HomeMy WebLinkAbout2010 12 13 Regular 602 Second Implementation Agreement Adult Congregate Living Facility CITY COMMISSION
AGENDA
ITEM 602 Information
Public Hearing
Regu r X
December 13, 2010
Meeting MGR /DEPT s
Authorizatio
REQUEST: The Community Development Department requests that the City
Commission consider the Second Implementation Agreement to allow the option of an Adult
Congregate Living Facility (ALF), an Independent Living Facility (ILF), or a combination of the
two, in lieu of 100 Townhouse /condominium units within Parcel 14 -B of the Oviedo
Marketplace PUD (and Development of Regional Impact - DRI).
SYNOPSIS: On August 10, 2009, the City Commission approved the allowance of up
to 100,000 square feet of personal storage /mini - warehouse. An implementation agreement to
allow this use is the subject of Agenda Item 600 on the Commission's October 12, 2009 regular
meeting. Additionally, the applicant is requesting that the remaining portion of Parcel 14 -B,
currently approved for 100 townhomes /condominiums, be allowed options for a maximum of
184 independent living units or a maximum of 318 assisted living beds (ALF). This agenda item
is to request that the City Commission consider the Second Implementation Agreement for
Parcel 14 -B of the Oviedo Marketplace PUD. This Second Implementation Agreement allows a
certain amount of flexibility related to the residential development of Parcel 14 -B in order that
the property may be developed with a blend of uses as long as the proposed uses does not
become inconsistent with the City Commission's previous approval for residential development.
Any proposed development request will still be subject to staff review and City Commission
approval.
CONSIDERATIONS:
APPLICABLE ZONING & FUTURE LAND USE DESIGNATION:
Zoning: PUD
Future Land Use Designation: Mixed Use (with partial conservation overlay)
APPLICABLE LAW AND PUBLIC POLICY:
Chapter 380, Florida Statutes
Comprehensive Plan
Chapter 20, Article P1. Planned Unit Developments (PUD), Division 2. Part A. PUD
Development Order
December 13, 2010
Regular Agenda Item 604
Page 2 of 8
BACKGROUND DATA:
1995 - Property annexed into Winter Springs
Aug. 8, 1995- Amended Settlement Agreement between City of Winter Springs, City of Oviedo,
The Viera Company and Rouse - Orlando to provide for better intergovernmental relations and
coordination of planning efforts.
Nov. 12, 2001- Ord. 2001 -45 changed the Future Land Use Map designation from Seminole
County "Planned Development" and "Conservation" to City of Winter Springs "Mixed Use ".
Nov. 12, 2001- DRI Development Order approved by the Winter Springs City Commission.
Jan. 14, 2002 - Ord. 2001 -58 changed the Zoning Map designation from Seminole County
"Planned Unit Development" to City of Winter Springs "Planned Unit Development ".
Nov. 2, 2005- Notice of Proposed Change submitted to the City of Winter Springs, to the East
Central Florida Regional Planning Council, and to the Bureau of State Planning, Department of
Community Affairs.
Dec. 16, 2005- Response from the East Central Florida Regional Planning Council opining that
the proposed changes do no result in an automatic substantial deviation determination pursuant
to the threshold criteria of section 380.06(19),Florida Statutes.
Dec. 20, 2005- Public Hearing date notification sent to East Central Florida Regional Planning
Council and to the Bureau of State Planning, Department of Community Affairs per
380.06(19)(f)3 -4, Florida Statutes.
Dec. 22, 2005- LPA Ad in Orlando Sentinel
Dec. 22, 2005- Response from the Bureau of State Planning, Department of Community Affairs
received with objections to the proposed request.
Dec. 22, 2005- Request from Applicant's Attorney to postpone to a date certain (Feb. 1, 2006)
the LPA public hearing.
Jan. 4, 2006- LPA hearing postponed to date certain- Feb. 1, 2006.
Feb. 1, 2006- LPA heard the request for amending the DRI Development Order and was unable
to get a majority vote for recommending either approval or denial of the request. Each motion
resulted in a 2 -2 vote.
