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HomeMy WebLinkAboutPacket 12-15-2009 Workshop0 9 11 0 City of Cape Canaveral 0 M Tuesda December 15, 21009 5:30 PM 11 MINIM 07#ri _ L Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the pubilic that: If a person decides to appeal any decision made by the City Council with respect to any matter considered' at this meeting', that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim recoof the proceedings is made, which record includes the testimony and evidence upon which the appeal is to! be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities, needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. 1.05 Polk Avenue -least Office Box 326 Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1220 Fax: (321) 868-1248 www.cityofcapecanaveral.org - email: ccapecanaveral@cfl.rr.com From: BENNETT BOUCHER, CITY MANIAGEV,& Date- December 11, 2009 Re: CAPE CARIBE OVERVIEW The purpose of this Workshop Meeting is, to provide City Council with an overview of the Cape Caribe Project along with an estimated timeframe for all the related public hearings. On March 18, 2008, City Council approved at First Reading, Ordinance No, 02-2008, Adopting a Small Scale Future Land Ue Map Amendment of I Certain Real Property totaling 1,.95 Acres. The second public hearing was scheduled for 04-01-08. Per the attached minutes, Mr. John Grandlich requested to table this item (see attached ordinance and minutes). Again, on March 18, 2008, City Council approved at First Reading Ordinance No. 03-20,018, Changing the Zoning Map Designation of Certain Real Property Totaling 1.95 Acres from R-3 Medium Density Residential to C-1 Low Density Commercial. The second public hearing was scheduled for 04-01-08 and Mr. John Grandlich requested to table this item (see attached ordinance and milinutes). The draft Binding Development Agreement, City version, was developed pursuant to the Florida Local Government Development Agreement Act, Sections 163.2220-163.3243 Florida Statutes, The framework of the Binding Development Agreement provides for the following: ;i,ection 5 — Duration of Agreement, applicant is seeking a 20-ye!ar term. Section 6 — Addresses the revised site plan. ZOOM 111 •WI•FIR•RIN ''I FIRM 11; 111 11 11111111 1. Planning & Zoning on January 27, 2010, for the first DA and revised site plan appoval (Small Scale Comp Plan Amendment, Rezoning, formal adoption of the R/W abandonment). a. Advertising to be done by January 13, 2010 (full 14 days in advance) to all residents within 500 feet. 2. City Council on February 2, 2010 for the final hearing DA, revised site M lan, Small Scale Comp Plan Amendment, Rezoning, formal adoption of the RAN abandonment, a. Advertising to be done by January 19, 2010 (full 14 days advance,) to residents within 500 feet. Again, the purpose of this Workshop Meeting is to give City Council an overview of thiis project so that City staff and Cape Caribe representatives can answer any questions or concerns as we work 'to finalize all the approvals for the Cape Caribe project. 3�.._ ORDINANCE NO. 02-2008 AGENDA PACKET INFORMATION CITY COUNCIL MINUTES OF 03-18-08 CITY COUNCIL MINUTES OF 04-0I-08 Meeting Type: City Council Meeting Date: 3/18/08 AGENDA REPORT PLANNING AND ZONING BOARD OF THE CITY OF CAPE CANAVERAL AGENDA Heading First reading [tem 6 No. site plan for the Cape Caribe resort. SUBJECT: Recommendation from the Local Planning Agency to approve - Small Scale Comprehensive Plan Amendment 08-01, Ordinance 02-2008 Small Scale Comprehensive Plan Amendment, Change from R-3 Residential to C-1 Commercial - Cape Caribe DEPT./DIVISION: Building Department Requested Action: Approve per the recommendation of the Local Planning Agency or deny Small Scale Plan Amendment 08-01 of 1.95 acres from R-3 residential to C-1 Commercial. Summary Explanation & Background: We received an application from Cape Caribe to expand 1.2 acres of G-1 Commercial to be used for parking and expand their water amenities. Cape Caribe will also be amending at some point in the near future their site plan for the Cape Caribe resort. The remaining portion of the amendment is to fill in what was previously shown on the Future Land Use map as the proposed Ridgewood Avenue extension. Ridgewood Avenue was a proposed road and is not City right of way, but wholly owned by Cape Caribe. This is only that portion north of Shorewood Drive. The total amendment area is 1.95 acres. Exhibits Attached: A) Application from Cape Caribe and Staff Reports City Planner's Office Department ORDINANCE NO. 02-2008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, ADOPTING A SMALL SCALE FUTURE LAND USE MAP AMENDMENT BY CHANGING THE FUTURE LAND USE MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBITS "A" AND "B" ATTACHED HERETO, FROM "R-3 RESIDENTIAL" TO "C -I COMMERCIAL"; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, INCORPORATION INTO THE COMPREHENSIVE PLAN, AND AN EFFECTIVE DATE. WHEREAS, the future land use map amendment embodied in this Ordinance is a small scale amendment to the City of Cape Canaveral Comprehensive Plan in accordance with section 163.3187(1)(c), Florida Statutes; and WHEREAS, the Local Planning Agency of the City of Cape Canaveral held a duly noticed public hearing on February 27, 2008, in accordance with the procedures in Chapter 163, Part 11, Florida Statutes, on the proposed Comprehensive Plan Amendment and considered findings and advice of staff, citizens, and all interested parties submitting written and oral continents and has recommended adoption to the City Council; and WHEREAS, the City Council of the City of Cape Canaveral held a duly noticed public hearing on the proposed amendment set forth hereunder and considered findings and advice of staff, citizens, and all interested parties submitting written and oral comments and supporting data and analysis, and after complete deliberation, hereby approves and adopts the Comprehensive Plan Amendment set forth hereunder; and WHEREAS, the City Council ofthe City of Cape Canaveral hereby finds that this Ordinance is in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are true and correct and are fully incorporated City of Cape Canaveral Ordinance No.02-2008 Page l of 3 herein by this reference. Section 2. Authority. This Ordinance is adopted in compliance with, and pursuant to, the Local Government Comprehensive Planning and Land Development Regulations Act, Section 3. Purpose and Intent. It is hereby declared to be the purpose and intent of this Ordinance to clarify, expand, correct, update, modify and otherwise further theprovisions of the City of Cape Canaveral Comprehensive Plan. Section 4. Adoption of Amendment to the Future Land Use Map. The City of Cape Canaveral Comprehensive Plan, Future Land Use Map, is hereby amended by designating the real property depicted on Exhibits "A" and "B" from "R-3 Residential" to "C-1 Commercial," Exhibits "A" and "B" are attached hereto and fully incorporated herein by this reference. Section 5. Transmittal to the Department of Community Affairs. The City Manager or his designee is hereby designated to sign a letter transmitting the adopted Comprehensive Pian Amendment to the Florida Department of Community Affairs, in accordance with section 163.3187(4), Florida Statutes, and section 9J-11, Florida Administrative Code. Section 6. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 7. Severability, If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section S. Incorporation into Comprehensive Plan. Upon the effective date of the Comprehensive Plan Amendment adopted by this Ordinance, said Amendment shall be incorporated into the City of Cape Canaveral Comprehensive Plan and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 9. Effective Date and Legal Status of the Plan Amendment. The effective date of this Ordinance shall take effect thirty-one (31) days after adoption, in accordance with section 163.3187(3)(c), Florida Statutes, unless challenged within thirty (30) days after adoption of this Ordinance, then this Ordinance shall become effective at such time as the Florida Department of Community Affairs or the Administration Commission issues a final order determining the adopted small scale Comprehensive Plan Amendment is in compliance. No development orders, development permits, or land use dependent on this Amendment may be issued or commenced before it has become effective. After and from the effective date of this Amendment, the City of Cape Canaveral Ordinance No.02-2008 Page 2 of 3 Comprehensive Plan Amendment set forth herein shall amend the City of Cape Canaveral Comprehensive Plan and become a part of that plan and the Amendments shall have the legal status of the City of Cape Canaveral Comprehensive PIan, as amended. ADOPTED by the City Council of the City of Cape Canaveral, Florida, this day of .2008. ATTEST: SUSAN STILLS, City Clerk First Reading: Legal Ad published: Second Reacting: Approved as to legal form and sufficiency for the City of Cape Canaveral only: ANTHONY A. GARGANESE, City Attorney ROCKY RANDELS, Mayor For Against Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels C. Shannon Roberts City of Cape Canaveral Ordinance No.02-2008 Page 3 of 3 D. ES._CRIPTION . NOT A BOUNDARY SURVEY DESCRIPTION OF EASEMENT EXHIBIT A A portion of Government Lot 1, Section 14, Township 24 South. Range 37 East, Brevard County, Florida, being more particularly described as follows.- Commence ollows Commence of the Northwest corner of said Government Lot 1; thence S0129'01"E, along the West line of said Government Lot 1, a distance of 260.06 feet, to the PDINT OF BEGINNING of the herein described parcel.- thence N89 4543 E a distance of 243.76 feet; thence 50074'17"E, a distance of 276,99 feet, thence S8945 49'W, a distance of 239.05 feet, to a paint on the West line of said Government Lot 1; thence N0129'01'W, along the West line of said Government Lot 1, a distance of 217.04 feet, to the POINT OF BEGINNING, • Containing 1.20 acres, more or less. SURVEYOR'S NO7FS- 1. THIS IS NOT A SLIRU6'Y. 2. The bearings shown are based on a bearing of 50129 01 E along the West line of Government Lot 1. 3. 0 Denotes a change in direction (no corner found or set). SEE SHEET I OF 2 FOR THE SKETCH TO ACCOMPANY THIS DESCRIP770N. SHEET 2 OF 2 PREPARED BY. LLE N ngineering, Inc. SURVEYORS - ENGINEERS 106 DIXIE WE (P.O. BOR 921321) COCOA BEACH, FLORIDA 32932-1321 TELEPHONE: (321)783-7443 FII: (321)7$3-5902 CERMCATE OF AUTHOiRIZA77ON # LB 286 3. 2. 1. JOB NO. 98012-9DATE.• 12-07-07 SURVEYOR'S CER77FICA770N. 1 hereby certify that the attached Property Description was prepored under my direction, in accordance with oil applicable requirements of the Minimum Technical Standards, " for land surveying in the State of Flarido, described in Chapter 61C17-6, Ftorido Ad'*'Code, Pursuant to Chapter 472.027, Florida Statutes./ / Not valid without the srgnoture EPFI C. 8 R and the original raised seal of a OF SIGNAL SLUR MOR Florida licensed surveyor and mapper. MAPPER FLOP DA RE ;l5 TRA 17ON No. 4222 PREPARED AND CERTIFIED FOR: TOWME REALTY, INC J) SKETCH TO ACCOMPANY DESCRIPTION NOT A BOUNDARY SURVEY w ca 'a NEST LINE OF GOVERNMENT LOT 1 N � O n 4'1 POINT OF BEGINNING CANAVERAL FORT AUTHORITY SUBJECT PARCEL 1.20 ACRES -- S.894.549 "W. PREPARED BY: mLEN nginccring, Inc. SURVEYORS - ENGINEERS 106 DWE LANE (P.O. BOX 321321) COCOA BEACH. FLORIDA 32932-1321 TELEPHONE: (321)783-7443 FAX: (321)783-5902 CER77F7CA 7E OF AUTHOR1Z477ON # LB 266 1, DATE. • 12-07-07 JOB NO. 980129.4 DRAWN BY KSC SCALE. 1' -SO' _4 w + �h qw O N 239.05' CAFE CARME SCALE: 1'=50'Lji 3 a 0 t2J 2&0 no 100.0 L GRAPHIC SCALE q� SHEET 1 OF 2 SEE SHEET 2 OF 2 FOR DESCRIPTION. a SURVEYOR'S CER77RCA770N AND SURVEYOR'S NOTES 'ARED AND CER77RED FOR: TOME REALTY. WC. SHEET 1 OF 3 1 A PORTION OF GOVERNMENT LOT 1, SECTION 14, TOWNSHIP 24 SOUTH, RANGE 37 EAST, BREVARD COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGIN AT THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 1; THENCE RUN S01'29'01"E ALONG THE EAST LINE OF SAID GOVERNMENT LOT 1, 500.12 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF SHOREWOOD DRIVE; THENCE RUN S89'45'43"W ALONG SAID NORTH RIGHT OF WAY LINE, 66.02 FEET TO A POINT 66.00 FEET PERPENDICULAR DISTANCE TO THE AFORESAID EAST LINE OF GOVERNMENT LOT 1; THENCE RUN N01'29'01'W PARALLEL WITH AND 66.00 FEET PERPENDICULAR TO SAID EAST LINE OF GOVERNMENT LOT 1. 500.12 FEET TO A POINT ON THE NORTH LINE OF SAID GOVERNMENT LOT 1; THENCE RUN N8945'43"E ALONG SAID NORTH LINE, 68.02 FEET TO THE POINT OF BEGINNING. SAID LANDS CONTAINING 33,008 SQUARE FEET (0.758 ACRES) MORE OR LESS. GRAPHIC SCALE 0 50 100 200 IN FEET ) I INCH = 100 FEET MILLER V LEGG -vx1K�:a— NOT PLATTED $02.69' NORTH LINE OF GOVERNMENT LOT 1 EXHIBIT N89'45r43"E POINT OF BfiAZ' BEGNNING NORTHEAST CORNER OF GOVERNMENT LOT i 66.00' NOT PLATTED REMAINDER +` NOT PLATTED of 66.013' NORTH RIGHT OF WAY UNE OF 813.57' ! NwMirwnnn f]RiVF SHOREWOOD DRIVE SB9'45'43"W °i 66.00' RIGHT OF WAY , a OR 3482 PG 369 66.02 t- OR 3587 PG 2167 0= CHANGE OF DIRECTION OR= OFFICIAL RECORD BOOK PG = PAGE 66.0o' - I H00T CMrYY IRAT TITS 9MIM YEEM RK MOO" TEOW— L STAMW2 A9 Sr i6.T9- T• TW MOW EQW 9c namxnutc0= suT AWwM io 4 1617-4. GATED A!S WN GAY K =06TOM = A.D. VRWMPONL XA V&W AND WPM VAX OF R RIMA REQWMADN Ns 6S9t NOT YAW 01MV, Ai aoaTft AND Aligmo�eu RA= VAL Cr A RORCA {ICV+ 9GRrEYOR Z EAPPM 746 SKE:CI OOES HOT RMPRESM A. OOMARY SLAV'. mm AL i11.f AC 04-00170 ASKt?- a O c 0 t0 s i � NOT PLATTED i m 0 01 o CD 0 0 � � N Y .s REMAINDER +` NOT PLATTED of 66.013' NORTH RIGHT OF WAY UNE OF 813.57' ! NwMirwnnn f]RiVF SHOREWOOD DRIVE SB9'45'43"W °i 66.00' RIGHT OF WAY , a OR 3482 PG 369 66.02 t- OR 3587 PG 2167 0= CHANGE OF DIRECTION OR= OFFICIAL RECORD BOOK PG = PAGE 66.0o' - I H00T CMrYY IRAT TITS 9MIM YEEM RK MOO" TEOW— L STAMW2 A9 Sr i6.T9- T• TW MOW EQW 9c namxnutc0= suT AWwM io 4 1617-4. GATED A!S WN GAY K =06TOM = A.D. VRWMPONL XA V&W AND WPM VAX OF R RIMA REQWMADN Ns 6S9t NOT YAW 01MV, Ai aoaTft AND Aligmo�eu RA= VAL Cr A RORCA {ICV+ 9GRrEYOR Z EAPPM 746 SKE:CI OOES HOT RMPRESM A. OOMARY SLAV'. mm AL i11.f AC 04-00170 ASKt?- NOTICE OF A SMALL-SCALE COMPREHENSIVE PLAN FUTURE LAND USE MAP AMENDMENT Notice is hereby given that the City of Cape Canaveral City Council, will hold a public hearing concerning this Small -Scale Comprehensive Pian Future Land Use Map Amendment on Tuesday, March 18, 2008 at 7:00 P.M. in the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. ,- _gra.-�.r•/ ORDINANCE h,.•r tra4r: rr NO. 02-2008 AN ORDINANCE OF THE r CITY COUNCIL OF THE CITY OF CAPE i CANAVERAL, FLORIDA, ADOPTING A SMALL SCALE FUTURE LAND - USE MAP AMENDMENT w y~ BY CHANGING THE a FUTURE LAND USE ��- MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO, FROM "R-3 RESIDENTIAL" TO "C-1 COMMERCIAL"; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, INCORPORATION INTO THE COMPREHENSIVE PLAN, AND AN EFFECTIVE DATE. The Ordinance may be viewed in its entirety in the City Clerk's Office at 105 Polk Avenue, Cape Canaveral, FL 32920 during regular working hours, Monday through Friday, 8:30 A.M. to 5:00 P.M. and may appear at the meeting and be heard with respect to the proposed Ordinance. Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal the decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office at (321) 868-1221, 48 hours in advance of the meeting. Susan Stills, CMC City Clerk Page 1 of 1 Susan Stills From: Conf@FLATODAY.NET Sent: Friday, March 07, 2008 4:38 PM To: stills-cape@cfl.rr.com Subject: Ad Correct For 0000279914 Dear Customer; Thank You for advertising with Florida Today. Your ad has been approved and will be processed by our AdPro Department. Ad number: 0000279914 Advertiser's Name: CITY OF CAPE CANAVERAL Publication: DAILY First Run Date: March 08, 2008 Ad Size: 2X10 Tag Line: [TAG LINE] Upload Date and Time: [TIME STAMP] Confirmation Number: 0000279914 Florida Today Ad Services Local Number: 329-242-3580 Toll Free: 1-800-633- 8449, Ext. 3580 Fax: 321-242-3933 03/07/2008 Zk41,S, City of Cape Canaveral .41�'� rw Future Land Use and Zoning Amendments MI • 6t1 M] R3 CDN- Rz C[ M1 3u R7 R1 CI CI M1 _ --_ R] ..... . 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N\1\111 MILLER' / LEGG City of Cape Canaveral Comprehensive Plan/Rezoning Cape Caribe Associates, Inc Applicant: Location: Existing Amendment Acreage: Cape Caribe Association, Inc Range: 37E Township: 24S Section: 14 Proposed Zoning Amendment Acreage: Permitted Hotel Units per acre: Permitted FAR Current Future Land Use: Proposed Future land Use: Current Zoning: Proposed Zoning: 1.95acres 195 acres 30 du/acres 1.5:1.0 Residential R-3 Commercial C- I Residential R-3 Commercial C-1 Description: The applicant proposes a Comprehensive Plan Amendment to the Future Land Use Map and a Rezoning to the Zoning map for a 1.2 acre area of the Cape Caribe Resort development. The remaining acreage is an administrative change of .75 of an acre comprehensive plan change and 5.04 acres rezoning change from R-3 residential to C-1 Commercial. The administrative amendments represent removing Ridgewood off the map north of Shorewood Drive and the zoning amendment is to reflect a map inconsistency between the Future land use map and the zoning map. The Future Land Use Map and Zoning Maps are supposed to be identical except for where conservation and public Iands are shown on the future land use map. The proposed Comprehensive Plan Amendment and Rezoning are from Residential R-3 to Commercial C-1 for both applications. The proposed changes to the Future Land Use Map and Zoning Map appear to be consistent and compatible with the C-1 district adjacent to and west of the subject site. The subject site is located at 1000 Shorewood Drive. The parcel is west of Shorewood Drive and south of George King Boulevard. Public Services and Facilities in Amendment Area: The Level of Service for parks and recreation is one (2) acres of park Iand per 1,000 residents. Approximately twenty-four (24) acres of park land exist in Cape Canaveral. This equates to a population of approximately 12,000 residents. The proposed extension of the Cape Caribe Hotel is not anticipated to have a negative effect on parks and recreation. AlA is operating at Level of Service "D" with 289 available peak hour trips between North City Limits to Central Blvd. AIA from Central Blvd to North Atlantic has a level of Service is "D" with 541 excess trips. If developed as proposed, then no additional trips are anticipated with the already approved development. The City of Cape Canaveral provides wastewater treatment. The wastewater treatment capacity is 1.8 million gallons per day (MGD). The existing usage is 1.17 MGD with an excess capacity of .63 MGD. There is adequate wastewater treatment capacity available. The City of Cocoa has a total capacity of 56 MGD and currently provides 48 MGD. Approximately 24.4 MGD of water is being used on an average daily basis, leaving 23.6 MGD available. There is adequate potable water service available with the proposed change. Brevard County provides facilities for solid waste disposal. At this time, the County does not foresee any deficiency with their solid waste facilities. Environmental Description of Amendment Area: The subject site has Palm Beach sand (Pb) soil type. This is a nearly level and gently sloping excessively drained soil on dune like ridges that roughly parallel the Atlantic Ocean. It consists of mixed sand and shell fragments. Slopes are mostly two to five percent. The water table is at a depth of more than 10 feet. There appear to be no wetlands on site. Wetland determinations or verification are permitted by St. Johns River Water Management District. There is no known Aquifer Recharge or Floodplain areas associated with this parcel. There are also no known endangered species living on the site. Historical and Archaeological Resources in Amendment Area: There are no known historical or archaeological resources on site. North South East West Zoning Canaveral Port R3 Residential C-1 Commercial C-1 Commercial Authority Canaveral Port Authori Camp Plan Canaveral Port R3 Residential C-1 Commercial C-1 Commercial Authority Canaveral Port Authority Existing Canaveral Port R3 Residential Canaveral Port C-1 Commercial Conditions I Authority Authority Public Services and Facilities in Amendment Area: The Level of Service for parks and recreation is one (2) acres of park Iand per 1,000 residents. Approximately twenty-four (24) acres of park land exist in Cape Canaveral. This equates to a population of approximately 12,000 residents. The proposed extension of the Cape Caribe Hotel is not anticipated to have a negative effect on parks and recreation. AlA is operating at Level of Service "D" with 289 available peak hour trips between North City Limits to Central Blvd. AIA from Central Blvd to North Atlantic has a level of Service is "D" with 541 excess trips. If developed as proposed, then no additional trips are anticipated with the already approved development. The City of Cape Canaveral provides wastewater treatment. The wastewater treatment capacity is 1.8 million gallons per day (MGD). The existing usage is 1.17 MGD with an excess capacity of .63 MGD. There is adequate wastewater treatment capacity available. The City of Cocoa has a total capacity of 56 MGD and currently provides 48 MGD. Approximately 24.4 MGD of water is being used on an average daily basis, leaving 23.6 MGD available. There is adequate potable water service available with the proposed change. Brevard County provides facilities for solid waste disposal. At this time, the County does not foresee any deficiency with their solid waste facilities. Environmental Description of Amendment Area: The subject site has Palm Beach sand (Pb) soil type. This is a nearly level and gently sloping excessively drained soil on dune like ridges that roughly parallel the Atlantic Ocean. It consists of mixed sand and shell fragments. Slopes are mostly two to five percent. The water table is at a depth of more than 10 feet. There appear to be no wetlands on site. Wetland determinations or verification are permitted by St. Johns River Water Management District. There is no known Aquifer Recharge or Floodplain areas associated with this parcel. There are also no known endangered species living on the site. Historical and Archaeological Resources in Amendment Area: There are no known historical or archaeological resources on site. Population Projections and Trends: The average household size is 2.37 persons. This project is for commercial development, and is not expected to directly generate any additional persons. City of Cape Canaveral icher, City Manager VU0C111 %.71111.? City Clerk From: Bea McNeely, Chairperson, Local Planning & Agency Re: Recommendation to City Council Ordinance #02-2008 Adopting a Small Scale Future Land Use Map Amendment by Changing the Future Land Use Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park, From R-3 Medium Density Residential to C-1 Low Density Commercial — Petitioner is Cape Caribe, Inc., Kohn Bennett, Applicant. At the Local Planning Agency meeting, held on February 27, 2008, by a unanimous vote, the Board recommended approval of the above referenced Ordinance. Please schedule this item for an upcoming City Council meeting_ 105 Polk Avenue • Post Office Box 326 • Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1222 • SUNCOM: 982-1222 * FAX: (321) 868-1247 www.myflorida.com/cape • email: ccapecanaveral@cfl.rr.com DATE FILED:k-J2-U' I FEE PAID: ` JK)0, 00 DEPOSIrt.' RECEIVED BY: ($250.00 FTDING FEE IS NON-REFUNDABLE) NATURE OF REQUEST ��t� �ar +�4�ilinq Plan SPECIAL EXCEPTION VARIANCE --,X RBZONING APPEAL CODE AMENDMENT 1 mal {,- DESCRIPTION OF REQUEST: (Insure that the specific sections of the city code that all and support your request are noted). (Attach separate sheet if necessary) See attached Exhibit "A" Address of request: 1000 Shorewood Drive Legal Description: Lott' , Block _ _ _ , Subd. Section_ Township __2-45 Range 37E STATEMENT OF FACT: State of Florida, County of Brevard; I, Kohn Bennett being duly sworn, depose and say that: I am the owner. X I am the owner's designated agent.