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HomeMy WebLinkAbout_2006 11 20 City Commission Special Minutes CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING NOVEMBER 20, 2006 CALL TO ORDER The City Commission Special Meeting of Monday, November 20, 2006 was called to Order by Mayor John F. Bush at 6:32 p.m. in the Commission Chambers of the Municipal Building (City Hall, 1126 East State Road 434, Winter Springs, Florida 32708). Roll Call: Mayor John F. Bush, present Deputy Mayor Michael S. Blake, arrived at 6:33 p.m. Commissioner Robert S. Miller, present Commissioner Donald A. Gilmore, present Commissioner Sally McGinnis, present Commissioner Joanne M. Krebs, present City Manager Ronald W. McLemore, arrived at 6:42 p.m. City Attorney Anthony A. Garganese, arrived at 9:22 p.m. A moment of silence was followed by the Pledge of Allegiance. Deputy Mayor Michael S. Blake arrived at 6:33 p.m. .:..:. AGENDA NOTE: THE FOLLOWING REGULAR AGENDA ITEMS WERE DISCUSSED IN THE ORDER, AS NOTED. .:. .:. REGULAR REGULAR 301. Office Of The City Manager City Manager Requesting The City Commission To Decide How It Wishes To Proceed With Its Review Of Potential Changes To The City's Pension Plan As Per Commission Resolution 2006-52. Mayor Bush opened "Public Input". Mr. Bryon Glitz, 1001 Troon Trace, Winter Springs, Florida: as a Member of the Board of Trustees, Mr. Giltz commented on documents he provided to the City Commission. City Manager Ronald W. McLemore arrived at 6:42 p.m. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 2 OF 29 Mr. Jeff McCall, Firefighter, Fire Department: gave a Presentation and spoke of previous presentations; retirements, Pension Plan participation, issues, and disability. Fire Chief Tim J. Lallathin, Fire Department: thanked the City Commission for the retirement benefits they have provided employees; commented on control and costs; that employees want a voice; and mentioned the following benefits that other Seminole County cities offer their employees: twenty-five (25) year normal retirement without an actuarial reduction at all for public safety employees; a disability plan that is actually part of their retirement plan; employee representation on their Boards; a minimum three percent (3%) multiplier for all years of service. Chief Lallathin also mentioned, "There are some other things that they also enjoy and we haven't even really begun to talk about those and those are - cost of living adjustment; 'Deferred Retirement Option Plan', referred to as 'DROP' Plan; and health benefit contributions sometimes in their retirement programs." Chief Lallathin also commented that the City of Winter Springs provides for a three (3) year averaging - for benefit calculation and the average is 3.7 years; monthly benefits calculated from either total compensation or base compensation. Lastly, Chief Lallathin mentioned that some other cities establish their Plans quicker. Ms. Valarie Mendelson, Detective, Police Department: commented on reviewing all the possible information; and asked how the City's Pension Attorney is paid. Mayor Bush asked, "Who does pay Mr. (James) Linn (Pension Attorney)?" Manager McLemore responded, "The General Fund." Chief of Police, Daniel J. Kerr, Police Department: thanked the City Commission for the Retirement Plan we do have today; and said that public safety personnel are just asking for similar benefit improvements similar to other agencies. Mayor Bush closed "Public Input". Manager McLemore discussed information shown in written materials. Tape 1/Side B Mr. Kevin Smith, Director, General Services Department addressed the City Commission on Plan costs. Discussion. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 3 OF 29 Deputy Mayor Blake said, "The question that would be great to ask was how many of those 361 cities - that were in the Plan prior to 99-1, desire to still be in the Plan, today, if they didn't have to be?" Commissioner Joanne M. Krebs said, "You are absolutely right." Deputy Mayor Blake added, "I believe we should have balanced information. I believe we should have information from all sides." Mr. Smith continued with his presentation. With further discussion, Manager McLemore suggested, "Assuming the Commission maintains their current Policy, my advice to you or my recommendation to you would be to task your Advisory Board to go back and look