Feb. 16, 2006- Public Noticing in Orlando Sentinel of Public Hearing for DRI NOPC
Feb. 27, 2006- Commission postponed consideration of the Oviedo Marketplace DRI NOPC to
Date Certain (March 27, 2006) to preserve the advertising, at the request of the Applicant.
March 22, 2006- Applicant held an informal meeting with neighbors and interested persons.
March 27, 2006- Commission approved NOPC for as many as 100 town- homes.
January 22, 2007 - Commission approved PUD amendment and lot split dividing Parcel 14.
Julyl, 2007 -Any DRI under construction on July 1, 2007 is provided a 3 -year extension without
NOPC, pursuant to Subsection 380.06 (19) (c), FS (2007), as amended by HB 7203.
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December 13, 2010
Regular Agenda Item 604
Page 3 of 8
July 23, 2007 - Commission approved Inwood final engineering/site plan and draft wholesale
water & sewer agreement with Seminole County.
September 25, 2007 - Seminole County BCC approved wholesale water and sewer agreement.
August 10, 2009 — Commission approved the inclusion of up to 100,000 square feet of personal
storage on Parcel 14 -B in lieu of the retail use previously approved. This approval was subject to
the approval and execution of an appropriate facilitating documentation, which has been
determined to be an implementation agreement.
October 12, 2009 — Commission approved an Implementation Agreement to allow up to 100,000
square feet of personal storage /mini - warehouse within Parcel 14 -B of the Oviedo Marketplace
PUD.
October 12, 2009 — Commission approved the option of allowing an ALF and ILF in lieu of 100
Townhouse /Condominium units within Parcel 14 -B of the Oviedo Marketplace PUD, subject to
a proper facilitating document (Implementation Agreement).
PROJECT OVERVIEW
The Oviedo Marketplace DRI (formerly Oviedo Crossing) is contained within three jurisdictions:
Seminole County, the City of Oviedo, and the City of Winter Springs. The only portions of the
DRI within the City of Winter Springs are Parcel 14A (Inwood Office site) and the undeveloped
residual Parcel 14B (3.86 acres in 14A + 45.6 acres in 14B = 49.5 total acres). A previously
approved development program for the Oviedo Marketplace DRI allowed residential use within
the DRI, although it was not specified for Parcel 14. The Notice of Proposed Change (NOPC),
as approved by the City Commission on March 27, 2006, allowed the owner to convert 29,000
SF of the 160,000 SF total retail use allocated to this parcel into as many as 100 residential units
(townhouses or condominiums). In August 2009, the applicant requested to be allowed to
construct up to 100,000 SF of personal storage /mini - warehouse in lieu of retail, on the southern-
most portion of Parcel 14 -B. The Viera Company, owner of the Oviedo Marketplace, indicated
that it considered the indoor storage facility the same as retail. They requested the Commission
provide direction, before proceeding with an Implementation Agreement or other facilitating
documentation to authorize the change. Now the applicant is requesting that the remaining
developable portion of Parcel 14 -B, currently approved for 100 townhomes/condominiums, be
allowed an option for a maximum of 184 independent living units or a maximum of 318 assisted
living beds (ALF). These options would be in lieu of the currently approved 100
townhouse /condominium units and are the maximum number of units allowable if the entire
remaining developable portion of Parcel 14 -B were devoted to the single unit type. Any
integration of two or more of the proposed options would be subject to the residential unit ratios
contained in Section 4 -B of the attached Second Implementation Agreement.
Location — Parcel 14B (Tax parcel ID # 17- 21 -31- 300 -001H -0000) is located west of the Oviedo
Marketplace Mall and Dovera Drive and north of Red Bug Lake Road.
Total Acreage- 45.6 acres more or less (approximately 11.24 developable acres).
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December 13, 2010
Regular Agenda Item 604
Page 4 of 8
Site Information — The property (Parcel 14B) is part of the Oviedo Marketplace Development of
Regional Impact and was formerly known as Oviedo Crossing and DLI Properties. The overall
DRI is a mixed use development consisting of approximately 431.2 acres. The DRI which is
located in Seminole County at the intersection of the Central Florida Greeneway and Red Bug
Lake Road includes a large regional shopping center, a medical campus and wellness center, and
several small parcels with retail, office and residential uses.