(Attach notarized letter of authorization) Owner's Name Caoe Caribe. Inc. Address 710 N Plankinton Ave City. Milwaukee State VVI Zip 52303 Home Phone# Work Phone## 414-274--2473 (If other than owner) Applicant's Name Cape Caribe Inc. c/o, Kohn Bennett Address 1000 Shorewood Drive City Cape Canaveral State FL Zip 32920 Horne Phone# Work Phone## 3_ _( 21) 784-8093 --1 All information, sketches and data contained and made part ofKi the best of my knowledge and belief Swann to and subscribed before me on this A(5'�- day of 20-�L-. Applicant's C, and true to Barbara Downey Commission # DD446461 Expires: AUG. 19, 2004 The completed request form and the $250.00 filing fee must be filed as follows: Requests for Variances and Special 1n Exceptions (Except Telecommunication Towers), 14 days prior to the Planning & Zoning Meeting, request for rezoning, 30 days prior to the Planning & Zoning Board meeting, Request for Telecommunication Towers, sixty days prior to the Planning & Zoning Board meeting, The Board, of Adjustment meeting will be set after the request is heard by the Planning & Zoning Board. (A deposit my be required, see code section 110.92 for applicability). (FOR CITY USE ONLY) Notice of Public Hearing Published in Newspaper on Notice to applicant by Certified Mail No. on Notice posted on Bulle[in Board on Notice posted on subject property on property owners within 500 R notified on ldhiat? 12:63 AN 01t W8 Total 2 950.00 Cann Amount $6.00 LK t{37 id,134821 Ariount $2,250. t=� APPLICATION i REZONING Ft� COMPREHENSIVE PLAN AMENDMENT DEVELOP EACUT SHEET I. APPLICANT: Name: Cape Caribe, Inc. c/o Kohn Bennett Address: 1000 Shorewood Drive, Cape Canaveral, FL 32920 Phone: (321) 784-8093 Fax: (321) 784-3644 2. PROPERTY LOCATION: General Location or Address: 1000 Shorewood Drive Legal Description: (May be attached to this sheet) Attached Sue of Property in Acres: 1.20 acres 3. PRESENT ZONING CLAS SIFICA17ON: Abutting Land Zoning: North: R-3 South: R-3 East: R-3 West: C-1 *Abutting Land Use: North: P South: R East: R West: RC 4. NATURAL FEATURES: Cleared EXISTING STRUCTURES: NIA CONSTRUCTION TYPE: NIA SITE IN SQUARE FEET: NIA NUMBER OF STORIES: NIA SOIL: Tavares Fine Sands & Palm Beach Sands TOPOGRAPHY: Ranging from 8.7' to 12.0' VEGETA'T'ION: Cleared WILDLIFE: NIA FLOOD HAZARD: Zone X DRAINAGE: Exfiltration SITE ELEVATION: Ranges from 8.7' to 12.0' STRUCTURE ELEVATION: NIA 5. ENVIRONMENTAL ISSUES: NIA WATER: City of Cocoa AIR: None NOISE: None HISTORICAL/ARCHAEOLOGICAL: None TTA NT REQUIRED: A map showing the property and all adjoining property within 500 feet with zoning and ease indicated. See Attached Exhibit "C" P = County Park R = Residential RC = Resort Condominium Cdy of Cape Canaveral PROCEDURE FOR AMENDING CONTREHENSM PLAN 1. Local Planning Agency meets to discuss proposed amendment to the comprehensive Plan and establish a date for a public hearing on the proposed amendment (Allow at least two weeks for advertising) 2. Local PIanning Agency holds a public hearing on the proposed amendment, with due public notice (F.S. 163.3181, F. S. 166.041) 3. City Council holds a public hearing on the proposed amendr=4 after due public notice per F.S. 163.318I, F. S. 166.041. Council must approve (by motion) transmittal of the proposed amendment to tba State Land Punning Agency. 4. Proposed amendment is transmitted to the state land planning agency, the appropriate regional planning council, the water management district, the Department of Community Affairs and the Department of Transportation for comments and evaluation. Proposed amendment must be submitted at least 90 days prior to adoption. The agencies have 45 days to respond. 5. After addressing all comments from other affected agencies the City Council holds a fust and a second reading and public bearing of an Ordinance to adopt the amendment to the Comprehensive Plan. The amendment may be adopted an the second reading. The public hearings must be advertised as outlined In number 2 and 3 above. 6. The rezoning of the propeny will be in accordance with the requirements listed in Chapter 110 of the City Code ofOrdhmces. THE PROCEDURE OUTLINED ABOVE CAN BE FOUND IN ITS ENTIRETY IN CHAPTER 163 OF THE FLORIDA STATE STATUTES. BUILDING & PUB&C SAFES DEPARTMENT CITY OF CAPE CANAVERAL, FLORIDA APPLICATION FOR PUBLIC HEARING FOR A CHANGE OF LAND USE REQUESTTO AMEND THE~ COWPEHEINSIYE PLAN Brie applicw1art, tagerhcr with AM REQUMED M. shall be completed and tiled with the zoning division prior to the sstabiisbed fsling deadline for the Public }wing before the Planting and Zoning Beard. A COMPREIEVSIVE PLAN AryiamKEiT DOES NOT E ITME THE OWNER. TO A DEYELQPivlWr PER3a[IT. TYPE or PRiNr the following information (TO 13E COMPLETED eY APPLICANT'} owner(.$):_ -Capp Caribei, Inc.*_Apg1iKohn Bennett Adtlrass: 712N Plankinton Avenue Address: _ 1000'Shorewood Drive City: lM lwaukee _ sizerCity:_ Cape Canaveral state: Florida Zip Cade: 52343 Phone: 414-274-2473 Zip Cade: 32920 Phone:. 321) 784-8093 TYPE OF REQUEST Change to the Text of the Catapmhcaslva Pian, Cotnprelteadve Plan Eletttcrtt; Change to an &%1stfng Ptovisiow _ _ Attach pmpnsW wording. real= anti appropriate data and analysis to support the requested changes X Change to the Zoning Map , EArdago Zoning Designation: - Requested zoningI]csigandarc—C-1 -- Amid ra=m for requested change: See attached Exhibit "A" X ChanV w the Future land Use Map Edsting Future Land Use Deal Vwion . -3 kcqu=d future Land Use Desipation: C-1 Attach r=w= far requited change. See attached Exhibit "A"� LOCATION Toed Arnagr. 1 7Q, Locatiatt and Dts=m from Nex=t Pubrm Mid(sr. REQUMED EXEMITS _ The cautpicm legal description (and the tax Wentification number) of the pmpctty a portion rherdut that the antendtr= is being requested for, typed on a srarate sheet of paper. An error in the legal description will result: in the request being delayed u the owncrlapplicxtt's =p=c. ' X .A certified surrey of the subject propcay. ACounty Prnperrf Appraisrs's map deicribin; the :.=ct parcel; may be ==ptcd In lieu of a survey In ccrain Ins==. _Z_A County Fropctty Appraiser's map idcrul ling the subject property and all of the owners loc=d within 300 fc_ of the boundarinx of thn smbjeet property. _? _A Un of tames and addresses of all of the property owners located within 600 feat ofthe bounWes of the subjca property and hcycd to the County Property Appraiser's map. _X_A copy of the most recant recorded Warranty Deed. Notarized statements franc all prapc;q owners listed an the Warranty Dced who are aathorizing someone other than th=elrcz to act on their behairas the applicant. Signature afStaff memb+" discussing proposed action with the ApplIcarm The undersigned understands that this application must be compkc and accurate prior to advertising a public hearing: STATE of Florida COMMOF Brevard .i, Kohn Bennett being first duly sworn. depose acrd say that: _,_,,,i tun the owner of the subject propc—y, or (If mrpotatlon. l an the Ofticer of the corporation authorized to ct on this tequc:t}. ' -i stn the in,i representative of the owner of the sub1rctpropury rfthn;'p11,ca ion,(Ifthcr pa not owned. or owned only in pan by the appli=nr, aaomrizW fearer roust accamappticatian ,YmS written consent bye Al property awners of the subject property unless the appllcsat is the far the crj. ALL THE ANSWM .S TO THE QUEMOlY3IN TfM APPUCAKETC AHO DATA ATTACHED TO AND MARE Il PAATOFTHIS APPf ICA"IiQ�I�tREiRUE'IOTU" 'iO.+�L�Ga- t�tut� anti SWORN AND SUBSCRIBM TO BEFF40RE METidIS 5� DAY CF [flit . MYCO SIGN&VIRES. �`Iaf-U�j ri;oLi&S TINE OF FLORID/ DTk"''�*Expires: Barbara Downey Commission #DD446461 AUG. 19, 2009 Awrµ�u,�u-u.,..,.e� vy.,..t€no Eo., In• C 0, Q,4 9,v,x,q, 441.p� Ql�F.A .-qunty- FriqlRA.rity Ap�prqii.*oK, -, Map. qo4riqh EXHIBIT ficow ZONING MAP SKETCH TO ACCOMPANY DESCRIPTION NOT A BOUNDARY SURVEY 4i 000 oh o N2 Z; C4 tf] NORTHWEST CORNER OF GOVERNMENT WEST LINE OF GOVERNMENT LOT I POINT OF BEGINNING N CANAVERAL PORT AU1HORTr'Y SUBJECT PARCEL 1.20 ACRES f 5 89'45'49 V.. PREPARED BY: ILEN ngineerzng, Inc. SURVEYORS - ENGINEERS 108 DIXIE LANE (P.O. BOX 321321) COCOA BEACH, FLORIDA 32932-1321 TELEPHONE: (321)783--7443 FAX: (321)783-5902 C,ER77RCA W OF AU IHORIZA 77ON # LS 266 3. DA TF. • 12-07-07 DRAWN BY.• K5C JOB NO. 980129.4 1 SCALE.- 1 "=50' .W n w V� w 0 O N 239.05' CAPE CA -R -16E SCALE: 1"=50' 3 0 w z 0 0 123 2:L0 eo.0 ] 00.0 GRAPHIC SCALE QI SHEET 1 OF 2 SEE SHEET 2 OF 2 FOR DESCRIP770N, SURVEYOR'S CER77FICA770N AND SURVEYOR'S NOTES PREPARED AND CER77FIED roR. TOWNE REAL TY, INC. DESCRIPTION NOT A BOUNDARY SURVEY DESCRIP7701V OF EASEMENT. A portion of Government Lot 1, Section 14, Township 24 South, Range 37 East, Brevard County, Florida, being more particularly described as follows: Commence at the Northwest corner of said Government Lot 1; thence SO129'01'E, along the West line of said Government Lot 1, a distance of 260.06 feet, to the POINT OF BEGINNING of the herein described parcel; thence N89 45'43'E, a distance of 243.76 feet; thence S00'14'17E. a distance of 216,99 feet; thence S894549"W, a distance of 239.05 feet, to a point on the West line of said Government Lot 1; thence N01 29 01 "W, along the West line of said Government Lot 1, a distance of 217.04 feet, to the POINT OF BEGINNING; Containing 1.20 acres, more or less. SURVEYOR'S NOTES: i. THIS IS NOT A SURREY. 2 The bearings shown are based on a bearing of S0129'01 "E along the West line of Government Lot 1. 3. • Denotes a change in direction (no corner found or set). SEE SHEET 1 OF 2 FOR THE SKETCH TO ACCOMPANY THIS DESCRIP770N. SHEET 2 OF 2 SURVEYOR'S CER77F7CA770N.• PREPARED BY: LLE N ngineering, Inc. SURVEYORS - ENGINEERS 108 DIXIE LANE (P.O. BOX 321321) COCOA BEACH, FLORIDA 32932-1321 TELEPHONE: (321)783-7443 FAX: (321)783--5902 CER MWA TE OF AUTHORIZ 4 77OIN I LB 286 JOB NO. 980129 1 DA 7E. 12— I hereby certify that the attached Property Description was prepared c5 under my direction, in accordance with all applicable requirements of o the 'Minimum Technical Standards," for land surveying in the State of Florida, described in Chapter 61G17--6, Florida Ad a+s rail Code, Z pursuant to Chapter 472.027, Florida Statutes. ro BY.• AW/ Not valid without the signature P1 C. 'LR and the original raised seal of a OF SSIONAL SUR YE OR Florida licensed surveyor and mapper. MAPPER F z SOP. OA Re CfSTRA TION No. 4222 PREPARED AND CERTIFIED FOR. TOWNE REALTY, INC. 7b13 Instrument prepared by. =f1 t04[ j' ha � m to: 2875 N.E,191st Suite 404 Avertfvre, Ft_ 33180 —.-1101111111111'', _ 011111111 CFN:99051185 0316-9908:37 am oR 8aokM4- e: 3980 1 1996 Sandy Crawford Clark O[Coum 8,vard County 2 4Namea:2 TrusO 1.50 Rea 9.00 serv:0.00 d:6�00.00 Extlae:0.00 ARRAN DEED !nt Tax: 0.00 THIS INDENTURE, made on I? lylpot, / 1gq 't between PHIL RUFFIN, (Grantor"), and SOi. I]� p � , tNC., a Flohda oo ration ("Grantee �0 N' L vY? 1 t rvFjG�rc�F j� i � 3 �,whose post office address is: WITNESSETH: That said Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and No/100 and other good and valuable•consfderttlons to there in hand paid by said Grantee, the receipt whereof is hereby adcnawiadged, have granted, bargained and sold to the said Grantee and Grantee's heirs and assigns forever, the following described land, situate, lying and being In BREVARD County, Florida, to wit See Exhibit "A" attached hereto and made at part hereof Tax Folio No.: This property Is not homestead property and is not contiguous 10 the prindhomestead property andpal residence of the grantor is r wrcl,i+�,J 1k -7 -re-(' 0 ');)L /7 This conveyance is subject to ftrnatters set forth on i�dltbif 'B': TO HAVE AND TO HOLD the same In fee simple forever. AND the Grantor hereby covenants with said Grantee that the Grantor is Iawhilly seized of said land In fee simple; that the Grantor has good right and the Grantor herebyfully lawful authority to sell and convey said land; that persona whomsoeveer..warrants the 11fIa ful to said land and will defend same against lawclaims of al] IN W]TNESS WHEREOF, the Grantorhas hereunto set Grantor's hand and seal the day and year first above written. Signed, seated and delivered Printed name 7�y STATE OF NEVADA j COUNTY OF ®Ci,AAje_ sa. PHIL. RUFFIN Address: m &0A1 �° 'r o0�y tette AAT'C5N ua. � 7 2002 The foregoing Instrument was acknowledged RUFFIN, who Is personally known to me, or has uced e o � r �;u � by PHIL Identification, and who did/did not take art oath. as My Cammisslon expires: 4 m amt PrtYAu ntName: ba"a.las ,o-rrc�.r r NOTARY PUBLIC, STATE OF Nl!-V A to A Fudwwn� a..Q,wya Exhibit A A portion of Section 14, Township 24 South, Range 37 Fast, Brmsrd County. Florida, being more pardaulady doseribcd as faffows; Commence at the Northwest cower of said Section 14; thmm N89043'34"B, along the North &a ofdie NaidmIdd =o.gwater of said Sutra 14, a dirtstuto of 2,639.94 fcc;, to the North one-quarter oomr of said Section 14; theme N8904543"$ along the Noun line of the Uxdbesat on*-quartcr of 3ald Section 14, a dW=ce of 883.66 feet, to the POINT OF BBCil *M4G of tho lm ak described parcel; thence continue, N$9045'431,lr, alongtkNorth lineofthoNorffiCWonaquantarefmdd flection 14, a distance of 435.64 frit, tit the . Noz&waat *mar of GOYMMML Loot I of said Section 14; thence S01'2"I"E, along the West line of acid Gm=nmeat Lot 1, a distance of 790.19 feet, to a point on the Sault litre of the North 790.00 Act of said Clovemtnem Lot 1; thence N89°45'43"% along said Son& Wae, a dktam of 260-06 feet, to a point on the Fast Me oftha West 260.06 fat of said Government Lot 1; theses N01°29'01"W, along said Fast Eine, a dlstanae of 530.13 f*4 to a polar on the South lice of the North 240.00 feet of said Govetameat Lot 1; them NS9"45' M3 along said South line, a distanca of 1,554.47 feet, io a point on rho Ecoskn Control Lb= ofthe Atlau Ocean as shown on Haat survey approved by the Trustm of the 7a6emal iatprovrment Trust Fund of the State of Florida On Dexmber I8,IM. scud inccrdad in SUrVey Book 2 Pages 6 through I1 of the public Records of Brevard Canny Mort* thence S17"57136"W, along said MadQn Control line, a distance of 770.71 fieet, to a pout on d= North line of the South 330.00 frit of said Gowaa =Kart Lot 1; theses S89°4693"W,-aloaag said North line, a distance of 1,55793 foot, to a point on the West lime of said Oovartmtent Lot I; thenco S01"29%,,M, along said West lino and its Soudwrly extension, a distance of 52824 feet, to a point on the North line of Unds daa=ibad In Dead Hook 177, page 11 S of dw public P ecoids of Bxavard Cotmty, .Placid%: thence S8904543"W, along said North line, a distance of 456.45 fit, to the Northwest omm of said Iaads; thence S00°26'53"W, along the West line of said lands, a dis mw of 102.77 &64 to a point on the North lane of The Villages Of Seaport. A Cdwkrdpitun, as d==Ud in Official Records Book 2598, Page 135 of tthe public istst:oe rd of Momard COMY. oda' then& 589°52'21"W, along said North tier: thonoo NOI"29'01"W, It distance of 1,121.77 feet; thence N89*4543"4 a distaaea of627A4 thence NOI°29'01"W, a distanoe of 500.12 feet, to the POI2+Tl' OF BEGRO M, Canu ining 56.45 tries, mare or Icss. r - Exhibit A A portion of Section 14, Township 24 South, Range 37 Fast, Brmsrd County. Florida, being more pardaulady doseribcd as faffows; Commence at the Northwest cower of said Section 14; thmm N89043'34"B, along the North &a ofdie NaidmIdd =o.gwater of said Sutra 14, a dirtstuto of 2,639.94 fcc;, to the North one-quarter oomr of said Section 14; theme N8904543"$ along the Noun line of the Uxdbesat on*-quartcr of 3ald Section 14, a dW=ce of 883.66 feet, to the POINT OF BBCil *M4G of tho lm ak described parcel; thence continue, N$9045'431,lr, alongtkNorth lineofthoNorffiCWonaquantarefmdd flection 14, a distance of 435.64 frit, tit the . Noz&waat *mar of GOYMMML Loot I of said Section 14; thence S01'2"I"E, along the West line of acid Gm=nmeat Lot 1, a distance of 790.19 feet, to a point on the Sault litre of the North 790.00 Act of said Clovemtnem Lot 1; thence N89°45'43"% along said Son& Wae, a dktam of 260-06 feet, to a point on the Fast Me oftha West 260.06 fat of said Government Lot 1; theses N01°29'01"W, along said Fast Eine, a dlstanae of 530.13 f*4 to a polar on the South lice of the North 240.00 feet of said Govetameat Lot 1; them NS9"45' M3 along said South line, a distanca of 1,554.47 feet, io a point on rho Ecoskn Control Lb= ofthe Atlau Ocean as shown on Haat survey approved by the Trustm of the 7a6emal iatprovrment Trust Fund of the State of Florida On Dexmber I8,IM. scud inccrdad in SUrVey Book 2 Pages 6 through I1 of the public Records of Brevard Canny Mort* thence S17"57136"W, along said MadQn Control line, a distance of 770.71 fieet, to a pout on d= North line of the South 330.00 frit of said Gowaa =Kart Lot 1; theses S89°4693"W,-aloaag said North line, a distance of 1,55793 foot, to a point on the West lime of said Oovartmtent Lot I; thenco S01"29%,,M, along said West lino and its Soudwrly extension, a distance of 52824 feet, to a point on the North line of Unds daa=ibad In Dead Hook 177, page 11 S of dw public P ecoids of Bxavard Cotmty, .Placid%: thence S8904543"W, along said North line, a distance of 456.45 fit, to the Northwest omm of said Iaads; thence S00°26'53"W, along the West line of said lands, a dis mw of 102.77 &64 to a point on the North lane of The Villages Of Seaport. A Cdwkrdpitun, as d==Ud in Official Records Book 2598, Page 135 of tthe public istst:oe rd of Momard COMY. oda' then& 589°52'21"W, along said North tier: thonoo NOI"29'01"W, It distance of 1,121.77 feet; thence N89*4543"4 a distaaea of627A4 thence NOI°29'01"W, a distanoe of 500.12 feet, to the POI2+Tl' OF BEGRO M, Canu ining 56.45 tries, mare or Icss. --- - ---------- --- ---------------------------------- NOTICE OF ZONING AMENDMENT Notice is Hereby Given that the City of Cape Canaveral Planning and Zoning Board will consider an amendment to change the zoning classification of certain real property from R-3 (Medium Density Residential) to C-1 (Low Density Commercial) in the City of Cape Canaveral. The Public Hearing on the Proposed Zoning Amendment will be held on Wednesday, February 27, 2008, at 7:30 P.M. in the City Hall Annex, 111 Polk Avenue, Cape City of Cape Canaveral Canaveral, Florida. 4� Future Land Use and Zoning Amendments ORDINANCE NO. 03-2008 AN ORDINANCE OF I ? THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, Era F L O R I D A, �. CHANGING THE T A ZONING MAP .i..Rr` DESIGNATION OF -- CERTAIN REAL ;� P R O P E R T Y TOTALING 6.24 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO, FROM "R-3 MEDIUM DENSITY RESIDENTIAL" TO "C-1 LOW DENSITY COMMERCIAL"; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. The Ordinance may be viewed in its entirety in the City Clerk's Office at 105 Polk Avenue, Cape Canaveral, FL 32920 during regular working hours, Monday through Friday, 8:30 A.M. to 5:00 P.M. pursuant to Section 286.1015, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person might need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. Susan Stills, CMC, City Clerk Memorandum To: Todd Morley, Building Official From: Todd Peetz, City Planner Date: February 18, 2008 Re: Cape Caribe Comprehensive Plan Amendment and Rezoning I have reviewed the Cape Caribe Comprehensive Plan Amendment and have no comments. The rezoning; however, I believe the letter from the applicant stating that this is zoning change is for expanding their water amenities and parking should be a binding development agreement. If you have any questions, or need further information please feel free to contact me at 407-629--8880. RECEIVED JAN 2 5 2008 SQ MUM L=e 00810a: INC January 23, 2008 Todd Peetz Miller Legg & Assoc 631 South Orlando Avenue Winter Park, FL 32789 RE: City Review of Cape Caribe Inc. Rezoning / Comprehensive Plan Amendment 1 se Review SSA Job #: 05-0025 Dear Todd: FILf copy Ra - f -6 M, s 00 Stottler Stagg & Associates, Architects, Engineers, Planners, Inc. (SSA) has reviewed the rezoning submittal for the above referenced project dated January 8, 2008 at 1000 Shorewood Drive and offer the following comments: 1. It is recommended that a binding site plan be part of this Comprehensive Plan Amendment prior to approval. 2. The summary of the added acreage on Exhibit B does not list the parking and drive- thru aisle. If you have any questions, please do not hesitate to contact our office. Sincerely, STOTTI_ER STAGG & ASSOCIATES Architects, Engineers, Planners, Inc. a tL John A- Pekar Senior Vice President cc: File SF(7MER STAGG & ASSOCIATES ARCHITECTS ENGINEERS PLANNERS, INC. 8680 North Atlantic Avenue P. 0. Box 1630 z9 Cape Canaveral. Florida 32920 Tel 321.7831320 Fax 321.783.7065 4kFileserve�lprojectsM-0025105&-1D041W- Cape Ca �e�ro ng eview#1.r�oc$0000762 4 BOOD6700 Susan Chapman ......-- --- -- --- - - -- - - - ----.--.-..- - - - Prom: Todd Peetz [TPeetz@millerlegg.comj Sent: Thursday, February 21, 2008 4:38 PM To; chapman-cape@cfl.rr.com Subject: FW: Cape Caribe plan amendment From: John Cunningham [mailto:jcunnfngham@ccvfd.org] Sent: Monday, January 14, 2008 11:34 AM To; Todd Peetz Subject: RE:Cape Caribe pian amendment Todd, I have reviewed this and have no comments at this time. Under Florida Statute 668.6076, email addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. This message contains information which may be privileged, confidential, or otherwise protected from disclosure and is intended only for the individual(s) named. If you are not an addressee; any disclosure, copy, distribution, or use of the contents of this message is prohibited. If you have received this electronic message in error, Please notify the sender by reply e-mail and destroy the original mcssage and all copies. Messages sent to and from us may be monitored. (v.1e) MEMORANDUM TO: Todd Peetz City Planner FROM: Jeff Ratliff Assistant Public Works Director City of Cape Canaveral 868-1240 DATE: 01/10/08 RE: Cape Caribe —Rezoning Request Submittal No. 1 Public Works staff' has reviewed the rezoning request (pool area only) for the referenced property and have no comments. City of Cape Canaveral, Florida City Council Regular Meeting March 18, 2008 Page 9 of 14 voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. ORDINANCES: First Public Hearing: 6. Motion to Approve Ordinance No. 02-2008; Adopting a Small Scale Future Land Use Map Amendment by Changing the Future Land Use Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at First Reading. Mayor Randels read Ordinance No. 02-2008 by title_ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, ADOPTING A SMALL SCALE FUTURE LAND USE MAP AMENDMENT BY CHANGING THE FUTURE LAND USE MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF .PETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBITS "A" AND "B" ATTACHED HERETO, FROM "R-3 RESIDENTIAL" TO C-1 COMMERCIAL" ; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, INCORPORATION INTO THE COMPREHENSIVE PLAN, AND AN EFFECTIVE DATE. Mr. Boucher reminded that this was a quasi-judicial hearing item and the City Attorney would need to swear -in all those participating in the discussion. Attorney Latorre swore in all those providing testimony. Mr. Peetz referred to the difference between the Comprehensive Plan and the Zoning Amendment in that the Zoning portion permitted conditions with approval of which there were conditions at the Planning and Zoning Board level related to the 1.2 acres. Mr. Peetz informed that the applicant was agreeable to the condition on the 1.2 acres for parking and recreational amenities. Attorney Latorre stated that the City Attorney's office had not fully discussed this matter at this time. Mr. Peetz stated that during the Local Planning Agency [LPA] meeting, a 5.4 acre gap was created between the Comprehensive Plan Amendment Map and the Zoning Map on the Brevard County Property Appraiser's part. There was no expressed reason for the gap which occurred during adoption of Ordinance 03-2000 in which the City established a C-2 Zoning district and through research, the gap was found in the Cape Caribe area and the City Attorney recommended an administrative correction. Therefore, his report reflected 1.95 acres as the total for the Zoning amendment. The corrected area gap was formerly reserved, but not used, for the Ridgewood Avenue extension. Mr. Peetz also stated that when the LPA met there were persons concerned with noise issues; however, this could be addressed at the Site Plan stage. The applicant would work with the City on the Site Plan. City of Cape Canaveral, Florida City Council Regular Meeting March 1 8, 2008 Page 10 of 14 Mayor Randels stated that the LPA recommended approval on February 27, 2008 by unanimous vote. Plan Amendment procedures were included in the packet and done according to Florida Statutes Chapter 163. Property owners were notified within a 500 - mile radius and duly noticed on February 17th prior to the Planning and Zoning Meeting and again on.March 8th prior to the First Reading. Mr. Kohn Bennett, 1000 Shorewood Drive, Cape Canaveral, of Cape Caribe, Inc. introduced Mr. John Grandlich, Mr. Maath Bennett, and Mr. Jim Boris also of Cape Caribe, Inc. in the audience. Mr. Bennett recounted from previous discussion that, 1) density would lessen due to removal of one building on the east side, and 2) balconies were redesigned to face the west and the north. The removal of one building and changing the design of another would result in the continuation of a pool deck and fewer people. This would also control the activity that would impact adjacent property. Mr. Grandlich met with the Boards of Solana Lake, Solana Shores and Shorewood. Mr. Bennett informed that there were several concerns voiced at the Planning and Zoning Board Meeting that were addressed. Mr. Bennett stated that amenities and parking were the final issues. Mr. Bennett displayed a storyboard of what the approved Site Plan would include. Mr. Bennett clarified that the County neglected to remove the Ridgewood Avenue extension from the City's map. Ms. Roberts expressed her appreciation that the firm reached out to the community and their reception was positive. Ms. Roberts noted comments from the LPA meeting which were continued concerns related to commercial ventures and the rezoning and to ensure that no commercial sales, for example a Tiki Bar, would be established in the expanded water park area. Mr. Bennett replied that the intent of bringing the concept into the pool deck was to create one amenity to the extent of serving meals and to, perhaps, locate some facility on the south end to establish more efficient service. Ms. Roberts stated that a passive lounge area seemed acceptable; however, residents expressed concern with commercial use. Mr. Bennett clarified that continuity would remain the same. Ms. Roberts asked if the residents could request not to have speakers at that proposed end of the water park. Mr. Bennett stated that concerns arose from Shorewood; however, that might be due to lack of landscaping. Mr. Bennett stated that the forum to address those issues would occur during Site Plan review, but not during the Comprehensive Plan amendment discussion. Attorney Latorre clarified that Item No. 6 would need to be addressed prior to discussing Item No. 7. Mr. Peetz stated that Council could not attach conditions to a Comprehensive Plan Amendment; however, conditions could be attached to the Zoning Amendment. Mr. Grandlich stated that there were few concerns voiced at the Planning and Zoning Board Meeting/ LPA Meetings and loud music was not anticipated as the facility was family oriented. There was no public comment. City of Cape Canaveral, Florida City Council Regular Meeting March 18, 2008 Page 11 of 14 cq��-go 0� 04 A motion was made by Mr. Petsos and seconded by Mr. Nicholas to Approve Ordinance No. 02-2008 at First Reading. The vote on the motion carried "with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. 