at your Plan, with the input of employees and bring to you a set of recommendations which would embody the potential increases in benefits and to the extent of which that would require new contributions from the employees, and exactly how that would be implemented." Discussion. Manager McLemore then suggested, "An approach here that you might want to think about and that is increasing the number of Advisory Board Members, who are - voting Members of your Advisory Board to one (1) additional Member, making it a six (6) Member Board; including three (3) rank and file employees, one (1) from Police, one (1) from Fire, and one (1) from general employees as non-voting Ex-Officio Members, but they are appointed by this Commission. You can allow the various employees to elect names that they would like to suggest to you to be on there. That is not a problem with that. And, I am suggesting to you that also that the City Manager, the General Services Director, and your Finance Director would also be part of that Ex-Officio group, because we already are anyhow." Continuing, Manager McLemore recommended that "The City's Pension Attorney complete the update of the current Plan, making it consistent - in your Code, consistent with your structure of government, and consistent with your practice, and that that be brought together as quickly as possible and that that Plan affect any changes and amendments you want to make to your Advisory Board." Manager McLemore added, "I am recommending that the Commission consider suggested amendments to the composition of the Pension Board which I have already mentioned to you and it's suggested again, as I mentioned to you, that you task this new body with the challenge - working with employees, working with management, working with the Commission, to come up with recommendations to implement some of those high priority, first issue kind of benefit issues under which employees are willing to participate in that additional benefit, which is consistent with the Commission's current policy." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 4 OF 29 Commissioner Krebs commented on the Pension Plan, to which Manager McLemore said, "In that Plan, you will be the Trustees." Continuing, Commissioner Krebs stated, "It was at one Meeting put on the Table by Commissioner Blake and never taken off the Table. That actually went on the following Commission Meeting, under 'Consent', and that never should have happened. So, I don't know what you need to do to fix that, but go back and look at the records. I actually brought that to the Attorney's attention." Discussion. Ms. Sandra Turner, President, Retirement Plan Specialists, Inc., 2 Lawn Street, Oviedo, Florida: addressed the City Commission on retirement options. Tape 2/Side A Ms. Turner continued with her comments. Much discussion ensued on the composition of a different Pension Board. Mayor Bush opened "Public Input" again. Mr. Kevin Sims, Lieutenant, Fire Department: asked about a reference to rank and file employees and commented on intimidation. Ms. Valarie Mendelson, Detective, Police Department: commented on the Pension Board and employee involvement. "Public Input" then ended. Further discussion. Commissioner Krebs said, "What I would like to say is if this Board is formed, that you put down what it is; where you want to go; and we should try and look at it as how do we get you there. And not look at, 'Can we do this, or we can't do this', but, look and say, 'How can we do this'. And, Valarie [Mendelson], to your point, it may not be tomorrow. It may not be next year. But, somewhere down the line, how are we going to get there? I think that's really a good approach to take. And that is what - I would like to see." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 5 OF 29 Mayor Bush said, "I appreciate the employees taking the initiative in this respect. Hopefully, if the Commission does decide to form this new Board as the Manager has recommended, that then the Pension Board would listen to you and then as a group - take what you are saying and then bring it back to the Commission for Action. I think it would speed it up for one thing." THE MANAGER'S RECOMMENDATION OF PUTTING TO BED THE 175/185 PLAN IS - PART OF MY - AND NOT TO GO FORWARD WITH THAT, IS PART OF MY MOTION. I AM NOT GOING TO MAKE THE MOTION ON THE PENSION BOARD COMPOSITION. I WILL LEAVE THAT FOR SOMEBODY ELSE TO DO HERE THIS EVENING. BUT I WOULD HOPE THAT PART OF THAT WILL BE TO CREATE A DIRECTIVE TO THE PENSION BOARD - TO WORK TOWARDS PROVIDING AN AVENUE TO EXPLORE PERHAPS THESE TEN (10) DIFFERENT ISSUES AND GET THEM PRIORITIZED BY THE EMPLOYEES SO THAT WE CAN BEGIN TO STUDY THOSE AND SEE WHAT THE IMPACT MIGHT BE, AND BE ABLE TO GO BACK TO THE EMPLOYEES TO DETERMINE WHICH ONE SHOULD BE FIRST, WHICH ONE SHOULD BE LAST, AND HOW WE ARE GOING TO FUND IT. ALTHOUGH, I AM SOMEWHAT HESITANT TO DO THAT BECAUSE THE PENSION BOARD REALLY SHOULD BE NOT POLICY BASED, BUT ADMINISTRATIVE BASED. MAYBE WE CAN EVEN THINK ABOUT CREATING, MUCH LIKE WE HAVE THE LPA (LOCAL PLANNING AGENCY) AND THE P AND Z (PLANNING AND ZONING) BOARD, TWO (2) SEP ARA TE BOARDS WITH TWO (2) SEPARATE DIRECTIVES, EVEN THOUGH IT MAY BE FUNDED OR IT MAY BE STAFFED BY THE SAME PEOPLE. IT IS JUST THAT I THINK YOU NEED TO HAVE A CLEAR SEPARATION BETWEEN A BOARD THAT IS OPERATING THE PENSION FUND AND AN ENTITY OR A GROUP OR MAYBE EVEN AN AD HOC COMMITTEE, THAT IS WORKING TOWARDS PENSION BENEFIT ENHANCEMENTS." DEPUTY MAYOR BLAKE SAID, "THE ONLY MOTION I AM MAKING - IS TO NOT IMPLEMENT A 175/185 PLAN GOING FORWARD." MOTION BY DEPUTY MAYOR BLAKE. SECONDED BY COMMISSIONER MILLER. DISCUSSION. MAYOR BUSH STATED, "MOTION TO NOT IMPLEMENT 175/185 BY COMMISSIONER BLAKE." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 6 OF 29 VOTE: COMMISSIONER GILMORE: AYE DEPUTY MAYOR BLAKE: AYE COMMISSIONER KREBS: NAY COMMISSIONER MILLER: AYE COMMISSIONER McGINNIS: AYE MOTION CARRIED. "THE SECOND MOTION I WOULD MAKE IS RECOMMENDATION NUMBER TWO, WHICH INVOLVES THE DOCUMENT TO DIRECT THE CITY ATTORNEY, THE SPECIAL ATTORNEY, PENSION ATTORNEY, AND CITY MANAGER TO COMPLETE THE DOCUMENT AND RETURN IT TO THE COMMISSION FOR APPROVAL AND SIGNAGE. WE REALLY NEED TO HAVE THAT IMPLEMENTED BY THE END OF THE YEAR." MOTION BY DEPUTY MAYOR BLAKE. DEPUTY MAYOR BLAKE ADDED, "AND TO HAVE IT REFLECT ANY OF THE CHANGES MADE THAT WILL BE GOING FORWARD FROM TONIGHT." MAYOR BUSH STATED, "THE MOTION WAS TO HAVE IT DONE BY..." DEPUTY MAYOR BLAKE SAID, "...WE NEED TO HAVE IT PASSED BY THE END OF THE YEAR." MAYOR BUSH STATED, "SECONDED BY COMMISSIONER MILLER." DISCUSSION. DEPUTY MAYOR BLAKE NOTED, "I THINK THERE ARE PROVISIONS IN THAT PLAN - I AM NOT AN ATTORNEY, BUT I THINK THERE ARE PROVISIONS IN THAT PLAN THAT HAVE TO BE ADOPTED BEFORE THE END OF THE YEAR." MANAGER McLEMORE STATED, "WE'LL GO FOR IT. " VOTE: COMMISSIONER McGINNIS: AYE DEPUTY MAYOR BLAKE: AYE COMMISSIONER KREBS: AYE COMMISSIONER GILMORE: AYE COMMISSIONER MILLER: AYE MOTION CARRIED. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 7 OF 29 Commissioner Robert S. Miller said, "I am a little bit uncomfortable with appointing or designating what this group is going to do, because Commissioner Blake brought up a point, which I have been thinking about here. We appear to have two (2) different functions here; and, if we combine them together, we are liable to end up shooting ourselves in the foot. Because to have someone who is advocating a Pension benefit as opposed to someone who is actually sitting on a Board that is supposed to accomplish a certain investment goal, it is really two (2) separate things. So, unless somebody can come up with a good solution here this evening, I would rather - come back, have Staff maybe come back with what the two (2) things should do, so that we don't have a conflict of interest by trying to combine two (2) separate functions into one (1)." Commissioner Sally McGinnis stated, "I agree. I think we need to have very clear job descriptions presented, so that everybody understands exactly." Commissioner Krebs stated, "I think in the Plan - Ron [McLemore], you might have suggested that - Jim Linn is rewriting or re-doing the Plan, that he would in fact, or it would be stated in there in fact, what the one (1) Board would be doing, correct?" Manager McLemore said, "They review your Plans, they make suggestions, and then on a case-by-case basis, actual plans come before them to look at and say, 'Does this fit the Policy of the City'. So, I don't see the difference here. In fact, I would tell you that if you disburse that out in two (2) different groups, I think you lose a lot of cohesiveness of your brain power." Commissioner Miller said, "I would like to see a Legal Opinion, Ron [McLemore] from our Attorney on that." Deputy Mayor Blake said, "Your point is well taken in terms of having two (2) separate groups; two (2) different Boards. The left hand doesn't know what the right hand is doing, that kind of thing. That could create, certainly for some inefficiencies. That is not my concern. In fact, as I suggested earlier, I think it could be the same people, just as the P and Z (Planning and Zoning) Board happens to be the same names as the LP A (Local Planning Agency). But, their duties are different. They are related; but, they are different. But - my concern is, primary purpose of the Pension Board of Trustees or the Pension Advisory Board, or whatever we want to call it, is to handle those day-to-day administrative aspects of implementing the Policy that the Commission has set for the Pension Plan." Manager McLemore stated, "Can I comment?" Deputy Mayor Blake stated, "Only if you are going to say that the theory is that that's going to change and now that's going to be the Commission's role and this Advisory Board's role is going to be one of advising on Policy changes." Manager McLemore stated, "It was initially set up to advise on Policies. " CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 8 OF 29 Continuing, Deputy Mayor Blake noted, "Because I see the benefit function, or the policy making, or policy advisory function of what the benefit level should be, prioritization. I see that as an Ad Hoc Committee that will stand for a purpose and then dissolve when it is over. But the Pension Advisory Board continues to remain which is more operational, more administration of the Policy that had been set by the Commission." Manager McLemore said, "We' lllook into that." Deputy Mayor Blake then stated, "If this Board continues on without an end, then there will always be this continual change of benefit - as opposed to, 'Let's do it, and let's do it right; let's figure what we can do; let's set out a Plan; and let's dissolve that and implement it'." Manager McLemore said, "We'll look into that and see how to deal with it. " Commissioner Miller said, "I would like to see - an Opinion from the Attorney which I think will probably support what we have just agreed to." Manager McLemore commented, "We'll work through that." Commissioner Miller added, "Then, the other question would be the composition. Is it really clear to everybody what the composition of this Board is going to be?" Deputy Mayor Blake left the Commission Chambers at 8:42 p.m. Regarding the composition of the Board, Manager McLemore suggested, "Six (6) Voting Members - Six (6) Ad Hoc Members." Commissioner Donald A. Gilmore said, "I have a similar concern about the two (2) groups working together at the same time with different goals. One group is looking at the fiduciary responsibilities of the administration of the Plan to see that it's doing what it's supposed to do; returning the money that it is. Then you have another group that are looking out there, looking really for their benefits. I would - like to hold - off on this and let Ron [McLemore] think about it with his Staff a little bit and some others and come back to us. I would rather not make that decision tonight." Commissioner Gilmore added, "We need to determine how it could work. And, I think that has to be you - so that we don't have two (2) groups with different objectives interfering with each other in the same Meeting." "I MAKE A MOTION THAT WE ASK THE CITY MANAGER TO REPORT BACK WITHIN TWO (2) MONTHS WITH A METHOD, A METHODOLOGY OF HOW WE CAN ACCOMPLISH WHAT THE EMPLOYEES WANT - WHAT THE EMPLOYEES WANT AS WELL AS THE FIDUCIARY RESPONSIBILITIES OF THE PENSION BOARD." MOTION BY COMMISSIONER GILMORE. SECONDED BY COMMISSIONER McGINNIS. DISCUSSION. