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This document was prepared by t4ARYANNE lIOR5E
and shou`id be returned to: SEMINONE MOUSEY CLERK OF CIRCUIT COURT
Chdrles C. Carrington, Esq. SE 0LE mL PG 0513
�Q )Greenberg Traurie. P.i� . CLERK'S # �003092g03
Orl S. Orange Ave., Suite 650 RECORDED 06/02/2a03 12.24:14 PM
Orlando,.FL 32801 RECORDING FEES 105.E@
RECORDED BY G Harfard
AGREEMENT
An Agreement made and entered into as of this 2 s day of August, 2000 by and
among JDC CALHOUN, INC., a Georgia corporation, herein referred to as UDC," and the City
of Winter Springs, a municipal corporation existing under the laws of the State of Florida, herein
referred to a$ "City."
RECITALS
WHEREAS, Section 163.3167, Florida Statutes, provides that each local government is
encouraged to articulate a vision of the future physical appearance and qualities of its community
as a component of the local comprehensive plan through a collaborative planning process with
meaningful public participation, and
WHEREAS, the City completed a comprehensive planning study, with extensive public
Participation from local residents and local, county, and state officials, which resulted in the
adoption of the Winter Springs Town Center Plan, and
WHEREAS, pursuant to that certain Purchase and Sale Agreement between Laverne
Kingsbury and June Kingsbury, as sellers, and IDC, as purchaser, dated September 22, 1999, JDC
is the contract purchaser and will be the owner and developer of approximately fifteen (15) acres
of land located within the boundaries of the proposed City of Winter Springs Town Center and
more particularly described on Exhibit "A" attached hereto and by this reference made a part
hereof (the "JDC Property") and
WHEREAS, JDC and City desire to memorialize their understandings and agreement
regarding their respective interests, expectations, and intentions contained in this Agreement
regarding the Town Center.
NOW THEREFORE in consideration of the terms and conditions set forth in this
Agreement, and other good and valuable consideration, the receipt of which is hereby
acknowledged by the parties, the City and JDC agree to the following:
L Inca oration of Recitals.
The foregoing recitals are true and correct and are hereby fully incorporated herein by this
reference as a material part of this Agreement.
U. Definitions.
Unless the context clearly indicates otherwise, the following words and phrases when used
in this Agreement shall have the meaning ascribed below:
a) "City" shall mean the City of Winter Springs, a Florida municipal corporation.
b) "City Code" shall mean the City Code of the City of Winter Springs, Florida
including, but not limited to, the Town Center District Code.
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c) "Conceptual Site Plan" shall mean the three phase conceptual site plan which
JDC agrees to permit and develop on the JDC Property under the terms and conditions of this
Agreement and which is attached hereto as Exhibit "B" and fully incorporated herein by this
reference..
d) "Hickory Grove Park Boulevard" shall mean the planned urban boulevard
running from Magnolia Square west along the entirety of the north boundary line of the JDC
Property, as identified in the Town Center Plan and Town Center District Code.
e) "Hickory Grove Park North/South Extension Street" shall mean the Town
Center Street running from S.R 434 north along the entirety of the west boundary line of the JDC
Property and terminating at and connecting to Hickory Grove Park Boulevard.
fl "Hickory Grove Park" shall mean the "central park" as identified in the Town
Center Plan and Town Center District Code.
g) "Market Square Parcel" shall mean that portion of the JDC Property as
generally depicted in the Conceptual Site Plan. Market Square Parcel shall consist of
approximately thirtyl one -hundredths (0.30) acres.
h) "JDC" shall mean JDC Calhoun, Inc., a Georgia corporation.
i) "JDC Property" shall mean the real property to be acquired by JDC and located
in the Town Center District, as more particularly described in Exhibit "A" which is hereby fully
incorporated herein by this reference.
j) "Main Street Improvements" shall mean that portion of Main Street on the
Town Center Plan located from State Road 434 north to Magnolia Square (including pavement,
curbs and gutters, and stormwater facilities), as more particularly described in the Town Center
District Code.
k) "Town Center Plan" shall mean the sketch concept plan entitled "Winter Springs
Town Center Master Plan", prepared by Dover, Kohl & Partners, dated March 23, 1998, as
amended in February 2000, a copy of which is attached hereto as Exhibit "D" and hereby fully
incorporated herein by this reference.
1) "Town Center District" shall mean the town center area located in the City of
Winter Springs that is depicted in the attached Exhibit "E" which is hereby fully incorporated
herein by this reference.
m) "Town Center District Code" shall mean the Town Center Zoning District Code
adopted by the City Commission of Winter Springs on June 12, 2000, which is attached hereto as
Exhibit "F" and hereby fully incorporated herein by this reference
M. JDC Project ReauiremenI3 iind Conditions.
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In consideration of the mutual promises and consideration set forth in this Agreement,
JDC intends to permit and develop a three phase Town Center development project on JDC
Property located within the Town Center. JDC agrees to permit and develop the project under
the terms and conditions of this Agreement and the Town Center District Code. The final site
plan approved for the three phase project shall be in substantial conformity with the Conceptual
Site Plan unless otherwise approved by the City during the City's Town Center development
permit process. The City acknowledges that the layout of the Conceptual Site Plan is generally in
accordance with the Town Center District Code. Unless otherwise approved by the City, the final
site plan shall be designed and implemented as follows:
a) The development of the final site plan shall be in three phases as depicted on the
Conceptual Site Plan. Phase I is required to be constructed and shall be constructed in its entirety
and Phases H and III shall be constructed if JDC determines that market conditions permit such
construction, At JDC's discretion, JDC may develop the final site plan in less than three phases if
market conditions permit a more expedited development of the JDC Property. In addition, JDC
may, at its discretion, develop Phases II and III in portions.
b) In accordance with Phase I of the Conceptual Site Plan, the City agrees and
acknowledges that upon JDC complying with the permitting requirements of the Town Center
District Code, Phase I shall consist of: (i) a grocery store anchor building consisting of
approximately 44,000 retail square feet; (H) not less than 63,840 square feet of additional retail
development at the corner of Main Street and State Road 434 and along Main Street inclusive of
unfinished shell space pursuant to paragraph III(f) of this Agreement; and (iH) a parking ratio of
up to five (5) spaces per 1,000 retail square feet.
c) The drug store anchor which is contemplated to be constructed on the corner of State
Road.434 and Main Street may, at JDC's discretion, be permitted and constructed at another
Iocation along State Road 434, If so permitted and constructed, the drug store anchor will be
included as part of Phase I and another retail use shall be permitted and constructed at the
aforementioned comer in Phase I or Phase II. The City and JDC acknowledge that a restaurant
and/or b,WWoface use would also be suitable at the aforementioned corner.
d) All phases of retail development on the JDC Property, in addition to the grocery store
anchor, may be up to 272,000 retail square feet, unless otherwise agreed to by the parties.
Provided, however, the City encourages development in excess of 316,000 retail square feet.
e) JDC shall not permit or construct more than 45,000 square feet of buildings beyond
Phase I of the Conceptual Site Plan unless the next building permitted and constructed is the
northern most retail building on JDC Property along Main Street as depicted on Phase II of the
Conceptual Site Plan ("Final Main Street Building"). The Final Main Street Building may be
permitted and constructed simultaneously with another Phase II building above the
aforementioned 45,000 square foot threshold. Notwithstanding JDC may permit and construct
the Final Main Street Building sooner than required by this paragraph. The City strongly
encourages JDC to permit and construct the Final Main Street Building during Phase I_
f) The City prefers that all buildings constructed an the JDC Property be two (2) to four
(4) stories in height and that each story be suitable for occupancy. To that end, JDC and City
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agree the drugstore anchor (or other use as contemplated herein) on the corner of Main Street
and State Road 434 and the buildings located along Main Street shall be a minimum of two (2)
stories , but the second and higher stories may consist of a shell story consisting of finished
exterior walls, roof, windows, and other surfaces and an unfinished interior. All shell stories shall
be designed and engineered so as to accommodate occupancy at a later date. The City agrees that
all other buildings on the JDC Property may be one (1) story occupancy buildings provided that
JDC constructs the buildings to a height of at least two (2) stories in order to achieve the vertical
character and scale required by the Town Center District Code. JDC agrees that such one story
occupancy buildings will incorporate a parapet wall, which the City hereby deems acceptable, or
other architectural feature suitable to the City that visually make the buildings appear to be at least
two (2) story buildings on all sides. However, nothing contained in this paragraph shall prohibit
JDC from constructing full occupancy buildings of two (2) to four (4) stories, where not
otherwise required by this Agreement, if JDC determines that market conditions would allow such
construction.
g) The City prefers parallel parking along Main Street but agrees to construct diagonal
parking as depicted on the Conceptual Site Plan to the extent market conditions, in the sole
discretion of JDC, require the additional parking spaces afforded by such diagonal parking. If
said diagonal parking is constructed instead of parallel parking, JDC agrees to donate to the City
the additional right of way which may be needed to construct the diagonal parking. Nothing
contained in this Paragraph III (g) shall prohibit the City from constructing diagonal parking along
Main Street at its sole choosing and discretion.
h) JDC, at its discretion, shall be allowed to delete the buildings depicted on the Phase II
Conceptual Site Plan which are west of the grocery store anchor, provided JDC submits a site
plan, acceptable to the City, that substitutes the buildings with: (i) parking; (ii) a pocket park of
not greater than 1200 square feet (unless a larger pocket park is agreed to by JDC) which shall
.incorporate a kiosk, gazebo, pergola, water fountain or similar architectural feature; and (iii) a
landscape buffer for facilities along the rear of the grocery store anchor. The City agrees not to
unreasonably withhold such acceptance provided the site plan complies with the City Code.
IV. .1DQ Initial ❑bli a inns and C nditiam.
Upowthe Effective Date of this Agreement, JDC agrees to perform the following:
a) Promptly use all reasonable and best efforts to complete the acquisition of the JDC
Property pursuant to its existing contract rights and provide written notice of the acquisition to
the City. However, in the event that JDC does not acquire fee simple ownership of the JDC
Property by the closing date set forth under the terms of the existing purchase contract, then this
Agreement shall be automatically terminated and nullified, in which event the parties obligations
under this Agreement shall be and become null and void and of no tiarther effect. JDC shall
promptly provide the City written notice if JDC fails to close on the JDC Property.
b) Promptly use all reasonable and best efforts to secure a grocery store anchor and a
drug store anchor as contemplated under Phase I of the Conceptual Site Plan. In the event JDC
is not successful in securing both the grocery store anchor and drugstore anchor, JDC shall have
the right to terminate this Agreement by providing prompt written notice to the City. JDC shall
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provide the City prompt written notice at such time JDC has secured each of the grocery store
anchor and drugstore anchor.
c) Promptly commence the design, engineering and permitting of Phase I of the
Conceptual Site Plan. If the City takes final action disapproving the final site plan for Phase I of
the Conceptual Site Plan or any Special Exception listed in Paragraph XII of this Agreement, JDC
shall have a right to terminate this Agreement by providing the City written notice of said
termination within seven (7) days of the City's final action of disapproval.
d) Promptly commence and within ninety (90) days following the Effective Date of
this Agreement submit a conceptual stormwater application to the St. John's Water Management
District, and acquire a construction permit for the construction of surface/stormwater drainage
improvements on JDC Property which will be necessary to collect and discharge
surface/stormwater on and froth the JDC Property to the City's stormwater system_ The
construction permit shall be obtained by JDC within twelve (12) months from the Effective Date
of this Agreement or by the date of issuance of the building permits and commencement of
construction for both the grocery store anchor and drug store anchor, whichever occurs later. In
addition, within forty-five (45) days from the Effective Date of this Agreement, JDC's engineers
shall provide the City's Utilities Director with estimated surface/stormwater volume and flows
expected to be generated, and discharged to the City's stormwater system, from the complete
build -out of Phase III of the Conceptual Site Plan, JDC acknowledges that the City will use and
rely on these estimates in obtaining a surfacelstormwater construction permit as required in
Paragraph V(d) within 12 months from the Effective Date of this Agreement. JDC agrees that
City's engineers (who shall be qualified and experienced in stormwater engineering and
permitting) will be able to provide input into the design and permitting process for the
surfaceJstormwater drainage improvements on JDC Property for purposes of providing the City
with reasonable_ assurance that the improvements will properly discharge surface/stormwater into
the City stormwater system and that any and all applications and/or submittals to the St. John's
Water Management District will be subject to reasonable and timely review and approval by
City's engineers. City's engineers shall complete said review pursuant to JDC's reasonable time
schedule and shall not unreasonably withhold said approval.
V. Ql's Initial Obligations and Conditions
Upon the Effective Date of this Agreement, the City agrees to perform, at its expense, the
following:
a) Promptly commence the design, engineering and permitting to extend and connect
(ie., "stub in") City water distribution and sewer collection facilities to the boundaries of the JDC
Property in order to provide sufficient capacity to reasonably accommodate and guarantee the
level of service capacity required for the Town Center and the JDC Property as developed in
accordance with Phase III of the Conceptual Site Plan, The City shall not be required to extend
either sewer or water facilities into the interior portion of the JDC Property unless agreed upon in
future written developer agreements. The City also guarantees sufficient capacity within the sewer
and water treatment plants to reasonably accommodate and guarantee the level of service required
for the Town Center and JDC Property , as stated above. The City will fully complete such
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design, engineering (100% plans) and permitting not later than twelve (12) months from the
Effective Date of this Agreement.
b) Promptly commence the design, engineering and permitting of Hickory Grove Park
Boulevard and Hickory Grove Park Nonh/South Extension Street.' The City will fully complete
such design, engineering (100% plans) and permitting not later than twelve (12) months after the
Effective Date of this Agreement. Provided, however, the obligations of the parties under this
Agreement shall be contingent upon the City successfully entering into a binding purchase
contract to acquire the necessary right-of-way for Hickory Grove Park Boulevard and Hickory
Grove Park North/South Extension Street not later than ninety (90) days after the Effective Date,
failing which, either party hereto shall be entitled to cancel this Agreement by written notice
thereof to the other party given not later than one hundred (100) days after the Effective Date. In
connection with such acquisition and right of termination, the City agrees to furnish JDC copies of
the purchase contract, as amended, relating to such acquisition not later than ninety (90) days
after the Effective Date. The City acknowledges and agrees that JDC shall be entitled to exercise
the foregoing right of termination in the event the terms for closing the final purchase contract are
not acceptable to JDC, it being the intention hereof that the purchase contract snail provide JDC
strong assurance that the purchase will actually close in a timely manner and the City will be in a
position to fulfill its obligation to construct Hickory Grove Park Boulevard and Hickory Grove
Park North/South Extension Street. Anything herein to the contrary notwithstanding, the City
shall be obligated to actually close on such purchase transaction not later than the date of issuance
of the building permits and commencement of construction of all or any portion of Phase 11 of
the Conceptual Site Plan. Notwithstanding, the City shall have the right to terminate the final
Purchase contract for Hickory Grove Park Boulevard and Hickory Grove Park North/South
Extension: Street if JDC fails to obtain a grocery store anchor and drug store anchor for the JDC
Property.
c) Promptly commence the design, engineering and permitting of the Main Street
Improvements as provided in paragraph VI(b) of this Agreement. The City will fully complete
such design, engineering (100% plans) and permitting within 12 months of the EfFective Date of
this Agreement.
d) , Promptly commence, and within ninety (90) days following the Effective Date
submit, a conceptual stormwater application to the St. John's Water Management District, and
acquire a construction permit for the construction of surface/storm water drainage improvements
to service the JDC Property, as provided in paragraph VI(b), and other portions of the Town
Center within twelve (12) months from the Effective Date. The City agrees that JDC's engineers
(who shall be qualified and experienced in stormwater engineering and permitting) will be able to
provide input into the design and permitting process for the surface/stormwater drainage
improvements and that any and all applications and/or submittals to the St. John's Water
Management District will be subject to reasonable and timely review and approval by JDC's
engineers. JDC's engineers shall complete said review pursuant to the City's reasonable time
schedule and shall not unreasonably withhold said approval. The City acknowledges and agrees
that no retention/detention areas and/or ponds shall be located on JDC Property and that no other
portion(s) of the City's surface/storm water drainage improvements shall be located on the JDC
Property without JDC's approval, it being the intention Hereof that the City's facilities shall
J.
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accommodate all surface/stormwater from the JDC Property as developed in accordance with
Phase III of the Conceptual Site Plan and that JDC's facilities shall serve to collect such
surface/stormwater for discharge into the City's system. The City agrees that JDC shall have the
nonexclusive right in perpetuity to use the surface/stormwater drainage improvements to
discharge surface/stormwater generated from the JDC Property at volumes consistent with the
Phase III development of the Conceptual Site Plan. JDC acknowledges and agrees that following
installation of such surface/storm water drainage improvements, the JDC Property shall be subject
to an obligation to contribute to the costs of maintenance thereof on the same basis as other
property owners served thereby under the City's municipal stormwater utility system. Upon
reasonable request of JDC, and as may be reasonably needed by JDC from time to time, the City
agrees to furnish JDC with a written letter or other documentation as customarily provided by the
City to evidence that JDC has the aforementioned discharge rights as provided in this paragraph
V(d) in satisfaction of the requirements of JDC's construction and/or permanent lender and
prospective tenants on the JDC Property. Provided, however, the obligations of the City to
acquire the stormwater construction permit from St. John's Water Management District shall be
contingent upon the City finding suitable property to construct the City's surface/stormwater
drainage improvements which are necessary to serve the JDC Property and the Town Center as
contemplated by this Agreement Suitable property may be obtained either by successfully
entering into a binding contract with the Seminole County School Board to acquire the right to
use (by easement, license, or ownership) school board property or by using some other alternative
property (not JDC Property) deemed suitable by the City. If the City fails to acquire such
suitable property, either party hereto shall be entitled to cancel this Agreement by written notice
thereof to the other party given not later than one hundred eighty (180) days after the Effective
Date.
VI. City's Conditional Obligations
. Upon JDC purchasing the JDC Property and obtaining building permits and commencing
construction for each of the grocery anchor and drugstore anchor, the City agrees, at its expense,
to perform the following upon completion of the applicable design, engineering, and permitting
set forth in Paragraph V of this Agreement:
a) Actually commencer and within twelve (12) months thereafter fully complete, the
construction of facilities and improvements to extend and connect (i.e., "stub in") City water
distribution and sewer collection facilities to the boundaries of the JDC Property as provided for
in paragraph V(a) of this Agreement, The City shall not be required to extend either sewer or
water facilities into the interior portion of the JDC Property unless agreed upon in future written
developer agreements. The City also agrees that no special City water or sewer connection charge
or assessment will be applied to the JDC Property for purposes of reimbursing the City for the
expense of extending and connecting the City's water distribution and sewer collection facilities to
JDC Property as described above; provided, however, individual users within the JDC Property
may he charged the same normal and regular "City-wide" connection fee that is customarily
charged to all other individual users within the City for connecting into and utilizing the "City-
wide" water and sewer capacity.
b) Actually commence, and within twelve (12) months thereafter fully complete, the
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construction of facilities and improvements comprising the Main Street Improvements. The City
shall, as pan of the construction of the Main Street Improvements, install surface/storm water
drainage improvements sufficient to accommodate all surface/storm water drainage from Main
Street and from the JDC Property, as developed in accordance with the development of the entire
Phase III Conceptual Site Plan.
c) At such time as JDC, or its successor or assigns, obtains building permits and
commences construction of a building or buildings beyond Phase I of the Conceptual Site Plan,
actually commence, and within twelve (12) months thereafter fully complete, the construction of
Hickory Grove Park Boulevard and Hickory Grove Park Nortb/South Extension Street.
