HomeMy WebLinkAbout2012 03 26 Regular 603 Requesting Commission consider Oviedo Marketplace Agreement Modification
COMMISSION AGENDA
Informational
Consent
ITEM603
Public Hearings
Regular
X
March 26, 2012KSRS
Regular MeetingCity ManagerDepartment
REQUEST:
The Community Development Department requests that the City Commission consider
approving a revision to the Oviedo Marketplace Parcel 14B Second Implementation
Agreement to add fee simple, single family residential units, as an authorized residential use
on Parcel 14B of the Oviedo Marketplace PUD (and Development of Regional Impact -
DRI).
SYNOPSIS:
The requested revision to the Second Implementation Agreement for Parcel 14-B of the
Oviedo Marketplace PUD will allow an additional option for the development of the subject
parcel while still meeting the requirements of the original Oviedo Marketplace PUD/DRI.
The applicant has an active proposal for the development of the parcel as 36 single family
units.
CONSIDERATIONS:
The Development Order applicable to the Oviedo Marketplace DRI authorizes 100 units of
townhome/condominium development on Parcel 14B. On December 13, 2010, the City
Commission approved the Oviedo Marketplace Parcel 14B Second Implementation
Agreement (the “Agreement”) to permit the Developer a certain amount of flexibility in the
composition of the residential development of Parcel 14B. In addition to the
townhome/condominium use already authorized on the Property, the Agreement authorized
the Developer to develop an Independent Living Facility or an Assistant Living Facility (a
continuous care retirement center) on the remainder of Parcel 14B, subject to certain density
limitations consistent with the Development Order.
Regular 603 PAGE 1 OF 8 - March 26, 2012
The Developer recently approached the City requesting an additional modification to the
Agreement before the previously approved agreement is recorded in the public records of
the county. The Developer desires to have the option to develop fee simple, detached single
family residential units on Parcel 14B, in addition to the residential uses already
authorized. If the Commission approves this new request, the request will be incorporated
into the Second Implementation Agreement and recorded in the Seminole County Official
Records.
This revision would allow the Developer even more flexibility as to the residential uses
authorized on the Property. Each of the residential uses approved for Parcel 14B is subject
to density limitations to ensure the total daily residential trip generation does not exceed
th
642 trips pursuant to the ITE, Trip Generation, 7 Edition, which was used in the traffic
analysis for the townhome use initially approved in the Development Order for Parcel 14B.
If the City Commission approves the fee simple, detached single family residential use for
Parcel 14B, it will also be limited consistent with this traffic analysis (1 townhome unit =
0.56 single family residential units). Any proposed development request will still be subject
to staff review and City Commission approval.
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, and the City Commission approved an Implementation Agreement to allow up to
100,000 square feet of personal storage/mini-warehouse within Parcel 14-B. The applicant
then requested that the remaining developable portion of Parcel 14-B be approved for 184
independent living units or a maximum of 318 assisted living beds (ALF). The City
Commission approved a Second Implementation Agreement on December 13, 2010
approving the request subject to certain density limitations.
The current request seeks to revise the Second Implementation Agreement to permit the
Developer an additional option for single-family residential units on Parcel 14-B. This
option would be in addition to the previously approved townhouse/condominium, ILF or
ALF developments, each of which is subject to certain maximum number of units 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.
Regular 603 PAGE 2 OF 8 - March 26, 2012
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).
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 Uses Zoning FLUM
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) & PUD PD (OV) & HIPD (SC)
and Stormwater Retention(SC)
West Single Family Residential R-1A (SC) Low Density Residential (SC)
(WS) Winter Springs; (SC) Seminole County; (OV) Oviedo
Regular 603 PAGE 3 OF 8 - March 26, 2012
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 30, 2016. Of
the 49.5 acres, only 15.1 are stated to be developable (15.1developable 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.
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 revise the
Second Implementation Agreement to permit the Developer an additional option for single-
family residential units on Parcel 14-B. This option would be in addition to the previously
approved townhouse/condominium, ILF or ALF developments, each of which is subject to
certain maximum number of units if the entire remaining developable portion of Parcel 14-
B were devoted to the single unit type.
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 has been extended to December 30, 2016.
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
Phase 3 of the development plan includes development of Parcel 14
the Project.”
(parcels 14A and 14B).
Regular 603 PAGE 4 OF 8 - March 26, 2012
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).
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 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 revise the Second Implementation Agreement to permit the
Developer an additional option for single-family residential units on Parcel 14-B. This
option would be in addition to the previously approved townhouse/condominium, ILF or
ALF developments, each of which is subject to certain maximum number of units 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.
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.
Regular 603 PAGE 5 OF 8 - March 26, 2012
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
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
Residential (36 fee simple, 36 units 345
single family residential units)
*
Total 1,066
* Residential units may consist of either fee simple, 36 detached single family residential
units, 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.
FISCAL IMPACT:
The applicant is requesting that the remaining portion of Parcel 14-B, currently approved
for a maximum of 184 independent living units (ILF), a maximum of 318 assisted living
beds (ALF), or a combination of the two uses, also be allowed an option for 36 fee simple,
detached single family residential units, in addition to the townhouse/condominium units
permitted pursuant to the Development Order. Any approved use on Parcel 14B shall be
subject to the conversion ratios set forth in the revised Second Implementation Agreement.