As previously mentioned, the Oviedo Marketplace DRI is contained within three jurisdictions:
unincorporated Seminole County (163 acres), the City of Oviedo (218.6 acres), and the City of
Winter Springs (49.5 acres). The only portion of the DRI within the City of Winter Springs
consists of parcels 14A and 14B. It is the only DRI within the City of Winter Springs.
Parcel 14B compliments and provides a transition between the mall and the adjacent residential
neighborhoods. Parcel 14B has a "Mixed Use" Future Land Use and a "Planned Unit
Development" Zoning designation. The parcel is vegetated primarily with wetland hardwoods.
Existing wetlands on the site, in conjunction with an existing settlement agreement on the DRI
reduces the developable acreage from 45.6 acres to about 11.24 acres.
Existing Land Uses — Of the 49.5 acre Winter Springs portion of the Oviedo Marketplace DRI,
Parcel 14B is still undeveloped. The Inwood office building was constructed on the 3.81 acre
parcel 14A in 2007, after Parcel 14 was divided via a lot split. Adjacent existing land uses,
zoning and FLUM designations include the following:
Existing, Land t ses Zoning ELL \1
Subject Sites Undeveloped PUD (WS) Mixed Use (WS)
North Single Family Residential PUD (WS) Low Density Residential
(WS)
South Medical Offices PUD (SC) PD (SC)
East Hospital/Office; Retail/Office; PUD (OV) & PD (OV) & HIPD (SC)
and Stormwater Retention PUD SC
West Single Family Residential R -1A (SC) Low Density Residential
(SC)
(WS) Winter Springs; (SC) Seminole County; (OV) Oviedo
Existing Winter Springs DRI Development Order — Parcels 14A and 14B are currently
designated as retail/office, with the ability to convert 29,000 square feet of retail/office to as
many as 100 town -house dwelling units, with a "build -out" date of December 31, 2007. Of the
49.5 acres, only 15.1 are stated to be developable (15.ldevelopable acres — 3.86 Inwood = .11.24
acres of residual developable land).
Oviedo and Seminole County DRI Development Orders — Each was amended during 2005,
extending the build out date to late 2007. Additionally, The Oviedo DRI Development Order
removed 10,000 SF of retail space from Parcel 13 (which is adjacent to Tuscawilla Units 7 & 13
in Winter Springs) and replaced it with 180 townhouses.
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December 13, 2010
Regular Agenda Item 604
Page 5 of 8
Amended Settlement Agreement- The Amended Settlement Agreement of 1995 prohibits
development within 250' of the boundary of the project, requires stepping the height of buildings
depending upon the setback distance, and requires a buffer to the residential areas. Bike Paths
and Pedestrian Walkways are required as alternative forms of transportation on the project site.
Winter Springs may, but is not required to provide municipal services to Parcel 14.
NOPC to the DRI Development Order: The applicant proposed to amend the DRI Development
Order for Parcel 14 as follows:
1) Add townhouse to the equivalency matrix;
2) Convert 29,000 SF (of the 160,000 SF total retail use allocated to this parcel) into 132
residential units; and 3) extend the build out date from 12/31/05 to 12/30/07, an extension of two
years, less one day.
The City Commission approved the request, but allowed a maximum of 100 residential town -
home units. In 2007, the Florida legislature passed HB 7203, which amended Chapter 380, FS
(Subsection 380.06 (19) (c), FS), to state that any DRI under active construction as of July 1,
2007 (the word "construction" was not defined) was extended for three (3) years free and clear
without any need for an NOPC. The Commission approved the concept of substituting up to
100,000 square feet of indoor storage for retail at its August 10, 2009 meeting. The proposed
Second Implementation Agreement, if approved, would allow the additional options for the
independent living units or the assisted living beds on the remainder of Parcel 14 -B in lieu of the
100 residential townhomes.
Additional Information relative to the Oviedo Marketplace DRI:
Pursuant to Chapter 2010 -147 Laws of Florida, the project buildout date for Phase 3 of the
Oviedo Marketplace DRI have been extended to December 30, 2012.
The SJRWMD Permit No. 4- 117 -0213C Expiration date has been extended from January
10, 2009 to January 10, 2011.