In addition, JDC agrees to provide the City with at least ninety (90) days written notice of
its scheduled construction commencement date of both the grocery store anchor and drug stare
anchor and Phase Il construction for purposes of giving the City a reasonable opportunity to
publicly bid the City construction projects contemplated in this paragraph VI so that construction
can be completed in a timely manner. Failure by JDC to provide timely notice will extend the time
the City has to complete the construction by the number of days the notice was determined by the
City to be untimely.
VIE. Cnaygyances from JDC to the -City.
a) JDC agrees that at such time as JDC shall have obtained building permits for and
commenced construction of each of the grocery anchor and drugstore anchor users as
contemplated in this Agreement, JDC will convey to the City fee simple title to (i) the Market
Square Parcel, and (ii) the eleven (11) foot wide strip of land needed for right-of-way and other
municipal purposes, as legally described on Exhibit "C" attached hereto and by this reference
made a part hereof.
b) JDC also agrees to convey public rights of way and easements and public
improvements to such public rights of way and easements which are incorporated by JDC and
approved by the City in a final site plan and which are similar to those depicted in the Town
Center District Code and located on JDC Property. Any such conveyances shall occur at such
time, and as part of a City approved JDC development, in a manner in which similar conveyances
are required in connection with similar developments within the City.
c) If during the final permitting process of Phase I of the Conceptual Site Plan JDC
desires diagonal parking along the south boundary of Hickory Grove Park Boulevard and/or along
the east boundary of lfickory Grove Park North/South Extension Street, JDC agrees to convey
fee simple title to a ten (10) foot wide strip of land, along the south boundary of Hickory Grove
Park Boulevard and along the east boundary of Hickory Grave Park North/South Extension
Street, needed for each diagonal parking area . The conveyance shall occur prior to
commencement of construction of Hickory Grove Park Boulevard and/or Hickory Grove Park
North/South Extension Street. Notwithstanding, JDC's request for diagonal parking shall be
made no later than the date the City has reached 50% design and engineering of Hickory Grove
Park Boulevard and Hickory Grove Park North/South Extension Street. Provided JDC's request
and conveyance are timely made, the City shall construct such diagonal parking.
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V1I. Inclusion of Property in Town Center District.
JDC consents to the inclusion of the JDC Property into the Town Center District subject
to the terms and conditions hereof.
VIII. Adoption of "Town Center District Code,
JDC hereby consents to the adoption of the Town Center District Code and its
applicability to the JDC Property subject to the terms and conditions hereof.
IX. )Future Land Use Change.
JDC and the City acknowledge that the future land use designation for the JDC Property
shall be Town Center at such time said designation is approved by the City. Specifically, and
without limitation, the parties intend for the future land use designation under the City's
Comprehensive Plan to be amended to accommodate the Town Center District Code. The City
shall diligently process through completion said comprehensive plan amendments and also
effectuate any administrative rezoning necessary to implement the foregoing land use change. All
future land use changes shall comply with the procedures set forth in chapter 163, Florida
Statutes, and the City Code of Winter Springs.
X. Diaerraamsl"Illustrative Purposes only".
Except for Market Square Parcel, Hickory Grove Park Boulevard, Hickory Grove Park
North/South Extension Street, Main Street, and other components of the Town Center expressly
agreed to in this Agreement, the City hereby acknowledges that all diagrams and graphics within
the Town Center Plan and the Town Center District Code, which are depicted on JDC Property,
are for "illustrative purposes only" and are intended only to illustrate the intent and eancepts of
the Town Center District Code. Nothing in this section shall be construed as relieving JDC of the
requirements of the Town Center District Code.
XI. Periodic Review.
This Agreement shall be subject to periodic review by the parties. Periodically, the City
and JDC agree to cooperate and meet in good faith to discuss the progress made under this
Agreement"ai nd whether any amendments should be made to this Agreement in furtherance of
each others' mutual interests, Additionally, during said review, the parties may discuss proposing
amendments to the Town Center District Code which may be needed to promote the public's
interest in creating an economically viable Town Center,
XR. Coo eration.
JDC and the City shall cooperate fully with each Other to effectuate the terms, conditions
and intentions of this Agreement. In connection. with City development permit approvals
necessary to effectuate the Conceptual Site Plan including, but not limited to, special exceptions
under the Town Center District Code (particularly the Large Footprint Building for the grocery
stare anchor and one story buildings with parapet and two or more story buildings with unfinished
second or higher stories.), the City agrees to process JDC's development permit applications in
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_ good faith and in a prompt, diligent manner_ The City acknowledges that obtaining special
exceptions for the Large Footprint Building for the grocery store anchor and for the one story
building with parapet and unfinished second or higher stories is pivotal to JDC developing the
Conceptual Site Plan and the City will fidly cooperate with JDC to obtain approval of the special
exception under the Town Center District Cade.
XIH. Authority
Each party hereby represents and warrants to the other that they have full power and
authority to enter into this Agreement. JDC also represents that it is duly author' zed to bind the
JDC Property to the terms and conditions contained in this Agreement. JDC also represents that
al] legal and equitable title to the JDC Property will be vested in and held by JDC upon closing of
the existing purchase contract for the JDC Property. The 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.
XIV. Notices.
Any notice required or allowed to be delivered hereunder shall be in writing and 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, Purolator, Airborne, 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;
JDQ Mr. Shane Doran
Vice President
JDC CALHOUN, INC.
c/o The James Doran Company
1051-H Johnnie Dodds Blvd.
Mt. Pleasant, SC 29464
Phone: 843-881-7550
Fax: 843-849-6765
With copy to. Chip Carrington, Esquire
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, Florida 32801
Phone:407/843-4600
Fax: 407/423-4495
City: Ronald W..McLarnore, City Manager
City of Winter Springs
1126 East State .Road 434
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OR BOOK 04846 PAGE 0523
Winter Springs, Florida 32708
Phone: 407-327-5957
Fax: 407-327-4753
With copy to: Anthony A. Garganese, Esquire
City Attorney of Winter Springs
Amari & Theriac, P.A.
96 Willard Street, Suite 302
Cocoa, Florida 32922
Phone: 407 639-1320
Fax: 407-639-6690
XV. Defaults.
Failure by either party to perform each and every one of its obligations hereunder shall
constitute a default, entitling the nondefaulting 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 flung any action as a result of a default under this
Agreement, the nondefaulting 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 nondefaulting party
prior to filing said action. The prevailing party in any litigation arising under this Agreement shall
be entitled to recover its reasonable attorney's fees and costs, whether incurred at trial or appeal.
XVL 5uc essvrs and Assi ns.
This Agreement shall automatically be binding upon and shall inure to the benefit of the
successors and assigns of each of the parties.
XVII. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida.
XVM. Amendments.
This Agreement shall not be modified or amended except by written agreement duly
executed by both parties hereto.
XIX• Entire Xzreemertt.
This Agreement supersedes any other agreement, oral or written, and contains the entire
agreement between the City and JDC as to the subject matter hereof.
XX. Severahih!t c
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
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enforceability of the remainder of this Agreement.
XXI. Effective Date.
This Agreement shall become effective upon approval by the City Commission of Winter
Springs and execution of this Agreement by both parties (the "Effective Date").
XXII. Recordation.
A short form memorandum of this Agreement and any amendments hereto shall be
recorded in the public records of Seminole County, Florida and shall run with the JDC Property.
The memorandum shall be in a form mutually acceptable to the City and JDC and shall promptly
be recorded at. such time JDC receives a deed conveying the JDC Property to JDC pursuant to the
existing contract to purchase the JDC Property. The memorandum shall include the legal
description of the real property described in Exhibit "A" (the "JDC Poperty").
XXIII. Relationship of the Parties.
The relationship of the parties to this Agreement is contractual and JDC 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.
XXIV. SUVel-el a Immnni
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.
XXV. O 's Police Power.
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.
XXVL 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.
Page 12 of I S
FILE NUM 2003092803
OR BOOK 04846 PAGE 0525
X7'C VH. 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. Any reference in this Agreement
to a whole paragraph number (e.g., paragraph V) shall also include all subparagraphs set forth
below the whole paragraph number (e.g., V (a), (b), (c), and (d)).
XXVHI. Permits.
The failure of this Agreement to address any particular City, county, state, and federal
permit, condition, term, or restriction shall not relieve JDC or the City of the necessity of
complying with the law governing said permitting requirements, conditions, term, or restriction.
XXIX. Third Party Rit~hts.
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_
XXX. Cnunternarts.
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.
XXXI. Conveyance of Market Square Parcel and Other Property by ADC.
All: -real property conveyances made by JDC to the City pursuant to this Agreement shall
be made by special warranty deed and free of all mortgages, liens, and other title matters which
would unreasonably interfere with the City's use of the Market Square Parcel and other property
conveyed for.the purposes contemplated under this Agreement and the Town Center District
Code.
XXXH. Declaration of the City Commission of Winter Springs.
The City Commission of the City of Winter Springs hereby finds that this Agreement is
consistent with the City's Comprehensive Plan and Iand development regulations and is a
legislative act of the City Commission of the City. The City Commission further finds that this
Agreement promotes the public health, safety, and welfare and is consistent with, and an exercise
of, the City's powers under the Municipal Home Rule Powers Act, as provided in s. 2(b), Article
VIII of the Florida Constitution and Chapter 166.021, Florida Statutes, and the City's police
powers.
XXXIII. onflict with Town Center District Code.
To the extent there are any specific conflicts between the provisions of the Town Center
District Code and this Agreement, the parties agree that the provisions of this Agreement shall
Page 13 of IS
FILE NUM 2003092803
OR BOOK 04846 PAGE 0526
control as if approved by the City Commission as a special exception pursuant to the Town
Center District Code.
IN WITNESS WHEREOF, JDC and the City have executed this Agreement in form
sufficient to bind them as of the day and year first above written.
WITNESSES
n�j" ty'),
Print N
Print Name: 1:
Print Name.
ZDC%07}t eAiE0L(Aj^
STATE OF FumuD-X
COUNTY OF 0-Ftf F-LE aTo
JDC CALHOUN, INC.,
a Georgia corporation
By:
President
F TE G5,
aFlo 'daMU p pfl
By:
Paul P. Partvkit Ma 1�L
The foregoing instrument was acknowledged before me this
Page 14 of 1 5-
day of August, 2000
FILE NUM 2003092803
OR BOOK 04846 PAGE 0527
by Shane Doran, Vice President of JDC Calhoun, Inc., a Georgia corporation, who executed the
foregoing instrument and acknowledged before me that he executed the same for the uses and
purposes therein expressed and who is personally known to me or who has produced
as identification and who did not take an oath.
Notary Signature
Xt�arr}�nsian Expires �1-30-2U08
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me this kL day of August, 2000
by Paul P. Partyka, Mayor of the City of Winter Springs, who is personally krto V'aga.= 0r :4.
who did not take an oath. E. ram.;�1i��� 3,y .
o ary Signatur�
(Nota'1uV10t%
AND RF MISS lJ�?iEB 1
MY COAIiA1S81p��6ry�1''
EXPIRES: May a,
•.
t-soo-allor�av Aa �r 5..rx a e�n.q ca.
rage 15 of IS
FILE NUM 2003092803
EXHIBIT 'A' # BOOK 04646 PAGE
03/31/00 PRI 13:00 FAX
PLA. OF SURVEY FOR L. W. K066-.JRY
ORLAN00 FLORIOA
OESCIA1 PT1 ON
ALL UNPL07TE0 PART OF BLOCK "B", THAT.I6 ON THE EAST SIDE or OYIEDO ••
SANFORO BRICK ROAD OF D. R. MITCHICLL'B SURVEY OF THE LEVY GRANT ON LAKe
JESSUP, ACCORDIgG TO THE PLAT THEACQ1 Asa ACCCADED IN PLAT $OOx 1, pAGE
5, OF THE PUBLIC RECORDS. OF 8E14INOLE COUNTY, FLORIOAr Lea; BEOIK AT THq
INTERSECTION air THE EA11TEMLY RIGHT. —'OP — WAY Or THE SA1IIrORa � Oy1E00
ROAD AHD THE NORTHERLY LINE OF THE UHPLOTTED PART 01 aA1D BLOCK 'rB" RII11
S.39'50•115"E. ALONE THE EASTERLY RIGHT - of — VARY OF SAANFORD — OVI;DO
ROAD 520 FEET,•THENCIL N.50.09145"E. 335.54 FEET - TO THE NORTH LIpig OF
THE UNPLOTTEO PART OF aA10 BLOCK "B", THENCE N.72*40115' W. ALONG SAID
NORTH LINE 616.86. FEET TO THE POINT OF 19E6IHNIHO.
I0 sou'--•.`
A. C. pOUDN Y SU V�S 1xC.
A'. C. d000NEY, R STEREO LAND SURVEYOR 873
0i$CRI PTIOK OF ROAD TO OE VA -CA T901
THAT PART OF PLATTEO ROAD LVING NORTHERLY OF THE ALROVE OEXCR'IME:
+� PARCEL OF LAND.
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FILE NUM 2003092803 1
OR BOOK 04846 PAGE 0529
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OR BOOK 04846 PAGE 053
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FILE NUM 2003092803
OR BOOK 04846 PAGE
FILE NUM 2003092603
OR BOOK 04846 PAGE 0532
EXHIBIT "C"
LEGAL DESCRIPTION
The east eleven (11) feet of the following described property:
ALL UNPLOTTED PART OF BLOCK "B", THAT IS ON THE EAST SIDE OF OVEIDO-
SANFORD BRICK ROAD OF D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON
LAKE JESSUP, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK
1, PAGE 5 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; LESS
BEGIN AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY OF THE
SANFORD OVIEDO ROAD AND THE NORTHERLY LINE OF THE UNPLOTTED PART
OF SAID BLOCK "B", RUN S39050'15"E. ALONG THE EASTERLY RIGHT-OF-WAY OF
SANFORD-OVIEDO ROAD 520 FEET, THENCE N.50°09'45"E 335.54 FEET TO THE
NORTH LINE OF THE UNPLOTTED PART OF SAID BLOCK "B", THENCE
N.72040'15"W. ALONG SAID NORTH LINE 618.86 FEET TO THE POINT OF BEGINNING.
LDDOCSO I136579411
FILE NUM 2003092803
EXHIBIT "D" OR BOOK 04846 PAGE 0533
That certain sketch concept plan entitled "Winter Springs Town Center Master Plan",
prepared by Dover, Kohl & Partners, dated March 23, 1998, as amended in February,
2000.
FILE NUM 2003092803
ExIiISIT "EllOR BOOK 04846 PAGE 0534
" A. Town Center District Boundary Map
E District Boundary
County Enclaves (not in city)
0 UT
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All
0U f ,-(;UT e
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9,
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TOWN CENTER ;
r
Our
,i TOWN CENTER
Our
FILE NUM 2003092803
OR BOOK 04846 PAGE 0535
EXHIBIT "F"
That certain Town Center Zoning District Code adopted by the City Commission of
Winter Springs on June 12, 2000.
This document was prepared by illllllmlllllfllllllnitlllll11111111I11I11H111111111N11
nand Should be returned to:
VCharles C. Carrington, Esq. MARYANNE MORSE, CLERK OF CIRCUIT COURT
Greenberg Traurig, P-A. SEMINOLE COUNTY
450 S. Orange Ave., Suite 650 HK 04846 PG 0536
Orlando,.FL 32801 CLERK'S # 2003092804
RECORDED 06/02/2803 12:24:14 PM
RECORDING FEES 42.60
RECORDED BY G Harford
FIRST MODiFICAnON OF AGREEMENT
A First Modification of Agreement made and entered into as of this o(n/q day, of July,
2001, by and between JDC CALHOUN, INC., a Georgia corporation, (hereinafter referred to as
"JDC"), and the CITY OF WINTER SPRINGS, a municipal corporation existing under the laws of
the State of Florida (hereinafter referred to as the "City).
RECITALS
WHEREAS, JDC and the City previously entered into that certain Agreement dated as of
August 1, 2000, and
WHEREAS, JDC and the Citydesire to modifythe terms and provisions ofsuch Agreement.
NOW -TH REFORE, in consideration of the terms and conditions set forth in this Fist
Modification of Agreement, and other good and valuable consideration, the receipt of which is
hereby acknowledged by the pasties, the City and JDC agree to the fallowing:
1. Theprovisionsofsubparagraph III. (c)andotherprovisiansoftheAgmement
pertaining to the two-story 30,240 square foot building which is contemplated to be constructed on
the corner of State Road 434 and Main Street are hereby modified to memorialize the recent
agreement of the Parties that JDC shall have a period of up. to eighteen (18) months after JDC's
closing on the JDC Pmpertywithin which to commence construction ofsuch building on the comer
of State Road 434 and Main Street. The City acknowledges and confines that the permits,
certificates of occupancy and other permits for development of Other portions of the JDC Property
will not a withheld or delayed during the period prior to JDC's commencement ofsuch construction
on the comer of State Road 434 and Main Street. '
The provisions of the Agreement are hereby modified to memorialize the
recent understanding and agreement of the parties that the City has no objection conceptually to the
construction of a fast food restaurant located internal to the site in the vicinity of the roundabout.
]DC acknowledges that the precise configuration and other details relating to the proposed fast food
restaurant must be reflected in a site plan and other submittals required under the City Code with
respect to which final City approvals) must be obtained prior to commencement of construction.
3. The provisions ofthis Agreement are hereby f u-thcrmodified to memorialize
the recent agreement Of the parties that the roundabout depicted on the Conceptual Site Plan will
contain a water fountain or similar water feature.
4. The provisions Of the Agreement are hereby further modified and amended
to memorialize the agreement of the parties that as of JDC's closing of the purchase of the JDC
Property, the City shall be fully obligated to construct, at its cost and expense, the Main Street
FILE NUM 2003092804
OR BOOK 0444G PAGE 0537
Improvements, Hickory Grove Park Boulevard, Hickory Grove Park North/South Extension Street
together with the facilities and improvements serving the JDC Property for sanitary sewer, potable
water, and stormwater, all as more specifically described in the Agreement. Design, engineering,
permitting, and construction of each item of infrastructure; small be completed by the respective date
set forth in Schedule 1, attached hereto and incorporated herein by this reference. Further, with
respect to potable water, sanitary sewer and stommwater improvements serving the JDC Property, the
City agrees to furnish JDC in writing the designated connection points at the perimeter of the JDC
Property (which may be fully relied upon by JDC in connection with its site plan, binding
commitments with JDC's tenants and all other matters) not later than thirty (30) days after the
effective date of this First Modification. The City has acquired suitable property for storm water
retention as contemplated in Section V(d) of the Agreement. Therefore, both parties waive their
right to cancel the Agreement under said Section V(d) for the City's failure to acquire such suitable
property.