7. Motion to Approve Ordinance No. 03-2008; Changing the Zoning Map Designation of Certain Real Properly Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at First Reading. Mayor Randels read Ordinance No. 03-2008 by title. ti AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, CHANGING THE ZONING MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBITS `W' AND "B" ATTACHED HERETO, FROM 11R-3 MEDIUM DENSITY RESIDENTIAL" TO "C-1 LOW DENSITY COMMERCIAL" SUBJECT TO CERTAIN USE RESTRICTIONS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; SEVERABILITY, AND AN EFFECTIVE DATE. Mayor Randels read that the Planning and Zoning Board imposed the following conditions for the property related to: recreational amenities and parking. Mr. Peetz pointed out that the Council could approve the Zoning Designation in its entirety; however, the conditions should be limited to the 1.2 acre parcel only. Attorney Latorre stated that the conditional restrictions would apply to Exhibit A only. Mr. Bennett clarified that his application addressed Exhibit A and the R-3, 1.2 acres. Mr. Petsos recommended placing the restrictions within Section 3 of the proposed Ordinance. Mr. Boucher questioned Mr. Peetz, for the record, saying that he did not review any analysis changes as a result of the density reduction to the 1.2 acres. Mr. Peetz replied that the Site Plan would be amended and a pre -application meeting was scheduled for mid-April. Ms. Roberts asked if there was a definition of recreational amenities. Mr. Bennett replied that a definition would be established prior to the next meeting and he would work with the City Attorney's office on that definition. Ms. Roberts stated the following concerns for the record: l) potential noise, 2) a Tiki Bar operation in the water park, and 3) green space. Ms. Roberts addressed the potential of redirecting traffic carried to the beach and if there were an alternative route. Mr. Bennett stated that there were no al#ematives due to a previously constructed building; however, the developer would look into it. There was no public comment. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Approve Ordinance No. 03-2008 at First Reading to Include the Discussed Revisions. The City of Cape Canaveral, Florida City Council Regular Meeting Agenda April 1, 2008 Page 8 of 10 Due to the number of proposed Amendments, Attorney Latorre recommended returning to the April 15th City Council Meeting for a First Reading. Mr. Nicholas requested a provision to clearly state that City staff would perform the property posting. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Table Ordinance No. 04-2008 until the City Council Meeting on April 15th to include all revisions as recommended by the Council. The vote on the motion carried 5-0 with voting as: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 4. Motion to Approve: Ordinance No. 05-2008; Amending Chapter 22, Community Development of the City Code Related to Community Appearance Review; Amending Section 22-40 to Clarify Which Properties are Subject to Community Appearance Board Review Prior to Any Building Permit Being Issued, at First Reading. Mayor Randels read Ordinance No. 05-2008 by title. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 22, COMMUNITY DEVELOPMENT, OF THE CITY CODE RELATED TO COMMUNITY APPEARANCE REVIEW; AMENDING SECTION 22-40 TO CLARIFY WHICH PROPERTIES ARE SUBJECT TO COMMUNITY APPEARANCE BOARD REVIEW PRIOR TO ANY BUILDING PERMIT BEING ISSUED; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABfLITY; AND AN EFFECTIVE DATE. Mr. Morley explained the results of the previous Ordinance and how the proposed change in Section 22-40 would restrict review to C-1, C-2, and M-1 zoning districts. Ms. Joyce Hamilton stated that this would affect her residence which was in the C-1 zoning. Mr. Morley stated that the intent was to return the Ordinance to its original intent of new construction review only. Attorney Latorre clarified that changing residential colors did not apply to pre-existing homes. A motion was made by Mr. Petsos and seconded by Ms. Roberts to Approve Ordinance No. 05-2008 at First Reading with the Clarified Provision from the City Attorney. A motion was made by Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. ORDINANCES: Second Public Hearing: )L 5. Motion to Adopt: Ordinance No. 02-2008; Adopting a Small Scale Future Land Use Map Amendment by Changing the Future Land Use Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at Second Reading. City of Cape Canaveral, Florida 0 City Council Regular Meeting Agenda �— April 1, 2008 Page 9 of 10 Mr. John Grandlich stated that Cape Caribe, Inc. addressed the Council and respectively requested to Table this Item until the firm could present a revised Site Plan. Mr. Boucher clarified that Cape Caribe Inc. would again bear the cost of the Display advertising prior to a Second Reading. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Table Ordinance No. 02-2008 at the Applicant's Request for Time Indefinite. Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 6. Motion to Adopt: Ordinance No. 03-2008; Changing the Zoning Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at Second Reading. The Applicant would also Iso bear this cosi of Display advertising prior to a Second Reading. A motion was made by Ms. Roberts and seconded by Mayor Pro Tem Hoog to Table Ordinance No. 03-2008 at the Applicant's Request for a Time Unspecified. Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. DISCUSSION: 7. Central Canal Area. Mr. Nicholas restated his concern with calling this area a ditch. He expressed the concept of a pedestrian walkway that would be aesthetic and environmentally friendly. Mr. Ratliff stated that grant funding was available for the south portion of Central Blvd. only. Discussion focused on nomenclature for the water body. Mr. Russell clarified that the water body was free flowing. Mr. Nicholas requested to name the water body the "Canaveral Canal." Mr. Boucher stated that the naming would not have any affect with regulatory agencies. Ms. Roberts suggested Beautification Funds toward aesthetic efforts. Mr. Ratliff explained the mowing requirements and stated that there were anticipated improvements with the new Mowing contract. Mr. Ratliff stated that this addressed the east side of the project only; USA Space Alliance was the adjacent private property. A resident asked if the City Attorney could define "canal." Mr. Tom Garboski stated that a canal was a navigable waterway. Attorney Latorre and Mr. Boucher conducted an online search for a definition. Mr. Boucher then read the definition for a canal from the City code saying that a canal, as stated in the City's Subdivision Code, required 100 -feet in width at a minimum. Due to the inability to adequately define the waterway, the motion was withdrawn. ORDINANCE NO. 03-2008 AGENDA PACKET INFORMATION CITY COUNCIL MINUTES OF 03-18-08 CITY COUNCIL MINUTES OF 04-01-08 Meeting Type. City Council Meeting Date: 3118108 AGENDA REPORT PLANNING AND ZONING BOARD OF THE CITY OF CAPE CANAVERAL AGENDA Heading First reading Item 7 No. SUBJECT: Recommendation for Approval by the Planning and Zoning Board - Rezoning 08-01, Ordinance 03-2008 Rezoning from R-3 Residential to C-1 Commercial - Cape Caribe DEPT./DIVISION: Building Department Requested Action: Accept recommendation for approval by the Planning and Zoning Board with conditions or deny Rezoning 08-01 of 1.95 acres from R-3 residential to C-1 Commercial. Summary Explanation & Background: An application was received from Cape Caribe to expand 1.2 acres of C-1 Commercial zoning to be used for parking and expand their water amenities. Cape Caribe will also be amending at some point in the near future their site plan for the Cape Caribe resort. The remaining portion of the amendment is to fill in what was previously shown on the Future Land Use map as the proposed Ridgewood Avenue extension. Ridgewood Avenue was a proposed road and is not City_ right of way, but wholly owned by Cape Caribe. This is only that portion north of Shorewood Drive. P&Z Board approved unanimously with the condition the use be for parking and water park amenities. The total map amendment is 1.95 acres. Exhibits Attached: A) Application from Cape Caribe and Staff Reports City Planner's Office I Department ORDINANCE NO. 03 2008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, CHANGING THE ZONING MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTYPARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBITS "A" AND "B" ATTACHED HERETO, FROM "R-3 MEDIUM DENSITY RESIDENTIAL" TO "C-1 LOW DENSITY COMMERCIAL" SUBJECT TO CERTAIN USE RESTRICTIONS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City Council is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the owner of the Property subject to this Ordinance submitted an application to the City seeking to have the Property rezoned from R-3 Medium Density Residential to C-1 Low Density Commercial; and WHEREAS, section 110-34(d) of the City Code provides that the City may approve a rezoning subject to restrictions provided such restrictions do not confer any special privilege upon the owners of the Property that would otherwise be denied by the City's land development regulations in the same zoning district; and WHEREAS, the Planning and Zoning Board and City Staff have recommended approval of this Ordinance at the February 27, 2008 Planning and Zoning Board meeting with the condition that the Property's use be restricted to recreational amenities and parking; and WHEREAS, the owner of the Property consents to the restrictions imposed upon the Property as set forth herein; and WHEREAS, the City Council of the City of Cape Canaveral held a duly noticed public hearing on the proposed zoning change set forth hereunder and considered findings and advice of staff, citizens, and all interested parties submitting written and oral comments and supporting data City of Cape Canaveral Ordinance No. 03-2008 Page i of 4 and analysis, and after complete deliberation, hereby finds the requested zoning change, along with the use restrictions set forth herein, consistent with the City of Cape Canaveral Comprehensive Plan and that sufficient, competent, and substantial evidence supports the zoning change set forth hereunder; and WHEREAS, the City Council hereby government purpose and is in the best interests citizens of Cape Canaveral, Florida. finds that this Ordinance serves a legitimate of the public health, safety, and welfare of the NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are true and correct and are fully incorporated herein by this reference. Section 2. Zoning Map Amendment. That the Official Zoning Map ofthe City of Cape Canaveral as described in City of Cape Canaveral Code Section 110-246 is hereby amended to include a change of classification from "R-3 Medium Density Residential" to "C-1 Low Density Commercial District" for the property depicted and legally described on Exhibits "A"and "B," which are attached and incorporated herein by this reference ("the Property"). Section 3. Restrictions of Rezoning. A. Restrictions imposed. Pursuant to the authority set forth in section 110-34(d) of the Cape Canaveral Code of Ordinances, the City Council hereby restricts the use of the Property to the following: Recreational amenities. 2. Parking. Any other uses of the Property other than those enumerated herein shall be prohibited. B. Special exception for alcoholic beverages. Notwithstanding the use restrictions imposed by this Section, nothing herein shall prohibit the owner of the Property from submitting an application to the City for a special exception for on -premises sale, dispensing, serving, storing or consumption of alcoholic beverages pursuant to section 110-334(c)(6), Cape Canaveral City Code. If submitted, the City shall process the application in accordance with law, and the application shall be subject to any applicable review criteria set forth in the City Code. Further, nothing herein shall require the City to approve any such special exception application. City of Cape Canaveral Ordinance No. 03-2008 Page 2 of 4 C. Restrictions to run with the land. The restrictions imposed by this Section shall run with the land, without regard to transfer of ownership or other interests, and may be removed only upon fiuther amendment to the zoning classification ofthe Property and this Ordinance in accordance with the procedures set forth in the Cape Canaveral City Code_ D. Official zoning maps to be updated. City staff is hereby directed to promptly amend the City's Official Zoning Map upon the effective date of this Ordinance. Any such amendment shall reference the use restrictions imposed upon by the Property pursuant to this Section. Section 4. City Clerk to Record Ordinance. Upon adoption and full execution of this Ordinance by the City Council, the City Clerk is hereby directed to record chis Ordinance in the Official Records of Brevard County, Florida. Section 5. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 7. Effective Date. This ordinance shall become effective immediately upon the effective date of Ordinance 02-2008 as adopted by the City Council of the City of Cape Canaveral, Florida. If Ordinance 02-2008 does not become effective, then this Ordinance shall become null and void. ADOPTED by the City Council of the City of Cape Canaveral, Florida, this day of , 2008. ROCKY RANDELS, Mayor ATTEST: For Against Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels SUSAN STILLS, City Clerk C. Shannon Roberts First Reading: Legal Ad published: Second Reading: City of Cape Canaveral Ordinance No. 03-2008 Page 3 of 4 Approved as to legal farm and sufficiency for the City of Cape Canaveral only: ANTHONY A. GARGANESE, City Attorney City of Cage Canaveral Ordinance No. 03-2008 Page 4 of 4 DZS'CRIPTIQN . NOT A BOUNDARY SURVEY DESCRIP770M OF EASEMENT.• A portion of Government Lot 1, Section 14, Township 24 South, Range 37 East, Brevard County, Florida, being more particularly described as follows. Commence at the Northwest corner of sold Government Lot 1; thence S0129101E; along the west line of said Government Lot 1, a distance of 260.06 feet, to the P01NT OF 6EGINNING of the herein described parcel; thence N89 45'43 E, a distance of 243.76 feet; thence S007417E, a distance of 216.99 feet; thence S894549'W a distance of 239.05 feet, to a point on the West tine of said Government Lot 1; thence N012901"W, along the west line of said Government Lot 1, a distance of 217,04 feet, to the P011,17 OF 8EGINNING,• Containing 1,20 acres, more or less, SURVEYOR'S NOTES.• 1. THIS IS NOT A SURVEY 2. The bearings shown are based on a bearing of S0129'01 "f along the West line of Government Lot 1. -3. • Denotes a change In direction (no corner found or set). SEE SHEET 1 OF 2 FOR THE SKETCH TO ACCOMPANY THIS DESCRIP770N. SHEET 2 OF 2 PREPARED BY: 4LE.N ngineering, Inc. SURVEYORS - ENGINEERS 108 DIXIE LANE (P.O. BOR 321321) COCOA BEACH, FLORIDA 32932-1321 TELEPHONE: (321)783-7443 FAY: (321)783-5902 CM77RCATE OF AUTHORIZ47TON # LB 266 3. 2. r. JOt3 N0. 980129 I DATE- 12-07-07 SURVEYOR'S CER 77nCA770N: I hereby certify that the attached Property Description was prepared under my direction, in accordance with all applicable requirements of o the "Minimum Technical Standards,' for land surveying in the State of Florida, described in Chapter 61G17-6, F7aridoAdm' ' fo-� Code, 2 pursuant to Chapter 472.027, Flarido Statutes./ N 8Y. 1071OV1011/ _ Not valid without the signoture EPH C. 8 R and the original raised seal of aOF SIGNAL SURVE pF? Florida licensed surveycr and mapper. MAPPEP, FLO OA REGISTRATION No, 4222 REALTY, INC. a-1 SKETCH TO ACCOMPANY DESCRIPTION NOY A BOUNDARY SURE/EY NDRMWE5r CORNER OF COVERNMENT LOT I a c NEST LINE OF GOVERNMENT LOT l N � oh y POINT OF BEGINNING CANAVERAL PORT AUTHOPITF SUBJECT PARCEL 1.20 ACRES t S 89'45'49 "w. PREPAREO BY: LLEN ngineering, Inc. SVRVBYORS - i;�YGINEERS 106 DIXIE LANE (P.O. BOX 321321) COCOA BEACH, FLORIDA 32932-1321 TELEPHONE. (321)763-7443 FAX. (32L)783-5902 CER77RCA 7E OF AUWORM 770N 1F LB 266 r. DA FE. 12-07-07 FuBY KSC JOB NO. 980129.4 1 SCALE. • 1-50' TOME REALTY 1A1C. :W w w b D N 239.05' CAPE CARIBE SCALE: a 0 0 123 25a BOA 10R.v R GRAPH SCALE �! SHEET 1 OF 2 caca SEE'SHEET 2 0F2 FOR DESCRIP770N, ch SURVE'YOR'S CER77RCA77ON AND SURVE'YOR'S N07ES BARED AND CER77FIED P -OR - TOME REALTY 1A1C. I OF 1 j A PORTION OF GOVERNMENT LOT 1, SECTION 14, TOWNSHIP 24"' SOUTH, RANGE 37 EAST, SREVARD COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGIN AT THE NORTHEAST CORNER OF SAID GOVERNMENT LOT 1; THENCE RUN S01'29'01"E ALONG THE EAST LINE OF SAID GOVERNMENT LOT 1, 500.12 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF SHOREWOOD DRIVE; THENCE RUN S89'45'43"W ALONG SAID NORTH RIGHT OF WAY LINE, 56.02 FEET TO A POINT 66.00 FEET PERPENDICULAR DISTANCE TO THE AFORESAID EAST LINE OF GOVERNMENT LOT 1; THENCE RUN N01'29'01"W PARALLEL WITH AND 66.00 FEET PERPENDICULAR TO SAID EAST UNE OF GOVERNMENT LOT 1, 500.12 FEET TO A POINT ON THE NORTH LINE OF SAID GOVERNMENT LOT 1; THENCE RUN N89'445'43"E ALONG SAID NORTH LINE, 66.02 FEET TO THE POINT OF BEGINNING, SAID LANDS CONTAINING 33,008 SQUARE FEET (0.758 ACRES) MORE OS LESS. GRAPHIC SCALE 0 50 100 200 IN FEET ) 1 INCH = 100 FEET r�ILLER�=�iE�� _t'K w �rw �:e'�e9r•=i EXHIBIT NOT PLATTED HW9`45'43"E POINT OF 66.Q2' BEGINNING NORTHEAST 802.69' NORTH LINE OF CORNER OF GOVERNMENT GOVERNMENT LOT 1 LOT i 66.00' NOT PLATTED Z [A 0 0 0 o• A 0 co �,- 14 O > D NOT PLATTED C lTl to z rn o o p C a z z ` REMAINDER a r NOT PLATTED 66.00' 813.57' NORTH RIGHT OF SNAP UNE OF SHOREWOOD DRIVE I SHOREWOOD DRIVES89'45'43"W 66,00' RIGHT OF WAY o OR 3482 PG 369 66. Q2, t OR 3587 PG 2167 O = CHANGE OF DIRECTION OR= OFFICIAL RECORD BOOK PG = PAGE :ortfkete Of Authorizotfu+ L8. Gfi86 AN2f" 66.00'- t NOV" ="" IXAT flag SK004 mwm rmc wow 1UMM srMMAM AS SE* iRPY r' r,E rLGmA eglRf Cr r F�1�571tA CICS 1M AM W Sa. APPM`.pig DAM DO Wh DAY Wt =7 A.D. RALPlHJT0 ORomm AAL A CNA 1�1AWPPFr. �mr == , Nor Ystn F A " " so�ATuia Aia +Ne D um& �uusm sw. � , RD�wA ucfxQn surtx�an ANO wry Tits SHT"C i DOM NOT RO1i AMM A DOURIIDARY wa= ft u 04-00170 A NOTICE OF ZONING AMENDMENT Notice is Hereby Given that the City of Cape Canaveral City Council will consider an amendment to change the classification of certain real property from R-3 (Medium Density Residential) to C-1 (Low Density Commercial) in the City of Cape Canaveral. The Public Hearing on the Proposed Zoning Amendment will be held on Tuesday, March 18, 2008, at 7:00 P.M. in the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. ORDINANCE NO. 03-2008 AN ORDINANCE OF THE CITY COUNCIL L. �I OF THE CITY OF CAPE CANAVERAL, Lir FLORIDA, CHANGING r THE ZONING MAP DESIGNATION OF A,n CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY _ LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO, FROM "R-3 MEDIUM DENSITY RESIDENTIAL" TO "C-1 LOW DENSITY COMMERCIAL_"; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. The Ordinance may be viewed in its entirety in the City Clerk's Office at 105 Polk Avenue, Cape Canaveral, FL 32920 during regular working hours, Monday through Friday, 8:30 A.M. to 5:00 P.M. pursuant to Section 286.1015, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person might need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. Susan Stills, CMC, City Clerk Page 'I of 1 Susan Stills From: Conf@FLATODAY.NET Sent: Friday, March 07, 2008 4:37 PM To: stills-cape@cfl.rr.com Subject: Ad Correct For 0000279916 Dear Customer; Thank You for advertising with Florida Today. Your ad has been approved and will be processed by our AdPro Department. Ad number: 0000279916 Advertiser's Name: CITY OF CAPE CANAVERAL Publication: DAILY First Run Date: March 08, 2008 Ad Size: 2X10 Tag Line: [TAG LINE] Upload Date and Time: [TIME STAMP] Confirmation Number: 0000279916 Florida Today Ad Services Local Number: 321-242-3580 Toll Free: 1-800-633- 8449, Ext. 3580 Fax: 321-242-3933 03/07/2008 City of Cape Canaveral Future Land Use and Zoning Amendments CI M1 R3 R2 M1 lu M, CON R2 cl 14 W1 cl Cl «j R1 ---- -- cz cl K3 cz rz: C2 ILZ K3 cl FU R1 cl -Rli .R2 CON R3 C, R3 X2 R2 Cl vue a PUN nx JU 01", IQ' C1 R, R2 R) C, V2 JU R2 IQ R3 CDN lu zz X2 A2 -._COcl I cl - Cl R1 r R1 13 C3 '.1 FQ ja k3 Iff 7R2 cl - Cj A2 R2 X3 cl -_RS R2 A2 PUB Ma R2 RZ. R3 50*lAms n� C2 cl R2 RZ 22 i2 cl 12 K2 R3/ R3 R3 C2 0 R2 R2 Ri cl Lo"nd Future Land Usw Zoning Cs COm"mW C3 r2 md..qna) CI R1 Ri R1 RJB POWRe"alg, SO MY of Cape cvnaw,01 Stnetts MAP Map MILLER'*/'LEGG PNO-d by MUM L*Legga Ass"Wes. lite, h 4,20W ........ .......... City of Cape Canaveral Future Land Use and Zoning Amendments G1 AND 1. 