Facilities and Services
Mitigation for all traffic impacts through the build out date has been completed. As stated in the
Seminole County Development Order, the Seminole County Commission has determined that
"adequate public facilities are available for Phase 1, Phase 2, and Phase 3 of the Project." Phase
3 of the development plan includes development of Parcel 14 (parcels 14A and 14B).
Major access to the site is by way of Red Bug Lake Road, a 6 -laned minor arterial roadway,
currently operating at Level of Service "B ", between Slavia Road and SR 417. The
Development Order is required to not reduce the levels of service below the adopted level of
service standards (9J- 5.0055, FAC). The site has direct access to Dovera Drive and there is a
recorded cross - access easement between Parcel 14B and the adjacent property to the south along
Dovera Drive (Lot 12). Personal storage facilities have very low traffic generation rates, in
comparison to retail, office, or residential and peak hours of traffic generation are typically
different than those of retail, office, or residential.
Seminole County currently provides water and sanitary sewer via a utility service agreement
between Seminole County and the City of Winter Springs. The County has indicated that there
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December 13, 2010
Regular Agenda Item 604
Page 6 of 8
is sufficient capacity to serve the development without lowering the County's adopted level of
service.
Fire and Police have in place a First Responder Agreement, which means that the closest station
responds to the emergency. The closest station to Parcel 14 is Seminole County Fire Station 27
on Red Bug Road. The closest Winter Springs Fire Station is Station 26 on Northern Way in
Tuscawilla.
Compatibility with Surrounding Development
The proposed development is compatible with surrounding uses including the Florida Hospital
Sports Medicine and Rehabilitation Facility.
Compatibility with Comprehensive Plan
The proposed change is consistent with the adopted future land use designation of Mixed Use
(which allows residential along with retail and office commercial and which stipulates that no
more than 75% of any one type of land use will be permitted to dominate the site [Future Land
Use Element, Policy 4.2.1]).
Traffic Analysis
Parcel 14 of the Oviedo Marketplace Development of Regional Impact originally allowed a
retail/office land use of up to 160,000 square feet (SF). A Notice of Proposed Change (NOPC)
was approved by the City Commission on March 27, 2006 allowing 29,000 SF of the 160,000 SF
of retail/office use on Parcel 14 to be converted to a maximum of 100 residential townhome
units. Of the remaining 131,000 SF of retail/office, 45,000 SF has been consumed by the
existing Inwood office building, leaving 86,000 SF of available retail/office use on Parcel 14.
The current proposal would substitute up to 100,000 SF of storage / mini- warehouse for the
remaining 86,000 SF of retail/office, and it allows the 100 residential townhome units to be
developed as either 100 residential units (townhome or condominium), 184 senior adult
independent living units, 318 assisted living beds, or some equivalent combination.
As shown in the table below, the proposed land use change to storage / mini- warehouse results in
a significant reduction in the potential daily trip generation for Parcel 14.
Land Use Size Daily Trip
Generation
(ITE)
Original Plan
Retail / Office 160,000 SF 9,218
NOPC Update March
2006
Retail / Office 131,000 SF 8,094
Townhome / Condo 100 units 642
Total 8,736
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December 13, 2010
Regular Agenda Item 604
Page 7 of 8
Current Plan
Inwood Office Building 45,000 SF 721
Retail / Office 86,000 SF 6,157
Townhome / Condo 100 units 642
Total 7,520
Proposed Plan
Inwood Office Building 45,000 SF 721
Mini - Warehouse 100,000 SF 250
Residential* 100 units 642
Total 1,613
* Residential units may consist of either 100 townhouse /condominium units, 184 senior adult
housing units (Independent living facility), or 318 beds (Adult Congregate Living
Facility /Continuous Care Retirement Center). Residential unit types may be mixed as long as
the total daily residential trip generation does not exceed 642.
FINDINGS OF FACT:
1. The proposed uses are consistent with the City's Comprehensive Plan.
2. Staff has received multiple inquiries over the past several years relative to the need for and
possible provision of senior care and housing facilities in the City of Winter Springs.
3. The proposed uses will be compatible with surrounding development, including the Florida
Hospital Sports Medicine and Rehabilitation facility.