5, JDC represents that it is JDC's intention to acquire the parcel owned by the
Kingsburys located at the comer of Main Street and Hickory Grove Park Blvd. and in connection
therewith, the City agrees to process JDC's development permit applications in good faith and in a
prompt, diligent manner such that development may be coordinated with development on the JDC
Property.
6. The City and JDC acknowledge that following the execution of the
Agreement, it has been determined to the best of Ci ty's actual knowledge that the permitting through
the St. John's River Water Management District ofthe on -site stormwater collection system should
be routine and with no known practical risk ofdenial or the attachment of unacceptable conditions.
7. The City acknowledges that JDC has made the elections described more
particularly in subparagraphs Iff(g) and VII(c). Said election provides for diagonal parking along
Main Street and Hickory Grove Blvd.
8. Paragraph VII(a) ofthe Agreement is hereby amended and restated as follows:
JDC agrees that not laterthan twenty(20) days following the closing ofJDC's
purchase of the property, JDC will convey to the City fee simple title to: (i) the Market Square Parcel
and (ii) the eleven (11) foot wide strip of land needed for right-of-way and other municipal purposes
aslegally described onExhibit "C"ofthe Agreement. Further, JDC shall effectuate the conveyances
contemplated in Paragraph 7 ofthis First Modification in the same instrument ofconveyance, which
the parties agree shall be a Special Warranty Deed. JDC acknowledges and confirms that such
conveyances to the City shall he free of mortgages, liens or other matters which would unreasonably
interfere with the City's use of such strips of land for the uses intended therefor as contemplated in
this Agreement; provided however, the City agrees that it shall be the City's responsibility with
respect to power lines and/or other utilities within such areas deeded to the City to coordinate and
Page 2 of 4
FILE NUM 2003092804
OR BOOK 04846 PAGE 0538
pay for the relocation of the same underground and the City acknowledges that any such existing
power lines and/or other utilities within the deeded area shall not be a basis for objecting to the
condition of the title to such strips of land.
9. The City acknowledges that because of events beyond its control, it has been
delayed in the permitting of the portion of the master stormwater management system intended to
serve the portion of the JDC Property labeled the "East Basin" on the sketch attached hereto as First
Modification Exhibit "A". Therefore, the City and JDC agree that Phase I will be undertaken by
JDC in two steps, the first step involving the portion of Phase I labeled the "West Basin" on the
sketch attached hereto as First Modification Exhibit "A" ("Phase IA") and Step 2 involving the
portion -of Phase I labeled the "East Basin" on the sketch attached hereto as First Modification
Exhibit "A"("Phase MI), JDC desires to commence Phase IA development at the earliest possible
date after the City has satisfied its obligations under the Agreement, as amended hereby, and the City
agrees to use its best efforts to expedite satisfaction of such obligations.
10. In consideration of the foregoing provisions, JDC hereby (i) waives its right
of termination in the event JDC is not successful in securing a drugstore anchor (the right of
termination in connection with the grocery store anchor is not waived); and (ii) JDC agrees that the
6,000 square foot building and 10,500 square foot building circled on the copy of the Conceptual Site
Plan for Phase 11 attached hereto as First Modification Exhibit `B" shall be constructed in Phase I.
The parties acknowledge and agree that the 6,000 square foot building and the 10,500 square foot
buildingshall be counted forpurposes of application of the 45,000 square foot threshold as provided
in subparagraph III(e) of the Agreement.
11. The obligation of the City under this First Modification of Agreement shall
be conditioned upon JDC closing on the purchase of the JDC Property.
12, All terms of the Agreement between the parties, dated August 1, 2000,.shall
remain in full force and effect, to the extent not modified by this First Modification Agreement.
13. ' The City has acquired Hickory Grove Park Boulevard and Hickory Grove Park
North/South Extension Street, Therefore, Paragraph V(b), beginning with the third sentence therein,
is hereby deleted in its entirety.
I4. With respect to the notice provisions containedin the last full paragraph of
Section VI of the Agreement, the City waives the notice of JDC's scheduled construction
commencement date of the grocery store anchor. JDC acknowledges that such waiver shall not
relieve JDC from its obligations to provide such notice with respect to the drug store anchor and
Phase U.
Page 3 of 4
FILE NUM 2003092604
OR BOOK 04646 PACE 0539
IN WITNESS WHEREOF, JDC and the City have executed this Agreement in form
sufficient to bind them as of the day and year first above written.
Ai3me:Anthony A. Garganese
� 1Chael S:-Blake
F IDOCSCkyel M41n &;AW4,grseavU CCAJ�e AV..r jv.06.pch.lj
JDC CAL
a Georgia
d By:
Page 4 of 4
President
FILE NUM 2003092804
OR BOOK 04846 PAGE 0540
STATE OF SOUTH CAROLINA
COUNTY OF CHARLB$N
The foregoing instrument was acknowledged before me this Ac- day e4��001
by Shane Doran, Vice President of 3DC Calhoun, Inc., a Georgia corporation, who executed the
foregoing instrument and acknowledged before me that he executed the same for the uses and
Purposes therein expressed and ona]1 known to ho has produced
as identification and who did not take an oath.
STATE OF FLORIDA
COUNTY OF SEMINOLE
No ar` f y luP lb c Signaytr�
Typed or Printed Notary Nam
Notary Public -State of a
Commission No.
My Commission Expires:
(Notary Sea]}
EA�x"'': Charles C Corringlprl
WCO*"ISS '44 CCMI M EKES
ES
NOR acrr[fe,r tRnv2W2
r
>r AKX WC
The foregoing instrument was acknowledged before me this k? - day ❑
by Paul P. Partyka, Mayor of the City of Winter Springs, who is personally kno�2001
e and
who did not take an oath.
50129.01 OSOQ/155777v.2
4Not Pub i Signature
QQ r .
Typed or Printed Notary Xa����'''
Notary Public -State of io
Commission No.:
My Commission 1E "f o a
w
ANDREA R
MY G4lAh41981D11.* CG`trJa'+J7.t..
EXPIRM M1ry 6. 2003
iaoaarmnav R.+�r�^^1eee�,droco.
FILE NUM 2003092804
OR BOOK 04846 PAGE 0541
SCHEDt1LE 1
Main Street Im rovernents
Design/Permitting
Commence complet
6/26/00 11 /01/01
Bidding
Commence Combete
11/15/01 1/15/02
Construction
Commend; CgImp ete
2/15/02 9/15/02
Hickory Grove Park Boulevard and kory Park !North/South Extension: Street
Design/Permitting
Commence Co —mete
1/08/01 9/30/01
Bidding
s
Commence Com fete
9130101 1 1115/01
Construction
Cam_Me nce Compiete
12/ 15101 -7101 /02
FILE NUM 2003092804
OR BOOK 04846
PAGE 0542
Storrnwater Im rvvernQnts
Phase 1A West
Phase i8 (Eat
Design/Perrnitting
Design/Permitting
Commence Corn lete
Cam` mence Cainlete
1 /08/01 9/30/01
6126/00 11/01 /01
Bidding
Bidding
Commence Cot
Cammence
Comalete
9/30/01 11/15/01
11/01 /01 1 /15/02
Constructlon
Construction
Commence Comofete
Commence pomplete
12/15/01 7/15/02
2/15/02 9/15/02
Public Sewer service
Phase lA est
Phase !B East
Design/permitting
Design/Permitting
C-0 mence Com_�fete
Com--- mince Complete
1108101 9/30/o1
6/26/00 11/01/01
Bidding
Bidding
Commence Cofete
Com Puce Complete
9/30/01 11 /15/01
11 /01/01 1/15/02
Construction
Construction
Commence CQ� I�q
Com�nCe CC—)pIp ete
12/15/01 7/15/02
~
2/15/02 9115/02
Pubic Water Service
Available for immediate use with sufficient' pressure Flow.
;and
2
h: 1'ow9\a7GGB\Concept\CONCEPT-5 DWG Frt Jun 29 1• 12 2001 RBE
FILE NUM 2003092804
OR BOOK 04846 PAGE 0543
w
TUSKAW;LLA BLVD & SR 434 JOc cALHGUR, I";.WINTER SPRINGS, FL
PHASE 1 STORMWATER PLAN
FYM'PY r tt A It
FILE NUM 2003092804
OR BOOK 04846 PAGE 0544
■ Silo In
NCTINCLUMI)
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EXHIBIT
IINIIIIINIFi iiiilllollllAmelnn>In■��r�111�
\G5 cn
MRRYANNE MORK, CLERK OF CIRCUIT COURT
SEMINOLE COUNTY
BK 05320 PIGS 0196-0218
CLERK'S 0 2004081532
RECORDED 05/125/12 M 6800:06 AN
RECORDING FEES A&FA
RECORDED BY S O'Kelley
Y1TURN TO:
E �QG 5
ARNOLD, MATHENY & EAOAN. P.A.
H,f), BOX 2967
ORLANDO. FL 32902
This instrument prepared b
o}:
Christopher P. Tessitore, Esq.
Lowndes Drosdick Doster Kantor & Reed, P.A.
450 South Orange Avenue, Suite 800
P.O. Box 2809
Orlando, Florida 32802
STATE OF FLORIDA
COUNTY OF SEMINOLE
DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS
AND GRANT OF EASEMENTS
THIS DECLARATION of RESTRICTIONS, COVENANT)3 AND CONDITIONS AND
GRANT OF EASEMENTS is made and entered into as of theday of April, 2004, by Capital
Green I, LLC, a Georgia limited fiabiltty company.
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property which is composed of two
parcels; and
WHEREAS, Declarant is developing said real property as a mixed -use town center, and, in
connection with such development, Declarant desires to establish certain restrictions, covenants,
conditions, and easements for the coordinated and cohesive development, operation,
management, and use of said parcels;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, and the benefits accruing to each of said
parcels from the restrictions, covenants, conditions, and easements created hereby, Declarant
hereby submits and subjects said parcels to the restrictions, covenants, conditions, and easements
hereinafter set forth.
1732511 17100930
-1-
Book5320/Pagel% CFN#2004081532
ARTICLE 1
DEFINITIONS AND MEANINGS
- In addition to any other terms that are defined in this Declaration, the following capitalized
terms shall have the following respective meanings:
1.1 "Building Area" shall mean the limited areas of each Tract within which buildings
(which for this purpose of this document shall include any appurtenant canopies, supports, loading
docks, truck ramps, and other outward extensions, as well as attached trash compactors and utility
transformers) may be constructed, placed, or located.
1.2 "Common Area" shall mean all areas within the boundaries of the Property and the
areas of any appurtenant easements which are for the general and non-exclusive use,
convenience, and benefit of any Owner or Occupant of any building located on the Property,
including, but not limited to, roadways, driveways, loading areas (exclusive of loading docks and
truck ramps), islands, parking areas, entrances and exits, access drives (including paying, striping,
and curbs and gutters), sidewalks, landscaping, lighting, Town Center Signs, directional or traffic
signs, and surface water detention or retention and drainage facilities; provided, however, the
Common Area shall not include developed Building Areas, the Publix Service Area or the Publix
Sidewalk Area.
1.3 "Declarant' shall mean Capital Green I, LLC, a Georgia limited liability company.
1.4 "Declaration" shall mean this Declaration of Restrictions, Covenants and Conditions
and Grant of Easements.
1.5. "Leasable Floor Area" shall mean the floor area calculated in square feet located in
or appurtenant to buildings constructed or to be constructed on a Tract, which Leasable Floor Area
shall include, without limitation, the ground floor area within said buildings; enclosed vestibules;
exclusive passageways; basements; storage areas; mezzanines; exclusive outdoor garden shops
or sales areas; exclusive enclosed loading areas, outdoor balconies, patios, or other outside areas
utilized for retail sales of Food or beverage service (exclusive of areas utilized exclusively for drive
through or walk-up take out food or beverage service); provided, however, Until the Publix Lease
has terminated and Is of no further force or effect, the Leasable Floor Area of the Publix Premises
shall be deemed to be 44,271 square feet.
1.6 "Occupant" shall mean any Owner or tenant, subtenant, assignee, concessionaire,
or licensee who, from time to time, is entitled to use or occupy all or any portion of the Property
under an ownership right or any lease, sublease, assignment, concession, license, or other similar
agreement.
1.7 "Outparcel" shall mean all that tract or parcel of land depicted and designated as
"Lot 2" on the Subdivision Plat.
1.8 "Outparcel Sign" shall mean the 'town Center Sign identifying the Occupant of the
Outparcel which is located along Highway 434 as shown on the Site Plan,
1.9 "Owner" or "Owners" shall mean, individually or collectively, as appropriate, any
person or entity owning from time to time fee simple title to ali or any portion of a Tract. The
immediately preceding sentence to the contrary notwithstanding, the Owner of the Town Center
Tract shall mean the person or entity owning from time to time fee simple title to that portion of the
17325,1 171MR30
Book5320/Page197 CFN#2004081532
Town Center Tract containing the Publix Premises. If more than one person or entity owns fee
simple title to any Tract, they, collectively, shall be deemed the "Owner' of such Tract.
1.10 "Property" shall mean the real property consisting of the Town Center Tract and the
Outparcel.
1.11 "Publix" shall mean Publix Super Markets, Inc., a Florida corporation.
1.12 "Publix Lease" shall mean that certain Lease Agreement between Publix and
Declarant, dated October 19, 2001, as the same may now or hereafter be modified and amended,
in respect of the Publix Premises.
1.13 "Publix Parking Area" shall mean that portion of the Common Area of the Town
Center Tract which is contiguous to the Publix Sidewalk Area, which Publix Parking Area is
outlined and designated as the "Paragraph 19.07" area on the Site Plan.
1.14 "Publix Premises" shall mean the Publix Storeroom, the Publix Sidewalk Area, and
the Publix Service Area, collectively, which Publix Premises is outlined and so designated on the
Site Plan.
1.15 "Publix Service Area" shall mean that portion of the Publix Premises lying outside of
but adjacent to the Publix Storeroom, within which is located certain improvements including,
without limitation, emergency walkways (to the extent exclusively serving the Publix Storeroom),
loading docks, truck pits or ramps, scissor lifts, trash compactor, transformer, and utility meters
serving the Publix Storeroom, which Publix Service Area is substantially depicted and so
designated on the Site Plan.
1.16 "Publix Sidewalk Area" shall mean that portion of the Publix Premises consisting of
the entire sidewalk lying directly in front of the Publix Storeroom (but excluding any vestibule
appurtenant to the Publix Storeroom) and extending from the outside face of the front wall of the
Publix Storeroom to and including the face of the curb abutting the sidewalk and extending the full
width of the Publix Storeroom, which Publix Sidewalk Area is substantially depicted and so
designated on the Site Plan.
11 1.17 "Publix Storeroom" shall mean the building intended to be initially used and
occupied by Publix for the operation of a grocery supermarket, as substantially depicted and so
designated on the Site Plan.
1.18 "Service Drive" shall mean that portion of the Common Area consisting of (1) the
entrances and exits between the Town Center Tract and adjoining publicly dedicated rights -of -way,
and (ii) the driveway area extending from said entrances and exits to the Publix Service Area,
which Service Drive is substantially depicted and so designated on the Site Plan.
1.19 "Town Center" shalt mean the mixed -use town center to be developed on the Town
Center Tract substantially as depicted on the Site Plan.
1.20 "Town Center Sign" and 'Town Center Signs" shall mean, individually and
collectively, as the case may be, the monument or pylon sign(s) identifying the Town Center and
the Owner and/or certain Occupants thereof to be located on the Town Center Tract at the
location(s) depicted on the Site Plan.
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1.21 "Town Center Tract" shall mean all that tract or parcel of land depicted and so
designated as "Lot 1" on the Subdivision Plat.
1.22 "Site Plan" shall mean that certain site plan attached hereto as Exhibit "A" and by
reference thereto incorporated herein.
1.23 "Subdivision Plat" shall mean the plat recorded at Plat Book 64, Pages 63-64 in the
Public Records of Seminole County, Florida.
1.24 "Tract" or 'Tracts" shall mean, individually or collectively, as the case may be, the
Town Center Tract and/or the Outparcel.
1.25 "Utility Lines" shall mean, collectively, the Common Utility Lines and the Private
Utility Lines, which are defined as follows:
1.25.1 "Common Utility Lines" shall mean those facilities and systems for the
transmission of utility services, drainage of sanitary sewage, and drainage and storage of
surface water which are installed to provide the applicable service on the Tracts or to the
Common Area, exclusive of the Building Area; and
1.25.2 "Private Utility Lines" shall mean those facilities and systems for the
transmission of utility services, for the drainage of sanitary sewage, or for the drainage and
storage of surface water which are installed to provide the applicable service exclusively to
the Building Area on each respective Tract. For purposes of this Declaration, a Utility Line
extending between a Common Utility Line and a building shall be considered a Private
Utility Line.
ARTICLE 2
SCOPE.'TERM: RIGHTS OF GENERAL PUBLIC
AND OCCUPANTS: RIGHTS OF PUBLIX
2.1 Scoae. The within restrictions, covenants, conditions, and easements are
necessary for the use and benefit of the Property and all portions thereof and are for the
commercial and economic benefit of the Owners, and, subject to the provisions of Paragraph 2.4
hereof, their Occupants_ Regardless of whether or not they are specifically mentioned in any
deeds or conveyances of all or any portion of the Property, the benefits and burdens of each
restriction, covenant, cenditien, and easement set forth in this Declaration shall run with the title to
the particular Tracts involved and shall benefit or bind the Owners thereof, their respective heirs,
successors, successors -in -title, legal representatives and assigns. Any Owner shall be bound by
this Declaration only as to the Tract or portion thereof owned by such Owner. In addition, an
Owner shall be bound by this Declaration only during the period it is the fee simple owner of such
Tract or portion thereof and for those obligations, liabilities or responsibilities that arose or accrued
during said period.
2.2 Term. The easements set forth in this Declaration shall be perpetual in duration
unless otherwise specifically provided. The restrictions, covenants and conditions set forth in this
Declaration shall be binding upon and enforceable against Owners and Occupants for a period of
fifty (56) years from the date this Declaration is filed in the public deed records maintained by the
appropriate governmental subdivision fn which the Property is located,
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2.3 No Rights in Public Generally. The easements, restrictions, covenants and
conditions created, reserved, granted and established in this Declaration do not, are not intended
to, and shall not be construed to create any easements, rights or privileges in and for the benefit of
the general public. Notwithstanding anything to the contrary contained herein, each Owner shall
have the right to prohibit or limit any solicitation, petition signing, distribution of literature, collection
of money, giving of speeches, leafletting, picketing, carrying of signs, canvassing, demonstrations,
or similar activities within that portion of the Common Area located on said Owner's Tract, and in
addition, until the Publix Lease has terminated and is of no further force or effect, Publix shall have
the right to prohibit or limit any solicitation, petition signing, distribution of literature, collection of
money, giving of speeches, leafletting, picketing, carrying of signs, canvassing, demonstrations, or
similar activities within the Publix Parking Area, the Publix Service Area, and the Publix Sidewalk
Area.
