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HomeMy WebLinkAboutTab 55 Viera Village (KB Home Orlando LLC).pdfPrepared by and return to: Anthony Garganese, Esq. City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. o I I I N. Orange Ave., Suite 2000 Orlando, FL 32802 12 c)X (407) 425-9566 VIERA VILLAGE MARYANNE MORSE, CLERK OF CIRCUIT COURT SOME COUNTY Bli 07948 Pgs 1364 - 13711 (9p9s) CLERK"S # 2013011729 RECORDED 01/24/2013 11:02156 AM RECORDING FEES 69.50 RECORDED BY S Maguire DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT ("Agreement") is made and entered into this , y 61 day of 19 UQm k 2012, by and between K-B HOME OR-LANDO 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 (`Development 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: L INCORPORATION OF RECITALS; DEVELOPMENT APPROVALS. The foregoing recitals are true and correct and the recitals and Development Approvals are fully 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 0 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. NOTICES. 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- VENUE. 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 DATE. 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. Signed and sealed in the Presence of: STATE OF FLORIDA COUNTY OF 0rc-nP.-- Owner: KB HOME ORLANDO, LLC, a Dtlaware4muted liabiliiy com any By: Print Name: 10E7 t 0-,owp Title: C7' a,-- (� The foregoing instrument was acknowledged before me this �2( day of mcx,,� , 2012, by —stx , as of KB Home Orlando LLC, who is personally known to me or has produced identification. / c� 4Signtur of Notary Public My commission expires: Idl3p1 a��� (NOT"o '�e��l9u�jcANrs�t P Y w #DD 933919 S .7 ��.'Ae�y�'6f rFn ClgLfC. Print Name of Notary Public as } CITY: Signed and sealed in the Presence Print �Wit rs Print Name: rn_Aro"e STATE OF FLORIDA COUNTY OF O 7 The orego'ng instrument wa f is perso 0 or CITY OF WINTER SPRINGS, a Flori m nicip corporation Print Name: �+�►/er L►4G'��/ Title: M1 oK � I k-� s acknowledged bsfore me this ff day of AJ ' 69, 2012, by as of the City of Winter Springs, who has producda a as identification. My commission expires: Notary Pubk $tire of Florida a Andres WrenztrLuacas My Commlablon EE087574 0 Expi""051d9/Pafs ] (NOTARY SEAL) r 14 5�-� Signa ary Public Tc 6k�=/ ! V Le2�� Print Name of Notary Public Exhibit "A" } The Property A PARCEL OF LAND LOCATED IN SECTION 17, TOWNSHIP 21 SOUTH, RANGE 31 EAST, SEMINOLE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGIN AT THE SOUTHEAST CORNER OF TUSCAWILLA UNIT 7, ACCORDING 'TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 22, PAGES 46-47 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; THENCE WITH THE WEST AND SOUTH LINES OF PREMISES DESCRIBED IN OFFICIAL RECORDS BOOK 6986, PAGE 565 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, THE FOLLOWING TWO (2) COURSES: 1) 301'07'08"E, A DISTANCE OF 319.02 FEET; 2) S89`37'65"E, A DISTANCE OF 217.75 FEET; THENCE WITH THE WEST LINE OF PREMISES DESCRIBED IN OFFICIAL RECORDS BOOK 6829, PAGE 1056 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, THE FOLLOWING THREE (3) COURSES; 1) S00'23'53"W, A DISTANCE OF 395.50 FEET TO A POINT OF CURVATURE; 2) SOUTHEASTERLY WITH THE ARC OF A CURVE TO THE LEFT (SAID CURVE HAVING A RADIUS OF 201.76 FEET, A CENTRAL ANGLE OF 54"12'42" AND A CHORD BEARING AND DISTANCE OF S26'42'28"E, 183.86 FEET) FOR AN ARC DISTANCE OF 190.90 FEET TO A POINT OF TANGENCY; 3) S53'48'49"E, A DISTANCE OF 21.86 FEET TO THE WEST RIGHT-OF-WAY LINE OF DOVERA DRIVE (VARIABLE - WIDTH RIGHT OF WAY PER PLAT BOOK 53, PAGES 29-30 OF 1 HE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA); THENCE WITH SAID WEST RIGHT-OF-WAY LINE, S36'09'39"W, A DISTANCE OF 160.38 FEET; THENCE LEAVING SAID WEST RIGHT-OF-WAY LINE, N53'50'21"W, A DISTANCE OF 43.78 FEET; THENCE S70024'58"W, A DISTANCE OF 27.37 FEET; THENCE S84'59'07"W, A DISTANCE OF 43.73 FEET; THENCE S73'09'27"W, A DISTANCE OF 28.33 FEET; THENCE S38'27'31"W, A DISTANCE OF 34.25 FEET; THENCE S59'49'53"W, A DISTANCE OF 32.00 FEET; THENCE N70'40'40"W, A DISTANCE OF 29.66 FEET; THENCE S89'17'06"W, A DISTANCE OF 20.98 FEET; THENCE N10'02'19"W, A DISTANCE OF 22.26 FEET; THENCE N76'29'20"W, A DISTANCE OF 24.01 FEET; THENCE S49052'30"W, A DISTANCE OF 54.74 FEET; THENCE S76'23'29"W, A DISTANCE OF 27.92 FEET; THENCE N55'06'15"W, A DISTANCE OF 29.84 FEET; THENCE N85'40'21"W, A DISTANCE OF 33.57 FEET; THENCE N22"57'50"W, A DISTANCE OF 23.38 FEET; THENCE N09'34'17"E, A DISTANCE OF 89.96 FEET; THENCE N01042'09"E, A DISTANCE OF 124.36 FEET; THENCE N09'14'09"E, A DISTANCE OF 75.89 FEET; THENCE N09'03'56"W, A DISTANCE OF 36.12 FEET; THENCE N10'23'32"E, A DISTANCE OF 108.92 FEET; THENCE N13'38'51"W, A DISTANCE OF 45.41 FEET; THENCE N49'08'20"W, A DISTANCE OF 27.17 FEET; THENCE N74'53'20"W, A DISTANCE OF 43.28 FEET; THENCE N51'25'32"W, A DISTANCE OF 23.30 FEET; THENCE N84'16'24"W, A DISTANCE OF 20.46 FEET; THENCE N61'43'08"W, A DISTANCE OF 31.11 FEET; THENCE N12'45'56"W, A DISTANCE OF 29.84 FEET; THENCE N00'26'45"W, A DISTANCE OF 139.66 FEET; THENCE N10'50'22"W, A DISTANCE OF 46.62 FEET; THENCE N27'53'23"W, A DISTANCE OF 73 05 FEET; THENCE N46'17'23"W, A DISTANCE OF 62.45 FEET; THENCE N59'49'19"W, A DISTANCE OF 37.25 FEET; THENCE N28'68'60"W, A DISTANCE OF 3.74 FEET; THENCE N69`37'27"E, A DISTANCE OF 416 21 FEET TO THE POINT OF BEGINNING. CONTAINING 8.7242 ACRES OF LAND, MORE OR LESS.