HomeMy WebLinkAboutViera Company, Viera Village Developer's Agreement 2012 11 19 • MARYAN� MOR9E, C�ERK OF CIRG.IIT t�lNiT
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BEMINOLE COLNrTY
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CI.ERK' S # 201 301 1 729
Prepared by and return to: REi;ORDED Ol/2�/2013 11�02s56 AM
REL�RDINB FEES 69.50
Anthony Garganese, Esq. RECORDED BY S Mapuire
City Attorney of Winter Springs
_ Brown, Garganese, Weiss & D'Agresta, P.A.
� 111 N. Orange Ave., Suite 2000
Orlando, FL 32802 �'.L° • ��-��X �=� ��''
(407) 425-9566
VIERA VILLAGE
DEVELOPER'S AGREEMI:IVT
THIS DEVELOPER'S AGREEMENT ("Agreemerit") is made and entered into this � y�
day of 1l�t�V'enn�Oet��, 2012, by and between KB HOME ORLAI'�1D0 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 "DRP') 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 Engineerin� Plan and Aesthetic Review Plans
approved by the City Commission on July 23, 2012, unless otherwise subsequently aniended 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
�34, tiVinter Springs, Florida 3�708 (`�i�eveiopment Appruvai�" or "�roj�:;t"}; and
C. WHEREAS, OWNER and CITY intend, for the terms of this Agreement, to
memorialize their understanding and agree�nent regarding their• respective interests, expectations,
and intentions regarding the development of the Property within the DRI; and:
NOW THEREFORE, in consideration of the tenns a�id 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; DEVEI,Ol'NIENT APPROVALS. The
foregoing recitals are true and correct and the recitals and Development Approvals are f'ully
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 OWNF,R 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 O WNER'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 ar 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 mode] home
unit; provided, however, that the City Building Official determines that such units are suitable
for pern�anent 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. 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
Brawn, 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 AUREEMENT. 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 IMMiJNITY. 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. COLJNTERPARTS. 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 ar 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 ind�mnification shall survive the termination of this Agreement, but shall
cease at such time applicable statute of limitatians have ex�ired,
IN WITNESS WI-�ER�;OF, Ot�TNER and the CITY have executed this Agreement
in farm 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 'ted liabiiity ct�._-/ny
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B�.
� Print Name: c:.��au.�f C'�-,�t.{�
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Pri Name, � Title: ��^„�,q�t�� �,� � ,g,��
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Print Name:_,
STATE OF FLORIDA
COUNTY OF rr�..�,y�_
The foregaing instrunlent was acknowledged before me this��day af �c;x,�z►��t.��e�,
2012, by`��,�„r,�.�S`�,,,.Y��, , as ��e�'�„�. ofKB Home Orlando
LLC, wha is personally knawn to me or has produced ��
identification.
My commissioii expir�s: IC>>ac,�ao�'�
Sign ture of Notary Public
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����,�PAy;�,�, Print Name of Notary Public
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CITY:
Signed and sealed in the CITY OF WINTER SPRINGS,
Presence o • a Flori m nicip corporation
By:
Print Name: C;,�t�tn1C�3 L.r4�c�y
Print � , Title: _�� �
Print Name: es-�
STATE OF FLORIDA
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COUNTY OF � ,�,.i
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The orego'ng instrument was acknowledged b fore me this� day of ��'`��, 2012, by
�(" , as � of the City of Winter Springs, who
is perso 0 or has produc as identification.
My commission expires:
Signa ary Public
�� Notary Publfc Stab of Fbrid�
Andrea LorenzaLuaces �� ( ,�n,L � v
My Commb�ion EEOE7b74 F.p�l��
�' n� �•.osioazo,s Print Name of Notary Public
(NOTARY SEAL)
Exhibit "A"
The Property
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SEMINC7LE Ct7UNTY, F�CIRIDA; TH�NCE WITH THE WEST AND SC7UTH LINES C1� F'f2�MIS�S
DE�GRIBEO IN �FFICEAL RECt)RL3S BOOK 6�J86, PAGE 565 OF THE PUBLIC REGtJRDS (JF
SEMiN4LE COUNTY, FL.ORIDA, THE FQLI.t�WING TWC> (2) CQURSES: 1}S01°07'OS"E, A C7iSTANCE
C>F 319.Q2 FEET; 2} S8�°37'55"E, A DISTANCE OF 21`1.75 FEET; TNENGE WITH 7HE WEST LINE UF
PREMISES DES�RISEC7 IN QFFIGIA� REGORQS B40K 6829, PAGE '1056 C?F THE PUBLtG
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DISTANCE Q� 160.38 FEET; THENCE LEAVfNG SAID WEST R(GHT-C)F-WAY LINE, N53°5Q'2'1"W, A
DISTANCE dF 43.7II FEET; Ti-lENCE S7Q°24'S8"W, A DiSTANCE fJF 27.37 FEET; T!-IEhlCE
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DISTANGE �� 36.12 FEET; THEN�E N10°23'32"E, A �lSTANGE OF 10f�.92 FEET; Tt-IENCE
IV13°3$'S1"W, A DiSTAt<tGE OF 45.41 FEET; THEtVCE N49°f�8'20"W, A DISTANCE CJF 27.17 FEET;
TFiENCE N74°53'20"W, f� DIST/�NCE OF 43.28 FEET; TNENGE tV51°25'32"W, A (U18���AR10E QF 23.30
FEET; TNFNf;F N�i4°1Ei'?4"W, A t71STANCF C)F ?0 4F FFET; THENCE N�1°d3'�A"W, A dfSTANCE C?F
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DISTAlVGE OF '139.&6 FE�T; TFIENCE hJ10°54'22"W, A C3lSTAhlGE CJF 46.62 �E-ET; TNENCE
IV27"53'23"W, A dI�TANCE OF 73 05 FEET; TNENCE N46"17'23"W, A DISTANGE dF 6?.45 FEFT;
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