2.4 Ri hts of Occupants. With respect to the easements created by this Declaration,
each benefiting Owner shall be entitled to designate from time to time which, if any, of its
Occupants shall be entitled to utilize and enjoy such easements. No independent rights shall be
created by this Declaration as to any Occupants, except for those which may be terminated or
withdrawn at any time by the Owner through whom such rights were derived.
2.5 Right's of Publix. Anything to the contrary contained herein notwithstanding, until
the Publix Lease has terminated and is of no further force or effect, (i) this Declaration may be
abrogated, modified, rescinded or amended in whole or in part only with the consent of Publix, and
(ii) Publix shall have the right, but not the obligation, to enforce this Declaration, and to avail itself of
the remedies provided herein or otherwise at law or in equity for violation hereof, to the same
extent as the Owner of the Town Center Tract.
ARTICLE 3
COMMON AREA IMPROVEMENTS
3:1 Construction of mon Area Improvements. Ail Common Area Improvements to
the Property shall be constructed in a good and workmanlike manner and in accordance with good
englneeMg standards. The Common Area of each Tract shall be constructed as shown on the
Site Plan, and, to the extent not so shown on the Site Plan, shall be subject to the prior written
approval of the Owner of the Town Center Tract. Subject to the prior written approval of Publix, the
Owner of the Town Center Tract may make changes to the Site Plan and to the Common Area
improvements on the Town Center Tract, provided that such changes do not materially and
adversely affect access to and from any Tract and do not materially reduce the parking area
available to any Tract,
3.2 Parking Area. The parking area on each Tract shall be In accordance with the Site
Plan, shall be subject to the prior written approval of the Owner of the Town Center Tract to the
extent not so shown on the Site Plan, -and shall conform to applicable governmental laws, rules,
and regulations.
3.3 Lighting. Each Owner shall keep its Tract (Including any Town Center Signs
located thereon) fully illuminated each day from dusk until at least midnight, or such longer period
of time as the Owner of such Tract may deem appropriate. Each Owner further agrees to keep
any exterior building security lights on from dusk until dawn. unless otherwise required by the City
of Winter Springs or by law, the lighting system utilized on any Tract shall be designed to produce a
minimum maintained lighting intensity measured at three (3) feet above grade of five (5) foot-
candles at all points in the Common Area of each Tract. Any provision of this Declaration to the
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contrary notwithstanding, an Owner of a Tract shall not be required to illuminate same until any
improvements are constructed thereon.
3.4 Common Area, 5ignaoe. No signs shall be erected within the Common Area of any
Tract other than (i) signs required by applicable governmental laws, rules, and regulations, (ii) the
Town Center Signs, (iii) signs which may be erected by Publix within the Publix Parking Area
providing notice of the right of Publix to prohibit or limit solicitation, petition signing, distribution of
literature, collection of money, giving of speeches, leafletting, picketing, carrying of signs,
canvassing, demonstrations, or any similar activity within the Publix Parking Area and the Publix
Premises, and (iv) signs which may be erected by Publix within the Publix Parking Area providing
notice of civil and/or criminal sanctions associated with the removal of shopping carts from the
Publix Premises or the Publix Parking Area.
3.5 Modification or Alteration. No Owner shall make changes to the improved Common
Area on its Tract without the approval of the Owner of the Town Center Tract.
3.6 Maintenance. Subject to the express terms and provisions of this Declaration to the
contrary, each Owner, at its expense, shall maintain, or cause to be maintained in good order and
in a sightly and safe condition, the portion of the Common Area which is constructed on its Tract.
The minimum standard of maintenance for the Common Area on all the Tracts shall be comparable
to the standard of maintenance followed in other first class town center developments of
comparable size in the market area in which the Property is located, and in compliance with all
applicable governmental laws, rules, and regulations. All Common Area improvements to the
Tracts shall be repaired or replaced with materials at least equal to the quality of the materials
being repaired or replaced so as to maintain the architectural and aesthetic harmony and integrity
of the Tracts as a whole.
3.7 Common Area_Maintenange Charges for Outparcel_ The Owner of the Outparcel
shall pay,01he Owner of the Town Center Tract within fifteen (15) days after first day of each year
during the term of this Declaration, commencing on January 1, 2005. and continuing on the first
(1") day of January for each year thereafter during the term hereof, for costs to be incurred for the
upcoming year for maintenance of, inter alla, access, signage, and lighting (and the electricity
therefor), the sum of Three Thousand and No/100 Dollars ($3000.00) for the first year and for each
year thereafter 103% of the amount paid the previous year. The Owners acknowledge and agree
that said amounts (i) are a reasonable estimate of such costs as prorated and applicable to the
Outparcel and (ii) are in lieu of any obligations under Section 3.6 hereof.
ARTICLE 4
BUILDING IMPROVEMENTS
4.1 Location of Buildings. Unless otherwise consented to in writing by the Owner of the
Town Center Tract, all buildings located on the Property shall be located only within the Building
Areas designated on the Site Plan, and the Leasable Floor Area for buildings to be located on each
Tract as designated on the Site Plan shall not be exceeded. To the extent not so designated on the
Site Plan, the location of and Leasable Floor Area for buildings to be located on each Tract shall be
subject to the prior written approval of the Owner of the Town Center Tract.
4.2 Architectural Anarovai. The Owner of the Town Center Tract has established an
architectural theme for the exterior of all buildings, building signage, and other structures to be
constructed, placed, or located within the Property. In order to ensure compliance with such
theme, any Owner intending to build on a Tract shall submit to the Owner of the Town Center Tract
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Book5320/Page201 CFN#2004081532
architectural plans and drawings (the "Plans") depicting the exterior elements of the proposed
building or structure and depicting the building signage for approval by the Owner of the Town
Center Tract prior to the commencement of any construction. Upon the issuance of any
disapproval or recommendation for change, the submitting Owner and the Owner of the Town
Center Tract shall consult with each other to establish approved Plans for the proposed
construction_ The Owner of the Town Center Tract shall not arbitrarily or unreasonably withhold
approval of the Plans. Approval of the Plans by the Owner of the Town Center Tract shall not
constitute assumption of responsibility for the accuracy, sufficiency, or propriety thereof, nor shall
such approval constitute a representation or warranty that the Plans comply with applicable laws.
Construction of any such buildings, building signage, and other structures shall not be commenced
until the Plans shall have been approved in writing by the Owner of the Town Center Tract, as well
as by any applicable governmental entity having jurisdiction thereof. No material deviation shall be
made from the approved Plans.
4.3 Building Signaoe. No signage shall be placed on any building located on any Tract
except as may be approved in writing by the Owner of the Town Center Tract, which approval shall
not be unreasonably withheld, conditioned or delayed. The Plans for any such signage must first
be approved by the Owner of the Town Center Tract in accordance with Paragraph 4.2 hereof.
The terms and provisions of this Paragraph 4.3 to the contrary notwithstanding, until the Publix
Lease has terminated and is of no further force or effect, Publix shall have the right to place on
such portions of the Publix Premises as it deems appropriate signs providing notice of the right of
Publix to prohibit or limit solicitation, petition signing, distribution of literature, collection of money,
giving of speeches, leafletting, picketing, carrying of signs, canvassing, demonstrations, or any
similar activity within the Publix Parking Area and the Publix Premises and signs providing notice of
civil and/or criminal sanctions associated with the removal of shopping carts from the Publix
Premises or the Publix Parking Area.
4,4 Construction. Construction activities on any Tract shall not:
(i) cause any unreasonable increase in the cost of constructing improvements
upon any other Owner's Tract;
(li) unreasonably interfere with construction being performed on any other
Tract;
unreasonably interfere with the use, occupancy, or enjoyment of any other
Tract by the Owner or Occupants of such other Tract; or
(iv) cause any building or building signage located on any other Tract to be in
violation of any law, rule, regulation, order, or ordinance authorized by any
city, county, state, federal government, or any department or agency thereof
having jurisdiction over the Property.
4.5 Maintenance. After completion of construction of building improvements, including
but not limited to building signage, on each respective Tract, each Owner of such Tract, at its own
expense, shall maintain and keep the building improvements, including but not limited to building
signage, as well as any landscaping located on its Tract, in first class condition and state of repair,
in compliance with all laws, rules, and regulations of governmental authorities exercising
jurisdiction thereover, and in compliance with the provisions of this Declaration. Each Owner of a
Tract shall, at its sole cost and expense, store all trash and garbage in adequate containers in
locations reasonably approved by the Owner of the Town Center Tract, locate such containers
rnxsri 17100830
Book5320/Page202 CFN#2004081532
such that they are not readily visible from the Publix Parking Area, and shall arrange for regular
removal and proper disposal of such trash and garbage.
4.6 Damage or Destruction of Building Improvements. In the event any of the building
improvements on a Tract, including but not limited to building signage, are damaged by fire or other
casualty, the Owner upon whose Tract such building improvements are located shall immediately
remove the debris resulting from such event and, within a reasonable time thereafter, such Owner
shall either (subject to the other provisions of Articles 3 and 4 hereof):
(i) repair or restore the building improvements, including but not limited to
building signage, so damaged;
00 erect other building improvements, including but not limited to building
signage, in such location; or
(III) demolish the damaged portion of such building improvements and promptly
restore the area to the same standards as the Common Area either as
automobile parking and drive area or in a landscaped condition (i.e. seeded
and mowed), in which event the area shall be maintained in a manner
consistent with the Common Area until a replacement building is erected.
Such Owner shall elect one of the foregoing options within sixty (60) days from the date of
such casualty and, thereafter, promptly commence and diligently pursue completion of such option.
ARTICLE 5
OUTPARCEL IMPFROVEMENTS
5.1 Outparcel Imnrovement. In addition to any other applicable provisions of this
Declaration, unless otherwise consented to in writing by the Owner of the Town Center Tract, the
following requirements, limitations and restrictions shall be applicable to the Outparcel--
(I) No more than one (1) building shall be constructed on the Outparcel and
said building shall accommodate no more than one (1) business operation
therein (unless the Site Plan indicates otherwise);
(ii) Any building or other structure erected on an Outparcel shall:
(a) bO,no more than one (1) story in height (unless the Site Plan
Indicates otherwise);
(b) not exceed twenty-five (25) feet in height (measured in accordance
with applicable governmental regulations) (unless the Site Plan
indicates otherwise); and
(c) otherwise comply with all governmental rules, regulations,
ordinances and laws;
(iiiii) The Owner of the Outparcel shall have the right, at such Owner's sole cost
and expense, to the signage as shown on Schedule "A attached hereto and
incorporated herein by this reference, located on the Outparcel Sign. Any
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Book5320/Page203 CFN#2004081532
future outparcels shall not be entitled to any such or similar signage unless
expressly agreed to in writing by the Owner of the Town Center Tract.
ARTICLE 6
INGRESS AND EGRESS EASEMENTS
6.1 Grant of Easement. Declarant hereby declares, establishes, creates, and grants for
the benefit of, and as a burden upon, each Tract the non-exclusive right, privilege, and easement
(i) for vehicular and pedestrian access, ingress, and egress over and across all roadways,
driveways, entranceways and sidewalks from time to time located on the Common Area of any
Tract for the purpose of providing pedestrian and vehicular access, ingress, and egress, between
said Tracts and publicly dedicated rights -of -way abutting said Tracts and (ii) for parking of vehicles
for Town Center business purposes in the spaces designated therefor within the Common Area.
The foregoing easement shall not be construed to, and shall not, create any construction or other
easement for the installation or construction of roadways, driveways, entranceways, sidewalks, or
parking areas by any Owner on the Tract of another Owner. Any other term hereof to the contrary
notwithstanding, until the Publix Lease has terminated and is of no further force or effect, the Publix
Sidewalk Area and the Publix Service Area shall be for the exclusive use of Publix.
6.2 Avoidance of Rescd tion. Anything to the contrary contained in this Article 6
notwithstanding, the Owner of each Tract shall be entitled to interrupt or disturb the passage of
vehicular and pedestrian access, ingress, and egress over and across all roadways, driveways,
entranceways, and sidewalks from time to time located on that portion of the Common Area
located on said Owners Tract for a period not to exceed one (1) day in each calendar year for the
purpose of preventing the creation of prescriptive easement rights in and to such areas in favor of
the public; provided, however, until the Publix Lease has terminated and is of no further force or
effect, such interruption or disturbance shall occur on a day on which Publix is closed for business
with respect to the Town Center Tract.
ARTICLE 7
UTILITY EASEMENTS
7.1 Grant of Easement. Declarant hereby declares, establishes, creates, and grants for
the benefit of, and as a burden upon, each Tract the non-exclusive right, privilege, and easement
in, to, over, under, along, and across those portions of the Common Area on each Tract necessary
for the installation, operation, flow, passage, use, maintenance, connection, repair, relocation and
removal of Utility Lines, including but not limited to sanitary sewers, storm drains, water (fire and
domestic), gas, electrical, telephone and communication lines. Each Utility Line easement area
shall be no larger than is necessary to reasonably satisfy the requirements of the provider of such
service if the Utility Line Is to be owned by a public utility, or five (5) feet on each side of the Utility
Line if the Utility Line is to be owned by an Owner. The Owner of the Tract burdened by such
easement shall have the fight to require, at the expense of the Owner of the Tract benefited by
such easement, that a copy of an as -built survey of such Utility Line be delivered to the Owner of
such burdened Tract after installation of the Utility Line.
7.2 Locatioj of Utilities. All Utility Lines shall be underground except:
(i) pad mounted electrical transformers, if any, shall be located at the rear or
side of a building;
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Book5320/Page204 CFN#2004081532
(ii) as may be necessary during periods of construction, reconstruction, repair,
or temporary service;
(iii) as may be required by governmental agencies having jurisdiction over the
Property;
(iv) as may be required by the provider of such service; or
(v) as may be approved in writing by the Owner of the Town Center Tract.
7.3 Relocaliorj. Any Owner shall have the right at any time to relocate a Private Utility
Line located upon its Tract upon thirty (30) days prior written notice to the Owner of the Town
Center Tract; provided, however, that such relocation (i) shall not interfere with or diminish any
utility service to the other Tracts; (ii) shall be performed without cost or expense to the other
Owners; (iii) shall be completed using materials and design standards which equal or exceed those
originally used; and (iv) shall have been approved by the provider of such service and the
appropriate governmental or quasi-govem mental agencies having jurisdiction thereover.
7.4 Maintenance and Repair.
7.4.1 Private Utility Lines. Each Owner of a Tract shall maintain and replace, at
its sole cost and expense, its Private Utility Lines, in a first class condition, regardless of
where such Private Utility Lines are located, unless the provider of the service or a
governmental or quasi -governmental authority has agreed to maintain such Utility Lines.
Any maintenance and repair of non -dedicated utilities located on another Owner's Tract
shall be performed only after ten (10) days notice to the Owner of such Tract (except in an
emergency, when the work may be initiated with reasonable notice), shall be done after
normal business hours whenever possible, and otherwise shall be performed in such a
manner as to cause as little disturbance in the use of such Tract as is practicable under the
circumstances. Any Owner performing, or causing to be performed, maintenance or repair
work shall promptly pay all costs and expenses associated therewith, shall diligently
complete such work as quickly as possible, and shall promptly clean the area and restore
the affected portion of the Common Area to a condition equal to or better than the condition
which existed prior to commencement of such work.
7.4.2 Common Utility Lines. Common Utility Lines shall be maintained and
replaced as part of the Common Area pursuant to Paragraph 3.6 hereof.
ARTICLE 8
STORMWATER DRAINAGE
8.1 Grant of Easement. Declarant hereby declares, establishes, creates, and grants for
the benefit of, and as a burden upon, each Tract, a perpetual, non-exclusive easement in, over,
and across the Common Area of each Tract for the purpose of discharging stormwater drainage
and/or runoff from any Tract upon and across those portions of the Common Area located on any
other Tract.
8.2 Conditions. The foregoing stormwater drainage easement rights shall be subject to
the following terms and conditions:
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Book5320/Page205 CFN#2004081532
0) Common Area grades and the surface water drainage/retention system for
"r each Tract shall be constructed in strict conformance to all applicable
governmental rules, regulations, and ordinances; and
8.3 No Owner shall alter or permit to be altered the surface elevation or grade of those
portions of the Common Area located on such Owner's Tract if such alteration would materially
increase the flow of surface water onto an adjacent Tract or change the rate or concentration of
flow or points of discharge from such Tract.
ARTICLE 9
[Intentionally deleted.]
ARTICLE 10
RESTRICTIVE COVENANTS
10.1 Restrictions on Use
10.1.1 Prohibiled Uses. Without the prior written consent of the Owner of the Town
Center Tract, no portion of any Tract shall be used for any of the following purposes: a dry
cleaning plant, any manufacturing operation, the sale, rental, repair, or lease of cars, trucks,
or other motorized vehicles or boats, trailers, or mobile homes, a lumberyard, a cinema or
theater, skating rink, bowling alley, discotheque, dance hall, nightclub, amusement gallery,
pool room, health spa, adult entertainment facility, gymnasium, massage parlor, adult book
store, pinball or electronic game room, a so-called "head shop," funeral parlor, flea market,
bingo parlor, car wash, cafeteria, or the display or sale of pornographic materials. In
addition, without the prior written consent of the Owner of the Town Center Tract, no
premises located within 500 feet of the Publix Storeroom (which distance shall be
measured from the demising wall of the Publix Storeroom nearest said other premises to
the demising wall of said other premises nearest the Publix Storeroom) on any Tract
(except for the Publix Premises) shall be used for a day care center, or a restaurant and/or
cocktail lounge of a parking intensive nature, such restaurants/cocktail lounges being
similar in nature to Bennigan's, T.J. Applabee's, Outback Steakhouse, Chili's, Hooters, and
-T.G.I. Fridays.
10.1.2 Exclusive Uses. Without the prior written consent of the Owner of the Town
Center Tract, no portion of any Tract except the Publix Premises shall be used for the
operation of a grocery supermarket, bakery, delicatessen, fish market, on -premises photo-
finishing, the sale of drugs or other products which are required by law to be dispensed by
a registered pharmacist, or to engage in retail sales of items of food for "off -premises"
consumption.
