HomeMy WebLinkAboutKB Home Orlando, LLC - Developer's Agreement 2012 11 19 MIRY NW NORSC9 CLERK F CIRCUIT CO1JRT
SENINOLE MPITY
BK 07948 Pgs 1364 - 1371; (8pgs)
CLERK' S # 2013011729
Prepared by and return to: RECORDED 01/24/2013 11:0266 AN
RECOIRDINS FEES 69.50
Anthony Garganese, Esq. RECORDED BY 8 Maguire
City Attorney of Winter Springs
Brown, Garganese, Weiss & D'Agresta, P.A.
I I I N. Orange Ave., Suite 2000
Orlando, FL 32802
(407) 425-9566
........................ ........ .................................... ............................... .................................................................................
VIERA VILLAGE
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT ("Agreement") is made and entered into this
day of 2012, by and between KB HOME ORLANDO LLC, a Delaware limited
liability company ("Owner") and the CITY OF WINTER SPRINGS, a municipal corporation
existing under the laws of the State of Florida ("City").
RECITALS
A. WHEREAS, OWNER is the owner of certain real property located within the
boundaries of the Oviedo Marketplace Development of Regional Impact (the "DRI") on which it
intends to develop a residential community and related amenities, which real property is more
particularly described on Exhibit "A" attached hereto and by reference incorporated herein (the
"Property"); and
B. WHEREAS, OWNER and CITY acknowledge and agree that the development of
the Property shall be in accordance with the Final Engineering Plan and Aesthetic Review Plans
approved by the City Commission on July 23, 2012, unless otherwise subsequently amended by
the parties and approved by the City Commission. A copy of the Final Engineering Plans and
Aesthetic Review Plans shall be maintained on file at City Hall located on 1126 E. State Road
434, Winter Springs, Florida 32708 (-"Deveiopment Approvals" or "Project"); and
C. WHEREAS, OWNER and CITY intend, for the terms of this Agreement, to
memorialize their understanding and agreement regarding their respective interests, expectations,
and intentions regarding the development of the Property within the DRI; and:
NOW THEREFORE, in consideration of the terms and conditions set forth in this
agreement, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the CITY and OWNER agree as follows:
1. INCORPORATION OF RECITALS- DEVELOPMENT APPROVALS. The
foregoing recitals are true and correct and the recitals and Development Approvals are ftilly
incorporated herein by reference as a material part of this Agreement. OWNER agrees to
develop the Property in accordance with the Development Approvals, the terms and conditions
of this Agreement, and all related government permits issued in furtherance of said Development
Approvals.
2. SALES CENTER & MODEL HOMES. The CITY agrees to allow OWNER to
construct both a sales office and up to four (4) model homes on the Property to be used for the
customary temporary marketing and sales activities of OWNER or their successors or assigns.
Further, nothing herein shall cause to limit the number of inventory homes (pre-sale, spec
homes) that may be constructed on the Property. The CITY represents that such marketing and
sales activities shall be permitted through buildout of the project. CITY agrees to permit early
construction of the model homes upon completion of stabilized access to the model home center
and adequate means of fire protection from a CITY approved source of water and under the
following conditions which are deemed acceptable to OWNER:
a) The model homes shall remain under OWNER'S ownership and control until
such time as a final certificate of occupancy for each unit is issued under the conditions set forth
below.
b) The model homes shall be constructed in a location reasonably acceptable to the
City , and any associated parking, pedestrian activity and other activities conducted by sales staff
or the general public shall be adequately segregated from construction activities to ensure safety.
The model center shall comply with all applicable state and city regulations regarding
accessibility.
c) Prior to construction, the model homes shall be duly permitted by the City in
accordance with the Winter Springs City Code.
d) At such time as the City Building Official completes and approves a final
inspection of the model homes, the City will issue a temporary certificate of occupancy. Said
temporary certificate of occupancy shall be issued for each model home as a whole. Occupancy
of the model home units shall be limited to the sales and marketing efforts for the Project until a
final certificate of occupancy is issued for such units. It is intended that the model homes can be
shown by sales staff to prospective buyers as long as the Building Official has issued the
temporary certificate of occupancy and the model is not staffed continuously. KB Home may
erect an ADA accessible tent and/or portable restrooms onsite for use by prospective buyers and
KB Home staff prior to final certifications of water and sewer infrastructure.
e) At the request of OWNER or at such time as the Project development is
completed, which occurs sooner, the model home units shall be converted into permanent
residential units and the City shall issue final certificates of occupancy for each model home
unit; provided, however, that the City Building Official determines that such units are suitable
for permanent residential occupancy and in compliance with the City Codes.