1',f :SND ZONING R T 0 C"] TROPIC iH0REW0bQ QF�- _ _ _ BEACH DR. i {' -1-LAKED r - r w SOLANA j 4 '91kJ' HORI IWQOD DR f 77` MILLER'/� LEGG OCE W PAar% N. [i City of Cape Canaveral Comprehensive Plan/Rezoning Cape Caribe Associates, Inc Applicant: Cape Caribe Association, Inc Location: Range: 37E Township: 24S Section: 14 Existing Amendment Acreage: 1.95acres Proposed Zoning Amendment Acreage: 1.95 acres Permitted Hotel Units per acre: 30 du/acres Permitted FAR 1.5:1.0 Current Future Land Use: Residential R-3 Proposed Future land Use: Commercial C- I Current Zoning: Residential R-3 Proposed Zoning: Commercial C-1 Description: The applicant proposes a Comprehensive Plan Amendment to the Future Land Use Map and a Rezoning to the Zoning map for a 1.2 acre area of the Cape Caribe Resort development. The remaining acreage is an administrative change of .75 of an acre comprehensive plan change and 5.04 acres rezoning change from R-3 residential to C-1 Commercial. The administrative amendments represent removing Ridgewood off the map north of Shorewood Drive and the zoning amendment is to reflect a map inconsistency between the Future land use map and the zoning map. The Future Land Use Map and Zoning Maps are supposed to be identical except for where conservation and public lands are shown on the future land use .map. The proposed Comprehensive Plan Amendment and Rezoning are from Residential R-3 to Commercial C-1 for both applications. The proposed changes to the Future Land Use Map and Zoning Map appear to be consistent and compatible with the C-1 district adjacent to and west of the subject site. The subject site is located at 1000 Shorewood Drive. The parcel is west of Shorewood Drive and south of George King Boulevard. Public Services and Facilities in Amendment Area: The Level of Service for parks and recreation is one (2) acres of park land per 1,000 residents. Approximately twenty-four (24) acres of park land exist in Cape Canaveral. This equates to a population of approximately 12,000 residents. The proposed extension of the Cape Caribe Hotel is not anticipated to have a negative effect on parks and recreation. AIA is operating at Level of Service "D" with 289 available peak hour trips between North City Limits to Central Blvd. AIA from Central Blvd to North Atlantic has a level of Service is "D" with 541 excess trips. If developed as proposed, then no additional trips are anticipated with the already approved development. The City of Cape Canaveral provides wastewater treatment. The wastewater treatment capacity is 1.8 million gallons per day (MGD). The existing usage is 1.17 MGD with an excess capacity of .63 MGD. There is adequate wastewater treatment capacity available. The City of Cocoa has a total capacity of 56 MGD and currently provides 48 MGD. Approximately 24.4 MGD of water is being used on an average daily basis, leaving 23.6 MGD available. There is adequate potable water service available with the proposed change. Brevard County provides facilities for solid waste disposal. At this time, the County does not foresee any deficiency with their solid waste facilities. Environmental Description of Amendment Area: The subject site has Palm Beach sand (Pb) soil type. This is a nearly level and gently sloping excessively drained soil on dune like ridges that roughly parallel the Atlantic Ocean. It consists of mixed sand and shell fragments. Slopes are mostly two to five percent. The water table is at a depth of more than 10 feet. There appear to be no wetlands on site. Wetland determinations or verification are permitted by St. Johns River Water Management District. There is no known Aquifer Recharge or Floodplain areas associated with this parcel. There are also no known endangered species living on the site. Historical and Archaeological Resources in Amendment Area: There are no known historical or archaeological resources on site. North East West Zoning Canaveral Port sidentialIC-1 C-1 Commercial C-1 Commercial Authority !R3Residential Canaveral Port Authorit Comp Plan Canaveral Port Commercial C-1 Commercial Authority Canaveral Port Authority Existing Canaveral Port R3 Residential. Canaveral Port C-1 Commercial Conditions Authority Authorit Public Services and Facilities in Amendment Area: The Level of Service for parks and recreation is one (2) acres of park land per 1,000 residents. Approximately twenty-four (24) acres of park land exist in Cape Canaveral. This equates to a population of approximately 12,000 residents. The proposed extension of the Cape Caribe Hotel is not anticipated to have a negative effect on parks and recreation. AIA is operating at Level of Service "D" with 289 available peak hour trips between North City Limits to Central Blvd. AIA from Central Blvd to North Atlantic has a level of Service is "D" with 541 excess trips. If developed as proposed, then no additional trips are anticipated with the already approved development. The City of Cape Canaveral provides wastewater treatment. The wastewater treatment capacity is 1.8 million gallons per day (MGD). The existing usage is 1.17 MGD with an excess capacity of .63 MGD. There is adequate wastewater treatment capacity available. The City of Cocoa has a total capacity of 56 MGD and currently provides 48 MGD. Approximately 24.4 MGD of water is being used on an average daily basis, leaving 23.6 MGD available. There is adequate potable water service available with the proposed change. Brevard County provides facilities for solid waste disposal. At this time, the County does not foresee any deficiency with their solid waste facilities. Environmental Description of Amendment Area: The subject site has Palm Beach sand (Pb) soil type. This is a nearly level and gently sloping excessively drained soil on dune like ridges that roughly parallel the Atlantic Ocean. It consists of mixed sand and shell fragments. Slopes are mostly two to five percent. The water table is at a depth of more than 10 feet. There appear to be no wetlands on site. Wetland determinations or verification are permitted by St. Johns River Water Management District. There is no known Aquifer Recharge or Floodplain areas associated with this parcel. There are also no known endangered species living on the site. Historical and Archaeological Resources in Amendment Area: There are no known historical or archaeological resources on site. Population Projections and Trends: The average household size is 2.37 persons. This project is for commercial development, and is not expected to directly generate any additional persons. City of Cape Canaveral M icher, City Manager Susan z:itiiis, City Clerk From: Bea McNeely, Chairperson, Planning & Zoning Board Re: Recommendation to City Council Ordinance #03-2008 -------------------------------------------- ---------------------------------------------------------------- At the Planning & Zoning Board meeting, held on February 27, 2008, by a unanimous vote, the Board recommended approval of the above referenced Ordinance, with the condition that the property be restricted to parking and recreational amenities. Please schedule this item for an upcoming City Council meeting. 105 Polk Avenue - Post Office Box 326 - Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1222 - SUNCOM: 982-1222 - FAX: (321) 868-1247 www.myflorida.com/cape - email: ccapecanaveralOcErr.corn City of Cape Canaveral, Florida City Council Regular Meeting March 18, 2008 Page 11 of 14 A motion was made by Mr. Petsos and seconded by Mr. Nicholas to Approve Ordinance No. 02-2008 at First Reading. The vote on the motion carried "with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. 7. Motion to Approve Ordinance No. 03-2008; Changing the Zoning Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at First Reading. Mayor Randels read Ordinance No. 03-2008 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, CHANGING THE ZONING MAP DESIGNATION OF CERTAIN REAL PROPERTY TOTALING 1.95 ACRES MORE OR LESS, GENERALLY LOCATED ALONG THE NORTH SIDE OF SHOREWOOD DRIVE AT THE SOUTHWEST CORNER OF JETTY PARK IN CAPE CANAVERAL, FLORIDA, AND MORE PARTICULARLY DEPICTED AND LEGALLY DESCRIBED ON EXHIBITS "A" AND "B" ATTACHED HERETO, FROM "R-3 MEDIUM DENSITY RESIDENTIAL" TO "C-1 LOW DENSITY COMMERCIAL" SUBJECT TO CERTAIN USE RESTRICTIONS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; SEVERABILITY, AND AN EFFECTIVE DATE. Mayor Randels read that the Planning and Zoning Board imposed the following conditions for the property related to: recreational amenities and parking. Mr. Peetz pointed out that the Council could approve the Zoning Designation in its entirety; however, the conditions should be limited to the 1.2 acre parcel only. Attorney Latorre stated that the conditional restrictions would apply to Exhibit A only. Mr. Bennett clarified that his application addressed Exhibit A and the R-3, 1.2 acres. Mr. Petsos recommended placing the restrictions within Section 3 of the proposed Ordinance. Mr. Boucher questioned Mr. Peetz, for the record, saying that he did not review any analysis changes as a result of the density reduction to the 1.2 acres. Mr. Peetz replied that the Site Plan would be amended and a pre -application meeting was scheduled for mid-April. Ms. Roberts asked if there was a definition of recreational amenities. Mr. Bennett replied that a definition would be established prior to the next meeting and he would work with the City Attorney's office on that definition. Ms. Roberts stated the following concerns for the record: 1) potential noise, 2) a Tiki Bar operation in the water park, and 3) green space. Ms. Roberts addressed the potential of redirecting traffic carried to the beach and if there were an alternative route. Mr. Bennett stated that there were no alternatives due to a previously constructed building; however, the developer would look into it. There was no public comment. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Approve Ordinance No. 03-2008 at First Reading to Include the Discussed Revisions. The City of Cape Canaveral, Florida City Council Regular Meeting March 18, 2008 Page 12 of 14 vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. RESOLUTION: 8. Motion to Approve: Resolution No. 2008-08; Supporting the Florida Forever Program and a Successor Program. Mayor Randels read Resolution No. 2008-08 by title. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; SUPPORTING FLORIDA FOREVER AND A SUCCESSOR PROGRAM; PROVIDING FOR AN EFFECTIVE DATE. Mayor Randels stated that the Council was requesting for State Legislators to retain the Florida Forever Program and any succeeding programs. There was no public comment. A motion was made by Mr. Petsos and seconded by Ms. Roberts to Approve Resolution No. 2008-08. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For } and Ms. Roberts, For. CONSIDERATION: 9. Motion to Approve: An Agreement with Brevard County for Lifeguard Services. Mayor Randels explained the contract for two staff persons and one lifeguard tower. Mr. Petsos requested that one of the staff persons assume a roving lifeguard role. Mr. Boucher replied that the one County roving staff person would use the City's All Terrain Vehicle [ATV]. Mr. Lefever clarified that coverage was needed at the tower should one of the lifeguards need to make a rescue attempt. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Approve an Agreement with Brevard County for Lifeguard Services in the Amount of $18,721.00. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. City of Cape Canaveral, Florida City Council Regular Meeting Agenda April 1, 2008 Page 9 of 10 Mr. John Grandlich stated that Cape Caribe, Inc. addressed the Council and respectively requested to Table this Item until the firm could present a revised Site Plan. Mr. Boucher clarified that Cape Caribe Inc. would again bear the cost of the Display advertising prior to a Second Reading. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Table Ordinance No. 02-2008 at the Applicant's Request for Time Indefinite. Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 6. Motion to Adopt: Ordinance No. 03-2008; Changing the Zoning Map Designation of Certain Real Property Totaling 1.95 Acres More or Less, Generally Located Along the North Side of Shorewood Drive at the Southwest Corner of Jetty Park in Cape Canaveral, Florida, at Second Reading. The Applicant would also bear ar fhrs cost of Display advertising error to a Second Reading. A motion was made by Ms. Roberts and seconded by Mayor Pro Tem Hoog to Table Ordinance No. 03-2008 at the Applicant's Request for a Time Unspecified. Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. DISCUSSION: 7. Central Canal Area. Mr. Nicholas restated his concern with calling this area a ditch. He expressed the concept of a pedestrian walkway that would be aesthetic and environmentally friendly. Mr. Ratliff stated that grant funding was available for the south portion of Central Blvd. only. Discussion focused on nomenclature for the water body. Mr. Russell clarified that the water body was free flowing. Mr. Nicholas requested to name the water body the "Canaveral Canal." Mr. Boucher stated that the naming would not have any affect with regulatory agencies. Ms. Roberts suggested Beautification Funds toward aesthetic efforts. Mr. Ratliff explained the mowing requirements and stated that there were anticipated improvements with the new Mowing contract. Mr. Ratliff stated that this addressed the east side of the project only; USA Space Alliance was the adjacent private property. A resident asked if the City Attorney could define "canal." Mr. Tom Garboski stated that a canal was a navigable waterway. Attorney Latorre and Mr. Boucher conducted an online search for a definition. Mr. Boucher then read the definition for a canal from the City code saying that a canal, as stated in the City's Subdivision Code, required 100 -feet in width at a minimum. Due to the inability to adequately define the waterway, the motion was withdrawn. BINDING DEVELOPMENT AGREEMENT CITY'S DRAFT DATED 11-24-09 CAPE CARIBE' S COMMENTS TO CITY'S DRAFT DATED 12-02-09 CAPE CARIBE' S DRAFT VERSON DATED 09-3 0-09 CAPE CARIBE' S DRAFT VERSION DATED 04-17-09 CITY PLANNER TODD PEETZ MEMO DATED 05-18-01 (BEACH ACCESS AT CAPE CARIBE) PLANNNING & ZONING BOARD MINUTES OF 06-13-2001, 06-27- 2001 AND MAP EXHIBITS BUILDING OFFICIAL TODD MORLEY E-MAIL DATED 07-01-2008 OUTLINING OUTSTANDING TREE MITIGATION F.S. 163.3225 PUBLIC HEARING PROCESS DRAFT November 24, 2009 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 Orlando, FL 32802 (407) 425-9566 CAPE CARIBE BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT ("Agreement") is made 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 2000, Cape Canaveral, Florida 32920. WITNESSETH: WHEREAS, this Agreement is a development agreement entered into pursuant to the Florida Local Government Development Agreement Act, sections 163.3220 through 163.3243, Florida Statutes; and WHEREAS, prior to approving this Agreement, the City held two (2) duly noticed public hearings consistent with the requirements of section 163.3225, Florida Statutes; and WHEREAS, Owner is the current fee simple owner of record of 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 August 27, 2003 for the development of phased hotel and condominium buildings, related infrastructure and amenities ("Approved Site Plan"); and WHEREAS, consistent with the Approved Site Plan, Owner has commenced construction of the development known as "Ron .long Cape Caribe Resort," which currently consists of 206 hotel and condominium units, as well as two (2) parking garages and recreational amenities on the Property; and WHEREAS, Owner desires to amend the Approved Site Plan by adding 5.01 acres of real property located adjacent to and directly west of the real property subject to the Approved Site Plan; and DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 1 of 12 WHEREAS, Owner also desires to revise the Approved Site Plan by reducing the number of buildings and units and expanding amenities consistent with its revised site plan; and WHEREAS, consistent with applicable laws and ordinances, the City Council approved Owner's revised site plan on , 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 Florida Local Government Development Agreement Act, section 163.3220 et, seq., Florida Statutes. 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. Pursuant to section 163.3239, Florida Statutes, this Agreement shall become effective 30 days after having been received by the Department of Community Affairs ("Effective Date"). 5.0 Duration of Agreement. This Agreement shall be binding on the Property for an initial term of seven (7) years from the Effective Date. The parties hereto shall have three (3) options to extend the term of this Agreement by mutual agreement of both parties. The first and second options to extend shall each be for a term of five (5) additional years. The third option to extend shall be for a term of three (3) additional years. 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 23.0 herein. 6.0 Revised Site Plan. Owner agrees to develop the Property in accordance with its revised site plan, which was preliminarily approved by the City Council on , 2010 ("Revised Site Plan") and pursuant to the terms and conditions of this Agreement and all applicable laws. The Revised Site PIan is depicted on the signed and sealed construction plans DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 2 of 12 prepared by Allen Engineering, Inc., dated April 1, 2008 (revised on February 25, 2009) and on file at Cape Canaveral City Hall. The approval of the Revised Site Plan shall become final and effective at such time the Land Use Ordinances referenced in Section 17.0 of this Agreement are approved by the City Council and become effective in accordance with the requirements of applicable law. As a matter of convenience, 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 Devised Site Plan shall automatically be incorporated herein by this reference. 7.0 Status of Approved Site Plan. The parties understand and agree that upon the Effective Date, the Approved 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 Approved Site Plan shall be null and void. 8.0 Development Permitted on the Property. 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 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. 8.2 C -I 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 incorporated herein by this reference. 9.0 Public Facilities and Services. The Property will be served by City of Cocoa water and City of Cape Canaveral sanitary sewer facilities. On-site design and construction of said facilities shall be performed by Owner as part of its development of the Property in accordance with the Revised Site Plan. 10.0 Phased Development. 10.1 Phasing of Units. The Revised Site Plan depicts a total of 600 hotel and condominium units. Consistent with the Approved Site Plan and as of the Effective Date, 206 units are constructed on the Property. Subject to the termination provisions set forth in Section 18.0 herein, Owner and City agree that Owner shall be permitted to phase the development of the remaining 394 units in accordance with the Revised Site Plan and pursuant to the following development schedule: 10.1.1 No later than two (2) years from the Effective Date, Owner shall construct and receive certificates of occupancy for an additional 107 units. 10.1.2 No later than seven (7) years from the Effective Date, Owner shall construct and receive certificates of occupancy for an additional 71 units. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 3 of 12 10.1.3 No later than 12 years from the Effective Date, Owner shall construct and receive certificates of occupancy for an additional 71 units. 10.1.4 No later than I7 years from the Effective Date, Owner shall construct and receive certificates of occupancy for an additional 7I units. 10.1.5 No later than 20 years from the Effective Date, Owner shall construct and receive certificates of occupancy for an additional 74 units. 10.2 Infrastructure. Owner shall ensure that the construction of all necessary infrastructure is completed in direct proportion to the phased development of the units in order to service and support the completed development of the units. 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. 10.3 Concurrency. For each phase of development, and prior to any building permit being issued for the construction of any structure, Owner shall obtain an approved concurrency compliance certification from the City demonstrating that all Ievels of service of the various public facilities are adequate to support the specific impacts of the proposed phase of development consistent with the requirements of Chapter 86 of the City Code. 11.0 Resort Condominium Status. 11.1 Notice of Intent. Owner and City acknowledge and agree that, consistent with section 110-485(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 Approved 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 110-485(a), City Code. 11.3 Revised Site Plan Units. Upon the issuance of certificates of occupancy for Buildings _ and _, as identified on the Revised Site Plan, and upon the satisfaction of all building and fire code requirements applicable to resort condominiums, the _(#)_ proposed units in Buildings _ and _ shall be granted preliminary certificates of nonconforming status. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 4of12 11.4 Site Plan Approval Deadline. The Revised Site Plan shall not be subject to the site plan approval deadline set forth in section 110-485(b)(5)(i), City Code. 12.0 Tree Mitigation & Land Clearing. 12.1 Tree Mitigation. Owner and City expressly acknowledge and agree that 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 Solana Agreement, Solana is required to mitigate the removal of trees that occurred during the development of Solana's condominium development. At this time, Solana has 13,386 inches (measured at diameter at breast height or "dbh") of tree mitigation due and owing to the City. Under section 102-45 of the City Code, as it existed at the time the Solana Agreement became effective, tree removal in lieu of replacement carried a fee of $50.00 per inch (dbh). Thus, Solana currently owes the City 13,386 inches (dbh) of tree mitigation, or a fee of $669,300.00. Owner agrees to satisfy Solana's tree mitigation obligations to the City by planting trees totaling at least 13,386 inches (dbh) as follows: 12.1.1 Owner shall commence planting the trees required by this Agreement no Iater than 30 days following the Effective Date. Owner shall complete the tree mitigation required by this Agreement no later than six (6) months following the Effective Date to the full satisfaction of the City. 12.1.2 Owner shall plant the trees on the Property or on City - owned property. The number, species and location of any trees planted on City -owned property shall be approved in advance and in writing by the City Manager or the City Manager's designee. 12.1.3 At least 40% of the trees planted toward mitigation shall be comprised of hardwood trees (e.g. oak). Palm trees shall not be considered hardwood trees for purposes of this section 12.0. I2.1.4 For any hardwood trees planted on the Property in excess of the 40% minimum set forth in subsection 12.1.3, Owner shall receive one and one-half (1.5) inches (dbh) of tree mitigation credit for every one (1) inch (dbh) planted on the Property. 12.1.5 For any hardwood trees planted on City -owned property, Owner shall receive two (2) inches (dbh) of tree mitigation credit for every one (1) inch (dbh) planted on City -owned property. DEVELOPMENT AGREEMENT City of Cape Canaveral 1 Cape Caribe, Inc. Page 5 of 12 12.2 Laud Clearing on Revised Site Plan Property. The Revised Site Plan includes 5.01 acres of real property not included in the Approved Site Plan ("Revised Site Plan Property"), which is located to adjacent to and to the immediate west of the real property subject to the Approved Site Plan. With regard to land clearing and tree removal and replacement on the Revised Site Plan Property, Owner agrees that the Revised Site Plan Property shall be designed and developed consistent with the provisions of Chapter 102 of the City Code, as it exists at the time Owner submits any building permit application for land clearing. 13.0 Conservation Easement to City. Within 30 days of the Effective Date, Owner shall convey a statutory perpetual conservation easement ("Conservation Easement") in favor of the City over the 1.22 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 PIan. The real property subject to the Conservation Easement is legally 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 on a form acceptable to the City Attorney. The City shall not be responsible for any maintenance or upkeep of the real property subject to the Conservation Easement. 14.0 North Atlantic Avenue Improvements. The Solana Agreement required Solana to construct certain roadway improvements on North Atlantic Avenue. As security for the 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 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 ten (10) days of the Effective Date, which sum the City, at its sole discretion, shall allocate toward tree 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. 15.1 Drawdown Plan Required. Owner shall establish and maintain an emergency drawdown plan ("Plan") acceptable to the City to drawdown the water levels of the stormwater retention trenches and ponds located on the Property and on the properties located immediately adjacent to the Property, commonly known as "Solana Shores" and "Solana Lakes," which trenches and ponds cooperatively serve as the stormwater management system for the Property ("Stormwater System"). Owner's Plan shall be maintained on file at the City's Building Department and shall include documentation demonstrating that the Canaveral Port Authority ("Port") has perpetually authorized Owner to pump stormwater out of the Stormwater System through 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 the City Attorney. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 6 of 12 15.2 Emergency Drawdown. Owner shall be required to 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 1 I or more inches of rain within a 24-hour period) (collectively, "Storm Event") forecast to affect the City of Cape Canaveral when the Stormwater System levels are at or above an elevation of five feet (5'). Owner shall be responsible for securing, maintaining and operating the necessary pumping equipment to facilitate the pumping of excess stormwater off of the Property and into the Port's system. 