10.1.3 Exceptions to Exclusive i Ises. The terms and provisions of Paragraph
10.1.2 of this Declaration, anfted "ExclusNe Lases", to the contrary notwithstanding, the
Tracts may be used for the operation of the following:
M a sit-down and/or fast-food restaurant offering prepared ready -to -eat food
items for consumption and fast food either on or off the promises;
(ii) a delicatessen or sandwich shop type restaurant (but not a bakery) which
offers take out service as an incidental part of its restaurant operation,
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Book5320/Page206 CFN#2004081532
provided that at least seventy percent (70%) of the Leaseable Floor Area of
such restaurant (exclusive of kitchen or food preparation area) is utilized for
seated dining purposes;
(iii) a health food store or nutrition center, provided that the Leaseable Floor
Area devoted to such health food store or nutrition center shall not exceed
1,800 square feet;
(iv) an ice cream parlor or frozen yogurt store, franchise doughnut shop
(equivalent to a Dunkin' donut or Krispy Kreme operation), bagel shop,
candy store, or a pizza pickup or delivery outlet, all of which may offer the
sale of food items for consumption on or off the premises;
(v) a combination gas station and convenience food store operation, provided
that the Leaseable Floor Area devoted to the sale of food and beverage
products shall not exceed 1,000 square feet, however, the foregoing
exception shall not penrtit a gas station/convenience food store that is
owned by, operated by, controlled by, or identified with another grocery
supermarket entity or general merchandise retailer, its parent company or
its subsidiaries or affiliates;
NO a video rental or sale store (similar to a Blockbuster Video) which may offer
the sale of items normally sold by movie theaters (i.e., popcorn or candy) for
consumption off the premises; and
(vii) an on -premises photo finishing facility by no more than one (1) occupant of
the Town Center Tract other than Publix.
10.1.4 Additional Bx rusiye And Prohibited Uses. Without the prior written consent
of the Owner of the Town Center Tract and the Owner of the Outparcel, no portion of any
Tract, except the Outparcel, shall be used for the operation of a free-standing fast-food
restaurant specializing primarily in hamburgers or chicken sandwiches with a drive -through
(Specifically excluded from such prohibition, and therefore permitted on the Town Center
Tract, are Kentucky Fried Chicken, Taco Bell, or Pizza Hut stores). Notwithstanding
anything contained herein to the contrary, the Outparoel may not be used for any of the
uses listed at subparagraphs (fli), (iv), (v), (vi), or (vii) of Section 10.1.3 above, nor for any of
the following. uses: liquor sales, mailboxes rental and related services, cell phone or cell
phone contract sales and related services, pizza restaurant and take-out and/or delivery,
Chinese food for dine -In or take-out/de I! very, pool and pool supply store, dentist office,
tanning saton, after -school education, insurance safes and/or claims office, tax preparation
office, high -end and/or production -style hair salon, women's work-out facility, submarine
sandwiches sales, Mexican -style restaurant, wine bar, pottery studio, dry cleaner, nail
salon, or retail and commercial banking facility with ancillary office use as well as any and
all related banking services, including, but not limited to, Financial brokerage services,
Insurance services, mortgage lending services and other services which are from time to
time provided by institutional banks, as permitted by law. Notwithstanding anything
contained herein to the contrary, no prohibition contained in this Section 10.1.4 shall be
applicable to the Publix Premises while the Publix Lease is in effect.
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ARTICLE 11
INSURANCE
11.1 Liability Insurance. Each Owner shall maintain or cause to be maintained in full
force and effect comprehensive general liability insurance covering the Common Area located
within such Owner's Tract, with a combined single Ilmit of liability of not less than $3.000.000,00 for
bodily or personal injury or death and for property damage arising out of any one occurrence.
Such insurance shall be procured from responsible insurance companies authorized to engage in
the business of general liability insurance in the state in which the Property is located and shall
provide for payment of claims on an occurrence basis. Each Owner agrees to fumish to any other
Owner requesting the same a certificate of insurance evidencing that the insurance required to be
carried by such Owner is in full force and effect.
ARTICLE 12
LIENS
12.1 Liens. In the event any mechanic's lien is filed against a Tract as a result of
services performed for or materials furnished to the Owner of another Tract (the "Furnished
Owner"), such Furnished Owner shall cause such lien to be released and discharged of record
within thirty (30) days of receipt of notice of such lien, either by paying the indebtedness which
gave rise to such lien or by posting bond or other security as shall be required by law to obtain
such release and discharge. Additionally, the Furnished Owner shall indemnify, defend, and hold
harmless the Owner of the Tract upon which said lien was filed against any liability, loss, damage,
costs, or expenses (including reasonable attorney's fees actually incurred and court costs) on
account of such claim of lien.
ARTICLE 13
GENERAL
13.1 Amendment. Subject to the provisions of Paragraph 2.5 hereof, the provisions of
this Declaration may be modified or amended in whole or in part only with the consent of all of the
Owners of the Tracts in a written instrument duly recorded with the Public Records of the County in
which the Property is located. The immediately preceding sentence to the contrary notwithstanding
and subject to the provisions of Paragraph 2.5 hereof, this Declaration may be modified or
amended by the Owner of the Town Center Tract without the consent of or approval or execution
by the Owner of the Outparcel if such modification or amendment (including, without limitation, any
change to the Site Plan) would not materially and adversely affect the Owner of the Outparcel;
without limiting the generality of the foregoing, the Owner of the Town Center Tract may sub -divide
the Town Center Tract and create additional outparcels and specific rights and obligations relating
thereto.
13.2 Enforcement This Declaration may be enforced by any Owner by any action
available at law or in equity, including, but not limited to injunctive relief and specific performance.
In the event the Owner (the "Defaulting Owner") of the Outparcel defaults in the performance of
any of Its obligations pursuant to this Declaration and such default shall continue for a period of
thirty (30) days after receipt of written notice of said default from any other Owner (the "Non -
defaulting Owner'), the Non -defaulting Owner shall be entitled to cure such default, provided (i) the
Defaulting Owner is not then in the process of diligently attempting to cure the default and (ii) no
notice or opportunity to cure shall be required in the event the default creates an emergency or
interferes with the use of the Non -defaulting Owner's Tract. Any and all expenses incurred by the
Non-de€auiting Owner in curing such default, together with fifteen percent (15%) per annum
113291 171008i,5 -13-
Book5320/Page208 CFN#2004081532
interest thereon shall be payable by the Defaulting Owner within thirty (30) days of written demand
therefor by the Non -defaulting Owner to the Defaulting Owner. In the event of enforcement of this
Declaration by any Owner, said Owner shall be entitled to recover, in addition to any other relief
available to same hereunder or at law or in equity, attorneys' fees, court costs, and interest on any
amounts advanced by said Owner to cure such violation, such interest to be calculated at the
lesser of (1) a rate of interest equal to five percent (5%) above the then -current "Prime Rate" as
quoted on the date of demand in The Wall Street JoumaE or (ii) the highest rate permitted by the
law of the State in which the Property is located.
13.3 Partial Invalidity. In the event any provision of this Declaration is determined to be
illegal or legally unenforceable, such determination shall have no effect upon the remaining terms
and provisions hereof, and the remaining terns and provisions hereof shall continue in full force
and effect.
13.4 Notice.
13.4.1 Form. Every notice, demand, consent, approval, or other document or
instrument required or permitted to be served upon or given to any Owner shall be in writing
and shall be delivered in person or sent by natlonally recognized air express cauder or by
certified mail, postage prepaid, return receipt requested, and, if to Declarant and/or to
Publix, shall be delivered to the following addresses, respectively:
If to Declarant:
Capital Green I, LLC
216 Seven Farms Drive
Suite 200
Charleston, South Carolina 29492
Attn: Shane Doran
With a copy to:
Amall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Attn: David O. Eldridge
If to Publix:
Publix Super Markets, Inc.
1936 George Jenkins Boulevard
Lakeland, Florida 33815
Attn: John Frazier
Vice President, Real Estate
With a copy to:
Hahn, McClurg, Watson & Bush, P.A.
C.V. McClurg Building
101 South Florida Avenue
Lakeland, Florida 33801-4619
Attn: Phillip H. Bush, Esq.
and, if to any Owner, at an address specified in the manner set forth in Paragraph 13.4.2
hereof for change of address.
13.4.2 Chance of Addr . Any Owner may specify or change the place for
service of notice by sending a notice to the other Owner(s), which notice shall become
17575.'1 1710083r5 -1 4-
Book5320/Page209 CFN#2004081532
effective ten (10) days after delivery thereof. All such notice addresses shall be within the
United States.
13.4.3 Notice to Lender. If a lender has theretofore sent a written notice to an
Owner which expressly states that it is the holder of a security interest in a Tract, describes
the nature of the security interest, and sets forth the name and address of such lender, then
until such Owner receives a written notice to the contrary from such lender, such Owner
shall send to such lender copies of all notices which it sends to any other Owner pursuant
to this Paragraph 13.4.
13.5 Indemni . Each Owner (herein, individually, "Indemnitor") shall defend, Indemnify,
and hold harmless the other Owners from all claims, losses, actions, proceedings and costs
(including reasonable attorney's fees actually incurred and court costs) resulting from any
construction, including liens, or any accident, injury, loss, or damage occurring to any person or to
the property of any person arising out of or resulting from the Indemnitors exercise of the rights,
privileges, and easements granted herein (provided, however, that the foregoing shall not be
applicable to events or circumstances caused by the negligence or willful act or omission of the
indemnified Owner), or resulting from the Indemnitor's violation of any of the restrictions,
covenants, and conditions established hereby.
13.6 Environmental Indemnification. Each Owner shall indemnify and hold harmless all
other Owners from and against any and all costs, claims, suits, causes of action, losses or
damages resulting from the presence or removal of Hazardous Materials stored, installed or
deposited on or delivered to such indemnifying Owner's Tract during the period of ownership
thereof by the indemnifying Owner. No person or entity shall be liable for acts or claims arising
from acts not occurring during the period such person or entity owned or owns the Tract to which
such acts or claims relate. As used herein, the term "Hazardous Materials" means any material or
substance that is toxic, ignitable, reactive or corrosive and that is regulated by the State of Florida,
the United States Govenment or any agency thereof including, without limitation, any and all
materials defined as "Hazardous Waste", "Extremely Hazardous Waste", or "Hazardous Material"
pursuant to state, federal or local government law, as amended from time to time. Each
indemnifying Owner shall be responsible for all costs including, but not limited to, those resulting
from monitoring, cleanup or compliance, incurred with respect to any Hazardous Materials stored,
Installed or deposited on or delivered to its Tract during the period of ownership thereof by the
indemnifying Owner. The terms and provisions of this Paragraph 13.6 shall be perpetual in
duration.
13.7 Estoonels. At any time during the term of this Declaration, an Owner may request
that each other Owner, or any of them, provide to such Owner, its mortgagee, or prospective
purchaser, within ten (10) days from such request, an estoppel letter or certificate stating that such
requesting Owner is in compliance with'the terms and conditions of this Declaration, that all
assessments have been paid and such other information as the requesting party shall reasonably
request, and any exceptions thereto. In the event an Owner fails to respond to such request, the
Owner of the Town Center Tract may provide such letter or certificate on behalf of such Owner and
the information provided therein shall be deemed accurate and binding.
13.8 Wave _ No delay or failure on the part of any Owner or (until the Publix Lease
has terminated and is of no further force or effect) Publix in the enforcement of its rights under this
Declaration shall impair enforcement, or be construed as a waiver of any such right, or constitute
acquiescence by any Owner or (until the Publix Lease has terminated and is of no further force or
effect) Publix to the breach or violation thereof. No waiver by an Owner or (until the Publix Lease
1732511 I71 W53v5 _1 5-
Book5320/Page210 CFN#2004081532
has terminated and is of no further force or effect) Publix shall be valid unless made in writing and
signed by the Owner or (until the Publix Lease has terminated and is of no further force or effect)
Publix, and then only to the extent expressly set forth therein.
13.9 No Mercer. Declarant hereby acknowledges that as of the date hereof, Declarant
owns all the Tracts and that in the future the same person or entity may own more than one (1)
Tract and/or a Tract or Tract(s). Notwithstanding same, Declarant hereby declares that the
restrictions, covenants, conditions, and easements set forth herein shall apply as if each Tract had
separate Owners and that there shall be no merger of same.
[SIGNATURES ON FOLLOWING PAGE)
17325/1 17100INS -16-
Book5320/Page211 CFN#2004081532
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed by its
duly authorized representatives as of the day and year first above written.
Signed, sealed and delivered
In the presence of:
Print Name:
1 r �-W�.447-
1132YI 17100$30
DECLARANT:
-, 7-
CAPITAL GREEN I, LLC
By: ESD Properties, Inc.
Its Manage
By. n / . a�C-.�+`w"�
J n H. Disher, Vice President
[CORPORATE SEAL]
21 b Sewn -Fawis
260
Book5320/Page212 CFN#2004081532
STATE OF SOUTH CAROLINA
COUNTY OF BERKELEY
The foregoing instrument was acknowledged before me this Z1 day of
J)rnfi_t 2004, by John H. Disher, Vice President of ESD Properties, Inc., Manager
of Callitai Green 1, LLC, who is personally known to me.
Print Name; a
Notary Public, State of South Carolina
��•- Commission No.: PIA
My Commission Expires:
MyCammfse3nn E0M 4,gDy2UCS
nrnn nromra - 2-
Book5320/Page213 CFN#2004081532
11 114
'a
�ri
a : 'j
Book5320/Page214 CFN#2004081532
CONSENT OF MORTGAGEE
THE NATIONAL BANK OF SOUTH CAROLINA ("Lender"), the holder of that certain
Mortgage and Security Agreement executed by CAPITAL GREEN I, LLC and recorded at Book
4279, Page 786, in the Public Records of Seminole County, Florida (as modified by that certain
Modification of Mortgage, Notes and Loan Document recorded in Book 4599, Page 1623 in the
aforesaid Records) (the "Mortgage"), for and in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby consents to the terms of the aforesaid Declaration of Restr€coons,
Covenants and Conditions and Grant of Easements and agrees that any foreclosure of the
Mortgage shall be subject to such Declaration.
This Consent shall in no way impair, alter or diminish the Effect of the lien or encumbrance
of the Mortgage or any rights or remedies of the holder of the Mortgage.
IN WITNESS WHEREOF, the undersigned has caused this Consent to be signed, sealed
and delivered this 2� day of April, 2004.
Signed, sealed and delivered
In the presence of:
Print Name:_ox.
17325/I 1710N3v3
-19-
THE NATIONAL BANK OF SOUTH
CAROLINA
ri
■�r ram/
Book5320/Page215 CFN#2004081532
STATE OF SOUTH CAROLINA
COUNTY OF `41 -F+v
1, c_ L 1G a Notary Public within and for said County and
State, do hereby certify that personally ap eared before me
this day and who, being duly sworn, did say that he is the �]nLtil+n-pr,F;�
of THE NATIONAL BANK OF SOUTH CAROLINA and acknowisdged the due execution of the
foregoing instrument as the free act and deed of said institution.
WITNESS my hand and official seal, this a day of April, 2004.
Notary Public W
My Commission Expires September 28, 21112
1732VI 1710013v5 -20-
Book5320/Page216 CFN#2004081532
CONSENT OF ANCHOR TENANT
PUBLIX SUPER MARKETS, INC. ("Tenant"), the tenant under that certain Lease
Agreement, a Memorandum of which is recorded in Book 4539, Page 651, in the Public Records of
Seminole County, Florida (as modified per Addendum recorded in Book 4713, Page 1200 of said
Records) (the "Lease"), for and in consideration of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby consents to the terms of the aforesaid Declaration of Restrictions, Covenants and
Conditions and Grant of Easements.
This Consent shall in no way modify or alter the Lease.
IN WITNESS,)/HEREOF, the undersigned has caused this Consent to be signed, sealed
and delivered this _ day of AprW 2004.
lu�-y
Signed, sealed and delivered / PUBLIX SUPER MARKETS, INC.
By:
Its:_pmra r
i
Real Estate
(CORPORATE SEAL)
17323/1 171ooe3v5 -21-
Book5320/Page217 CFN#2004081532
STATE OF FLORIDA
COUNTY OF `
I, l MAL UW0, , a Notary Public within and for said County and
State, do hereby certify that r rsonally appear d before me
this day and who, being duly sworn, did say that he is the OA eswv of
PUBLIX SUPER MARKETS, INC. and acknowledged the due execution of the foregoing
instrument as the free act and deed of said corporation.
WITNESS my hand and official seal, this _ day of Zt',1004.
won
Notary Public
My Commission Expire;,.,'
lisp Marl@ [Mork,
_ MICOMOAm s' MNV383 EXPIRES
&ay MA Ma""o t 2 E�1'
(Notarial Seal)
1732Y1 17100630 -22-
Book5320/Page218 CFN#2004081532
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AGREEMENT
An Agreement made and entered into as of this is r day of August, 2000 by and
among JDC CALHOUN, INC., a°Georgia corporation, herein referred to as UDC," and the City
of Winter Springs, a municipal corporation existing under the laws of the State of Florida, herein
referred to as "City."
RECITALS
WHEREAS, Section 163.3167, Florida Statutes, provides that each local government is
encouraged to articulate a vision of the future physical appearance and qualities of its community
as a component of the local comprehensive plan through a collaborative planning process with
meaningful public participation, and
WHEREAS, the City completed a comprehensive planning study, with extensive public
participation from local residents and 'local, county, and state officials, which resulted in the
adoption of the Winter Springs Town Center Plan, and
WHEREAS, pursuant to that certain Purchase and Sale Agreement between Laverne
Kingsbury and .tune Kingsbury, as sellers, and TDC, as purchaser, dated September 22, 1999, JDC
is the contract purchaser and will be the owner and developer of approximately fifteen (15) acres
of land located within the boundaries of the proposed City of Winter Springs Town Center and
more particularly described on Exhibit "A" attached hereto and by this reference made a part
hereof (the "JDC Property"), and
WHEREAS, JDC and City desire to memorialize their understandings and agreement
regarding their respective interests, expectations, and intentions contained in this Agreement
regarding the Town Center.
NOW THEREFORE in consideration of the terms and conditions set forth in this
Agreement, and other good and valuable consideration, the receipt of which is hereby
acknowledged by the parties, the City and JDC agree to the following:
I. Incorporation of Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this
reference as a material part of this Agreement.
H. Definitions.
Unless the context clearly indicates otherwise, the following words and phrases when used
in this Agreement shall have the meaning ascribed below:
a) "City" shall mean the City of Winter Springs, a Florida municipal corporation.
b) "City Code" shall mean the City Code of the City of Winter Springs, Florida
including, but not limited to, the Town Center District Code.
Page t of 1
c) "Conceptual Site Plan" shall mean the three phase conceptual site plan which
JDC agrees to permit and develop on the JDC Property under the terms- and conditions of this
Agreement and which is attached hereto as Exhibit `B" and fully incorporated herein by this
reference..
d) "Hickory Grove Park Boulevard" shall mean the planned urban boulevard
running from Magnolia Square west along the entirety of the north boundary line of the JDC
Property, as identified in the Town Center Plan and Town Center District Code.
e) "Hickory Grove Park North/South Extension Street" shall mean the Town
Center Street running from S.R. 434 north along the entirety of the west boundary line of the JDC
Property and terminating at and connecting to Hickory Grove Park Boulevard.
f) "Hickory Grove Park" shall mean the "central park" as identified in the Town
Center Plan and Town Center District Code.
g) "Market Square Parcel" shall mean that portion of the JDC Property as
generally depicted in the Conceptual Site Plan. Market Square Parcel shall consist of
approximately thirty/ one -hundredths (0.30) acres.
h) "JDC" shall mean JDC Calhoun, Inc., a Georgia corporation.
i) "JDC Property" shall mean the real property to be acquired by JDC and located
in the Town Center District, as more particularly described in Exhibit "A" which is hereby fully
incorporated herein by this reference.
