HomeMy WebLinkAbout3rd Modification to BDA Holiday Inn Vac Club final recorded 20200730THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony A. Garganese. CFN 2020162855,OR BK 8810 PAGE 1623,
City Attorney of Cape Canaveral Recorded 07/30/2020 at 12:31 PM,Scott Ellis,Clerk of
Garganese, Weiss, D'Agresta & Salzman, P.A. Courts,Brevard County
111 N. Orange Avenue, Suite 2000
Pgs:8
Orlando, FL 32802
407) 425-9566
HOLIDAY INN CLUB VACATIONS
CAPE CANAVERAL BEACH RESORT
Formerly known as CAPE CARIBE)
THIRD MODIFICATION TO
BINDING DEVELOPER'S AGREEMENT
THIS THIRD MODIFICATION TO BINDING DEVELOPER'S AGREEMENT ("Third
Modification") is made on this 21 day of July, 2020 by and between the CITY OF CAPE
CANAVERAL, a Florida Municipal Corporation ("City") and HOLIDAY INN CLUB VACATIONS
INCORPORATED, a Delaware corporation, as successor in interest to OLCC FLORIDA, LLC.,
Owner") whose principal address is 9271 S.John Young Parkway, Orlando, Florida 32819.
WITNESSETH:
WHEREAS, this Agreement is a third 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 successor in fee simple title to Cape Caribe, Inc. and 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's predecessor in fee simple title and the 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 and that certain Second Modification to Binding Developer's Agreement on
January 21, 2014 in Official Records Book 7054, Page 2186 of the Public Records of Brevard
County, Florida (collectively referred to as "BDA"); and
WHEREAS, Owner now desires to further amend the Revised Site Plan for approximately
five acres of the western most portion of the Property by combining the two originally proposed
buildings (Buildings 6 & 7) into one hotel building with 150 Keys (no Lock Outs will be
permitted) and ancillary and customary hotel amenities as shown on the attached Third
Modification Concept Plan described in Section 3 of this Third Modification; and
WHEREAS, Owner further desires to amend the remaining development schedule as set
forth in the BDA due to its desire to proceed with the construction of the above-mentioned
hotel as the next phase of the Project; and
WHEREAS, the City and Owner believe it to be in the best interests of both parties to
enter into this Third Modification; and
WHEREAS,the City Council finds this Third 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 6.0 of the BDA. Section 6.0 of the BDA shall be
modified as follows (underlined type indicates additions to and strikethrough 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 sealed
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 to the
DEVELOPER'S AGREEMENT
City of Cape Canaveral/Holiday Inn Club Vacations
Page 2 of 7
Second Modification hcrcto as Exhibit "A" ("Second Modification Concept Plan") depicting the
addition of Building 8 and the reduction in size of Buildings 4 and 5. Further, the parties
acknowled.e that it is the Owner's intention to further amend the Revised Site Plan regarding
the western five (5) acre portion of the Property to combine Buildings 6 and 7 into one hotel
building with 150 Keys (no Lock Outs) consistent with the conceptual site plan attached to this
Third Modification as Exhibit A-Third Modification ("Third Modification Concept Plan").
4.0 Modification to Section 10.1 of the BDA. Section 10.1 of the BDA shall be
modified and replaced in its entirety with the following new Section 10.1:
10.1 Phasing. The Concept Plan attached to the Second Modification_depicts
a total of eight (8) 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 may 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 of the original
unit and the Lock Out have independent sleeping and cooking facilities consisting of a
kitchen or kitchenette and both are accessible 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("Key"). As of the Effective Date of the
Third Modification of this Agreement, Buildings 1, 2 and 3 containing 248 Keys 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
4 through 8 ("Remaining Buildings"), and containing a total of 352 Keys, in accordance
with the Revised Site Plan, as may be modified, including revisions based on the Second
Modification Concept Plan and Third Modification Concept Plan. The Remaining
Buildings shall be permitted and constructed in accordance with the following
development schedule:
10.1.1 No later than June 30, 2021, Owner shall submit the building
permit application to construct the hotel building on the western five (5) acre
portion of the Property. For purposes of this Third Modification, combining
Buildings 6 & 7 depicted on the Concept Plan attached to the Second
Modification into one hotel building shall count towards two out of the five
Remaining Buildings.