4. The proposed use options significantly reduce the potential trip generation for Parcel 14.
5. The preliminary financial analysis (detailed later in this agenda item) indicates a potential
reduction in tax revenues of $4,500 if the independent living facility were fully developed
and a potential increase in tax revenues of $8,000 if the continuous care retirement center
were fully developed. The increase and decrease in tax revenues were measured from the
base tax revenue generated if the property were developed as 100 townhomes.
FISCAL IMPACT:
The applicant is requesting that the remaining portion of Parcel 14 -B, currently approved for 100
townhomes /condominiums, also be allowed an option for a maximum of 184 independent living
units(ILF), a maximum of 318 assisted living beds(ALF), or a combination of the two uses
subject to the conversion ratios of the proposed Second Implementation Agreement.
The potential tax revenue of the three proposed development scenarios is as follows:
Townhouse /condominium (100 units)
Units (1845 square feet) - assessed at $90 /square foot: $16,605,000 assessed tax value
$16,605,000/1000 = 16,605
16,605 (2.5814) = $42,864.15
$42,864.15 (less the 4% statutory discount) = $41,149.58 tax revenue
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December 13, 2010
Regular Agenda Item 604
Page 8 of 8
Independent living facility (184 units)
210,893 square feet — assessed at $70 /square foot: $14,762,510 assessed tax value
$14,762,510/1000 = 14,762.51
14,762.51 (2.5814) = $38,107.94
$38,107.94 (less the 4% statutory discount) = $36,583.63 tax revenue
Assisted living facility (318 beds), aka: Continuous care retirement center
283,195 square feet — assessed at $70 /square foot: $19,823,650 assessed tax value
$19,823,650/1000 = 19,823.65
19,823.65 (2.5814) = $$51,172.77
$51,172.77 (less the 4% statutory discount) = $49,125.86 tax revenue
COMMUNICATION EFFORTS:
This Agenda Item has been forwarded to the Mayor and City Commission; City Manager; City
Attorney /Staff; placed in Press Packets; placed in the City Hall (Lobby) City Commission
Meeting binder; and is available on the City's Website, LaserFiche, and the City's Server.
Additionally, information related to this Agenda Item has been sent to media/press
representatives who have requested Agendas/Agenda Item information, all Homeowner's
Associations on file with the City, all individuals who have requested Agendas/Agenda Item
information, Department Directors; and also posted outside City Hall; posted inside City Hall
with additional copies available for the general public; and posted at five (5) different locations
around the City.
RECOMMENDATION: Staff recommends the City Commission approve the
Second Implementation Agreement for Parcel 14 -B of the Oviedo Marketplace PUD to allow a
certain amount of flexibility in the composition of the residential development of Parcel 14 -B to
include an independent living facility (up to 184 units) or an Adult Congregate Living Facility
(ALF — also known as a continuous care retirement center) (up to 318 beds) on the remainder of
Parcel 14 -B, as options to the currently approved 100 townhouse /condominiums. Any proposed
development request will still be subject to staff review and City Commission approval.
ATTACHMENTS:
A- Draft of the Oviedo Marketplace Parcel 14B — Second Implementation Agreement
Page 8
ATTACHMENT A
DRAFT 11/15/10
Prepared By:
Katherine W. Latorre
Winter Springs Assistant City Attorney
Brown, Garganese, Weiss & D'Agresta, P.A.
1 I 1 N. Orange Avenue, Suite 2000
Orlando, FL 32802 -2873
(407) 425-9566
OVIEDO MARKETPLACE PARCEL 14B
SECOND IMPLEMENTATION AGREEMENT
THIS SECOND IMPLEMENTATION AGREEMENT ( "Agreement ") is entered into as
of the _ day of , 2010, between the CITY OF WINTER SPRINGS, a Florida
municipal corporation ( "City "), and THE VIERA COMPANY, a Florida corporation
( "Developer ").