D "Main Street Improvements" shall mean that portion of Main Street on the
Town Center Plan located from State Road 434 north to Magnolia Square (including pavement,
curbs and gutters, and stormwater facilities), as more particularly described in the Town Center
District Code.
k) "Town Center Plan" shall mean the sketch concept plan entitled "Winter Springs
Town Center Master Plan", prepared by Dover, Kohl & Partners, dated March 23, 1998, as
amended in February 2000, a copy of which is attached hereto as Exhibit "D" and hereby fully
incorporated herein by this reference.
1) "Town Center District" shall mean the town center area located in the City of
Winter Springs that is depicted in the attached Exhibit "E" which is hereby fully incorporated
herein by this reference.
m) "Town Center District Code" shall mean the Town Center Zoning District Code
adopted by the City Commission of Winter Springs on June 12, 2000, which is attached hereto as
Exhibit "F" and hereby fully incorporated herein by this reference.
III. JDC Pro'ect Requirements and Conditions.
i
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In consideration of the mutual promises and consideration set forth in this Agreement,
JDC intends to permit and develop a three phase Town Center development project on JDC
Property located within the Town Center. JDC agrees to permit and develop the project under
the terms and conditions of this Agreement and the Town Center'District Code. The final site
plan approved for the three phase project shall be in substantial conformity with the Conceptual
Site Plan unless otherwise approved by the City during the City's Town Center development
permit process. The City acknowledges that the layout of the Conceptual Site Plan is generally in
accordance with the Town Center District Code. Unless otherwise approved by the City, the final
site plan shall be designed and implemented as fo116ws:
a) The development of the final site plan shall be in three phases as depicted on the
Conceptual Site Plan. Phase I is required to be constructed and shall be constructed in its entirety
and Phases II and III shall be constructed if JDC determines that market conditions permit such
construction. At JDC's discretion, JDC may develop the final site plan in less than three phases if
market conditions permit a more expedited development of the JDC Property. In addition, JDC
may, at its discretion, develop Phases II and III in portions.
b) In accordance with Phase I of the Conceptual Site Plan, the City agrees and
acknowledges that upon JDC complying with the permitting requirements of the Town Center
District Code, Phase I shall consist of (i) a grocery store anchor building consisting of
approximately 44,000 retail square feet; (ii) not less than 63,840 square feet of additional retail
development at the comer of Main Street and State Road 434 and along Main Street inclusive of
unfinished shell space pursuant to paragraph III(f) of this Agreement; and (iii) a parking ratio of
up to five (5) spaces per 1,000 retail square feet.
c) The drug store anchor which is contemplated to be constructed on the corner of State
Road 434 and Main Street may, at JDC's discretion, be permitted and constructed at another
location along State Road 434. If so permitted and constructed, the drug store anchor will be
included as part of Phase I and another retail use shall be permitted and constructed at the
aforementioned corner in Phase I or Phase II. The City and JDC acknowledge that a restaurant
and/or bank/office use would also be suitable at the aforementioned comer.
d) All phases of retail development on the JDC Property, in addition to the grocery store
anchor, may be up to 272,000 retail square feet, unless otherwise agreed to by the parties.
Provided, however, the City encourages development in excess of 316,000 retail square feet.
e) JDC shall not permit or construct more than 45,000 square feet of buildings beyond
Phase I of the Conceptual Site Plan unless the next building permitted and constructed is the
northern most retail building on JDC Property along Main Street as depicted on Phase II of the
Conceptual Site Plan ("Final Main Street Building"). The Final Main Street Building may be
permitted and constructed simultaneously with another Phase II building above the
aforementioned 45,000 square foot threshold. Notwithstanding JDC may permit and construct
the Final Main Street Building sooner than required by this paragraph. The City strongly
encourages JDC to permit and construct the Final Main Street Building during Phase I.
f) The City prefers that all buildings constructed on the JDC Property be two (2) to four
(4) stories in height and that each story be suitable for occupancy. To that end, JDC and City
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agree the drugstore anchor (or other use as contemplated herein) on the corner of Main Street
and State Road 434 and the buildings located along Main Street shall be a minimum of two (2)
stories , but the second and higher stones may consist of a shell story consisting of finished
exterior walls, roof, windows, and other surfaces and an unfinished interior. All shell stories shall
be designed and engineered so as to accommodate occupancy at a later date. The City agrees that
all other buildings on the JDC Property may be"one (1) story occupancy buildings provided that
JDC constructs the buildings to a height of at least two (2) stories in order to achieve the vertical
character and scale required by the Town Center district Code. JDC agrees that such one story
occupancy buildings will incorporate a parapet wall, which the City hereby deems acceptable, or
other architectural feature suitable to the City that visually make the buildings appear to be at least
two (2) story buildings on all sides. However, nothing contained in this paragraph shall prohibit
JDC from constructing full occupancy buildings of two (2) to four (4) stories, where not
otherwise required by this Agreement, if JDC determines that market conditions would allow such
construction.
g) The City prefers parallel parking along Main Street but agrees to construct diagonal
parking as depicted on the Conceptual Site Plan to the extent market conditions, in the sole
discretion of JDC, require the additional parking spaces afforded by such diagonal parking. If
said diagonal parking is constructed instead of parallel parking, JDC agrees to donate to the City
the additional right of way which may be needed to construct the diagonal parking. Nothing
contained in this Paragraph III (g) shall prohibit the City from constructing diagonal parking along
Main Street at its sole choosing and discretion.
h) JDC, at its discretion, shall be allowed to delete the buildings depicted on the Phase II
Conceptual Site Plan which are west of the grocery store anchor, provided JDC submits a site
plan, acceptable to the City, that substitutes the buildings with: (i) parking; (ii) a pocket park of
not greater than 1200 square feet (unless a larger pocket park is agreed to by JDC) which shall
incorporate a kiosk, gazebo, pergola, water fountain or similar architectural feature; and (iii) a
landscape buffer for facilities along the rear of the grocery store anchor. The City agrees not to
unreasonably withhold such acceptance provided the site plan complies with the City Code.
IV. JDC's Initial Obligations and Conditions.
Upon the Effective Date of this Agreement, JDC agrees to perform the following:
a) Promptly use all reasonable and best efforts to complete the acquisition of the JDC
Property pursuant to its existing contract rights and provide written notice of the acquisition to
the City. However, in the event that JDC does not acquire fee simple ownership of the JDC
Property by the closing date set forth under the terms of the existing purchase contract, then this
Agreement shall be automatically terminated and nullified, in which event the parties obligations
under this Agreement shall be and become null and void and of no further effect. JDC shall
promptly provide the City written notice if JDC fails to close on the JDC Property.
b) Promptly use all reasonable and best efforts to secure a grocery store anchor and a
drug store anchor as contemplated under Phase I of the Conceptual Site Plan. In the event JDC
is not successful in securing both the grocery store anchor and drugstore anchor, JDC shall have
the right to terminate this Agreement by providing prompt written notice to the City. JDC shall
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provide the City prompt written notice at such time JDC has secured each of the grocery store
anchor and drugstore anchor.
c) Promptly commence the design, engineering and permitting of Phase I of the
Conceptual Site Plan. If the City takes final action disapproving the final site plan for Phase I of
the Conceptual Site Plan or any Special Exception listed in Paragraph XII of this Agreement, JDC
shall have a right to terminate this Agreement by providing; the City written notice of said
termination within seven (7) days of the City's final action of disapproval.
d) Promptly commence and within ninety (90) days following the Effective Date of
this Agreement submit a conceptual stormwater application to the St. John's Water Management
District, and acquire a construction permit for the construction of surfacelstormwater drainage
improvements on JDC Property which will be necessary to collect and discharge
surface/stormwater on and from the JDC Property to the City's stormwater system_ The
construction permit shall be obtained by JDC within twelve (12) months- from the Effective Date
of this Agreement or by the date of issuance of the building permits and commenc-ement of
construction for both the grocery store anchor and drug store anchor, whichever occurs later. In
addition, within forty-five (45) days from the Effective Date of this Agreement, JDC's engineers
shall provide the City's Utilities Director with estimated surface/stormwater volume and flows
expected to be generated, and discharged to the City's stormwater system, from the complete
build -out of Phase III of the Conceptual Site Plan. JDC acknowledges that the City will use and
rely on these estimates in obtaining a surface/stormwater construction permit as required in
Paragraph V(d) within 12 months from the Effective Date of this Agreement. JDC agrees that
City's engineers (who shall be qualified and experienced in stormwater engineering and
permitting) will be able to provide input into the design and permitting process for the
surface/stormwater drainage improvements on JDC Property for purposes of providing the City
with reasonable_ assurance that the improvements will properly discharge surface/stormwater into
the City stormwater system and that any and all applications and/or submittals to the St. John's
Water Management District will be subject to reasonable and timely review and approval by
City's engineers. City's engineers shall complete said review pursuant to JDC's reasonable time
schedule and shall not unreasonably withhold said approval.
V. Ci 's Initial Obligations and Conditions.
Upon the Effective Date of this Agreement, the City agrees to perform, at its expense, the
following:
a) Promptly commence the design, engineering and permitting to extend and connect
(ie., "stub in") City water distribution and sewer collection facilities to the boundaries of the JDC
Property in order to provide sufficient capacity to reasonably accommodate and guarantee the
level of service capacity required for the Town Center and the JDC Property as developed in
accordance with Phase III of the Conceptual Site Plan. The City shall not be required to extend
either sewer or water facilities into the interior portion of the JDC Property unless agreed upon in
future written developer agreements. The City also guarantees sufficient capacity within the sewer
and water treatment plants to reasonably accommodate and guarantee the level of service required
for the Town Center and JDC Property , as stated above. The City will fully complete such
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design, engineering (100% plans) and permitting not later than twelve (12) months from the
Effective Date of this Agreement.
b) Promptly commence the design, engineering and permitting of Hickory Grove Park
Boulevard and Hickory Grove Park North/South Extension Street. The City will fully complete
such design, engineering (100%4 plans) and permitting not later than twelve (12) months after the
Effective Date of this Agreement. Provided, however, the obligations of the parties under this
Agreement shalt be contingent upon the City successfully entering into a binding purchase
contract to acquire the necessary right-of-way for Hickory Grove Park Boulevard and Hickory
Grove Park North/South Extension Street not later than ninety (90) days after the Effective Date,
failing which, either party hereto shall be entitled to cancel this Agreement by written notice
thereof to the other party given not later than one hundred (100) days after the Effective Date. In
connection with such acquisition and right of termination, the City agrees to furnish JDC copies of
the purchase contract, as amended, relating to such acquisition not later than ninety (90) days
after the Effective Date. The City acknowledges and agrees that JDC shall be entitled to exercise
the foregoing right of termination in the event the terms for closing the final purchase contract are
not acceptable to JDC, it being the intention hereof that the purchase contract shall provide JDC
strong assurance that the purchase will actually close in a timely manner and the City will be in a
position to fulfill its obligation to construct Hickory Grove Park Boulevard and Hickory Grove
Park North/South Extension Street. Anything herein to the contrary notwithstanding, the City
shall be obligated to actually close on such purchase transaction not later than the date of issuance
of the building permits and commencement of construction of all or any portion of Phase II of
the Conceptual Site Plan. Notwithstanding, the City shall have the right to terminate the final
purchase contract for Hickory Grove Park Boulevard and Hickory Grove Park North/South
Extension Street if JDC fails to obtain a grocery store anchor and drug store anchor for the JDC
Property.
c) Promptly commence the design, engineering and permitting of the Main Street
Improvements as provided in paragraph VI(b) of this Agreement. The City will fully complete
such design, engineering (100% plans) and permitting within 12 months of the Effective Date of
this Agreement,
d) Promptly commence, and within ninety (90) days following the Effective Date
submit, a conceptual stormwater application to the St. John's Water Management District, and
acquire a construction permit for the construction of surface/storm water drainage improvements
to service the JDC Property, as provided in paragraph VI(b), and other portions of the Town
Center within twelve (12) months from the Effective Date. The City agrees that JDC's engineers
(who shall be qualified and experienced in stormwater engineering and permitting) will be able to
provide input into the design and permitting process for the surface/stormwater drainage
improvements and that any and all applications and/or submittals to the St. John's Water
Management District will be subject to reasonable and timely review and approval by JDC's
engineers. JDC's engineers shall complete said review pursuant to the City's reasonable time
schedule and shall not unreasonably withhold said approval. The City acknowledges and agrees
that no retentionldetention areas and/or ponds shall be located on JDC Property and that no other
portion(s) of the City's surface/storm water drainage improvements shall be located on the JDC
Property without JDC's approval, it being the intention hereof that the City's facilities shall
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accommodate all surface/stormwater from the JDC Property as developed in accordance with
Phase III of the Conceptual Site Plan and that JDC's facilities shall serve to collect such
surface/stormwater for discharge into the City's system. The City agrees that JDC shall have the
nonexclusive right in perpetuity to use the surface/stormwater drainage improvements to
discharge surface/stormwater generated from the JDC Property at volumes consistent with the
Phase III development of the Conceptual Site Plan. JDC acknowledges and agrees that following
installation of such surface/storm water drainage improvements, the JDC Property shall be subject
to an obligation to contribute to the costs of maintenance thereof on the same basis as other
property owners served thereby under the City"s municipal stormwater utility system. Upon
reasonable request of JDC, and as may be reasonably needed by JDC from time to time, the City
agrees to furnish JDC with a written letter or other documentation as customarily provided by the
City to evidence that JDC has the aforementioned discharge rights as provided in this paragraph
V(d) in satisfaction of the requirements of JDC's construction and/or permanent lender and
prospective tenants on the JDC Property. Provided, however, the obligations of the City to
acquire the stormwater construction permit from St. John's Water Management District shall be
contingent upon the City finding suitable property to construct the City's surface/stormwater
drainage improvements which are necessary to serve the JDC Property and the Town Center as
contemplated by this Agreement. Suitable property may be obtained either by successfully
entering into a binding contract with the Seminole County School Board to acquire the right to
use (by easement, license, or ownership) school board property or by using some other alternative
property (not JDC Property) deemed suitable by the City. If the City fails to acquire such
suitable property, either party hereto shall be entitled to cancel this Agreement by written notice
thereof to the other party given not later than one hundred eighty (180) days after the Effective
Date.
Vl. City"s Conditional Obligations.
Upon JDC purchasing the JDC Property and obtaining building permits and commencing
construction for each of the grocery anchor and drugstore anchor, the City agrees, at its expense,
to perform the following upon completion of the applicable design, engineering, and permitting
set forth in Paragraph V of this Agreement:
a) Actually commence, and within twelve (12) months thereafter fully complete, the
construction of facilities and improvements to extend and connect (i.e., "stub in") City water
distribution and sewer collection facilities to the boundaries of the JDC Property as provided for
in paragraph V(a) of this Agreement. The City shall not be required to extend either sewer or
water facilities into the interior portion of the JDC Property unless agreed upon in future written
developer agreements. The City also agrees that no special City water or sewer connection charge
or assessment will be applied to the JDC Property for purposes of reimbursing the City for the
expense of extending and connecting the City's water distribution and sewer collection facilities to
JDC Property as described above; provided, however, individual users within the JDC Property
may be charged the same normal and regular "City-wide" connection fee that is customarily
charged to all other individual users within the City for connecting into and utilizing the "City-
wide" water and sewer capacity.
b) Actually commence, and within twelve (12) months thereafter fully complete, the
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construction of facilities and improvements comprising the Main Street Improvements. The City
shall, as part of the construction of the Main Street Improvements, install surf aeelstorm water
drainage improvements sufficient to accommodate all surface/storm water drainage from Main
Street and from the JDC Property, as developed in accordance with the development of the entire
Phase III Conceptual Site Plan.
c) At such time as JDC, or its successor or assigns, obtains building permits and
commences construction of a building or buildings beyond Phase I of the Conceptual Site Plan,
actually continence, and within twelve (12) months..thereafter fully complete, the construction of
Hickory Grove Park Boulevard and Hickory Grove Park North/South Extension Street.
In addition, JDC agrees to provide the City with at least ninety (90) days written notice of
its scheduled construction commencement date of both the grocery store anchor and drug store
anchor and Phase II construction for purposes of giving the City a reasonable opportunity to
publicly bid the City construction projects contemplated in this paragraph VI so that construction
can be completed in a timely manner. Failure by JDC to provide timely notice will extend the time
the City has to complete the construction by the number of days the notice was determined by the
City to be untimely.
VU. Conveyances from JDC to the City.
a) JDC agrees that at such time as JDC shall have obtained building permits for and
commenced construction of each of the grocery anchor and drugstore anchor users as
contemplated in this Agreement, JDC will convey to the City fee simple title to (i) the Market
Square Parcel, and (ii) the eleven (11) foot wide strip of land needed for right-of-way and other
municipal purposes, as legally described on Exhibit "C" attached hereto and by this reference
made a part hereof.
b) JDC also agrees to convey public rights of way and easements and public
improvements to such public rights of way and easements which are incorporated by JDC and
approved by the City in a final site plan and which are similar to those depicted in the Town
Center District Code and located on JDC Property. Any such conveyances shall occur at such
time, and as part of a City approved JDC development, in a manner in which similar conveyances
are required in connection with similar developments within the City.
c) If during the final permitting process of Phase I of the Conceptual Site Plan JDC
desires diagonal parking along the south boundary of Hickory Grove Park Boulevard and/or along
the east boundary of Hickory Grove Park North/South Extension Street, JDC agrees to convey
fee simple title to a ten (10) foot wide strip of land, along the south boundary of Hickory Grove
Park Boulevard and along the east boundary of Hickory Grove Park North/South Extension
Street, needed for each diagonal parking area . The conveyance shall occur prior to
commencement of construction of Hickory Grove Park Boulevard and/or Hickory Grove Park
North/South Extension Street. Notwithstanding, JDC's request for diagonal parking shall be
made no later than the date the City has reached 50% design and engineering of Hickory Grove
Park Boulevard and Hickory Grove Park North/South Extension Street. Provided JDC's request
and conveyance are timely made, the City shall construct such diagonal parking.
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VH. Inclusion of Property in Town Center District.
') JDC consents to the inclusion of the JDC Property into the Town Center District subject
to the terms and conditions hereof.
VIII. Adoption of Town Center District Code.
JDC hereby consents to the adoption of the Town Center District Code and its
applicability to the JDC Property subject to the terms and, conditions hereof.