15.3 DEP Permit Approval. Owner shall be responsible for obtaining a revised stormwater permit from the Florida Department of Environmental Protection prior to constructing any modifications to the Stormwater System. 16.0 Shorewood Drive Sidewalk Easement. Within 30 days of the Effective Date, Owner shall convey a perpetual sidewalk easement in favor of the City along the south side of Shorewood Drive running east to west and connecting with the City's Perpetual Public Beach Access Easement recorded in Brevard County Official Record Book 4860, Page 2082. The perpetual sidewalk easement area is legally described and generally depicted on Exhibit "C," attached hereto and fully incorporated herein by this reference. Such easement shall be on a form acceptable to the City Attorney. 17.0 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 _-2010 and Rezoning Ordinance _-20I0 ("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. In the event the Land Use Ordinances are not approved, or in the event the Land Use Ordinances are approved and later overturned, Owner agrees that it shall revise the Revised Site Plan so that the portions of the Property subject to the Land Use Ordinances are developed consistent with the applicable future land use category and with the uses authorized on those portions of the Property. 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. 18.0 Termination. This Agreement shall terminate under the following conditions: 18.1 Upon the expiration of the term as set forth in Section 5.0 herein, this Agreement shall automatically terminate. 18.2 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 36.0 herein. Consistent DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 7 of 12 with section 163.3225(1), Florida Statutes, termination of this Agreement shall be based on competent, substantial evidence presented during two (2) duly noticed public hearings, at least one (1) of which shall be before the City Council. 18.3 If this Agreement is terminated in accordance with this Section 18.0, the City shall record a notice of termination in the public records of Brevard County, Florida. 18.4 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 if the City determines that ongoing construction must be completed by Owner in furtherance of the public health, safety, and welfare or in furtherance of completing units that have been substantially constructed. 14.0 Annual Review & Inspection; Report. Pursuant to section 163.3235, Florida Statutes, the City's Building Official and Planning & Development Director shall conduct an annual review and inspection of the Property 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. Additionally, the City shall submit a copy of each Annual Report prepared during years six (6) through ten (10) of this Agreement to the Department of Community Affairs. 20.0 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. 21.0 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. 22.0 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. DEVELOPMENT AGREEMENT City of Cape Canaveral I Cape Caribe, Inc. Page 8 of 12 23.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns). Pursuant to section 163.3225(1), Florida Statutes, any such amendment shall be considered during two (2) duly noticed public hearings, at least one (1) of which shall be before the City Council. 24.0 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 hereto and referenced herein are hereby fully incorporated herein by this reference. 25.0 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. 26.0 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. 27.0 Submittal to Department of Community„Affairs. Within 14 days of recording this Agreement pursuant to Section 26.0 herein, the City Clerk shall submit a recorded copy of this Agreement to the Department of Community Affairs. 28.0 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. 29.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more 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). 30.0 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. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 9 of 12 31.0 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. 32.0 Third-Parly Rights. Except for the benefits bestowed upon Solana under Sections 12.1 and 14.0 herein, this Agreement is not a third -patty beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 33.0 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. 34.0 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. 35.0 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 any and all certificates of occupancy for any building or unit if Owner is in breach of any term and condition of this Agreement. 36.0 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. 37.0 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 DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 10 of 12 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. 38.0 Public Advertisin • 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, as may be required by Florida law. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: Angela Apperson, City Clerk CITY SEAL CITY: City of Cape Canaveral, a Florida municipal corporation. Rocky Randels, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Cape Canaveral, Florida only. Date: Un Anthony A. Garganese, City Attorney for the City of Cape Canaveral, Florida DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page l 1 of 12 Signed, sealed and delivered in the OWNER: presence of the following witnesses: Cape Caribe, Inc., a Florida Corporation. Signature of Witness Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF _ COUNTY OF (Print Name and Title) Date: The foregoing instrument was acknowledged before me this day of , 2009, , as of Cape Caribe, Inc., a Florida Corporation, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public signature) (Print Name) Notary Public, State of _ Commission No.: My Commission Expires: DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 12 of 12 S DRAFT November 24, 2009 THIS RTSTRUMENT 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 Orlando, FL 32802 (407) 425-9566 CAPE CAME -- M - x6z :b SAX 9V10I FOR RECORDING DEPARTMENT USE ONLY BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT ("Agreement") is made 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 2000, Cape Canaveral, Florida 32920. WITNESSETH: WHEREAS, this Agreement is a development agreement entered into pursuant to the Florida Local Government Development Agreement Act, sections 163.3220 through 163.3243, Florida Statutes; and WHEREAS, prior to approving this Agreement, the City held two (2) duly noticed public hearings consistent with the requirements of section 163.3225, Florida Statutes; and WHEREAS, Owner is the current fee simple owner of record of certain real property located within the City of Cape Canaveral and more particularly described herein ("Property"); and /`�Gf�G�r-- �G WHEREAS, a certain or�tion,�of7t6ie Property, consisting of 27.71 acres of land, has an approved site plan dat Aed�ugust 27 2003 --for the development of phased hotel and condominium buildings, related infrastructure and amenities ("Approved Site Plan"); and WHEREAS, consistent with the Approved Site Plan, Owner has cornmenced construction of the_development known as "Ron Jon® Cape Caribe Resort," which currently consists of 206 hotel and condominium units, as well as two (2) parking garages and recreational amenities on the Property; and WHEREAS, Owner desires to amend the Approved Site Plan by adding 5.01 acres of real property located adjacent to and directly west of the real property subject to the Approved Site Plan; and DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 1 of 12 WHEREAS, Owner also desires to revise the Approved Site Plan by reducing the number of buildings and units and expanding amenities consistent with its revised site plan; and WHEREAS, consistent with applicable laws and ordinances, the City Council approved Owner's revised site plan on , 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 onsite 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 Authori . This Agreement is entered into pursuant to the Florida Local Government Development Agreement Act, section 153.3220 et, seq., Florida Statutes. 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. Gseg A-00_t,�la ff 4.0 Effective Date. , *2 5s.,er•;R• 5.0 Duration o reement. This Agreem t shall be binding on the Property for it term of years from the Effective Date. opt o Any extension to this Agreement shall be evidenced in -a- written amendm- ent-her-eta, exeeuted-by- both Tarties and-approved--by-the City Council consistent with Section 23.0 herein. 6.0 Revised Site Plan. Owner agrees to develop the Property in accordance with its revised site plan, which was preliminarily approved by the City Council on, 2010 ("Revised Site Plan') 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 �M�C?AL plans DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 2 of 12 - a'.0 ki 64 �S ` Ce -S ,► prepared by Allen Engineering, Inc., dated April 2008 (revised on February 25, 2009) and on file at Cape Canaveral City Hall. The approval f the Revised Site Plan shall become final and effective at such time the Land Use Ordinanc eferenced in Section 17.0 of this Agreement a --e n approved by the City Council and become ffective in accordance with the requirements of s cd applicable law. As a matter of convenience, a Revised Site Plan may be amended from time to a ; time by the City without further amendment to this Agreement. Any such amendment to the �3 Revised Site Plan shall automatically be incorporated herein by this reference. c 7.0 Status of Annroved Site Plan. The parties understand and agree that upon the Effective Date, the Approved 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 Approved Site Plan shall be null and void. e s -6- 8.0 Development Permitted on the Pro e . -The Property is zoned R-3 Medium Density Residential ("R 3') and C-1 Low Density Commercial ("C-1"}. 'J ZZ 8.1 R-3 Property. The permitted uses, allowable density and building 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. 8.2 C-1 Property. The permitted uses, allowable density and building s intensities and height for the portions of the Property zoned C-1 are set forth in sections -s 110-331 through. 110-339 of the Cape Canaveral City Code, which sections are expressly \� N incorporated herein by this reference. 3 9.0 Public Facilities and Services. The Property will be served by City of Cocoa J cawater and City of Cape Canaveral sanitary sewer facilities. On-site design and construction of E)said facilities shall be performed by Owner as part of its development of the Property in accordance with the Revised Site Plan. tie ©Wa,)+ a 10.0 Phased Development " `��°'^s ' � '^'' �aVCA 'k) ;Z� 10.1 Phasing of Units. The R vised Site Pian depicts a total of 600 hotel and condominium units. Consistent with the pproved Site Plan and as of the Effective Date, 206 units are constructed on the Property Subject to the termination provisions set forth in Section 18.0 herein, Owner and City a ee that Owner shall be permitted to phase the development of the remaining 394 units} n accordance with the Revised Site Plan and pursuant to the following development scheduld; 0 10.1,1 No later than two (2) years from the Effective Date, Owner shall for an additional 107 Units, 10.1.2 No later than seven (7) years from the Effective Date, Owner shall for an additional 71 units. DEVELOPMENT AGREEMENT City of Cape Canaveral I Cape Caribe, Inc, Page 3 of 12 4ev&o,O,ne As ae�n4 �4 � 10.1.3 No later than 12 years from the Effective Date, Owner shall for an additional 71 units. 10.1.4 No later than 17 years fro_n the Effective Date, Owner shall for an additional 71 units. /9 10.1.5 No later than years from the Effective Date, Owner shall for an additional 74 units. 10.2 Infrastructure. Owner shall ensure that the construction of all necessary infrastructure is completed in direct proportion to the phased development of the units in order to service and support the completed development of the units. 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 supplem ntary district regulations required by the City Code. 10.3 Concurrency. For each phase of develo nt,�drior to an building p Y n g permit being issued for the construction of any structure, Owner shall obtain an approved concurrency compliance certification from the City demonstrating that all levels of service of the various public facilities are adequate to support the specific impacts of the proposed phase of development consistent with the requirements of Chapter 86 of the City Code. 11.0 Resort Condominium Status. L/i �-- 11.1 Notice of Intent. er and City ackn wledge and agree that, consistent with section 110-48 (b)(5), Cape Canaveral ity Code ("City Code"), Owner has timely filed a notice of intent with the ity Manager declaring Owner's intent to license certain existing and propose units depicted on the Revised Site Plan as resort condominiums. 11.2 Approved Site Plan Units. Upon the Effecti a Date, the existing 56 units contained within `Building 2," as identified on th Revised ,Site Plan, shall be considered "existing" consistent with section 110-48 (a), City Code. 11.3 . Revised S Plan __- its. Upon the -issuance of certificates of.. occupancy for Building 3 an y as identified on the Revised Site Plan, and upon the satisfaction o all buil ng and fire code requiz iscable to resort condominiums, the (#} proposed units in Buildin 3 � shalI be rell granted preliminary certl ates of noncarlfozlxung status. 2-11 DEVELOPMENT AGREEMENT City of Cape Canaveral 1 Cape Caribe, Inc. Page 4 of 12 0-6U - A Own �s oko �z 4(!ou� p OF fees 0LS50&L&a A014POV-a 5',+e. P16.1A, (O 11.4 e Plan Approval Deadline. The Revised Site Plan shall t be subject to the sit plan approval deadline set forth in section 110-48 b)(5)(i), City Core. 12.0 Tree Mica anon & L d Clearin up. D ^� 12.1 Tree Mi anon. Owner and Ci expressly acknowledge and agree that Owner's affili e, Solana Lake, Inc. ("S I. ) and the City are party to a Development Agreeme t dated November 6, 003 for the construction of a residential condominium development, said Eavelopment Agreement being recorded in Brevard Co Official Record B(ok 5115, Page 3331 ("Solana Agreement"). Pursuant to ection 5 of the Solan Agreement, Solana is required �• to mitigate the removal of ees that occurred d g the development of Solana's A10 �. condominium development. A"hi&4m44 Solana Ips 13,386 inches (measured a diameter at breast height or "dbh') of tree mitigation o Under section 102-45 e City Code, as it existed at the time the Solana greement became effective, tree removal in lieu of replacement carried a fee of Q $50.00 per inch (dbh). yZsweg 6M etty !9,986 ) Owner agrees to satisfy 'tree mitigation obligations to the City by planting trees totaling at least 13,386 inches (dbh) as follows: 12. 1.1 Owner shall commence planting the trees required by this Agreement no later than 30 days following the Effective Date. Owner shall complete the tree mitigation required by this Agreement no later than six (6) months following the Effective Date to the full satisfaction of the � City. 12.1.2 Owner shall plant the trees on the Property or on City - owned property. The number, species and location of any trees planted on w City -owned property shall be approved in advance and in writing by the G City Manager or the City Manager's s designee. 12.1.3 At least 40% of the trees planted toward mitigation shall be D` comprised of hardwood trees (e.g. oak). Palm trees shall not be considered hardwood trees for purposes of this section 12.0. 12.1.4 For any hardwood trees planted on the Property in excess of the 40% minimum set forth in subsection 12.1.3, Owner shall receive one and one-half..(L5) inches..(dbh) of tree mitigation credit far .every.. one. (1) inch (dbh) planted on the Property. 12.1.5 For any hardwood trees planted on City -owned property, Owner shall receive two (2) inches (dbh) of tree mitigation credit for every one (1) inch (dbh) planted on City -owned property. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 5 of 12 12.2 Land Clearing on Revised Site Plan Property. The Revised Site Plan includes 5.01 acres of real property wt included in the Approved Site PIan ("Revised Site Plan Property'), which is locate0odiacent to and to the immediate west of the real , property subject to the Approve Site Plan. With regard to Iand clearing and tree removal and replacement on the Revised Site Plan Property, Owner agrees that the Revised Site Plan Properly shall be designed and developed consistent with the provisions of Chapter 102 of the City Code,, r/ 13.0 Conservation Easement to Ci!Y—. Within 30 days of the Effective Date, Owner I shall convey a statutory perpetual conservation easement ("Conservation Easement") in favor of f the City over the 1.22 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 described in Exhibit 11B," attached hereto and fully incorporated herein by this reference. The conservation easement shall be in accordance with Florida law and shall on a form acceptable to the City Attorney. The City shall not be responsible for any maintenance or upkeep of the eal property subject to the Conservation Easement. b Dwner cam 14.0 North Atlantic Avenue huprovements. The Solana Agreement required Solana to construct certain roadway improvements on North Atlantic Avenue. As security for the payment of SoIana'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 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 ten(10 days of the Effective Date, which sum the City, at its sole discretion, shall allocate towardbeautification 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 SoIana's obligations under Sections 2 and 3 of the Solana Agreement shall be deemed fully satisfied. J, � prt lye J ,.. rshafletablish 15.0 Stormwater Managemento�j P15.1 DrawdownPlan Oestablish and maintain an emergency drawdown plan ("Plan") acceptable to drawdown the water levels of the stormwater retention trenches and pondn the Property and on the properties located immediately adjacent to themmonly known o ana Shores" and "Solana Lake," which trenchescooperatively a as thestormwater management system for the Propertyter System'), wner's Plan shall be maintained on file at the City's Building Department and shall include documentation demonstrating that &t.anaveral Port Authority ("Port") has perpetually authorized Owner to pump stormwater out of the Stormwater System through use of the Port's public stormwater conveyance system. Such authority to pump through the Port's wn system shall be demonstrated in a perpetual, recorded easement in a form acceptable to the City Attorney. -- t-e,I Own vt �3-e-1 ow skX4 a l�Prav�rK h�►.rQfe � �ur.�, o r. k t S dtsZ r P-0 va--City of Cape Canaveral / Cape Caribe Inc. yfVr,,,n,�Kwa-� 51 s� f dirrn'A, / Cern.. 1 Page 6 of 12 �' S''°"`l.�14 v5 /tom 4.1 GI` ti� GJtGeSS S r -o v�rX 1.1 � SfaJ'm Evr�� 15.2 Em rgency Drawdown. Owner shall by/required to perform an emergency,–T-� drawdown of Stormwater System in accordant th its Plan prior to any hurric t' tropical storm, " 100 year storm event (defin as 11 or more inches of rain within a 4 -hoar period) (collectively, "Storm Event') fo to affect the City of Cape averal when the Stormwater System levels ar ai-r bove an elevation of five feet (5'). Owner shall be responsible for securing, m ' ng and operating the necessary pumping equipment to facilitate the pumping of exg�ess stormwater off of the Property and into the Port's system. f� (revised 15.3 DEP PermitApproval. Owner shall be responsible for obtaining) stormwater permit from the Florida Department of Environmental Protection prior to N constructing any modifications to the Stormwater System. 'I G e ?lau,_ ,5 .5or Su* �6 c.,n,c� >✓° 'r rev,5La&5 aw� 16.0 Shorewood Drive Sidewalk Easement. Within 30 days of the Effective Date, Ca✓� Owner shall convey a perpetual sidewalk easement in favor of the City along the south side of �� Shorewood Drive running east to west and connecting with the City's Perpetual Public Beach °J Access Easement recorded in Brevard County ci ecord Book 4860, Page 2082. The perpetual sidewalk easement area is legally described and generally depicted on Exhibit "C," attached hereto and fully incorporated herein by this reference. Such easement shall be on a form acceptable to the Ci Atto e C"qSt-5 17-w 4v- Y*,l ea sem&wf ©w,,cr a,JQ c'e t0 dwhe/; n r 4 1.7.0 Annrov an se Ordinances Required. Owner understands and agrees in order for certain portions of the Property to be developed consistent with the uses S�W�Ik roposed on the Revised Site Plan, the City's approval and adoption of Comprehensive Plan Amendment Ordinance _-201.0 and Rezoning Ordinance -2010 ("Land Use Ordinances") is equired. Therefore, the Revised Site Plan shall not become effective unless and until the Land 5,mp se Ordinances are adopted by the City Council and become effective in accordance with the equirements of applicable law. n en 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. 18.0 Termination. This Agreement shall terminate under the following conditions: 18.1 Upon the expiration of the term as set forth in Section 5.0 herein, this -Agreement. shall -.automaticalLy_terrninate...._ 18.2 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 36.0 herein. Consistent DEVELOPMENT' AGREEMENT City of Cape Canaveral / Cape Caribe, Inc, .Page 7 of I2 with section 163.3225(1), Florida Statutes, termination of this Agreement shall be based on competent, substantial evidence presented during two (2) duly noticed public hearings, at least one (1) of which shall be before the City Council. 18.3 If this Agreement is terminated in accordance with this Section 18.0, the City shall record a notice of termination in the public records of Brevard County, Florida. 18.4 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 Z" Building Cod list be, • 111 .. M:. 19.0 Annual Review & Inspection: Report. Pursuant to section 163.3235, Florida Statutes, the City's Building Official and Planning & Development Director shall conduct an annual review and inspection of the Property 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. Additionally, the City shall submit a copy of each Annual Report prepared during years six (6) through ten (10) of this Agreement to the Department of Community Affairs. 20.0 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. 21.0 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-sarne. 22.0 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. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 8 of 12 23.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns). Pursuant to section 163.3225(1), Florida Statutes, any such amendment shall be considered during two (2) duly noticed public hearings, at least one (1) of which shall be before the City Council. 24.0 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 hereto and referenced herein are hereby fully incorporated herein by this reference. 25.0 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. 26.0 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. / 27.0 Submittal to Department of ommunity Affairs. Within 14 days of recording ✓ this Agreement pursuant to Sectio 6.0 herein, the City Clerk shall submit a recorded copy o this Agreement to the Department of Community Affairs. w i K_4L c_, O f j a,( -rkwcrv« a� [�' G,,,,P oQ v C-(,, ,J5 P e o u i CU t3 Ow"'d-/ 28.0 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. 29.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more 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). 30.0 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. DEVELOPMENT AGREEMENT City of Cape Canaveral / Cape Caribe, Inc. Page 9 of 12 31.0 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 parries. 32.0 Third -Party Rights. Except for the benefits bestowed upon Solana under Sections 12.1 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. 33.0 SQecific 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. 34.0 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. 35.0 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 any and all certificates of occupancy for any building or unit if Owner is in breach of any term and condition of this Agreement. 36.0 Default,• O ortuni 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. 37.0 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 'junction or other court proceedings beyond the control of such party, or severe adverse ather 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 proscri ed hereunder shall be extended by the amount of time that such party was unable to D �-- co—; YELOPMENT AGREEMENT Cape Canaveral/ Cape Caribe, Inc. Page 10 of 12 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. 