WITNESSETH:
WHEREAS, the purpose of this Agreement is to implement the Oviedo Marketplace
Development of Regional Impact ( "DRI") Development Order for the development of Parcel 14B;
and
WHEREAS, Developer is the owner in fee simple of certain real property known as "Parcel
14B" containing approximately 11.265 acres subject to development, more or less, located in the
City of Winter Springs within the Oviedo Marketplace DRI, legally described herein ( "Property ");
and
WHEREAS, the Property is subject to that certain City of Winter Springs DRI Development
Order for Oviedo Marketplace (formerly Oviedo Crossing) dated November 12, 2001 and recorded
January 17, 2002 in Official Records Book 4298, Page 1855 of the Public Records of Seminole
County, Florida ( "Winter Springs DO ") as amended by that certain First Amendment to the DRI
Development Order for Oviedo Marketplace dated February 27, 2006 and recorded May 3, 2006 in
Official Records Book 06228, Page 1402, of the Public Records of Seminole County, Florida ( "First
Amendment to Winter Springs DO ") and as implemented by that certain Oviedo Marketplace Parcel
14B Implementation Agreement dated October 29, 2009 and recorded November 19, 2009 in Book
7290, Page 1801, Public Records of Seminole County, Florida (the "First Implementation
Agreement "). The Winter Springs DO, the First Amendment to Winter Springs DO and the First
Implementation Agreement are hereinafter collectively referred to herein as the "Development
Order "; and
WHEREAS, the Property is zoned P.U.D. in accordance with the Code of Ordinances, City
of Winter Springs, Chapter 20, Article IV, Planned Unit Developments, Division 2. Part A. Planned
Unit Developments, which such zoning classification authorizes residential dwelling units and
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page I of 8
DRAFT 11/15/10
supportive commercial and/or industrial land uses so long as they are complimentary to and
compatible with each other; and
WHEREAS, the Development Order authorizes "Residential" development on the Property;
and
WHEREAS, Developer has requested that the City authorize the development of the
residential portion of the Property as fee simple attached townhome or condominium residences; an
independent living facility, an assisted living facility, or any combination of these uses, pursuant to
the terms and conditions of this Agreement; and
WHEREAS, the City and Developer desire to memorialize their mutual understanding and
agreement as to the character and scope of the "Residential" development of the Property consistent
with the terms of the Development Order; and
WHEREAS, the City finds that fee simple townhome or condominium residences; an
independent living facility and/or an assisted living facility, subject to the limitations set forth herein,
are consistent with the Property's development designation of "Residential" as set forth in the
Development Order and further, that such uses are complimentary to and compatible with the other
uses allowed on the Property pursuant to the Development Order and with existing development
adjacent to the Property; and
WHEREAS, the City desires to provide Developer with a certain amount of flexibility
related to the residential development so that the Property may be developed with a blend of uses to
meet a variety of the City's needs, while ensuring that any such development does not become
inconsistent with the City's previous approval for residential development; and
WHEREAS, to insure that any residential development now or hereafter constructed on the
Property is complementary to and compatible with other uses allowed on the Property pursuant to the
Development Order and with existing development adjacent to the Property, the City has requested
that Developer place further restrictions on the Property to prohibit non - complementary and
incompatible residential uses on the Property; and
WHEREAS, the City is authorized to regulate the development of the Property; and
WHEREAS, Developer is agreeable to further restricting the Property to insure that any
residential development now or hereafter constructed on the Property is complementary to and
compatible with the other permitted and existing uses on the Property and consistent with the
Development Order.
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 2 of 8
DRAFT 11/15/10
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the City,
the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference as a material part of this Agreement.
2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home
Rule Powers Act.
3. Property. The Property subject to the terms and conditions of this Agreement is
legally described in Exhibit "A," attached hereto and fully incorporated herein by this reference.
4. Residential Development. The City hereby finds that fee simple attached townhome
or condominium residences, an independent living facility ( "ILF "), an assisted living facility
("ALF'), or any combination of same, subject to the limitations set forth herein, are consistent with
the "Residential" use designation on the Property. Developer shall develop the 100 Residential units
authorized on the Property by the Development Order, subject to the following limitations and
conditions:
A. Authorized Residential Uses. Residential development on the Property shall be
limited to the following uses and any uses not specifically stated in this subsection shall be
strictly prohibited on the Property:
i. Townhomes or Condominiums. Townhome or condominium units shall be
fee simple attached residences.