10.1.2 No later than December 31,2035,Owner shall submit the building
permit application to construct the third building of the unconstructed
DEVELOPER'S AGREEMENT
City of Cape Canaveral/Holiday Inn Club Vacations
Page 3 of 7
Remaining Buildings, provided that the hotel building on western land has
received a certificate of occupancy.
10.1.5 No later than December 31, 2040, Owner shall submit the building
permit application to construct the fourth and fifth buildings of the
unconstructed Remaining Buildings, provided that the third building of the
Remaining Buildings is substantially complete or has received a certificate of
occupancy.
5.0 Modified Conservation Easement. The Parties acknowledge and agree that
the City currently holds a Conservation Easement encumbering a portion of the Property which
was recorded in the Official Public Records of Brevard County, Florida at Official Record Book
6362, Page 2497 on June 6, 2011. ("Conservation Easement"). For purposes of facilitating and
permitting the future site plan for the proposed hotel, Owner shall design, install and maintain
a public paved trail only for public pedestrian and non-motorized bicycle use through the
Conservation Easement as generally depicted on the Third Modification of Concept Plan. Bike
path bollards shall be securely installed and maintained in the ground at both entrances of the
trail to prevent unauthorized vehicle use, and appropriate signage shall be installed and
maintained at the entrances advising of the limited authorized pedestrian and bicycle use of
the trail. The trail shall be constructed in conjunction with the hotel and be in accordance with
City standards, and the parties shall cooperate to finalize the location of the trail so as to
minimize the removal of trees to the extent feasible. In addition, as depicted on the Third
Modification of Concept Plan, the trail shall connect the existing sidewalks located on
Shorewood Drive to the existing sidewalks on George King Boulevard. The City Attorney will
prepare, and once agreed to by the Parties,the Parties shall record in the Official Public Records
of Brevard County, Florida a legal instrument modifying the terms and legal description of the
Conservation Easement to reflect the terms of this Third Modification and legal description
depicted on the Third Modification of Concept Plan. A sketch and legal description of the
modified Conservation Easement shall be provided by Owner's engineer and delivered to the
City. Upon recordation of the legal instrument, the Conservation Easement shall be deemed
modified.
6.0 Landscape Buffer and Entry Feature.
a) Simultaneously with the development of the hotel within the western five(5)acre
portion of the Property, Owner shall be required to install and maintain a decorative and lush
landscape buffer along the entire perimeter of the northern and eastern boundaries of the said
five acre portion of the Property. The location of the landscape buffer and related hotel and
trail entrances along Shorewood Drive are generally depicted on the Third Modification of
Concept Plan. Owner shall be required to design and submit a detailed landscape plan for the
entire western five (5) acres as part of the site plan review process. The landscape plan shall
include addressing the landscape buffer and be subject to City consideration and approval. The
DEVELOPER'S AGREEMENT
City of Cape Canaveral/Holiday Inn Club Vacations
Page 4 of 7
landscape buffer shall generally include an earth berm of sufficient height to buffer the hotel
project from Shorewood Drive, trees and shrubs, mulch, landscape lighting, irrigation, and may
also incorporate decorative hardscape features such as walls, rocks and ornamental features.
The goal of a berm is to blend with its surroundings and provide a decorative feature for the
hotel project and the existing development along Shorewood Drive.
b) The entrance of the hotel project along Shorewood Drive shall be designed and
engineered to align with the entrance of the existing Holiday Inn Vacation Resort located on
the other side of Shorewood Drive. Further, the entrance shall be designed with decorative
features that are compatible and in harmony with the existing Holiday Inn Vacation Resort.