3. COOPERATION. OWNER and CITY shall cooperate fully with each other to
effectuate the terms, conditions and intentions of this Agreement.
4. AUTHORITY. Each party hereby represents and warrants to the other that they
have full power and authority to enter into this Agreement. OWNER also represents that all
legal and equitable title to the Property is currently vested in and held by OWNER and OWNER
is duly authorized to bind the Property to the terms and conditions contained in this Agreement.
CITY also represents that all requirements and procedures, including public hearings, have been
properly conducted so that the execution hereof by the CITY shall constitute the final action of
the CITY.
5. ICES. Any notice required or allowed to be delivered hereunder shall be in
writing an shall be deemed to be delivered when: (a) hand delivered to the official hereinafter
designated, or (b) upon receipt of such notice, when deposited in the United States mail, postage
prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a
nationally recognized overnight courier service, e.g. Federal Express, Express Mail, etc.,
addressed to a party at the other address as specified below or from time to time by written notice
to the other party delivered in accordance herewith:
OWNER: KB Home Orlando
9102 Southpark Center Loop, #100
Orlando, Florida 32819
Attn: Jeremy Camp
Telecopy: (407) 587-2400
With a copy to: KB Home
10475 Fortune Parkway, Suite 100
Jacksonville, FL 32256
Attn: John Dekle, Esq.
Telecopy: (904) 339-9222
City: Kevin L. Smith
City Manager
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327-5957
With a copy to: Anthony A. Garganese
Brown, Garganese, Weiss & D'Agresta, P.A.
111 N. Orange Ave, Suite 2000
Orlando, Florida 32801
Phone: (407) 425-9566
Fax: (407) 425-9596
6. DEFAULTS. Failure by either party to perform each and every one of its
obligations hereunder shall constitute a default, entitling the non-defaulting party to pursue
whatever remedies are available to it under Florida law or equity, including, without limitation,
an action for specific performance and/or injunctive relief. Prior to any party filing any action as
a result of a default under. this Agreement, the non-defaulting party shall first provide the
defaulting party with written notice of said default. Upon receipt of said notice, the defaulting
party shall be provided a thirty (30) day opportunity in which to cure the default to the
reasonable satisfaction of the non-defaulting party prior to filing said action. However, provided
the defaulting party is diligently pursuing the cure in good faith, the non-defaulting party may
request up to two (2) individual extensions of time to cure the default. The non-defaulting party
may not unreasonably withhold consent for said extensions provided the defaulting party
continues to diligently pursue the cure in good faith.
7. SUCCESSORS AND ASSIGNS. This Agreement shall automatically be binding
upon and shall inure to the benefit of the successors and assigns of each of the parties.
8. APPLICABLE LAW,;wVENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The venue for any legal action
instituted to enforce or interpret any provisions of this Agreement shall be in Seminole County,
Florida for state action and Orlando, Florida for any federal action.
9. 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.
10. 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.
11. EFFECTIVE ATE. This Agreement shall become effective upon approval by
the City Commission of Winter Springs and execution of this Agreement by both parties.
12. 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.
13. 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, or any other limitation on the CITY's potential liability under state and federal law.
14. FORCE MAJEURE. The parties agree that in the event that the failure by either
party to accomplish any action required hereunder within a specified time period ("Time
Period") constitutes a default under the terms of this Agreement, and, if any such failure is due to
any unforeseeable or unpredictable event or condition beyond the control of such party,
including, but not limited to, acts of God, acts of government authority (other than the CITY's
own acts), acts of public enemy or war, riots, 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"), then, notwithstanding any provision of this
Agreement to the contrary, that failure shall not constitute a default under this Agreement and
any Time Period proscribed hereunder shall be extended by the amount of time that such party
was unable to perform solely due to the Uncontrollable Event.
15. INTERPRETATION. The parties hereby agree and acknowledge that they have
both participated equally in the drafting of this Agreement and no party shall be favored or
disfavored regarding the interpretation of this Agreement in the event of a dispute between the
parties.
16. 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.