ii. ILF. For purposes of this Agreement, an ILF shall mean and refer to a
residential housing project for older persons which is developed, marketed and
administered to restrict residents under a specific age and containing units intended
for occupancy by at least one (1) person of a specific age or older, all in a manner
which is lawful and in full compliance with all federal, state and local laws,
ordinances and requirements applicable to housing projects for older persons. The
term "ILF' for purposes of this Agreement shall not include residential development
which is not age restricted in accordance with the laws referenced above, even if said
development may be marketed to retired persons or is predominantly composed of
older or retired residents.
iii. ALF. For purposes of this Agreement, an ALF is defined as any building,
or buildings, or distinct part of a building, whether operated for profit or not, which
undertakes, through its ownership or management, to provide housing, meals, and
Second Implementation Agreement
City of Winter Springs / The Viera Company
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DRAFT 11/15/10
one or more personal services for a period exceeding 24 hours to one (1) or more
adults who are not relatives of the owner or administrator.
B. Residential Units. As used in this section, each one (1) "residential unit" shall
equal:
i. One (1) fee simple attached townhome or condominium residential unit;
ii. 1.84 ILF units; or
iii. 3.18 ALF beds.
C. Combination of Residential Development. Developer may develop the Property in
any combination of the authorized residential uses set forth above provided the total number
of residential units does not exceed 100 units and provided the total daily residential trip
generation does not exceed 642 trips pursuant to the ITE, Trip Generation, 7 Edition (as
applied to 100 approved townhome units for Land Use 230).
D. Conversion of Residential Development. Upon completion of the residential
development of the Property, Developer shall be prohibited from converting any portion of
the residential development to another residential use authorized by this Agreement without
the prior, written consent of the City Commission.
5. Compliance with Ordinances and Regulations. Developer shall comply with all
ordinances and regulations of the City (including, but not limited to, the City Land Development
Regulations), which are applicable to the development of the Property.
6. Representations of the Parties. The City and Developer 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 Developer and recorded in the Public Records of Seminole 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. Developer 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
7. Successors and Assigns. This Agreement shall automatically be binding upon and
shall inure to the benefit of the City and Developer 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.
8. Applicable Law; Venue. This Agreement shall be governed by and construed in
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City of Winter Springs / The Viera Company
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DRAFT 11/15/10
accordance with the laws of the State of Florida. The parties agree that venue shall be exclusively in
Seminole 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.
9. 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 Commission.
10. 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 Developer as to the subject matter hereof. The Exhibits attached
hereto and referenced herein are hereby fully incorporated herein by this reference.
11. 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.
12. Effective Date. This Agreement shall become effective upon approval by the City
Commission and execution of this Agreement by both parties hereto.
13. Recordation. This Agreement shall be recorded in the Public Records of Seminole
County, Florida.
14. Relationship of the Parties. The relationship of the parties to this Agreement is
contractual and Developer 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.
15. 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).
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16. City's Police Power. Developer 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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. The failure of this Agreement to address any particular City, County, State and/or
Federal permit, condition, term or restriction shall not relieve Developer 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 Developer is in
breach of any term and condition of this Agreement.
22. 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.
23. Termination. The City shall have the unconditional right, but not obligation, to
terminate this Agreement, without notice or penalty, if Developer fails to receive building permits
and substantially commence construction of Project within three (3) years of the effective date of this
Agreement. In addition, the City shall have the right, but not obligation, to terminate the Agreement
if Developer permanently abandons construction of the Project, provided, however, the City shall
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first deliver written notice and an opportunity to cure as set forth in Section 22 herein. If the City
terminates this Agreement, the City shall record a notice of termination in the public records of
Seminole County, Florida.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed
as of the day and year first written above.
CITY OF WINTER SPRINGS, a Florida
municipal corporation.
By:
Charles Lacey, Mayor
ATTEST:
By:
Andrea Lorenzo - Luaces, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
CITY SEAL Date:
By:
Anthony A. Garganese, City Attorney for
the City of Winter Springs, Florida
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Signed, sealed and delivered in the THE VIERA COMPANY, a Florida corporation.
presence of the following witnesses:
By:
Print Name:
Signature of Witness
Title:
Printed Name of Witness
Date:
Signature of Witness
Printed Name of Witness
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2010, by
, as of THE VIERA COMPANY, a Florida
corporation, on behalf of said company. He /She 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:
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