7.0 Existing Maintenance Area. The existing small storage area located south of
the western five (5) acre portion of the Property (and west of Shorewood Drive) at the
Shorewood Drive curve shall be permitted to remain under the following terms and conditions:
a) The area is strictly limited to serving only the operation of the existing Holiday
Inn Vacation Resort, and no other parties shall use or have access to the area.
b) The area shall be kept in a clean, litter free, organized and sanitary manner at all
times and shall not be maintained in any way to cause a public nuisance.
c) The area shall be enclosed with an opaque fence (or wall) and gate. The gate
shall be locked when the area is not in use. The wall or fence and gate shall be
maintained in good order and repair at all times.
d) The area shall not be expanded to encroach into the Conservation Easement
area.
e) No more than two (2) standard size dumpsters provided by the City's solid waste
provider shall be located in the area, and the dumpster shall not be used for food waste
or any other waste that may cause offensive odors.
f) Vehicles or mechanical equipment shall not be stored in the area. Additionally,
no hazardous waste shall be brought to or stored in the area.
g) Any item stored in the area shall be behind the fence and not exceed the height
of the fence (or wall) so as not be visible from the surrounding property at ground level.
8.0 Recordation. This Modification shall be recorded in the public records of
Brevard County, Florida, and shall run with the land.
9.0 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
Third Modification, shall continue to remain in full force and effect. For purposes of future
contract interpretation,the parties agree that the BDA,as amended by the Modification, Second
Modification and the Third Modification shall collectively be referred to as the "Agreement"
DEVELOPER'S AGREEMENT
City of Cape Canaveral/Holiday Inn Club Vacations
Page 5 of 7
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the dates
indicated below.
CITY:
CITY OF CAPE CANAVERAL,
a Florida , u ipal co oration
By:
Bob Hoog, Mayor
Date:1 4'1'°2'v
ATTEST:
Y
Mia Goforth, CMC,tity Clerk
APPROVED AS TO FORM AND
LEGALITY
For the use and reliance of the
City of Cape Canaveral, Florida only
Date:1 q?"9
By:
Anthony A. Garganese
City Attorney, for the
City of Cape Canaveral, Fl.
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me by means of ( ) physical
presence or( ) online notarization on this day of Jta , 2020 by Bob Hoog Mayor of the
City of Cape Canaveral, a Florida municipal corporation ar acknowledged before me that he
has executed the foregoing instrument on behalf of the City of Cape Canaveral. He i ersonally
known to i or produced_ as identification.
DanielLeFever
Notary Public
4.
Y'_
State of Florida Notary Public Si nature
vi+ . : Comm#}{H014221 I)AN,et LE/£vc2
Expires 6/24/2024 Print Name
NOTARY SEAL) Notary Public, State of EZ-OR1M
Commission No.:e0/922/
My Commission Expires:G'ZyiPZ'
DEVELOPER'S AGREEMENT
City ofCape Canaveral/Holiday Inn Club Vacations
Page 6 of 7
Signed, sealed and delivered in OWNER:
the presence of the following witnesses:
HOLIDAY INN CLUB VACATIONS
INCORPORATED
Si nature of Witness
ro. d Venn-in:I
Printed Name of Witness
Print Name: IJriOun I - L-oWfirj eke•VP
Title: Managing Member
Date:r r
Signature of Witness
J k fl\vo 7
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF CI : carte
The foregoing instrument was acknowledged before me by means of ("1 physical
presence or( ) online notarization this 2$— day of Tui y , 2020 by r cZ c ue-Y
as Managing Member of Holiday Inn Club Vacations Incorporated, as successor in interest to
OLCC Florida, LLC, a Delaware corporation on behalf of said company. He is personally known
to me or produced _ as identification.
LUJ\AJU7
Notary Public Signature
1re'eji Ann ticurtic.. ricchio
Print Name
NOTARY SEAL) Notary Public, State of IFIOV'/
Commission No.: GG 2Log3011-
NotsryP aicSate +Fio My Commission Expires: Z- 3 -202-3
Doreen Ann Varncchio
My Commission GG 289304
Expires 02!05/2023
DEVELOPER'S AGREEMENT
City of Cape Canaveral/Holiday Inn Club Vacations
Page 7 of 7
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