IX. Future Land Use Change.
JDC and the City acknowledge that the future land use designation for the JDC Property
shall be Town Center at such time said designation is approved by the City. Specifically, and
without limitation, the parties intend for the future land use designation under the City's
Comprehensive Plan to be amended to accommodate the Town Center District Code. The City
shall diligently process through completion said comprehensive plan amendments -and also
effectuate any administrative rezoning necessary to implement the foregoing land use change. All
future land use changes shall comply with the procedures set forth in chapter 163, Florida
Statutes, and the City Code of Winter Springs.
X. Dia rams/" Illustrative Purposes Only".
Except for Market Square Parcel, Hickory Grove Park Boulevard, Hickory Grove Park
North/South Extension Street, Main Street, and other components of the Town Center expressly
agreed to in this Agreement, the City hereby acknowledges that all diagrams and graphics within
the Town Center Plan and the Town Center District Code, which are depicted on JDC Property,
are for "illustrative purposes only" and are intended only to illustrate the intent and concepts of
the Town Center District Code. Nothing in this section shall be construed as relieving JDC of the
requirements of the Town Center District Code.
XI. Periodic Review.
This Agreement shall be subject to periodic review by the parties. Periodically, the City
and JDC agree to cooperate and meet in good faith to discuss the progress made under this
Agreement and whether any amendments should be made to this Agreement in furtherance of
each others' mutual interests. Additionally, during said review, the parties may discuss proposing
amendments to the Town Center District Code which may be needed to promote the public's
interest in creating an economically viable Town Center.
XH. Cooperation.
JDC and the City shall cooperate fully with each other to effectuate the terms, conditions
and intentions of this Agreement_ In connection with City development permit approvals
necessary to effectuate the Conceptual Site Plan including, but not limited to, special exceptions
under the Town Center District Code (particularly the Large Footprint Building for the grocery
store anchor and one story buildings with parapet and two or more story buildings with unfinished
second or higher stories_), the City agrees to process JDC's development permit applications in
Page 9 of 1 5
good faith and in a prompt, diligent manner. The City acknowledges that obtaining special
exceptions for the Large Footprint Building for the grocery store anchor and for the one story
building with parapet and unfinished second or higher stories is pivotal to JDC developing the
Conceptual Site Plan and the City will fully cooperate with JDC to obtain approval of the special
exception under the Town Center District Code.
XM. Authority.
Each party hereby represents and warrants; to the other that they have full power and
authority to enter into this Agreement. JDC also "represents that it is duly authorized to bind the
JDC Property to the terms and conditions contained'in this Agreement. JDC also represents that
all legal and equitable title to the JDC Property will be vested in and held by JDC upon closing of
the existing purchase contract for the JDC Property. The 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.
XIV. Notices. _
Any notice required or allowed to be delivered hereunder shall be in writing and 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, Purolator, Airborne, 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:
JDC: Mr. Shane Doran
Vice President
JDC CALHOUN, INC.
c/o The James Doran Company
1051-H Johnnie Dodds Blvd.
Mt. Pleasant, SC 29464
Phone: 843-881-7550
Fax: 843-849-6765
With copy to: Chip Carrington, Esquire
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, Florida 32801
Phone: 407/843-4600
Fax: 407/423-4495
City: Ronald W. McLemore, City Manager
City of Winter Springs
1126 East State Road 434
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Winter Springs, Florida 32708
Phone: 407-327-5957
Fax: 407-327-4753
With copy to Anthony A. Garganese, Esquire
City Attorney of Winter Springs
Amari & Theriac, P.A.
96 Willard Street, Suite 302
Cocoa, Florida 329,
Phone: 407 639-1320;
Fax: 407-639-6690
XV. Defaults.
Failure by either party to perform each and every one of its obligations hereunder shall
constitute a default, entitling the nondefaulting 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 nondefaulting 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 nondefaulting party
prior to filing said action. The prevailing party in. any litigation arising under this Agreement shall
be entitled to recover its reasonable attorney's fees and costs, whether incurred at trial or appeal.
XVI. Successors and Assij4ns.
This Agreement shall automatically be binding upon and shall inure to the benefit of the
successors and assigns of each of the parties.
XVH. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida.
XVM.Arnendments.
This Agreement shall not be modified or amended except by written agreement duly
executed by both parties hereto.
XDL Entire Agreement.
This Agreement supersedes any other agreement, oral or written, and contains the entire
agreement between the City and JDC as to the subject matter hereof.
XX. 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
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enforceability of the remainder of this Agreement.
XXI. Effective Date.
This Agreement shall become effective upon approval by the City Commission of Winter
Springs and execution of this Agreement by both parties (the "Effective Date").
XXH. Recordation.
A short form memorandum of this Agreement' and any amendments hereto shall be
recorded in the public records of Seminole County, Florida and shall run with the JDC Property.
The memorandum shall be in a form mutually acceptable to the City and JDC and shall promptly
be recorded at such time JDC receives a deed conveying the JDC Property to JDC pursuant to the
existing contract to purchase the JDC Property. The memorandum shall include the legal
description of the real property described in Exhibit "A" (the "JDC Poperty").
XXM. Relationship of the Parties.
The relationship of the parties to this Agreement is contractual and JDC 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 mariner which would indicate any such
relationship with the other.
XXIV. Soverei n Immunit .
Nothing contained in this Agreement shall be construed as a waiver of the City's right to
sovereign immunity under Section 769.28, Florida Statutes, or any other limitation on the City's
potential liability under state and federal law.
XXV. City's Police Power.
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.
XXVI. Force Mai cure.
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.
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XXVII. 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, Any reference in this Agreement
to a whole paragraph number (e.g., paragraph, V) shall also include all subparagraphs set forth
below the whole paragraph number (e.g., V (a), (b), (c), and (d)).
XXVIII. Permits.
The failure of this Agreement to address any particular City, county, state, and federal
permit, condition, term, or restriction shall not relieve JDC or the City of the necessity of
complying with the law governing said permitting requirements, conditions, term, or restriction.
XXIX. 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.
XXX. Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
XXXI. Conve ance of Market S uare Parcel and Other Pro et by JDC.
All real property conveyances made by JDC to the City pursuant to this Agreement shall
be made by special warranty deed and free of all mortgages, liens, and other title matters which
would unreasonably interfere with the City's use of the Market Square Parcel and other property
conveyed for the purposes contemplated under this Agreement and the Town Center District
Code.
XXXH. Declaration of the Q Commission of Winter Springs.
The City Commission of the City of Winter Springs hereby finds that this Agreement is
- consistent with the City's Comprehensive Plan and land development regulations and is a
legislative act of the City Commission of the City. The City Commission further finds that this
Agreement promotes the public health, safety, and welfare and is consistent with, and an exercise
of, the City's powers under the Municipal Home Rule Powers Act, as provided in s. 2(b), Article
VIII of the Florida Constitution and Chapter 166,021, Florida Statutes, and the City's police
powers.
XXXIII. Conflict with Town Center District Code.
To the extent there are any specific conflicts between the provisions of the Town Center
District Code and this Agreement, the parties agree that the provisions of this Agreement shall
i
Page 13 of 15
control as if approved by the City Commission as a special exception pursuant to the Town
Center District Code.
IN WITNESS WHEREOF, JDC and the, City have executed this Agreement in form
sufficient to bind them as of the day and year first above written.
WITNESSES:
JDC CALHOUN, INC.,
a Gf
Print N ie:')sl1 `�• jY]�} �c�'1 By;
Print Name:
CITY
a Mimiri
011A
♦ -V\ 1 It,aluctlL
Paul P. Party", Mayi
G+�
PrintName:�4.,
Print Name: f Y�,„ •JZ,��
&[M4 CACOLI Nq
STATE OF+UffWYA
COUNTY OF
The foregoing instrument was acknowledged before me this day of August, 2000
Page 14 of
0
�J
ition, who executed the
same for the uses and
)r who has produced
spires 4-30-2008
day of August, 2000
nally known to me and
DREA LORENZO-LUACES
COMMISSION * CC 531031
EXPIRES: May 9. 2003
Fla Nolery"Senloe s Bordrg Co.
�;SSISi + • . . r �■RrtcL�G��:�1K.1�1L����:a�11�L:L"�
/2003 22:10 107327a755 WRITER SPRNGS BLDDP, PAGE 02/09
T M[ld)<]F CATIG C]F A E ENT
I
A First M.odificAtidn of Agreement made and entered into as of this d3&�day of July.
2)01, by and between JDC CALHO N, INC., a Georgia corporation, (hereinafter referred to as
" AC"), and the CITY OF WINTER SPRINGS, a municipal corporation existing under the taws of
t e State of Florida (hereinafter referred to as the "City').
RECITALS
i
WHEREAS, JDC and the City previously entered into that certain Agreement dated as of
�ugust 1, 2000; and
i
WHEREAS, JDC and the City desire to modify the terms and provisions of such Agreement.
i
NOW THEREFORE, in consideration of the terms and conditions set forth in this Fist
Modification of Agreement, and other good and valuable consideration, the receipt of which is
Hereby acknowledged by the parties, the City and JDC agree to the following:
f l The provisions of subparagraph 1H. (c) and otherprovisions of the Agreement
�Krl,
:aining to the two-story 30,240 square foot building which is contemplated to be constructed on
earner of State Road 434 and Main Street are hereby modified to memorialize the recent
greement of the parties that JDC shall have a period of up to eighteen (18) rr ombs after JDC's
losing on the JDC Property within which to commence construction of such building on the comer
f State Road 434 and Main Street. The City acknowledges and confirms that the permits,
ertificates of occupancy and other permits for development of other portions of the JDC Property
ill not be withheld or delayed during the period prior to JDC's commencement of such construction
on the tamer of State Road 434 and Maim Street.
2. The provisions of the Agreement are hereby modified to memorialize the
ent understanding and agreement o f the parties that 'the City -has no obj ection conceptually to the
istruction of a fast food restaurant located internal to the site in the vicinity of tha roundabout.
C acknowledges that the precise configuration and other details relating to the proposed fast food
taurant must be reflected in a site plan and other submittals required under the City Code with
pect to which final City approval(s) must -be obtained prior to commencement of construction.
3. The provisions of this Agreement are hereby further modified to memorialize
recent agreement of the parties that the roundabout depicted on the Conceptual Site Plan will
A.ain a water fountain or similar water feature.
4. The provisions of the Agreement are hereby further modified and amended
memorialize the agreement of the parties that as of JDC's closing of the purchase of the JDC
Iperty, the City shall be fully obligated to construct, at its cost and expense, the Main. Street
Page I of 4
���yl'11'<:i �� •+i-1�.�!'�3�1�h��iisc�tfl�i>t_�»RiRiul��i>As.l�lsSY��
'23/2003 23:10 1073274755 WINTER SPRNGS BLDDPi PAGE 03/09
Wements, Hickory Grove Park Boulevard, Hickory Grove Park North/South Extension Street
ter with the facilities and improvements serving the JDC Property for sanitary sewer, potable
and stormwater, all as more specifically described in the Agreement. Design, engineering,
itting, and construction of each item of infrastructure shall be completed by the respective date
firth in Schedule 1, attached hereto and incorporated herein by this reference. Further, with
ct to potable water, sanitary sewer and stormwater improvements serving the JDC Property, the
1grees to furnish JDC in writing the designated connection points at the perimeter of the JDC
-rty (which may be fully relied upon by JDC in connection with its site plan, binding
nitments with JDC's tenants and all other matters) not later than thirty (30) days after the
tive date of this First Modification. The City has acquired suitable property for stormwater
tion as contemplated in Section. V(d) of the Agreement. Therefore, both parties waive their
to cancel the Agreement under said Section V(d) for the City's failure to acquire such suitable
k 51 JDC represents that it is JDC's intention to acquire the parcel owned by the
isburys located at the corner of Main Street and Hickory Grove- Park Blvd. and in connection
iwith, the City agrees to process JDC's development permit applications in good faith and in a
hpt, diligent manner such that development may be coordinated with development on the JDC
6. The City and JDC acknowledge that following. the execution of the
reement, it has been determined to the best of City's actual knowledge that the permitting through
St. John's River Water Management District of the on -site stormwater collection system should
routine and with no known practical risk of denial or the attachment of unacceptable conditions;
7.. The City acknowledges that JDC has made the elections described more
titularly in subparagraphs III(g) and VIl(c). Said -election provides for diagonal parking along
in Street and Hickory Grove Blvd.
8. Paragraph V11(a) of the Agreement is hereby amended and restated as follows:
JDC agrees.that not later than twenty (20) days following the closing ofJDC's
rchase of the property, JDC will convey to the City fee simple title to: (i) the Market Square Parcel
d(ii) the eleven (11) foot wide strip of )and needed for right-of-way and other municipal purposes
legally described on Exhibit "C" of the Agreement. Further, JDC shall effectuate the conveyances
r1templated in Paragraph 7 ofthis First Modification in the same instrument of conveyance, which
parties agree shall be a Special'Warranty Deed. JDC acknowledges and confirms that such
srveyances to the City shall be free of mortgages, liens or other matters which would unreasonably
'erfere with the City's use of such strips of land for the uses intended therefor as contemplated, in
A Agreement; provided however, the City agrees that it shall be the City's responsibility with
Spect to power lines and/or other utilities within such areas deeded to the City to coordinate and
Page 2 of 4
23/2003 23:10 1073274755 WINTER SPRNGS BLDDPi PAGE 04/09
br the relocation of the same underground and the City acknowledges that any such existing
!r lines and/or other utilities within the deeded area shall not be a basis for objecting to the
'scion of the title to such strips of land.
9. The City acknowledges that -because of events beyond its control, it has been
yed in the perrrritting of the portion of the master stormwater management system, intended to
e the portion of the JDC Property labeled the "East Basin" on the sketch attached hereto as First
€i€"ication Exhibit "A". Therefore, the City and JDC agree that Phase I will be undertaken by
its two steps, the first step involving the portion of Phase I labeled the "West Basin" on the
rb attached hereto as First Modification Exhibit "A" ("Phase IA11) and Step 2 involving the
ion of Phase I labeled the "East Basin" on the sketch attached hereto as First Modification
i bit "A"("Phase IB"). JDC desires to commence Phase 1A development at the earliest possible
after the City has satisfied its obligations under the ,Agreement, as amended hereby, and the City
es to use its best efforts to expedite satisfaction of such obligations.
10, In consideration of the foregoing provisions, JDC hereby (i) waives its right
ermination in the event JDC is not successful in securing a drugstore. anchor (the right of
wriination is connection with the grocery store anchor is not waived); and (ii) JDC agrees that the
6,000 square fool building and 10,500 square foot building circled on the copy of the Conceptual Site
Na r for Phase I1 attached hereto as First Modification Exhibit "B" shall be constructed in Phase I.
e: parties acknowledge and agree that the 6,000 square foot building and the 10,500 square foot
b i .ding shall be counted for purposes of application of the 45,000 square foot threshold as provided
i ubparagraph M(e) of the Agreement.
11. The obligation of the City under this First Modification of Agreement shall
upon JDC closing on the purchase of the JDC Property.
12. ,All terms of the Agreement between the parties, dated August 1, 2000, shall
in in full force and effect, to the extent not modified by this First Modification Agreement.
13, The Cityhas acquired Hickory Grove Park Boulevard and Hickory Grove Park
outh Extension Street. Therefore, Paragraph V(b), beginning with the third sentence therein,
v deleted in its entirety.
14. With respect to the notice provisions contained in the last full paragraph of
tion VI of the Agreement, the City waives the notice of JDC's scheduled construction
lmencernent date of the grocery store anchor: JDC acknowledges that such waiver shall not
eve JDC from its obligations to provide such notice with respect to the drug store anchor.and
Ise 11.
Page 3 of 4
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23:10 1073274755 WINTER SPRNGS BLDDPi PAGE 05/09
IN WITNESS WHEREOF, JDC and the City have executed this Agreement in form
ient to bind them as of the day and year first above written.
SES:
lC.4 of Vr, lI f SoMgjAr"�nVDC Calhoun A jl-a nl v 04 pah.kJ
Page 4 of 4
JDC
a Ge
a
Vice President
CiT WIN -TER SPRINGS,
a F rida al C rpo ion
By: _
Paul P. P,aAyka, M Ir
10/09/2003
23:10 1073274755 WINTER SPRNGS BLDDPI PAGE 07/09
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ORIGINAL
Post -it' Fax Note 7671
pages
From
Ti, S N
Co,/Dept,
Co.
Phone M
Phone N
Fax 11
Fax 0
SECOND MODIFICATION OF AGREEMENT
�- 1
This Sec d Modification of Agreement ("Second Modification") is made and entered
into as of this day offiL,Cf a ; 2003 by and between JDC CALHOUN,
INC., a Georgia corporation, hereinafter referred to as "JDC," and the CITY OF WINTER
SPRINGS, a Florida municipal corporation existing under the laws of the State of Florida,
hereinafter- referred to as the "City."
RECITALS:
WHEREAS, JDC and the City previously entered into that certain Agreement dated
August 1, 2000; and
WHEREAS, JDC and the City previously amended the Agreement by that certain First
Modification of Agreement dated July 2, 2001 (the Agreement and First Modification of
Agreement shall be hereinafter referred to collectively as the "Agreement"); and
WHEREAS, JDC and the City desire to modify the terms and provisions of such
Agreement.
NOW, THEREFORE, in consideration of the terms and conditions set forth in the
Agreement and this Second Modification, and other good and valuable consideration, the receipt
of which is hereby acknowledged by the parties, the City and JDC agree to the following:
1.0 Section III(c) of the Agreement is hereby amended as follows (underlined type
indicates additions and Ott type indicates deletions):
c) The .fir ig s e aiie1,., .�'hieh .,-re —1-*-j to be st ted on
4 L41! 411
be pemlitted an
] J
eafl. z.ia'rC + "i 1- "Iseaaae��434ep-acted;
tted and constFusted at the afbre i en iened ee er in Phase r of Phase H. It is
acknowled ed that a drug store anchor is not required to be "located on the corner of State
Road 434 and Main Street. The building on the corner of State Road 434 and Main Street
may be occupied with any of the uses permitted under the Town Center District Code.
The City and JDC acknowledge that a restaurant and/or bank/office use would also be
suitable at the aforementioned corner.
Second Modification to Agreement
JDC Calhoun, laic. and City of Winter Springs
Page 1 of 4
2.0 Section III(f) of the Agreement is hereby amended as follows (underlined type
indicates additions and stfikeeti type indicates deletions):
f) The City prefers that all buildings constructed on the JDC Property be
two (2) to four (4) stories in height and that each story be suitable for occupancy. To that
end, JDC and City agree tlie drugstore other- use
the eo e- of Main StFee! nna State Read I34 .,w.j the buildings located along Main Street
on the JDC Property shall be a minimum of two (2) stories as defined in Section 20-1 of
the QLty zoning ordinance with the second story suitable for occupancy in the initial state
of construction other than second story _interior finishes. Specifically, the second story
shall have a floor and ceilin.R and the electrical, plumbing, HVAC, and fire sprinklers
(if required) and other interior systems shall be sized and "stubbed out" to accommodate
occupancy on such story unless otherwise required by the City Code In addition, the
floorinp
j, of the second story shall be a slab or plywood sub -floor. The particular finished
flooring -materials (such as carpet, tile, or finished wood.)and the interior wall material
such as drywall) shall be com leted as part of the tenant finish work at a later date so
that the space will meet the needs of the particular tenant. but the seeand 4
.]LV3 ■es
�T ' 1 n'
and an n fii.ishea inn ~ ~ However, Building One located on the
corner of Main Street and State Road 434 iay be constructed without an occu led
second story and 'second story flooring system provided that the following conditions are
satisfied:
1) Building One shall be a two-story building in height and constructed in
accordance with the elevations previously approved by the _City
Commission.