38.0 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, as may be required by Florida law. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: By: Angela Apperson, City Clerk CITY SEAL CITY: City of Cape Canaveral, a Florida municipal corporation. By: -.- Rocky Randels, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Cape Canaveral, Florida only. Date: LIN Anthony A Garganese, City Attorney for the City of Cape Canaveral, Florida DEVELOPMENT AGREEMENT City of Cape Canaveral l Cape Caribe, Inc. Page 11 of 12 Signed, sealed and delivered in the OWNER: presence of the following witnesses. Signature of Witness Printed Name of Witness Signature of Witness Printed Name of Witness Cape Caribe, Inc., a Florida Corporation. By: (Print Name and Title) Date: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 2009, as of Cape Caribe, Inc., a Florida Corporation, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of _ Commission No.: My Conunission Expires: DEVELOPMENT AGREEMENT City of Cape Canaveral I Cape Caribe, Inc. Page 12 of 12 4 Elie Land fl3e Drr%.;q,�Ges 0, a2�CJQ t,k 17 0 L ci&Io Re U • 0 �$e Effective Date. Thi A ecome effective immediately upon the occurrence of all the following; cis; (A) Adoption an approval of this Agreement by the C-on�issivriers ere"{1) The recordatio of a hilly executed original of this Agreement in the official records of?A a County, Plori a, at the expense of Applicant; (C) The expiratio of any and all appeal periods for any challenge to the approval. of mi 91=0 this Agreement; and (D) Thirty (30) days have expired since a copy of this Agreement has been received by the State Land Planning Agency pursuant to §163.3239, Florida Statutes,mldF— Bennett Boucher From: John Grandlich [John.Grandlich@Zilber.com] Sent: Wednesday, September 30, 2009 2:57 PM To: Bennett Boucher; Barry Brown Cc: John Grandlich Subject: FW: Binding Development Agreement and letter to Bennett Boucher Attachments: 4487 001.pdf Importance: High Bennett, Attached is a cover letter and revised Development Agreement to be mailed to your office for delivery tomorrow. The package will include landscaping plans showing that we can resolve the tree mitigation within the Cape Caribe property. After you have a chance to review this package please give me a call on my cell phone at (414) 870-7980 to discuss. Thanks John Grandlich -----Original Message ----- From: Jessica Hanko Sent: Wednesday, September 30, 2009 1:37 PM To: John Grandlich Subject: Binding Development Agreement and letter to Bennett Boucher Importance: High Jessica Hanko Towne Realty, Inc. 710 N. Plankinton Avenue Milwaukee, WI 53203 PH: (414)274-2456 FX: (414) 274-2728 -----Original Message ----- From: Copier@Zilber.com [mailto:Copier@Zilber.com] Sent: Wednesday, September 30, 2009 11:42 AM To: Jessica Hanko Subject: Attached Image from Zilber Importance: High CONFIDENTIALITY NOTICE: The information contained in this e-mail communication and any attached documentation may be privileged, confidential, CAPE CARIBE, INC. 710 North Plankinton Avenue Milwaukee, WI 53203 Phone (414) 274-2479 * Fax (414) 274-2728 September 30, 2009 Via Federal Express Mr. Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL 32920 Re: Cape Caribe Resort Development Agreement Dear Bennett, Enclosed, please find the latest Cape Caribe, Inc. Development Agreement. We have been working with City staff on finalizing the Development Agreement and we would like to move this Agreement to City Council. The changes to the Development Agreement include resolution of the tree mitigation by planting the remaining 13,386 inches within the Cape Caribe project. We have provided landscape plans showing the location and trees to be planted. In addition, we have agreed to pay to the City the $30,000 set aside for North Atlantic Avenue improvements to use as the City desires. Also, last week our engineer submitted responses to the City comments on the revised Cape Caribe site plan. Our goal is to schedule the Cape Caribe revised site plan for the Planning and Zoning meeting to be held on October 14, 2009. We understand that the Development Agreement would not be reviewed by Planning and Zoning. Therefore, we would like to schedule Development Agreement review with City Council for October 20, 2009. Also we will need to discuss the timing to finalize our site plan with Council including advertising of the zoning and comp plan amendments. Please advise if this timetable can not be met or if you have any questions. We appreciate your assistance in this matter. Sincerely, CAPE CARIBE, INC. Jo ' Grandlich V ce President Cc: Barry Brown BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT ("Agreement"), is made and executed this day of '2009, by and between the CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation, whose address is 105 Polk Avenue, Cape Canaveral, Florida 32920 (hereinafter "City"), and CAPE CARIBE, INC., a Florida corporation, whose address is 710 N. Plankinton Avenue, Milwaukee, Wisconsin 53203, (hereinafter "Owner"). WITNESSETH: WHEREAS, the City is granted the authority, under Section 2(b) , Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Owner is the property owner of record of certain parcels of land located within the City of Cape Canaveral and more particularly described herein ("the Subject Property"); and WHEREAS, a certain portion of the Subject Property, consisting of 27.71 acres. of land, has a City Council approved site plan dated August 27, 2003 for the development of phased hotel and condominium buildings, related infrastructure and amenities; ("Approved Site Plan"); and WHEREAS, Owner desires to amend the Approved Site Plan by adding 5.01 acres of land located adjacent to and directly west of the Approved Site Plan land. Owner also desires to amend the Approved Site Plan by, inter glia, reducing the number of buildings and expanding amenities in its place, all as reflected on Owner's proposed Revised Site Plan which is more fully described in Section 3 below. 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 and Owner believe it to be in the best interests of both parties to enter into this Agreement to effectuate the development of the Subject Property, subject to the terms and conditions agreed to hereunder. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: BINDING DEVELOPMENT AGREEMENT Pagel of TO Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this 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. Definitions. The following words and phrases contained in this Agreement shall have the meaning set forth in this section unless the context clearly indicates otherwise: Agreement shall mean this Binding Development Agreement entered into between the City and the Owner effective as defined in Section 13. Approved Site Plan shall be the phased development of hotel and condominium buildings, related infrastructure and amenities which are constructed and/or planned to be constructed on the 27.71 acres within the Subject Property as approved by the City Council on August 27, 2003. City shall mean the City of Cape Canaveral, Florida, a Florida municipal corporation. City Code or Code shall mean the Code of Ordinances of the City of Cape Canaveral, Florida. City Council shall mean the City Council and/or Planning and Zoning Board of the City of Cape Canaveral, Florida. City Manager shall mean the City Manager of the City of Cape Canaveral, Florida, or the City's Manager's designee. Owner shall mean Cape Caribe, Inc., a Florida corporation. Resort or Cape Caribe Resort shall be the phased development of hotel and resort condominium buildings, related infrastructure and amenities combined to be one timeshare resort entitled Cape Caribe Resort on the Subject Property. Revised Site Plan shall be the civil engineered drawings dated (small scale set attached hereto as Exhibit A) encompassing the phased development of hotel and resort condominium buildings, related infrastructure and amenities which are constructed or planned to be constructed within the Subject Property. Subject Property shall mean that real property as described and shown in Exhibit B of this Agreement and attached hereto and fully incorporated herein. BINDING DEVELOPMENT AGREEMENT Page 2 of 10 Section 4. Obligations and Commitments. The City and Owner hereby agree as follows: (a) Approval. At such time as the City and Owner have approved the (i) Revised Site Plan and (ii) Rezoning Ordinance 03-2008 and Comprehensive Plan Amendment Ordinance 02-2008; then this Agreement shall be deemed approved by the parties and executed. (b) Resort Condominiums within the R-3 Zoning Area. The buildings constructed and to be constructed within the R-3 zoned area shall be considered as Resort Condominiums in good standing and in compliance under Code Section 110-485. The Owner's building containing 56 units that currently is constructed is declared existing in accordance with Code Section 110-485(a). The remaining buildings to be constructed in the R-3 zoned area of the Subject Property are hereby granted a preliminary certificate of nonconforming status pursuant to Code Section 110-485(b)(5). In addition, Code Section 110485(b)(5)(i) shall not apply to this Revised Site Plan. (c) Tree Mitigation. (i) Old Code — The City and the Owner agree that the Owner and its affiliate, Solana Lake, Inc. ("Solana") have a total of thirteen thousand three hundred and eighty-six (13,386) inches related to tree mitigation remaining under Code Section 102. Code Section 102 was amended on April 19, 2005, which is subsequent to the Approved Site Plan date; therefore the City and Owner agree that the Owner shall mitigate the remaining aforementioned inches under the old Code Section 102 in effect prior to April 19, 2005. Attached hereto as Exhibit C are drawings by the Owner's landscape architect showing the location of 1,117 trees representing the 13,386 inches to be planted as Owner's tree mitigation hereunder. The timing of planting these trees shall be as follows: 1) The 377 trees noted on sheets 1-1.10 and 1-1.11 shall be planted within 12 months after approval and execution of this Agreement pursuant to Section 4.(a). above. 2) The 478 trees noted on sheet 1-1.12 shall be planted no later than the Certificate of Occupancy date of the last building to be constructed within that portion of the Revised Site Plan shown on sheet L1.12. 3) The 86 trees noted on sheet 1-1.13 shall be planted no later than the Certificate of Occupancy date of the building located to the northeast of the existing pool deck to be constructed as shown on the Revised Site Plan. BINDING DEVELOPMENT AGREEMENT Page 3 of 10 4) The 176 trees noted on sheet L1.14 shall be planted no later than the Certificate of Occupancy date of the last building to be constructed within that portion of the Revised Site Plan shown on sheet L1.14. t (ii) New Code — The City and Owner agree that the additional 5.01 acres which are encompassed within the Revised Site Plan shall be designed so as to comply with the terms and conditions of the newly revised tree preservation and mitigation provisions contained in Section 102 of the Code. To that extent, the Owner agrees to grant to the City a conservation easement over the southwest corner of the 5.01 acres as depicted on the Revised Site Plan for the purpose of preserving and enhancing this area. The conservation easement shall not allow public access to or within the conservation easement area. The conservation easement shall be granted to the City no later than the issuance of the Certificate of Occupancy of the first building constructed within the 5.01 acre parcel. (d) North Atlantic Avenue. Solana and the City entered into that certain Development Agreement dated November 6, 2003 and recorded in Official Records Book 5115, Page 3331, Public Records of Brevard County, Florida, ("Solana Development Agreement") which provided in Paragraph 3 for the completion. of certain roadway improvements to North Atlantic Avenue. As security for the payment of Solana's obligations thereunder Solana posted a bond in the amount of $30,000 equal to the proposed cost of Solana's share of the project plus ten percent (10%). The roadway project was postponed by the City to allow for future development of adjacent properties which delay has caused significant cost increases to occur. The parties agree that the City may construct the roadway improvements as the City deems appropriate and therefore the Owner hereby agrees to pay the sum of Thirty Thousand Dollars ($30,000) to the City within 10 days after approval and execution of this Agreement by the parties pursuant to Section 4.(a). above in complete satisfaction of the terms and conditions of the Solana Development Agreement whereupon the City shall return the aforementioned subdivision bond to Solana. (e) Phased Development. The Revised Site Plan depicts a total of six hundred (600) units. Owner currently has constructed two hundred and six (206) units in conjunction with its construction of Phase I of the Resort leaving a total of three hundred ninety-four (394) units to be constructed in future phases. The developer of the Cape Caribe Resort has been in the real estate development business for over fifty (50) years. Experience has shown that a successful development occurs when sales performance dictates the timing to bring more units to the market. To continue the success at the Cape Caribe Resort the Owner must BINDING DEVELOPMENT AGREEMENT Page 4 of 10 not build too quickly in accordance with a rigid construction schedule, especially in the current turbulent economic conditions. Accordingly, after Revised Site Plan approval the Owner proposes to construct a minimum of 71 units every 5 years as follows: Current Status Phase 2 -Within 24 months of Revised Site Plan approval Phase 3 -Estimate 7 years after Revised Site Plan approval Phase 4 -Estimate 12 years after Revised Site Plan approval Phase 5 -Estimate 17 years after Revised Site Plan approval Phase 6 -Estimate 20 years after Revised Site Plan approval Units Units (Permits Pulled) (Permits Remainin ) 206 394 107 283 71 212 71 141 71 70 74 0 The schedule above provides a phased build out over twenty (20) years for the Cape Caribe Resort. The Revised Site Plan upon approval by the City Council shall be a vested right whereby the Owner shall not be required to re -apply for Site Plan approval of the buildings and amenities within the Revised Site Plan unless they are significantly changed or altered by the Owner. Section 5. Default by Owner. Failure of Owner to perform each and every one of its obligations as set forth in this Agreement shall constitute a default,. entitling the City to pursue, an action for specific performance. Prior to filing an action for specific performance as a result of Owner's default under this Agreement, the City shall first provide Owner with written Notice of said default pursuant to Section 8 hereunder. Upon receipt of said Notice, Owner shall be provided fifteen (15) calendar days in which to cure the default to the City's complete satisfaction; provided however, if the nature of the default is such that it cannot reasonably be cured within said fifteen (15) calendar day period, Owner shall not be deemed in default if Owner commences such cure within the fifteen (15) day period and thereafter exercises continuous reasonable efforts to cure until such cure is accomplished. Section 5. 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, constitute a Iegal, valid and binding obligation enforceable against the parties hereto and the Subject Property in accordance with the terms and conditions of this Agreement. Section 7. 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 Subject Property and shall run with title to the same. BINDING DEVELOPMENT AGREEMENT Page 5 of 10 Section 8. Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed delivered: (a) when hand delivered to the City official or Owner representative hereinafter designated, (b) one business day after deposit with a nationally recognized overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail etc., or (c) one business day after facsimile delivery, addressed or faxed to the party at the address or facsimile number specified below: Notice to City: City of Cape Canaveral Attn: City Manager 105 Polk Avenue Cape Canaveral, FL 32920 Facsimile No. With a copy to: Mr. Anthony Garganese, Esq. City of Cape Canaveral, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 Facsimile No. (407) 425-9596 Notice to Owner: Mr. John Grandlich Cape Caribe, Inc. 710 N. Plankinton Avenue, Suite 1100 Milwaukee, WI 53203 Facsimile No. (414) 274-2728 With a copy to: Mr. James B. Young, Esq. Young & Madigan, S.C. 710 N. Plankinton Avenue, Suite 1200 Milwaukee, WI 53203 Facsimile No. (414) 274-2710 Section 9. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 10. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Council. Section 11. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Owner as to the subject matter hereof. Section 12. Severabilit . If any provision of this Agreement shall beheld 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. BINDING DEVELOPMENT AGREEMENT Page 6of10 Section 13. Effective Date. This Agreement shall become effective upon approval by the City Council and execution of this Agreement by both parties hereto. Section 14. Recordation. This Agreement shall be recorded in the Public Records of Brevard County, Florida. Section 15 Duration. This Agreement shall terminate on the earlier of , 2029 or the issuance date of a Certificate of Occupancy for the last building to be constructed in accordance with the Revised Site Plan. 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 of principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. Section 17. Sovereign Immunity. 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, whereby the City shall not be liable, under this Agreement, for punitive damages or interest for the period before. judgment nor shall the City be liable, under this Agreement, to any one person for more than $100,000 for any claim or judgment or more than $200,000 for any claim or judgment arising out of the same incident or occurrence. Furthermore, should any other limitation be imposed on the City's potential liability under state or federal law, the limitation that imposes the least amount of liability on the City shall apply as if said limitation is a material part of this Agreement. Section 18. City's Police Power. Owner agrees and acknowledges that the City hereby reserves all police powers granted the City bylaw. In noway shall this Agreement be construed as the City bargaining away, surrendering, or limiting its police powers. Section 19. Interpretation. The Owner and City 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. Section 20. Third -Party Rights. This Agreement is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third parry except those certain obligations and rights of Solana as described herein. Section 21. S ecific 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. BINDING DEVELOPMENT AGREEMENT Page 7 of 10 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. 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 of this Agreement as long as they are consistent with the terms and conditions contained herein. 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, special exception, occupational license, or other permit of any kind whatsoever for the operation of any structures on the Subject Property constructed after the date hereof if Owner is in default under this Agreement and has failed to cure such default. BINDING DEVELOPMENT AGREEMENT Page 8 of 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY OF CAPE CANAVERAL: Rocky Randels, Mayor ATTEST: By: Susan Stills, City Clerk Approved as to legal form and sufficiency: ANTHONY A. GARGANESE, City Attorney STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2009, by as of City of Cape Canaveral, a Florida municipal corporation, [ ] who is personally known to me or [ j produced as identification. Notary Public — State of Florida Print Name My Commission Expires BINDING DEVELOPMENT AGREEMENT Page 9 of 10 CAPE CAR1BE, INC. Title: Print Name: WITNESSES: Print Name: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of_ , 2009, by as of Cape Caribe, a Florida corporation, [ ] who is personally known to me or [ ] produced as identification, Notary Public — State of Florida Print Name My Commission Expires BINDING DEVELOPMENT AGREEMENT Page 10 of 10 Inc., Bennett Boucher From: John Grandlich [John.Grandlich@Zilber.comj Sent: Wednesday, April 22, 2009 4:09 PM To: Bennett Boucher Cc: Barry Brown; Meath Bennett; Kohn Bennett; John Grandlich Subject: Caribe Dev Agreement 4122109 Attachments: Binding Development Agreement 4-17-09.doc Bennett, I hope this note finds you doing well. Last week we submitted responses to the City's comments on our Cape Caribe site plan. Attached herewith is the latest draft of the Binding Development Agreement. Please review and email or call me with any questions. Sincerely, John Grandlich Cape Caribe, Inc 710 North Plankinton Avenue Milwaukee, Wl 53203 (414) 274-2479 john.grandlich(cDzilber.com CONFIDENTIALITY NOTICE: The information contained in this e-mail communication and any attached documentation may be privileged, confidential, or otherwise protected from disclosure and is intended only for the use of the designated recipient(s). It is not intended for transmission to, or receipt by, any unauthorized person. The use, distribution, transmittal, or re -transmittal by an unintended recipient of this communication is strictly prohibited without our express approval in writing or by e-mail. If you are not the intended recipient of this e-mail, please delete it from your system without copying it and notify the above sender so that our e-mail address may be corrected. Receipt by anyone other than the intended recipient is not a waiver of any attorney- client or work -product privilege. BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT ("Agreement"), is made and executed this day of , 2009, by and between the CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation, whose address is 105 Polk Avenue, Cape Canaveral, Florida 32920 (hereinafter "City"), and CAPE CARIBE, INC., a Florida corporation, whose address is 710 N. Plankinton Avenue, Milwaukee, Wisconsin 53203, (hereinafter "Owner"). WITNESSETH: WHEREAS, the City is granted the authority, under Section 2(b) , Article Vill, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Owner is the property owner of record of certain parcels of land located within the City of Cape Canaveral and more particularly described herein ("the Subject Property"); and WHEREAS, a certain portion of the Subject Property, consisting of 27.71 acres of land, has a City Council approved site plan dated August 27, 2003 for the development of phased hotel and condominium buildings, related infrastructure and amenities; ("Approved Site Plan"); and WHEREAS, Owner desires to amend the Approved Site Plan by adding 5.01 acres of land located adjacent to and directly west of the Approved Site Plan land. Owner also desires to amend the Approved Site Plan by, inter glia, reducing the number of buildings and expanding amenities in its place, all as reflected on Owner's proposed Revised Site Plan which is more fully described in Section 3 below. 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 and Owner believe it to be in the best interests of both parties to enter into this Agreement to effectuate the development of the Subject Property, subject to the terms and conditions agreed to hereunder. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: BINDING DEVELOPMENT AGREEMENT Page 9 of 9 Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. Section 2. Authori . 