Regular 603 PAGE 6 OF 8 - March 26, 2012
The potential tax revenue of the three proposed development scenarios is as follows:
Fee Simple Single Family Residential Units (36 units)
Units (2327 square feet) - assessed at $90/square foot: $7,539,480 assessed tax value
$7,539,480/1000 = 7,539.48
7,539.48 (2.5600) = $19,301.07
$18,529.03 tax revenue
$19,301.07 (less the 4% statutory discount) =
Townhouse/Condominium (100 units)
Units (1845 square feet) - assessed at $85/square foot: $15,682,500 assessed tax value
$15,682,500/1000 = 15,682.5
15,682.5 (2.5600) = $40,147.2
$38,541.31 tax revenue
$40,147.2 (less the 4% statutory discount) =
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 (2.5600) = $37,792.03
$36,280.35 tax revenue
$37,792.03 (less the 4% statutory discount) =
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 (2.5600) = $50,748.54
$48,718.6 tax revenue
$50,748.54 (less the 4% statutory discount) =
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney/Staff, and is available on the City’s Website, LaserFiche, and
the City’s Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City’s Website, LaserFiche, and the City’s
Server; has been sent to applicable City Staff, Media/Press Representatives who have
requested Agendas/Agenda Item information, Homeowner’s Associations/Representatives
on file with the City, and all individuals who have requested such information. This
information has also been 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. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
S
taff recommends the City Commission approve the revision to the Second
Implementation Agreement for Parcel 14-B of the Oviedo Marketplace PUD to allow
additional flexibility in the composition of the residential development of Parcel 14-B to
include fee simple, detached single-family residential units, townhouse/condominium units,
an independent living facility; or an Assisted Living Facility ( also known as a continuous
Regular 603 PAGE 7 OF 8 - March 26, 2012
care retirement center) on the remainder of Parcel 14-B, subject to the conversion ratios
included in the revision to the Second Implementation Agreement. Any proposed
development request will still be subject to staff review and City Commission approval.
ATTACHMENTS:
Oviedo Marketplace Parcel 14B Second Implementation Agreement
Regular 603 PAGE 8 OF 8 - March 26, 2012
Prepared By:
Katherine W. Latorre
Winter Springs Assistant City Attorney
Brown, Garganese, Weiss & D’Agresta, P.A.
111 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
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CITY OF WINTER SPRINGS
of the 26 day of March, 2012, between the , a Florida municipal
THE VIERA COMPANY
corporation (“City”), and , a Florida corporation (“Developer”).
W I T N E S S E T H:
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
supportive commercial and/or industrial land uses so long as they are complimentary to and
compatible with each other; and
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 1 of 8
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, detached single family units; 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, detached single family units; fee simple, attached
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.
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:
Recitals.
1. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference as a material part of this Agreement.
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 2 of 8
Authority.
2. This Agreement is entered into pursuant to the Florida Municipal Home
Rule Powers Act.
Property.
3. The Property subject to the terms and conditions of this Agreement is
Exhibit “A,”
legally described in attached hereto and fully incorporated herein by this reference.
Residential Development.
4. The City hereby finds that fee simple, detached single
family units; 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. Single Family Units. Single family units shall be fee simple, detached single
family residences.
ii. Townhomes or Condominiums. Townhomes or condominium units shall
be fee simple attached residences.
iii. 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.
iv. 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 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. 0.56 fee simple, detached single family residential units;
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 3 of 8
ii. One (1) fee simple, attached townhome or condominium residential unit;
iii. 1.84 ILF units; or
iv. 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 total units and provided the total daily residential trip
th
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.
Compliance with Ordinances and Regulations.
5. 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.
Representations of the Parties.
6. 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
Successors and Assigns.
7. 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.
Applicable Law; Venue
8.. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The parties agree that venue shall be exclusively in
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.
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 4 of 8
Amendments
9.. 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.
Entire Agreement; Exhibits
10.. 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.
Severability
11.. 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.
Effective Date
12.. This Agreement shall become effective upon approval by the City
Commission and execution of this Agreement by both parties hereto.
Recordation
13.. This Agreement shall be recorded in the Public Records of Seminole
County, Florida.
Relationship of the Parties
14.. 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.
Sovereign Immunity
15.. 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).
City's Police Power
16.. 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.
Interpretation
17.. 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.
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 5 of 8
Third-Party Rights
18.. 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.
Specific Performance
19.. 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.
Attorney's Fees
20.. 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.
Development Permits
21.. 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.
Default; Opportunity to Cure.
22. 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.
Termination.
23. 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 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.
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 6 of 8
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.
Date:
CITY SEAL
By:
Anthony A. Garganese, City Attorney for
the City of Winter Springs, Florida
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 7 of 8
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 ______________, 2012, by
THE VIERA COMPANY
______________________, as _________________ of , 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:
Second Implementation Agreement
City of Winter Springs / The Viera Company
Page 8 of 8