The failure of this Agreement to address any particular city, county, state, and federal permit,
condition, term or restriction shall not relieve OWNER or the CITY of the necessity of
complying with the law governing said permitting requirements, conditions, 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
owned by OWNER within the Property if OWNER is in breach of any term or condition of this
Agreement.
17. 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.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be considered an original
agreement; but such counterparts shall together constitute but one and the same instrument.
19. TERMINATION. The CITY shall have the unconditional right, but not the
obligation, to terminate this Agreement and Development Approvals, without notice or penalty,
if OWNER fails to receive building permits and substantially commences construction of the
Project within three (3) years of the effective date of this Agreement. In addition, the CITY shall
have the right, but not the obligation, to terminate the Agreement if OWNER permanently
abandons construction of the Project, provided, however, the CITY shall first deliver written
notice and an opportunity to cure as set forth in paragraph 7 herein. If the CITY terminates this
Agreement, the CITY shall record a notice of termination in the public records of Seminole
County, Florida.
20. WAIVER. The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other provision of this
Agreement or of any future breach of the provision so waived.
21. INDEMNIFICATION. OWNER hereby agrees to indemnify, release and hold
harmless the CITY and its commissioners, employees, and attorneys from and against all claims,
losses, damages, personal injuries (including, but not limited to, death), or liability (including
reasonable attorney's fees and costs through all appellate proceedings), directly or indirectly
arising from, out of, or caused by OWNER and OWNER'S contractor's and subcontractor's
performance of construction activities in furtherance of this Agreement and any and all permits
issued hereunder. This indemnification shall survive the termination of this Agreement, but shall
cease at such time applicable statute of limitations have expired.
IN WITNESS WHEREOF, OWNER and the CITY have executed this Agreement
in form sufficient to bind them as of the day and year first above written.
Owner:
Signed and sealed in the KB HOME ORLANDO, LLC,
Presence of- a D. ,*wm-e 1 n j1ted liability coin any
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STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this_,;.;,,�'L day of
2012, by . ... .� ... . � ..........e.........., as .�' �. . .., m of KB Home Orlando
LLC, who is personally known to me or has produced as
identification.
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CITY:
Signed and sealed in the CITY OF WINTER SPRINGS,
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Signa ary Public
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Notary Pubk State of MoMa
Andrea Lorenzo-Luww
MY Commbeion EEOM74
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Print Name of Notary Public
(NOTARY SEAL)
Exhibit "A"
The Property
A PARCEL OF LAND LOCATED /N SECTION 17, TOWNSHIP 31 SOUTM, RANGE 31 EAST,
SEMINOLE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN Al 'I HE SOUTHEAST CORNER OF TUGCAVV\LLA U0!| 7. ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 22, PAGES 4847 OF THE PUBLIC RECORDS OF
SEfN|NOLECOUMTY. FLORIDA; THENCE WITH THE WEST AND SOUTH LINES OF PREMISES
