhance 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 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 redevelopment 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; and upon issuance of a local business tax receipt for Owner's Phase 1 operations ("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. The Property shall be developed in three (3) phases as follows: A. Phase 1 — Consumer Transit and Transportation Service Center. Phase 1 shall consist of commercial parking and transportation transfer facility. L Plans. No later than 30 days following the Effective Date, Owner shall submit construction/ plot plans, accompanied by the requisite fees, to the City's Community and Economic Development Department for the Phase 1 development of the Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 2 of 11 Property ("Phase 1 Plans"). The Phase 1 Plans shall be prepared in compliance with the requirements of section 110-222 of the Cape Canaveral City Code, as may be amended. ii. Plans Review. The Phase 1 Plans shall be subject to review by City staff. City staff shall provide written comments to Owner on the plans and shall make recommend changes deemed appropriate, if any. Owner shall submit revised plans, if necessary, to the Community and Economic Development Department for further review and comment. This process shall continue until the City issues a final written approval or denial of the Phase 1 Plans. iii. Perimeter Fence. As part of the Phase 1 development of the Property, Owner shall be required to install a six-foot (6') high aluminum metal (or better) decorative fence around the entire perimeter of the commercial parking area. ("Commercial parking area" shall mean the existing, developed parking lot located northeast of the rear building line.) If access is provided to the commercial parking area from West Central Boulevard, the gate must be set back far enough from the public right- of-way to allow for vehicle stacking on-site while gates are opened and closed. Vehicles shall not be permitted to stack in the public right-of-way. Owner shall submit a fencing plan prior to issuance of a fence permit identifying compliance with this subsection. iv. Landscaping. Owner shall provide landscaping on the Property consistent with the requirements of section 110-689 of the Cape Canaveral City Code ("City Code") and any other applicable development order. Accordingly, the perimeter landscaping on West Central Boulevard shall consist of a 5 -foot wide landscape buffer measured from the Property's property line. This West Central Boulevard landscape buffer shall be planted consistent with section 110-567 of the City Code, which calls for the perimeter along the public right-of-way to be planted with shrubs and have five (5) tree point value points every 35 feet. The landscape buffer shall be located outside of the perimeter fencing and shall screen the parking areas from the public rights-of-way. To the extent necessary to screen the commercial parking area from West Central Boulevard, a landscape buffer shall be provided along the western perimeter of the commercial parking area and shall be planted with shrubs and trees according to section 110-567, and grassed areas to the southeast of the building shall be landscaped so as to screen the commercial parking area from State Road AIA. The grassed areas at the northeast and northwest corners of the commercial parking area shall be landscaped so as to screen the commercial parking area and the reclaimed water lines and valves from West Central Boulevard. Landscaping along State Road AIA shall be in substantial compliance with the AIA Economic Opportunity Overlay District guidelines, as determined by the City's Community and Economic Development Director and Planning and Zoning Director. All landscaping shall be served by an irrigation system consistent with the requirements of the City Code. Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 3 of 11 Owner shall submit a landscape plan to staff prior to issuance of a fence permit. Any such plan shall be drawn to scale, depict all required landscaping, and contain a plant schedule identifying the type, size, and point value of all landscape materials. V. Shuttle Bus Parking Along AIA. The City and Owner agree that shuttle buses may occasionally park in the parking spaces located on the Property adjacent to and fronting on Highway AIA. Owner agrees to use its best efforts to minimize the frequency of shuttle buses parking in these spaces. B. Phase 2 — Retail, Restaurant, and Other Consumer Services. Phase 2 shall include the redevelopment of the Property to renovate the existing 63,000 square foot commercial structure located on the Property to facilitate a consumer retail service center inclusive of, but not limited to, restaurants, coffee shops, transit services, gift shops, apparel stores, information centers, travel agencies, currency exchange centers, bicycle and other equipment rental, and other similar retail uses. 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. 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 18 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 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. 