21 The structural electrical mechanical air conditioning plumbing, fire
defense, alnd other building -systems shall be constructed to satisf all
code re Uirements for the initial phase of the Building One
construction, and modifiable to accommodate an occupied second floor
including installation of an elevator, if and when a second floor may be
desired for Building One.
3j Real transparent windows stems shall be installed for the first and
second stories of Building One in the initial phase of construction in
accordance with the buildinjg elevations -previously approved by the
City Commission.
41 All interior walls that separate tenants shall be at least two-hour fire
rated walls.
5) Building One may be constructed as a speculative building, in which
event_4 certificate of completion issued by the City will be required
indicating cam letion of the building shell in accordance with all Rlans
and codes prior to occupancy,
Second Modification to Agreement
J JDC Callloun, vie. and City of Winter Springs
Page 2 of 4
6) Certificates of occupancy for Building One will be issued only to
tenants aces which are constructed in accordance with the provisions of
this Aueenient and all applicable plans and codes, Building permits and
certificates of Occupancy shall be independentlyindqptndently issued for each tenant
space.
All she l stoi!ies shall be designed afid engineered so as to ae6amme&te eee-upfflwy-at-a
liter date. The City agrees that all other buildings on the JDC Property may be one (1)
story occupancy buildings provided that JDC constructs the buildings to a height of at
least two (2) stories in order to achieve the 'verti'cal character Lund scale required by the
Town Center District Code. JDC agrees that such one story occupancy buildings will
incorporate a parapet wall, which the City hereby deems acceptable, or other architectural
feature suitable to the City that visually make the buildings appear to be at least two (2)
story buildings on all sides. However, nothing contained in this paragraph shall prohibit
JDC from constructing full occupancy buildings of two (2) to four (4) stories, where not
otherwise required by this Agreement, if JDC determines that market conditions would
allow such construction.
3.0 All other provisions contained in the Agreement which are not amended by this
Second Modification shall remain unchanged and shall continue to be in full force and effect.
WITNESSES:
Print Name: de-L L. I' L hit
Prhit Name: , � ' c c_cx G. L-e v c •t+-
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
JDC CALHOUN, INC.
a Georgia corpo
By:
Shane Doran, Vice President
The foregoing instrument was acknowledged before me this91741 day of
J w�P'x' , 20091by Shane Doran, Vice President of JDC Calhoun, Inc., a Georgia
corporation, who executed the foregoing instrument and acknowledged before me that he
executed the same for the uses and purposes therein expressed and who is personally known to
me or who has produced 1-/A as identification and who did not take an oath.
Notary Public Signature
M' C4= 7-24-2011
Second Modification to Agreement
JDC Calhoun, lnc. and City of Winter Springs
Page 3 of 4
ATTEST: CITY OF WINTER SPRINGS
a Florida municipal corporation
_.
.Andrea renzo-Luaces, City Clerk , y Jol& . Bush, Mayor
[City Seal]
Capital Green 1, LLC joins in, ratifies and confirms the above described Second
Modification of Agreement with the same force and effect as if Capital Green I, LLC had
been named a party therein.
WITNESSES:
Print Name: fir yjr-€c
Print ame:
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
CAPITAL GREEN I, LLC
a Georgia limited liability company
ESi7 Profov,
errties ,�-, �
By:alltn 4OU Q.0
Its: ice. Pms i VU
_ The foregoing instrument was acknowledged before me this Z f Ly of
z; w��R�! 2003 f by �nhn l� �is4ur,llice Qrec�r;►r��SDRper4i..n�arooerof Capital
Green I, LLC, a Georgia limited liability company, who execut d t' e foregoing
instrument and acknowledged before me that he executed the same for the uses and
purposes therein expressed and who is personally known to me or who has produced
N/fit as identification and who did not take an oath.
Notary Public Sig-hature
y My Commission EvIn3s7o11
Second Modification to Agreement
JDC Calhoun, Inc. and City of Winter Springs
Page 4 of 4
ASSIGNMENT
THIS ASSIGNMENT Orri after referred to as this "Assignment") is made this
day of ,, by JDC CALHOUN, INC. (a Georgia corporation)
hereinafter refe re�as "Assi nor" to and in favor of CAPITAL GREEN I, LLC a
( g )
Georgia limited liability company) (hereinafter referred to as "Assignee").
WITNESSETH THAT
WHEREAS, Assignor made and entered into that certain Agreement dated
August 1, 2000, with The City of Winter Springs, Florida (hereinafter referred to as the
"City"), as the same may have heretofore been amended (hereinafter referred to as the
"Agreement"), with respect to certain real property located in Winter Springs, Seminole
County, Florida, as more particularly described in the Agreement (hereinafter referred to
as the "Property");
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, Assignor hereby transfers, assigns,
conveys, and sets over unto Assignee all of Assignor's right, title, and interest, in and to
the Agreement, as well as all of Assignor's right, title, and interest in and to any and all
permits and approvals heretofore received under or in connection with the Agreement.
Assignee hereby agrees to assume and perform any and all obligations of Assignor
under and pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have signed and sealed this
Assignment as the date first above written.
ASSIGNEE:
CAPITAL GREEN I, LLC
By: ESD Properties, Inc.
Its Manager
.,- By:
ItS � e �re5 i
AS,
JD(
By:
Its:
The undersigned hereby acknowledges and consents to the foregoing Assignment
this _ day of December, 2001.
City of Winter Springs
*ItMAYI�)
1419455v2
ASSIGNMENT
THIS ASSIGNMENT (hereinafter referred to as this "Assignment") is made this
day of December, 2001, by JDC CALHOUN, INC. (a Georgia corporation)
(hereinafter referred to as "Assignor") to and in favor of CAPITAL GREEN I, LLC a
Georgia limited liability company) (hereinafter referred to as "Assignee").
WITNESSETH THAT
WHEREAS, Assignor made and entered into that certain Agreement dated
August 1, 2000, with The City of Winter Springs, Florida (hereinafter referred to as the
"City"), as the same may have heretofore been amended (hereinafter referred to as the
"Agreement"), with respect to certain real property located in Winter Springs, Seminole
County, Florida, as more particularly described in the Agreement (hereinafter referred to
as the "Property");
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, Assignor hereby transfers, assigns,
conveys, and sets over unto Assignee all of Assignor's right, title, and interest, in and to
the Agreement, as well as all of Assignor's right, title, and interest in and to any and all
permits and approvals heretofore received under or in connection with the Agreement.
Assignee hereby agrees to assume and perform any and all obligations of Assignor
under and pursuant to the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have signed and sealed this
Assignment as the date first above written.
ASSIGNEE: ASSIGNOR:
CAPITAL GREEN I, LLC
By: ESD Properties, Inc.
Its Manager
By:
Its
JDC Calhoun,
By:
Its:
Inc.
The undersigned hereby acknowledges and consents to the foregoing Assignment
this _ day of December, 2001.
City of Winter Springs
By:��
Its:
1419455V2
CERTIFICATION
JDC Calhoun, Inc. (a Georgia corporation) ("JDC") and Capital Green I, LLC (a
Georgia limited liability company) (CGI") hereby makes and gives this Certification to
and in favor or the City of Winter Springs, Florida (the "City"), this day of
D.e-o�r, -2-GG1 r�+�, �
WITNESSETH THAT
WHEREAS, JDC made and entered into that certain Purchase and Sale
Agreement with Laverne and June Kingsbury (hereinafter collectively referred to as
"Seller"), as the same may have heretofore been amended (hereinafter referred to as
the "Contract"), for the purchase and sale of certain real property located in Winter
Springs, Seminole County, Florida, as more particularly described in the Contract
(hereinafter referred to as the "Property");
WHEREAS, JDC made and entered into with the City that certain Agreement,
dated August 1, 2000, relating to the Property (as heretofore amended, the
"Agreement");
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, and to induce the City to consent to the
assignment of the Agreement as hereinafter described, JDC and CGI hereby certify,
represent, and warrant to and in favor of the City as follows:
JDC intends to transfer to CGI all of its right, title, and interest in and to the
Contract and the Property.
2. CGI intends to accept such transfer and to acquire the Property.
3. Upon such transfer and acquisition, CGI will be the fee simple owner of
the Property, and as such owner, will be the owner of any and all leases
covering all or any part of the Property and will be entitled to any and all
rents from the Property.
4. JDC intends to transfer to CGI all of its right, title, and interest in and to the
Agreement.
5. CGI will assume all of the obligations, duties, and liabilities of JDC under
and pursuant to the Agreement.
14194620
6. The principals involved with JDC are the same principals involved with
CGI, among them being Shane Doran and Robert J. Doran, Jr., who will
continue to have primary responsibility for decision -making concerning the
Property and its development.
7.
CGI will continue to employ Greenberg Traurig and LS3P Associates, Ltd.
in connection with the Agreement.
CAPITAL GREEN I, LLC JD
By: ESD Properties, Inc. By
Its Manager Its:
By:
_ a-v&
Its ryes
1419462v1
Prepared by and return to:
Anthony A. Garganese, Esquire
Brown, Salzman, Weiss & Garganese, P.A.
Post Office Box 2873
Orlando, Florida 32802-2873
(407)425-9566
SHORT FORM MEMORANDUM OF AGREEMENT
THIS SHORT FORM MEMORANDUM OF AGREEMENT, dated this 19 +k day of
Vahr a r , 2004 by and among CAPITAL GREEN I, LLC., a Georgia limited liability
company ("Capital ), and the CITY OF WINTER SPRINGS,. a Florida municipal corporation,
("City").
WHEREAS, JDC Calhoun, Inc., a Georgia corporation ("JDC"), and the City of Winter
Springs, a Florida municipal corporation previously entered into that certain Agreement, dated
August 1, 2000; and
WHEREAS, Capital Green I, LLC, a Georgia limited liability company, is the successor in
interest to the Property described herein.
KNOW ALL MEN BY THESE PRESENTS:
A. Capital Green I, LLC is the owner of that certain real property located within the City
limits of Winter Springs, Seminole County, Florida, more particularly described on Exhibit "A,"
attached hereto and fully incorporated herein by this reference ("Property").
B. JDC and the City entered into that certain Agreement dated August 1, 2000
("Agreement"), whereby JDC and the City memorialized their understandings and agreement
regarding their respective interests, expectations, and intentions contained therein pertaining to the
City of Wither Springs Town Center.
C. JDC and the City entered into a First Modification of Agreement on July 23, 2001,
whereby JDC and the City modified the terms and provisions of that certain Agreement.
D. JDC and the City entered into a Second Modification of Agreement on June 23, 2003,
whereby JDC and the City further modified the terms and provisions of that certain Agreement.
Short Form Memorandum of Agreement
Capital Green I, LLC and City of Winter Springs
Page 1 of 3
E. Pursuant to Article XXII, Recordation, of the Agreement, JDC and the City desire to
execute this Short Form Memorandum of Agreement and record the same in the public records of
Seminole County, Florida, for the purpose of placing all third parties on notice of the existence of
the Agreement, the First Modification of Agreement, and the Second Modification of Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
WITNESSES:
Print Name: f :r
6"cc,,,-
Prin Name: lie bec c4 l; . La u ef t
ATTEST:
Andrea Lorenzo-Luaces, City Clerk
STATE OF C !MATT M120 C40 f}
COUNTY OF -? MI-E V
CAPITAL GREEN I, LLC
POOP -ties-, ..l C • , RS Ma4IC�
By: $! 1
Print
CITY OF WINTER SPRINGS, FLORIDA
Ronald W. McLemore, City Manager
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and Co
aforesaid to take acknowledgments, personally appeared jlb ri •INSkO-. Vices ,[Z1 eS. C
of Co o'%+aj ArV&, l L», 1 L_P& to me known personally or ❑ who produced
as identification, to be the person described in and who executed the foregoing instrument and he
acknowledged before me that he executed the same for the purposes set forth herein, and he did not swear
an oath. t
WITNESS my hand and official seal in the State and County last aforesaid this 101 day of
1
(Notary Seal)- -
�r�Mµ���} TARY PUBLIC
,o *4` My Commission Expires:
RYCC a
a
seAP G ; c Short Form Memorandum of Agreement
a Is�]a1.\is � r Capital Green I, LLC and City of Winter Springs
��•, es°' �• Page 2 of 3
STATE OF FLORIDA
COUNTY OF SEMINOLE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County
aforesaid to take acknowledgments, personally appeared Ronald W. McLemore, City Manager of the City
of Winter Springs, Florida, ❑ to me known personally or ❑ who produced as
identification, to be the person described in and who executed the foregoing instrument and he
acknowledged before me that he executed the same for the purposes set forth herein, and he did not swear
an oath.
WITNESS my hand and official seal in the State and County last aforesaid this day of
2004.
(Notary Seal)
NOTARY PUBLIC
My Commission Expires:
G:\Docs\City of Winter SpringsVames Doran Co\Short_Form_Memorandum.wpd
Short Form Memorandum of Agreement
Capital Green I, LLC and City of Winter Springs
Page 3 of 3
EXHIBIT "A"
ALL OF THE UNPLATTED PART OF BLOCK "B" LYING ON THE EAST SIDE OF THE
OVIEDO-SANFORD BRICK ROAD, OF D.R. MITCHELL'S SURVEY OF THE LEVYGRANT
ON LAKE JESSUP, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK
1, PAGE 5, PUBLIC RECORDS OF SEM,INOLE COUNTY, FLORIDA, LESS: BEGIN AT
THE NORTHWEST CORNER, RUN SOUTHWESTERLY ON THE ROAD 520 FEET; NORTH
50'09'45-' E. 335.54' NORTH 72'40'15" W. 618-86' TO THE POINT OF BEGINNING,
SECTION 36, TOWNSHIP 20 SOUTH, RANGE 30 EAST.
ALSO LESS:
THAT PORTION OF STATE ROAD 434 AND BRANTLEY AVENUE (A.K.A. TUSKAWILLA
ROAD) AS RECORDED IN THAT CERTAIN ORDER OF TAKING RECORDED IN OFFICIAL
RECORDS BOOK 2803, PAGE 1023, PUBLIC RECORDS OF SEMINOLE COUNTY,
FLORIDA_
ALSO LESS. -
THE NORTH 2O9.00 FEET OF THE EAST 358,00 FEET OF BLOCK "B" THAT IS ON
THE EAST SIDE OF OVIEDO-SANFORD ROAD (A.K.A. STATE ROAD 434), ON THE
WEST SIDE OF BRANTLEY AVENUE (A.K,A. TUSKAWILLA ROAD), ON THE SOUTH
SIDE OF PLATTED ROAD (A_K.A_ FIRST STREET) OF D.R. MITCHELL'S SURVEY OF
THE LEVY GRANT ON LAKE JESSUP, ACCORDING TO THE PLAT THEREOF AS
RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC RECORDS OF SEMINOLE
COUNTY, FLORIDA.
ALL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF BLOCK "B", D.R. MITCHELL'S SURVEY
OF THE LEVY GRANT ON LAKE JESSUP, AS RECORDED IN PLAT BOOK 1, PAGE 5,
PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, SAID POINT ALSO BEING THE
INTERSECTION OF THE SOUTH RIGHT OF WAY LINE OF PLATTED ROAD (A.K_A.
FIRST STREET) AND BRANTLEY AVENUE (A-K.A. TUSKAWILLA ROAD) OF SAID D,R.
MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP; THENCE RUN N
72'40'15" W, ALONG THE SOUTH RIGHT OF WAY LINE OF PLATTED ROAD (A.K.A,
FIRST STREET) AND THE NORTH LINE OF BLOCK "B", A DISTANCE OF 358.00 FEET
FOR THE POINT OF BEGINNING; THENCE CONTINUE ALONG SAID SOUTH RIGHT
OF WAY LINE ;AND THE NORTH LINE OF BLOCK "B", N 72'40.15" W, 790.81 FEET;
THENCE DEPARTING SAID SOUTH RIGHT OF WAY LINE AND THE NORTH LINE OF
BLOCK "S", RUN S 50'11-19" W, 282.94 FEET TO A POINT ON THE NORTH RIGHT
OF WAY LINE OF STATE ROAD 434, ACCORDING TO FLORIDA DEPARTMENT OF
TRANSPORTATION RIGHT OF WAY MAP, S.R. 434, SEMINOLE COUNTY, FLORIDA,
SECTION 77070-2516 AND THAT CERTAIN ORDER OF TAKING, RECORDED IN
OFFICIAL RECORDS BOOK 2803, PAGE 1023, PUBLIC RECORDS OF SEMINOLE
COUNTY, FLORIDA; THENCE RUN S 39'59'35" E, ALONG SAID NORTH RIGHT OF
WAY LINE, A DISTANCE OF 1255.86 FEET TO THE POINT OF CURVATURE OF A
CURVE CONCAVE TO THE NORTH HAVING A RADIUS OF 35.00 AND A CENTRAL
ANGLE OF 104'44'10" THENCE ALONG SAID CURVE RUN 63.98 FEET TO THE POINT
OF TANGENCY THEREOF, SAID POINT ALSO BEING ON THE ON THE WESTERLY
RIGHT OF WAY LINE OF BRANTLEY AVENUE (A.K.A, TUSKAWILLA ROAD)ACCORDING
TO FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY MAP, S.R. 434,
SEMINOLE COUNTY, FLORIDA, SECTION 77070-2516 AND THAT CERTAIN ORDER OF
TAKING, RECORDED IN OFFICIAL RECORDS BOOK 2803, PAGE 1023, PUBLIC
RECORDS OF SEMINOLE COUNTY, FLOR:IDA; THENCE RUN N 35'16'15" E, ALONG
SAID WEST RIGHT OF WAY LINE, A DISTANCE OF 94.48 FEET TO A POINT ON THE
WEST RIGHT OF WAY LINE OF BRANTLEY AVENUE (A.K.A. TUSKAWILLA ROAD) AS
SHOWN ON D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP, AS
RECORDED IN PLAT BOOK 1, PAGE 5, PUBLIC RECORDS OF SEMINOLE COUNTY,
FLORIDA; THENCE CONTINUE ALONG SAID WEST RIGHT OF WAY LINE RUN-N
28'48'37" E, 614.65 FEET; THENCE DEPARTING SAID WEST RIGHT-OF-WAY LINE
RUN N 72'40'15" W, 358.00 FEET; THENCE RUN N 28'48'37" E, 209.00 FEET TO
THE POINT OF BEGINNING,
CONTAINING 15.08 ACRES, MORE OR LESS.