DESCRIBED IN OFFICIAL RECORDS BOOK588O. PAGE 5O5OFTHE PUBLIC RECORDS OF
SEK0|N3LE COUNTY, FLORIDA, THE FOLLOWING TWO (2) COURSES: 1) 8U1"U7Y}8^E' ADISTANCE
[>F318.U2 FEET; 2) G89"37'56''E. A DISTANCE (}F21776 FEET; THENCE WITH THE WEST LINE OF
PREMISES DESCRIBED IN OFFICIAL RECORDS BOOK 8828, PAGE 1056 OF THE PUBLIC
RECORDS OF 0EK4|NC>LE COUNTY, FLORIDA, THE FOLLOWING THREE (3) COURSES: 1>
800~23'53'vV. AD|STANCE OF 385.50 FEET TOA POINT OF CURVATURE; 2) SOUTHEASTERLY
VV|THTHEARCOFACURVETOTHELEFT (SA|OOURVEHAV|NGARAOIU3OF2O17SFEET. /\
CENTRAL ANGLE OF54~12'42^ AND A CHORD BEARING AND DISTANCE (}F32O°42'28''E. 103.8O
FEET) FOR AN ARC DISTANCE OF 180.90 FEET TO /\ POINT OF TANGENCY; 3) 853°48'49"E. /\
DISTANCE OF21.80 FEET TO THE WEST RIGHT-OF-WAY LINE OF D{JYGRA DRIVE (VARIABLE-
WIDTH RIGHT OF WAY PER PLAr BDOK60. P8(;EG 29-30 OF THE PUBLIC RECORDS OF
SEK8|NOLE COUNTY, FLORIDA); THENCE WITH SAID WEST RIGHT-OF-WAY UNE, S30"89'38'`VV. A
DISTANCE OF100,38 FEET; THENCE LEAVING SAID WEST R|E;HT'OF-WAY LINE, N53^50'21'W. A
DISTANCE OF 43.78 FEET, THENCE S70^24'58''VV. A DISTANCE OF 2737 FEET; THENCE
884"58'07'W, A DISTANCE OF 43.75 FEET; THENCE S73~09'27^VV, A DISTANCE OF 28.33 FEET;
THENCE 838"27'31''VV, A DISTANCE OF 34.25 FEET� THENCE 859~49'53^VV. A DISTANCE OF 82.00
FEET,- THENCE N70°40'40'W. A DISTANCE OF 20.00 FEET; THENCE S88017'06''YV. A DISTANCE OF
20.98 FEET� THENCE N10~02'18^VV. A DISTANCE OF 22.26 FEET; THENCE N76,28'20''VV, A
DISTANCE OF 24.01 FEET: THENCE 849"52'30''VV. A DISTANCE OF 54.74 FEET; THENCE
S76°23'29"W, A DISTANCE OF 27,92 FEET; THENCE N55"06'15'^VV. A DISTANCE OF 20'84 FEET;
THENCE N85"4021''KV. A DISTANCE OF 33.57 FEET; THENCE N22~57'60^VV. /\ DISTANCE OF 23.38
FEET; THENCE N09"34'17"E. A DISTANCE 0F 8986 FEET; THENCE N01°42^89"E. A DISTANCE OF
124.30 FEET; THENCE N09,14'00"E. A DISTANCE OF 75.89 FEET; THENCE N09^08'50'VV, A
DISTANCE OF 38.12 FEET; THENCE N10"23'32"E. A DISTANCE OF 108.92 FEET; THENCE
N13"88'51^VV. /\ DISTANCE OF 45.41 FEET.- THENCE N49^08'20'W, A DISTANCE OF 27.17 FEET;
THENCE N74"53'20''VV. /\ DISTANCE OF 48.20 FEET; THENCE N51^25'82'`VV, A DISTANCE OF 2180
FFFT; THENCF N84,16'74'W, ADi8TANCE OF 20.40 FEET; THENCE N61"43'08"VV. A DISTANCE OF
01.11 FEET; THENCE N12~45'56'VV, A DISTANCE OF 29.84 FEET; THENCE N00"20'45'W. A
DISTANCE OF 139.06 FEET: THENCE N10"50'22^VV. A DISTANCE OF 40.62 FEET; THENCE
M27^53*23y`W' A DISTANCE OF 7305 FEET; THENCE N46~17'23'W, A DISTANCE OF 62.45 FEFT;
THENCE N59^4810~YY. f\ DISTANCE OF 37,2b FEET,- THENCE N20~58'50''VV, A DISTANCE OF 8.74
FEET; THENCE N69037'27"E. 4 DISTANCE OF 418.21 FEET TOT}|E POINT OF BEGINNING
CONTAINING O.7242 ACRES OF LAND. MORE OR LESS.
- -
AAL BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
lorAttorneys at I.aw
111 N. Orange Ave.,Suite 2000 Anthony A. Garganese
P.O.Box 2873 Board Certified City,County&Local
Orlando,Florida 32802-2873 Government Law
Phone(407)425-9566
Fax(407)425-9596 agarganese@orlandolawnet
February 7, 2013
Andrea Lorenzo Luaces, City Clerk
City of Winter Springs
1126 East S.R. 434
Winter Springs, FL 32708
Re: Mattamy and Viera Village Development Agreements
Dear Andrea:
Enclosed are the following original recorded documents for your records:
1. Developer's Agreement- Mattamy(Jacksonville) Partnership
2. Modification of Developer's Agreement- Mattamy (Jacksonville) Partnership
3. Developer's Agreement- Viera Village
Sit °ere ,
Anthony A. Garganese
AAG/nh
Enclosures
Ft.Lauderdale(954) 670 1979•Kissimmee(321)402-0144• Cocoa(866)425-9566
Website:www.orlandolaw.net•Etnail: firm@orlandolaw.net