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. In the event of termination for failure to meet the requirements of this subsection, Owner shall immediately cease its Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 4 of 11 operation of the commercial parking and transportation transfer facility authorized as part of the Phase 1 development of the Property. C. Phase 3 — Hotel and Conference Facilities. Phase 3 shall include the development of a new structure or structures for a hotel and associated conference facilities on the Property. L Plans. No later than six (6) 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. ii. Plans Review. The Phase 3 Plans shall be subject to the 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 six (6) months from the date of its initial submittal of the Phase 3 Plans to attain the final approval of same, and shall have 18 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 occupancy for the hotel, conference center and any other associated structure, and upon all necessary site work being completed consistent with the approved Phase 3 Plans. At the written 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. 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 staff's 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. Section 6. Annual Review & 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. Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 5 of 11 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 Communit and Economic Development Director shall be memorialized in a written report y ("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 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: David L. Greene, City Manager City of Cape Canaveral 201 Polk Ave Cape Canaveral, FL 32920 (321) 868-1230 If to Owner: 8600 Astronaut Properties LLC Attn: C. Hunt Shuford 1985 Tate Street SE Hickory, NC 28602 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. Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 6 of 11 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 and Phase 3 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. Sovereisn 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 Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 7 of 11 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 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 RiShts. 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, Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 8of11 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. 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. [EXECUTION PAGES FOLLOW] Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 9 of 11 CITY: City of Cape Canaveral, a Florida municipal corporation. By: (1) 6., �:j 7 M mss•, David L. Greene, City Manager ATTEST: By: al�A Ange a Apperson, Assistant City Manager / City Clerk APPROVED AS TO FORM AND LEGALITY ` For the use and reliance of the City of Cape Canaveral, Florida only. CITY -SEAL r. Date: 117113 By: Anthony A. Garganese, City Attorney for ''�•••'" the City of Cape Canaveral, Florida STATE OF FLMlb`A COUNTY OF BREVARD The foregoing instrument was acknowledged before me this /�— day of 2012, by David L. Greene and Angela Apperson, 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 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) (Notaryublic Signature) MIA GOFORTH (Print Name) Notary Public - State of Florida Notary Public, State of�0.2� �9 My Comm. Expires May 16. 2013 Commission No.: Db Ys -:54? -5 - WV �Commission # DD 853695 M Commission Expires: ''•``' Bonded Through National Notary Assn. 3' p Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 10 of 11 Signed, sealed and delivered in the presence of the following witnesses: Signa a ofWitness Printed Name of Witness ' ILA4W�- S&Vathulreof Witness 1�S0 -,, I _ S)&MON Printed Name of Witness OWNER: 8600 Astronaut Properties LLC, a foreign limited li b company By: C. Hu t sifufoW, Nranaging Member Date: /d ,D_ STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of � , , r2012, by C. Hunt Shuford, as Managing Member of 8600 Astronaut Properties LLC, a foreign limited liability company, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) JAMIE P ANNAS Notary Public Catawba County North Carolina My Commission Expires Apr 20. 2017 (Notarysature) 1 .�✓�n a S (Print Name) Notary Public, State of Commission No.: / 9,9'17 1� sof / My Commission Expires: Port of Call Development Agreement City of Cape Canaveral / 8600 Astronaut Properties LLC Page 11 of 11 EXHIBIT "A" LEGAL DESCRIPTION THE SAME LANDS AS DESCRIBED IN OFFICIAL RECORDS BOOK 2251, PAGE 985 AND BOOK 4431, PAGE 3404, PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA, CURRENTLY HAVING A STREET ADDRESS OF 8600 ASTRONAUT BOULEVARD, CAPE CANAVERAL, FLORIDA, TO WIT: A PORTION OF SECTION 15, TOWNSHIP 24 SOUTH, RANGE 37 EAST, TALLAHASSEE BASE MERIDIAN, BREVARD COUNTY, FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF SAID SECTION 15; THENCE N001150'54"W, ALONG THE EAST LINE OF SAID SECTION 15, A DISTANCE OF 603.97 FEET; THENCE S52^38'50"W, A DISTANCE OF 296.85 FEET TO A POINT ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO. A-1 -A (A 100 FOOT RIGHT-OF-WAY AS PRESENTLY LOCATED); THENCE N37^21' 10"W, ALONG SAID NORTHEASTERLY RIGHT- OF-WAY LINE, A DISTANCE OF 1009.15 FEET TO THE POINT - OF -BEGINNING; THENCE N52^38'50"E, A DISTANCE OF 267.28 FEET; THENCE N21^08'50"E, A DISTANCE OF 387.61 FEET TO THE SOUTHERLY LINE OF AN INGRESS/EGRESS EASEMENT COMMONLY KNOWN AS CENTRAL BOULEVARD; THENCE S68^51' 10"E, ALONG SAID SOUTHERLY LINE, A DISTANCE OF 293.10 FEET TO THE POINT -OF -CURVATURE OF A RADIAL CIRCULAR CURVE TO THE LEFT HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 00^53'55" FOR A DISTANCE OF 6.90 FEET; THENCE S21^08'50"W, A DISTANCE OF 587.10 FEET; THENCE S52^38'50"W, A DISTANCE OF 253.98 FEET TO THE NORTHEASTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO. A-1 A; THENCE N37^21' 10"W, A DISTANCE OF 360.00 FEET TO THE POINT -OF -BEGINNING.