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. Definitions. The following words and phrases contained in this Agreement shall have the meaning set forth in this section unless the context clearly indicates otherwise: Agreement shall mean this Binding Development Agreement entered into between the City and the Owner effective as defined in Section 13. Approved Site Plan shall be the phased development of hotel and condominium buildings, related infrastructure and amenities which are constructed and/or planned to be constructed on the 27.71 acres within the Subject Property as approved by the City Council on August 27, 2003. City shall mean the City of Cape Canaveral, Florida, a Florida municipal corporation. City Code or Code shall mean the Code of Ordinances of the City of Cape Canaveral, Florida. City Council shall mean the City Council and/or Planning and Zoning Board of the City of Cape Canaveral, Florida. City Manager shal I mean the City Manager of the City of Cape Canaveral, Florida, or the City's Manager's designee. Ownershall mean Cape Caribe, Inc., a Florida corporation. Resort or Cape Caribe Resort shall be the phased development of hotel and resort condominium buildings, related infrastructure and amenities combined to be one timeshare resort entitled Cape Caribe Resort on the Subject Property. Revised Site Plan shall be the civil engineered drawings dated (small scale set attached hereto as Exhibit A) encompassing the phased development of hotel and resort condominium buildings, related infrastructure and amenities which are constructed or planned to be constructed within the Subject Property. Subject Property shall mean that real property as described and shown in Exhibit B of this Agreement and attached hereto and fully incorporated herein. BINDING DEVELOPMENT AGREEMENT Page 2 of 9 Section 4. Obligations and Commitments. The City and Owner hereby agree as follows: (a) Approval. At such time as the City and Owner have approved the (i) Revised Site Plan and (ii) Rezoning Ordinance 03-2008 and Comprehensive Plan Amendment Ordinance 02-2008; then this Agreement shall be deemed approved by the parties and executed. (b) Resort Condominiums within the R-3 Zoning Area. The buildings constructed and to be constructed within the R-3 zoned area shall be considered as Resort Condominiums in good standing and in compliance under Code Section 110-485. The Owner's building containing 56 units that currently is constructed is declared existing in accordance with Code Section 110-485(a). The remaining buildings to be constructed in the R-3 zoned area of the Subject Property are hereby granted a preliminary certificate of nonconforming status pursuant to Code Section 110485(b)(5). In addition, Code Section 110-485(b)(5)(i) shall not apply to this Revised Site Plan. (c) Tree Mitigation. (i) Old Code -- The City and the Owner agree that the Owner and its affiliate, Solana Lake, Inc. ("Solana") have a total of thirteen thousand three hundred and eighty-six (13,386) inches related to tree mitigation remaining under Code Section 102. Code Section 102 was amended on April 19, 2005, which is subsequent to the Approved Site Plan date; therefore the City and Owner agree that the Owner shall mitigate the remaining aforementioned inches under the old Code Section 102 in effect prior to April 19, 2005. In lieu of the foregoing mitigation the parties agree that the Owner shall pay to the City the sum of One Hundred Forty -Three Thousand, Four Hundred Dollars ($143,400) for the mitigation of these trees within 10 days after the later of: (i) the approval and execution of this Agreement; (ii) the approval of the Revised Site Plan; (iii) the approval of the Rezoning Ordinance 03-2008; or (iv) the approval of the Comprehensive Plan Ordinance 02-2008. (ii) New Code -- The City and Owner agree that the additional 5.01 acres which are encompassed within the Revised Site Plan shall be designed so as to comply with the terms and conditions of the newly revised tree preservation and mitigation provisions contained in Section 102 of the Code. To that extent, the Owner agrees to grant to the City a conservation easement over the southwest corner of the 5.01 acres as depicted on the Revised Site Plan for the purpose of preserving and enhancing this area. The conservation easement shall be granted to the City no later than the issuance of the Certificate of BINDING DEVELOPMENT AGREEMENT Page 3 of 9 Occupancy of the first building constructed within the 5.01 acre parcel. (d) North Atlantic Avenue. Solana and the City entered into that certain Development Agreement dated November 6, 2003 and recorded in Official Records Book 5115, Page 3331, Public Records of Brevard County, Florida, ("Solana Development Agreement") which provided in Paragraph 3 for the completion of certain roadway improvements to North Atlantic Avenue. As security for the payment of Solana's obligations thereunder Solana posted a bond in the amount of $30,000 equal to the proposed cost of Solana's share of the project plus ten percent (10%). The roadway project was postponed by the City to allow for future development of adjacent properties which delay has caused significant cost increases to occur. The parties agree that the City will construct the roadway improvements pursuant to the schedule that they deem appropriate and therefore the Owner hereby agrees to pay the sum of Thirty Thousand Dollars ($30,000) to the City at the same time provided for in Section 4 (c) (i) above in complete satisfaction of the terms and conditions of the Solana Development Agreement whereupon the City shall return the aforementioned subdivision bond to Solana. (KEPT THIS SECTION IN AGREEMENT DRAFT FOR FOLLOW-UP PURPOSES... WHAT 1S OUR PLAN TO HANDLE THIS?) (e) Phased Development. The Revised Site Plan depicts a total of six hundred (600) units. Owner currently has constructed two hundred and six (206) units in conjunction with its construction of Phase I of the Resort leaving a total of three hundred ninety-four (394) units to be constructed in future phases. The developer of the Cape Caribe Resort has been in the real estate development business for over fifty (50) years. Experience has shown that a successful development occurs when sales performance dictates the timing to bring more units to the market. To continue the success at the Cape Caribe Resort the Owner must not build too quickly in accordance with a rigid construction schedule, especially in the current turbulent economic conditions. Accordingly, after Revised Site Plan approval the Owner proposes to construct a minimum of 71 units every 5 years as follows: Current Status Phase 2 -Within 24 months of Revised Site Plan approval Phase 3 -Estimate 7 years after Revised Site Plan approval Phase 4 -Estimate 12 years after Revised Site Plan approval Phase 5 -Estimate 17 years after Revised Site Plan approval Phase 6 -Estimate 20 years after Revised Site Plan approval BINDING DEVELOPMENT AGREEMENT Page 4 of 9 Units (Permits Pulled) Units (Permits Remaining) 206 394 107 283 71 212 71 141 71 70 74 0 The schedule above provides a phased build out over twenty (20) years for the Cape Caribe Resort. The Revised Site Plan upon approval by the City Council shall be a vested right whereby the Owner shall not be required to re -apply for Site Plan approval of the buildings and amenities within the Revised Site Plan unless they are significantly changed or altered by the Owner. Section 5. Default by Owner. Failure of Owner to perform each and every one of its obligations as set forth in this Agreement shall constitute a default, entitling the City to pursue, an action for specific performance. Prior to filing an action for specific performance as a result of Owner's default under this Agreement, the City shall first provide Owner with written Notice of said default pursuant to Section 8 hereunder. Upon receipt of said Notice, Owner shall be provided fifteen (15) calendar days in which to cure the default to the City's complete satisfaction; provided however, if the nature of the default is such that it cannot reasonably be cured within said fifteen (15) calendar day period, Owner shall not be deemed in default if Owner commences such cure within the fifteen (15) day period and thereafter exercises continuous reasonable efforts to cure until such cure is accomplished. Section 6. 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, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Subject Property in accordance with the terms and conditions of this Agreement. Section 7. 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 Subject Property and shall run with title to the same. Section 8. Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed delivered: (a) when hand delivered to the City official or Owner representative hereinafter designated, (b) one business day after deposit with a nationally recognized overnight courier service, e.g. federal Express, Purolator, Airborne, Express Mail etc., or (c) one business day after facsimile delivery, addressed or faxed to the party at the address or facsimile number specified below: Notice to City: City of Cape Canaveral Attn: City Manager 105 Polk Avenue Cape Canaveral, FL 32920 Facsimile No. With a copy to: Mr. Anthony Garganese, Esq. City of Cape Canaveral, City Attorney BINDING DEVELOPMENT AGREEMENT Page 5 of 9 Brown, Garganese, Weiss & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 Facsimile No. (407) 425-9596 Notice to Owner: Mr. John Grandlich Cape Caribe, Inc. 710 N. Plankinton Avenue, Suite 1100 Milwaukee, WI 53203 Facsimile No. (414) 274-2728 With a copy to: Mr. James B. Young, Esq. Young & Madigan, S.C. 710 N. Plankinton Avenue, Suite 1200 Milwaukee, WI 53203 Facsimile No. (414) 274-2710 Section 9. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 10. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Council. Section 11. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Owner as to the subject matter hereof. Section 1.2. Severability. If any provision of this Agreement shall beheld 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 13. Effective Date. This Agreement shall become effective upon approval by the City Council and execution of this Agreement by both parties hereto. Section 14. Recordation. This Agreement shall be recorded in the Public Records of Brevard County, Florida. Section 15. 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 of 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. BINDING DEVELOPMENT AGREEMENT Page 6 of 9 Section 16. Sovereign Immunity. 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, whereby the City shall not be liable, under this Agreement, for punitive damages or interest for the period before judgment nor shall the City be liable, under this Agreement, to any one person for more than $100,000 for any claim or judgment or more than $200,000 for any claim or judgment arising out of the same incident or occurrence. Furthermore, should any other limitation be imposed on the City's potential liability under state or federal law, the limitation that imposes the least amount of liability on the City shall apply as if said limitation is a material part of this Agreement. Section 17. City's Police Power. Owner agrees and acknowledges that the City hereby reserves all police powers granted the City by law. In no way shall this Agreement be construed as the City bargaining away, surrendering, or limiting its police powers. Section 18. Interpretation. The Owner and City 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. Section 19. Third -Party Rights. This Agreement is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party except those certain obligations and rights of Solana as described herein. Section 20. 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 21. 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 22. 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 of this Agreement as long as they are consistent with the terms and conditions contained herein. 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, special exception, occupational license, or other permit of any kind whatsoever for the operation of any structures on the Subject Property constructed after the date hereof if Owner is in default under this Agreement and has failed to cure such default. BINDING DEVELOPMENT AGREEMENT Page 7 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY OF CAPE CANAVERAL: By: Rocky Randels, Mayor ATTEST: Susan Stills, City Clerk Approved as to legal form and sufficiency: ANTHONY A. GARGANESE, City Attorney STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2008, by as of City of Cape Canaveral, a Florida municipal corporation, [ ] who is personally known to me or [ I produced as identification. Notary Public — State of Florida Print Name My Commission Expires BINDING DEVELOPMENT AGREEMENT Page 8 of 9 CAPE CARIBE, INC. By: Title: Print Name: WITNESSES: Print Name: Print Name: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2008, by as of Cape Caribe, Inc., a Florida corporation, [ ] who is personally known to me or [ ] produced as identification. Notary Public — State of Florida Print Name My Commission Expires BINDING DEVELOPMENT AGREEMENT Page 9 of 9 r Memoranduml, I To: MOTMS Rend, Building Official From: Todd Peetz, City Manner r' Date: May 18, 2001 Subject: Beach Acccss at Cape Caribe cop Y t+ � wpAGiEs To J FRom /Yl p t' i t S G (d CCE PHO F b q 17Z? _r-,x_x. # Ln my review of the Cape Carinae hotel and timeshare development, a dune crossover for beach access is requi bred in the R-3 zoning classification. The applicant's site plan does provide beach access for the development. Section 110-318 does not specify `public" beach access in the code. However, the Comprehensive Plan's Goals Objectives and Policies da add additional language concerning beach access. 1, The Coastal Management Element includes Objective CM -9, which states the City shall strive to increase the amount of public access to the beach or shoreline consistent with estZinated public need. Policy CM -9.1- the. City shall evaluate the number, type; and location of existing ahoreiine access points to determine ' more are needed andi how they will be financecL Policy CM -9.2 - the City shall. continue to enco�e public access alt the time of development of areas along the beach. i Policy CM -9.3 - the City shall enforce p blic access to beaches renourished at public expense. i Policy CM -9.4 — the City shag enforce the public access requirements of the Coastal Zone Protection Act of 1985. My initial interpretation of these policies was c encourage public Beach access and to work with the applicant to achieve this, CM -9.2_ Ho-vvcvcr, coastal managcmcat policy CM -9.3 is clear tilat "the city shall eriforcc, ublir- access to beaches rcnourished at public''' expense". j I II � i yr It is also impertarat to note that since the update to the Gomprehexiszve Plan, most of the land area whexe new crossOvers could have becn located is now under development. Thus, t�e northern most crossover is located in the Harbor Heights su Public 11 approxiraately 11' mile of City Ocean front witho�xpublic beach access ave i i Based upon. the initial. interpretation to encoul ridge beach access, staff discussed the possibility of the applicant providing public access. "The reasons not to allow public beach access as cit6d by the applicant, were that this development was "private" and gated for security. Jctty Parr was also noted, which is directly north of the subject property. r would ask that this information be provided tip both 'the applicant land. rhe Planning 8s Zoning Board for discussion �,rhen this application is addressed. Understanding the applicant's position and the requirements m the comprehensive plan there may be alternative solutions that would allow public access and still meet the policies whin the elan_ am available to discuss this fiuj...4,her. If you have c uestioms, please `feel free to contact me at 407-249-1.503 or by E-mail Planning4u2@,aol.cob. i r- City of Cape Canaveral -- Planning & Zoning Board June 13, 2001 Meeting Minutes A Regular meeting of the Planning & Zoning Board of the City of Cape Canaveral, Florida, was held on June 13, 2001 at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. The meeting was called to order at 7:30 P.M. by Chairperson McNeely. The Secretary called the roll. MEMBERS PRESENT Beatrice McNeely Chairperson Lamar Russell Vice Chairperson John Fredrickson Andrea Shea -King Leo Nicholas OTHERS PRESENT Rocky Randels Mayor Burt Bruns Council Member Larry Weber Council Member Richard Treverton Council Member Bennett Boucher City Manager Morris Reid Building Official Todd Peetz City Planner Karl Bohne Acting City Attorney Susan Chapman Board Secretary NEW BUSINESS: Approval of Meeting Minutes: Apr il 11 2001. Discussion was held regarding clarification of a comment by Mr. Russell that was noted in the minutes during discussion regarding collection of escrow funds from Villages of Seaport. Motion by Mr. Russell, seconded by Mr. Fredrickson to approve the meeting minutes of April 11, 2001 as amended for clarification that the statement made by Mr. Russell should read that it was not the board's purview to investigate or enforce the collection of funds for the City. Motion carried unanimously. 2. Recommendation Re: Special Exception Re nest No. 01-01 to Allow Residential Use in the C-1 Zonina District - Lots 1-4 & 9-12 Block 7 Avon by the Sea Subdivision Section 14 Township 24 South Range 37 East - Thomas H. Quinn. Designated Agent. All persons giving testimony were sworn in by Attorney Bohne. Planning & Zoning Lard Meeting Minutes June 13, 2001 Page 2 Mr. Reid, Building Official, testified that he reviewed the request, the submittal appeared to be complete and the request for a special exception for residential use in the commercial zoning district met the intent of the city code. Mr. Quinn, designated agent, testified that he was requesting a special exception to construct townhouses on 1.13 acres, he was proposing to construct only 8 units on acreage that would allow for 13 units per city codes, the required 50 ft. setback would be landscaped and maintained to buffer noise from the traffic on AIA, the proposed townhouses would be one-story, adjacent property owners were favorable for the residential use, he clarified that the lots would need to be individually platted. Mr. Nicholas complimented Mr. Quinn for his previous residential projects and noted that this request is an asset to the City and was in conformity with the surrounding uses. Chairperson McNeely voiced concern regarding residential uses next to commercial traffic. Mr. Quinn reiterated that there would be a 50 ft. landscaped buffer along AIA. Ms. Shea -King commented that she was in favor of residential use instead of developing the property as commercial. Motion by Mr. Nicholas, seconded by Mr. Russell to recommend approval of Special Exception Request No. 01-01 with the stipulation that only eight townhouse units be constructed on the 1.13 acre tract. Motion carried unanimously. 3. Motion Re: Site Plan for Cape Caribe - Hotels and Timeshare Condominiums, Parcels 1. 6. 7, 8, 11, 15 & 47, Section 14, Township 24 South Range 37 East - James Borris Representative for Towne Realty, Inc. Property Owner. Mr. Reid, Building Official, advised that staff had reviewed the project. The city engineer, public works dept., and fire dept. recommended approval. He pointed out that there were a few items in regards to building setbacks, buffering between zoning districts and public beach access that this site plan did not comply with the adopted city code requirements. Mr. Reid explained that Section 110-388 of the city code required visual screening between C-1 and R-3 zoning districts. He clarified that the site plan met screening requirements on the south side of the project. He explained that this code section was difficult to enforce because of the building layouts however the screening was required as per the city code. He noted that the site plan showed a private roadway and paving along the zoning district lines. Mr. John Allen, Project Engineer advised that there was 150 ft. between the buildings from the zoning district lines and that screening would interfere with the parking and driveways. Planning & Zoning Board Meeting Minutes June 13, 2001 Page 3 Mr. Russell suggested that the buffering requirements could be met with planting greenery along the boundary. Mr. Nicholas commented that even though this developer owned both properties, that properties do change hands. Mr. Nicholas noted that the County requires 6 ft, high block walls between zoning districts to buffer noise. Mr. Russell depicted that bldg. #5 to the west has a green shrubbery belt and asked the applicant if it could be extended and widened to meet the buffering requirement. Brief discussion followed. Mr. Reid advised that the parking garage located just south of bldgs. 3 & 4, the pool cabana, and pool deck as depicted on the submitted site plan was located within the required 25 ft. setback. He clarified that the pool cabana was actually a pool equipment building and the footprint of the building was located within the required setback. He pointed out that even though these structures were located within the required setback of a private road, the 25 ft. setback requirement still applied per Section 110-317 (5). Mr. John Allen, project engineer, responded that they came to an informal agreement that the developer would settle for 15 ft. and later on, Mr. Peetz, City Planner, found another code section that specifically stated that the required setback was 25 ft. He explained that the parking garage was not moved back because it was close to a hill. Mr. Allen agreed that the developer would relocate the parking garage, reposition the club house, pool deck, and equipment room and pool cabana to meet the 25 ft. required setback. Mr. Nicholas questioned why the parking requirements were different for Bldgs. 1 & 6 depicted as hotels. Mr. Reid responded that the parking for the hotels was all located in the C-1 zoning district. The buildings were individual structures. Building #6 is a 92 unit hotel building and Building #1 is a 150 unit hotel building. Code requires one parking space per hotel room and one additional space per every 12 hotel units. 320 parking spaces are provided in the C-1 zone for the hotels which meets the code requirement. Since Bldg. #6 only has 92 units, the parking is based on that building being classified as a hotel. if it was classified as a condominium, it would need 184 parking spaces and would not meet code. Therefore, Building #6 could not become a condominium. Mr. Allen verified that Bldg. #6 was a hotel. Mr. Reid advised that Mr. Peetz staff report advised that the submitted site plan did not provide public beach access as required. Mr. Peetz explained that in talking with the applicant, there concern was for the privacy of their residents. Mr. Peetz pointed out that Section 9.3 of the city's comprehensive plan stated that public beach access shall be provided. Mr. Peetz further explained that there was public access to the North of this project at Jetty Park and the next closest public beach access was located in the Harbor Heights subdivision, approximately 112 mile away. There were two other beach access points at Villages of Seaport and Solana Lake that were both private. He pointed out that there was no other vacant land and no other public beach access adjacent to this project. Planning & Zoning ► and Meeting Minutes June 13, 2001 Page 4 Mr. James Borris, Representative for Towne Realty, advised that the issue of beach access was discussed with the Board since they started the project, the developments are gated and privately owned, these are upscale private resort communities which Towne Realty never offered to open to the public for beach access, if they were open to the general public it would change the marketing of the product. He noted that the Port recently installed a public walkway to the beach, Towne Realty recently paid the Port $742,000 to connect to Jetty Road_ He voiced his opinion that if Solana Lakes were going to bring in 292 people without giving beach access, then the development would be in violation however, private beach access has been provided. Mr. Reid advised that Solana Shores has a 6 ft. dedicated pedestrian easement and at the time the Board approved the Site Plan, they may have been under the assumption that it was public access. He noted that the approved Revised Site Plan for Solana Lakes did not show a 6 ft. pedestrian easement and pointed out that Cape Caribe was the last piece of land on the north end of the City. Mr. Borris questioned whether or not the City has adequate beach access for the public. He advised that the residents of Cape Caribe would have private beach access. Mr. Reid questioned if the beach access for Solana Lakes could be a public access for a pedestrian walkway since the project was not completed. Mr. Bcrris responded that 1/2 of the units were already sold at Solana Lakes. He advised that the easement was owned by Solana Shores and was an exclusive easement for Solana Lakes. Mr. Boucher, City Manager, advised that the easement for Solana Lakes had not been turned over to the owners. Mr. Borris. showed an aerial map depicting that Royal Mansions, Harbor Heights and Jetty Park provided public beach access. He pointed out that every property between them had private property beach access, totaling eleven private beach access points. Mr. Nicholas commented that even though Jetty Park has an easement fcr public beach access, it was not located in the City of Cape Canaveral and this City had no control of it. Mr. Russell pointed out that the residents living on the w{ st side of Al A had access to the beach from Eberwein Road prior to this development. Mr. Borris responded that before the property was developed, the city had problems with vagrants. He questioned if there was a code that required d:.Aance requirements between public beach access. He advised that the City had a total of (18) public beach accesses. It was questioned why the City did not apply this requirement for Villages of Seaport, Shorewood and the Solana developments. Mr. Peetz responded that any of the previous developments were not reviewed by either Mr. Reid or himself. He noted that Villages had recently Submitted a preliminary revised site plan and that the city is talking with that d %veloper about a public beach access for there revised site plan. Mr. Nicholas commented that Towne Realty did not present the Board with an overall site plan, that it has been presented in segments. Mr. Borris commented that the City wf-.s asking them to pay for something that the City should have bought property to ;provide access. Planning & Zoning Board Meeting Minutes June 13, 2001 Page 5 Mr. Russell and Ms. Shea -King voiced their opinions that they were not convinced that the city needed to make this developer provide public access to the beach. Mr. Borris responded that opening his property to the public would de -value the project. He advised that he did agree to allow a pedway along the private roadway through the development which would not impede on the private gated communities because the developer has full control of the road which will be constructed to city specifications. Ms. Shea -King commented that the people living on the west side of AIA have (18) beach accesses, including Cherie Down Park. She voiced her opinion that the Board should have addressed this issue at the time Solana Lakes site plan was presented. Mr. Borris advised that the pedway is agreeable, but not public beach access. Mr. Tom Downs, developer and Mr. Mel Sawyer, Board Member, Villages of Seaport advised that they were revising their site plan to include public beach access on the northern part of the property for possibly a pedway between Shorewood and Villages. Mr. Sawyer advised that the owners of Villages were adamant about having a pedway through there community but would be willing to consider a public beach access in lieu of Ridgewood extension. Mr. Borris advised that they did not own part of Shorewood Drive. He depicted a small parcel owned by someone else. He clarified that Towne Realty had an easement to use the road for his properties. Mr. Sawyer suggested that Shorewood Drive be turned over to the City and the easement be connected to Villages of Seaport for a dedicated public beach access. Brief discussion followed. Mr. Reid voiced his opinion that the idea would meet the intent of the Comprehensive Plan however, neither the Building Official or Planning & Zoning Board had the authority to make such a decision, that only the City Council could consider the idea and negotiate with the developers. Mr. Bennett Boucher, City Manager, commented that this issue was complicated. He informed the Board that the City has a road reservation that goes through Villages of Seaport however, it was questionable if the City still had the rights to that land because it had been reserved since 1981. He advised that Villages has not paid taxes on it for the past 19 years and wants to use the road reservation to meet storm water requirements. The City Attorney is researching the matter. Mr. Boucher further advised that the Port was installing many pedways throughout the Port. Mr. Reid commented that the city renourishes its beaches at the publics expense and the city's intent was to allow the citizens to get to the beach. Mr. Richard Treverton, Council Member, commented that this project was the last chance the City has to provide for a public beach access along the 112 mile of beach. A 112 mile of beach that will be sealed off from the public. He would like to see the Board work it out with the developers to install a public access. He would like to see this installed between Solana Shores and Shorewood Condominiums. Discussion followed regarding options of how this could be accomplished. Mr. Russell pointed out two options: The Board not approve the site plan, approve the site plan and make a condition that they provide a public access, or table the site plan until the next meeting. Planning & Zoning Board Meeting Minutes June 13, 2001 Page 6 Mr. Boucher advised that the Comprehensive Plan was updated in 1999. The Local Planning Agency was concerned of how the north east end of town was going to be developed. He understood the developers concern. The City has undeveloped property on the west side of the City. New developments will create additional pressure on the 18 existing public accesses. Eventually, the City will have a parking problem. He asked the Board members to put on their planning caps and find a way to help the community as a whole, being fair to the citizens and help these developers with there projects. Mr. Sawyer reiterated that the residents of Villages of Seaport do not want a bike pedway through there community. Mr. Borris advised that they would like to start construction on there project in July or August. If the site plan was approved, they would be moving forward. If there was a way to provide public access he would. But he did not know what he would be able to do. He agreed to help and facilitate to get people down Shorewood Drive near the Villages to get the public to the beach. Mr. Sawyer responded that he was waiting to hear from the City Manager on the road reservation. Mr. Borris reiterated that he did not have control of Shorewood Drive but would help anyway he could. Discussion followed regarding possibly tabling the site plan. Attorney Bohne advised that the Board could not be held liable for tabling the site plan to research the city codes and legal position. Mr. Russell commented that if Towne Realty does not want to be creative then perhaps the City could find a solution to make the situation palatable to all concerned. Motion by Mr. Russell, seconded by Mr. Nicholas to table this site plan until the next scheduled meeting. Vote on the motion was as follows: Mr. Fredrickson, against; Ms. McNeely, for; Mr. Nicholas, for; Mr. Russell, for; and Ms. Shea -King, against. Motion carried. 4. Discussion -Re- Proposed Bike and Trail Routes. Mr. Todd Peetz, City Planner advised that the County was preparing a bikeway pedestrian master plan. They asked for input from the City as to what the City may want to incorporate into their master plan. Mr. Peetz was directed from the City Manager to come up with some ideas for the City. He explained that four were suggested to him as follows: Ridgewood to Jetty Park - Ridgewood to Jetty Park beginning at the east entrance of Ocean Woods Subdivision on Ridgewood Avenue and meanders northward through existing right of way connecting to Shorewood Drive and terminating with the Jetty Park connector, approximately 314 of a mile. A portion of this connector is part of private construction associated with Shorewood Drive. No public funds are dedicated or available at this time, and there is no time line determined. Planning & Zoning k, and Meeting Minutes June 13, 2001 Page 7 Canal Path - The Canal Path is from the northern city limits following the eastside of the canal to the Banana River. There is an existing pedestrian bridge on the eastside of Al and there is a proposed pedestrian bridge being recommended on the West side of AIA. It would be anticipated that this potential connector would connect with the Port's proposed trail. This is a potential wildlife corridor, approximately 1.25 miles. There are no public funds for the creation of this corridor. However, for the proposed bridge on the West side of AIA. There is funding available for that project scheduled to be completed in 2004, and there is no time line determined. • Manatee & Banana Park Trail - This project begins at the new proposed bridge on the west side of A1A, trails northward to Tower Boulevard, then west meandering through Manatee Park and then Banana River Park and then through another area on City owned property before heading back east to AIA. This is a potential wildlife corridor, approximately 1.75 miles. There are no public funds for the trail at this time, and there is no time line determined. • Banana River Blueway - The City encourages the dedication of both canoeing and kayaking use of the waterway. The waterway can be easily accessed from both Manatee and Banana River Parks. This would be approximately 2.5 miles, along the entire length of the City, funding is not applicable, and is ready to be enjoyed. Mr. Peetz advised that these were given to the County to incorporate into their master plan. He inquired if the City would like to incorporate them into the Comprehensive Plan. He explained that if they were incorporated into the Comprehensive Plan the City could apply for grant money from the State. Discussion followed regarding the routes of the proposed trails. Mr. Nicholas voiced his concern regarding a bike path going through the Harbor Heights subdivision since it was a single family subdivision, it would also invite more public access to the beach access through Harbor Heights which was already heavily impacted. He noted that the City was applying for a grant to purchase additional property to extend the public beach access in that subdivision. Discussion followed regarding existing public beach accesses. Ms. Shea -King suggested that a board walk be constructed parallel to the beach. Mayor Randels advised that the City was looking into the possibility. Discussion followed regarding the right of ways owned by the City. Following discussion, the Board directed the City Planner to include the proposed routes in the Comprehensive Plan the next time the City updates the Plan. Planning & Zoning Board Meeting Minutes June 13, 2001 Page 8 5. Discussion Re: Ongoing & Proposed New Construction Projects - Morris Reid Building Official. Mr, Reid, Building Official advised that the City has various large projects that will be presented to the Board in the near future and inquired if the Board would like to be provided with some of the preliminary plans to allow the Board members time to review the projects prior to the official agenda packets. The Board members were in favor of the suggestion. Mr. Reid advised that he would furnish the Board with preliminary site plans as they are received. There being no further business, the meeting was adjourned at 10:34 P.M. Approved on this day of , 2001. t ) Beatrice McNeely, Chairperson LI u Susan L. Chapman, Secretary .� City of Cape Canaveral Planning & Zoning Board June 27, 2001 Meeting Minutes A Regular meeting of the Planning & Zoning Board of the City of Cape Canaveral, Florida, was held on June 27, 2001 at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. The meeting was called to order at 7:30 P.M. by Chairperson McNeely. The Secretary called the roll. MEMBERS PRESENT Beatrice McNeely Chairperson Lamar Russell Vice Chairperson John Fredrickson Andrea Shea -King Leo Nicholas OTHERS PRESENT Richard Treverton Council Member Bennett Boucher City Manager Morris Reid Building Official Todd Peetz City Planner Karl Bohne Acting City Attorney Susan Chapman Board Secretary NEW BUSINESS: 1. Approval of Meeting Minutes: June 13 2001. Motion by Mr. Fredrickson, seconded by Mr. Russell to approve the meeting minutes of June 13, 2001 as amended. Vote on the motion carried unanimously. Motion by Ms. Shea -King, seconded by Mr. Russell to remove the Cape Caribe site plan from the table. Vote on the motion carried unanimously. 2. Motion Re: Site Plan for Cape Caribe - Hotels and Timeshare Condominiums Parcels 1 6 7 8,11, 15 & 47 Section 14 Township 24 South, Range 37 East - James Borris. Representative for Towne Realty, Inc.. Property Owner. Mr. Morris Reid, Building Official, advised that the applicant had resubmitted site plan sheets which addressed the setback problems with the parking garage, swimming pool & deck. Corrections were made to meet the setback requirements. Screening between C-1 and R-3 zoning districts was now provided. Towne Realty has granted a pedway on the east side of Shorewood Drive. Mr. Reid pointed out that the proposal by Towne Realty, contained in the Board packet, to utilize Villages of Seaport for public beach access was not part of this site plan for the Cape Caribe project. Planning & Zoning , and Meeting Minutes June 27, 2001 Page 2 Mr. Todd Peetz, City Planner, advised that the Comprehensive Plan, Coastal Management Element, Section 9.3, includes Florida Statutes (F.S.) 163.3178 (2)(g), which provides that each coastal city is required to have a coastal management element. This requirement must include public beach access. He noted that the beach is renourished at the publics expense per this code requirement. Additionally, the Land Development Code states that R-3 zoning shall have beach crossovers. The Comprehensive Pian takes precedence over �- the Land Development Code per F.S. 163.3194. He explained that once the Comprehensive Plan was adopted, the land development regulations must be consistent with that Plan. He noted that the Comprehensive Plan was adopted January, 1999 and believed that Section 9.3 was included in the Comprehensive Plan that had been adopted in 1991. He pointed out that Policy 9.2 encourages public beach access at the time of development along the beach. Mr. Peetz explained that the words "shall enforce" means that the City shall enforce public beach access, and the definition of "public beach access" means to make access available to anyone who wishes to use the beach. Mr. James Borris, Representative for Towne Realty, advised that 4,000 residents would be living in the new developments who would have beach access. He had discussed with the City, public pedestrian access points with the cooperation of Villages of Seaport. One possibility for public beach access was at the end of Shorewood Drive. He depicted the proposed pedestrian pedway from a city map. Mr. Borris agreed to provide a public pedway through his developments. He reiterated that everyone from his property has access to the beach. He explained that the general public would need to go to the south side of Jetty Park or Harbor Heights to get to the beach. Chairperson McNeely pointed out that the only site plan being considered by the Board is Cape Caribe and at this time, there was no public beach access provided on the site plan. Mr. John Allen, project engineer, advised that there were five beach access points within the Solana developments for their residents. There would be no parking available if open to the public for access. The public would need to walk at least one mile to get to and from the beach. He voiced his opinion that the City had a vast number of beach accesses for the public and that they were meeting the requirements of the Comprehensive Plan by providing beach accesses for at least 4,000 people within their developments. Mr. Borris noted that beach access for Solana Shores and Solana Lakes serves both communities. Discussion followed regarding existing public beach accesses. Mr. Nicholas commented that nothing had been submitted from the last meeting that met the city's requirement for beach access. He commented that there would be 216 timeshare units sold in weekly increments and therefore, 11,234 people would be changing each week. Mr. Barris commented that if the beach access was open to the public, it would change the landscape of what they were trying to sell. Mr. Nicholas advised that the Board voiced their concern at the previous meeting, two weeks ago, about public beach access to meet the requirements of the Comprehensive Plan and nothing has been resolved. Vice Chairperson Russell commented that the Comprehensive Plan is a legal document that needs to be complied with. An ensuing discussion continued. Planning & Zoning Board Meeting Minutes June 27, 2001 Page 3 Mr. Nicholas commented that previously, the Board had discussed with this developer to set aside area as a park. Mr. Borris responded that a public park was not feasible within his developments however, he had made a commitment to the City Council to assist with the park along the Banana River. Richard Treverton, Councilman, advised that he had submitted a proposal to expand public beach accesses. His proposal included the south side of Shorewood to have public beach access and parking, expand beach access in Harbor Heights, a nature path from Ocean Oaks through Ocean Woods, City should acquire property for parking across the street from Royal Mansions through Canaveral Sands. He commented that perhaps this developer could assist the city elsewhere to acquired property for public beach access. He advised that he has not received any offers, co -offers, comments or questions regarding his proposal. Mr. Tom Downs, developer of Villages of Seaport; and Ms. Mel Sawyer, President of two Associations of Villages of Seaport, advised that there was information provided to them regarding the pedway but there had been no meeting of the minds or agreements made. He advised that an alternative was possible between Shorewood and Villages of Seaport to meet the requirements. The pedway issue is still an unknown. They needed guidance as to where the dune line is defined. The biggest concern is to have a pedway in front of the town homes where the general public could look in the residents windows. This proposed pedway would start at the southern boundary of Seaport Blvd. and extend to the north boundary of Harbor Heights. He noted that there is an existing gazebo owned by a private residence that is located east of where the proposed pedway would be located. Discussion continued regarding public beach access. Mr. Kari Bohne advised the Board members that granting a site plan ensures that the development complies with the comprehensive plan. Approval of this site plan would be in violation of the requirements of the adopted Comprehensive Plan. Mr. Bohne cautioned that the Board could not place a condition on this site plan for the developer to provide beach access on any other development. He advised that there were options. He explained that the city could take the property by dominant domain to provide the public beach access, the developer could take the city to court which would delay the project, or the developer could find a way to provide the public beach access. Mr. Borris reiterated that he was agreeing to provide a public pedway throughout the property and would provide private beach access for the residence of the development. Planning & Zoning . and Meeting Minutes June 27, 2001 Page 4 Vice Chairperson Russell pointed out four options for consideration: Option #1 - table and wait for an agreement from all the parties; Option #2 - deny the site plan under the logic that it does not meet the requirements of the comprehensive plan; Option #3 - approve the site plan; and Option #4 - approve the site pian with the condition that general public beach access shall be provided within the Cape Caribe development. He noted that Option #4 would give the developer 90 days to comply with the condition or the approval would expire. Discussion followed regarding these options. Mr. Borris advised that public beach access could not interfere with the pool area or parking. To locate that access on the south side would be impossible. He asked the Board to give them flexibility to comply with the comprehensive plan. After an ensuing discussion, Mr. Barris advised that the beach access on Jetty Park was approximately 500 ft. from the Cape Caribe property. Discussion continued. Motion by Mr. Russell, seconded by Mr. Fredrickson to approve the site pian for Cape Caribe with the condition that general public beach access shall be provided within the Cape Caribe development. Vote on the motion carried unanimously. There being no further business, the meeting was adjourned at 9:23 P.M. Approved on this 6?5L� day of �v1 , 2001. r f BeatriceMcNeely,Chairperson Susan L. Chapman, Se etary x �ry r,,�.."" �'-a' I ('ft�' �` v�u''/biY YJ�� f� k`�" N J%�✓ , ��-�-4, � 5 C � ^r��+ � �a 9 i��{iii i y� `✓�� � 6 w w j � R�1�'�il�� �..i A • '.. ti,,,"1��. r� _ '1-„ � 1111 � L''"%. �E �" " "�" � 2 �`k���� •W Lit n 4r T`�I �'d•`7'�_I�� r 9 .. J Lw .. �IFG 15f" 4 1' 'moi mwwwAm 's M1 �. ,r:p Plxm it .IF ♦ �".�'� � I n I rr. S�i�II�WiIYr. I I � F t 4 r' u� Y i T I Ill pa,IsAlIMIrA , All �v V V l�il�l Ilk d Ll 1 Ag r MY � rµ �"�, �� •� � yam, I. __ � • e t a :""f"r .� �, � / % , , m a�� �,',y. r r � �r. 9��1• �� �� r�+ �i4� I�'°r, 'r b` I� �.4 anG;4 ,rm .y � ,m ,"f Mr•- wu, i+ � MI " ..>a• h� .�"�' d � i 7 r 11reliminary Developers Agreement 1) Towne Realty shall allow the connection of the City pedway at the east side of the Shorewood drive at the Shorewood condorniniurn. This 5' pedway will at some fixture date connect to the extension of George King Blvd, at the Port. 2) Village of SeaporUSeaport Oceanfront will allow the 5' pedway to extend from the above point of connection along then- north property line to a point on the dune where it will become a 5' boardwalk running South, "at of the existing oceanfront buildings, to their South property where it will revert to a pedway and run west to the point of intersection with the previously planned Ridgewood extension. The boardwalk Should be appropriately constructed, fenced and gated to protect the privacy of the existing buildings and amenities and shall provide for public beach access in addition to the existing private accesses. 3) The City of Cape Canaveral will give up their clairn to the Ridgewood extension including sidewalks through the Village of Seaport and Seaport Oceanfront properties, The City will permit -1111d pay for the construction of the pedway/sidewalk from the point of connection at Shorewood Drive to the Ridgewood connection at the south property line of the Scaport/Occan Front properties along with any costs incurred to connect the boardwalk to the existing dune crossovers used by the Ocean Front and Village of Seaport owners. VILLAGES OF SEAPORT PROPOSED 5'WALK PROPOSED BEACH ACCESS & PEDWAY PLOT PLAN ALLEN ngineering,Tne, ENGINEERS - SUF;MoRs 108 I= LOR (?Asol S21m) COCOA. HACH, rd Mi nm-yjgj CONDONUMUM s". "Ir'n 0 1�1 Page I of] From: Todd Morley [morley-cape,@cfl.rr.com] Sent: Tuesday, July 01, 2008 11:14 AM To: City Hall Boucher, Bennett Cc: jratliff-cape@cfl.rr.com Subject: Benko tree mitigation - dollars for inches in accordance with the old tree code Bennett, My research of Benko tree inches is in agreement with the number specified in the proposed Development Agreement (13,386) 'I I he old tree code referenced Appendix B — Schedule of Fees: (a) Removal of tree in lielq of rQi),1acenient,_1,.),er inch -of dbli ... If Benrko were to mitigate dollars for inches in accordance with the old tree code, they would pay 13,386 x $50 = $669,300 -Todd Todd Morley Building Official City of Cape Canaveral 105 Polk Ave Cape Canaveral, FL 32920 I'llone 321-868-1222 E-mail: Fax 321-868-1247 9/25/2008 Statutes &Constituti on: View Statutes :--'-,2009->Ch0 I 63 ->Section 3225... httpc//www,Ieg.st<ate.fl.us/titatutts/index.cl"n7`?App mode-=DisplayStat... Select Year:1-2,009" G ' - The 2oog Florida Statutes TitLe XI COUNTY ORGANIZATION AND INTERGOVERNMEILCIL i•iJS 11*11ckii �, � I a I - Chapt(Lr 16L3 PROGRAMS View Entire Chapter (1) Before entering into, amending, or revoking a development agreement, a local government shall conduct at least two public hearings. At the option of the governing bocly,49�--' one of the public hearings may be held by the local planning agency. (2)(a) Notice of intent to consider a development agreement shall be advertised approximately 7 days before each public hearing in a newspaper of general circullation and readership in the county where, the local government is located. Notice of intent to consider a development agreement shall also be mailed to all affected property owners before the first public hearing. The day, time, and place at which the second public hearing will be held shall be announced at the first public hearing. (b) The notice shall specify the location of the land subject to the development agreement, the A!�7 development uses proposed on the property, the proposed population densities, and the proposed buiilding intensities and height and shall specify a place where a copy of the proposed agreement can be obtained. History.—s. 22, ch. 86-191. Copyright (D 1995-2009 The Florida Legislature - Privacy Statement - Contact Us 1 of 1 12/11/2009 8:36 AM