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 9 OF 29 "I WOULD LIKE TO AMEND THAT MOTION TO BRING US BACK THAT INFORMATION WHEN YOU BRING BACK THE CONTRACT. THE PLAN DOCUMENTS - SO THAT WE CAN GET IT ALL PUT TO BED AT THAT POINT IN TIME." AMENDMENT TO THE MOTION BY COMMISSIONER KREBS. MANAGER McLEMORE SAID, "THIS IS GOING TO BE THE FIRST MEETING IN JANUARY." MANAGER McLEMORE ADDED, "WE WILL WORK TO TRY TO ACCOMPLISH THAT IN DECEMBER." MAYOR BUSH STATED, "THE PLAN DOCUMENT MOTION WAS - BEFORE THE END OF THE YEAR. THAT IS THE MOTION THAT WAS APPROVED BY THE COMMISSION." AMENDMENT TO THE MOTION DIED FOR A LACK OF A SECOND. MAYOR BUSH ADDED, "UNDER DISCUSSION, THOUGH I THINK WE SHOULD - IT SHOULD BE MADE CLEAR THAT SOMEHOW, HOWEVER THIS TURNS OUT THAT THE EMPLOYEES ARE REPRESENTED; AND - WE DON'T WANT TO END UP WITH TWO (2) COMMITTEES, WHERE ONE (1) OF THEM DOESN'T HAVE ANY EMPLOYEES ON IT. THAT'S - I THINK ONE OF THE MAJOR RECOMMENDATIONS THAT THE MANAGER MADE." VOTE: COMMISSIONER KREBS: NAY COMMISSIONER GILMORE: AYE COMMISSIONER MILLER: AYE COMMISSIONER McGINNIS: AYE MOTION CARRIED. Mayor Bush called a Recess at 8:48 p.m. Commissioner McGinnis departed the Meeting at 9: 18 p. m. City Attorney Anthony A. Garganese arrived at 9:22 p.m. Mayor Bush called the Special Meeting back to Order at 9:22 p.m. Deputy Mayor Blake returned to the Commission Chambers at 9:22 p.m. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 10 OF 29 REGULAR AGENDA REGULAR 300. Office Of The City Manager City Manager Requesting The City Commission To Approve An Agreement With James Doran Company To Develop Phase II-A And Phase II-B Of The Property Owned By James Doran Company Calhoun And Main Street Properties, LLC In The Winter Springs Town Center. Attorney Anthony A. Garganese said, "The issues that we're working on is the Agreement the draft Winter Springs Town Center Phase II Implementation Agreement dated 11/17/06, it's attached to Agenda Item '300'. We met with the Developers this afternoon for quite some time and we went over this draft Agreement that was forwarded to the Developers on Friday and also forwarded to the Commission. And, what I want to do is unless I state otherwise, all of the language in the proposed draft 11/17/06 will remain as stated in the Agenda package. And, what I will do is I'll go through the changes that we discussed this afternoon section by section, and hopefully this won't take very long." Attorney Garganese continued, "Right at the beginning, the name of the Developer will be Main Street Associates, LLC. Reference to 'JDC Calhoun, A Georgia Corporation' will be stricken from the entire Agreement. On page - 3 -, section 3.3, 'Change in Mix of Uses', we're going to change the time period for the City Manager to make a decision from thirty (30) days to fifteen (15) days." Furthermore, Attorney Garganese said, "We're also going to add a sentence to 3.3, that after the City Manager makes a decision if they appeal the decision of the Manager, it will be heard at the next Commission Meeting and of course, we'll work around the Agenda cycle. If we're already past an Agenda cycle and the Meeting Agenda already went out, it would be the Meeting - after the next Meeting. So, we're going to add that sentence. 3.4, I'm going to come back to 3.4. Because I don't think we finished up on that. For now, I'll just tell you that we agreed to strike section (A) (3). Then I'm going to come back. Moving on to page - 4 -, 'Parking Requirements', we were going to - I think we were going to just take out the word 'Perpetuity', even though it's - referenced elsewhere, but right at the beginning of 4.0, we're going to take out that word 'Perpetuity'. 4.1, subparagraph (B), last sentence will read, 'Additionally, at least eighty-five (85) parking spaces shall be surface level, on-street spaces, excluding Tuskawilla Road'. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 11 OF 29 Tape 2/Side B Section 4.2, last line, where it says, 'Parking spaces that are required to meet the...', add the word, 'Developer's Phase II-B development demands'." Attorney Garganese restated his last comment, "Section 4.2, last line, inserting the word, "Developer's', before, 'Phase II-B'." Attorney Garganese continued, "Next section is 4.3, and that has to do with the City purchasing - parking spaces in the north and south garage. There's some wordsmithing, beginning - in the fourth (4th) line where it says, 'The City agrees to purchase...', it will read, 'The City agrees to pay for the sixty-two (62) parking spaces'. And, 'The City will pay - for the parking spaces when they're made available - upon being made available to the public through the issuance of a Certificate of Occupancy'. There is an issue regarding the dollar amount." Attorney Garganese restated, "The other wordsmithing would be the next sentence, 'The City shall pay JDC for the parking spaces upon'. They wanted to strike out, 'At such time', correct? They are - changing it to it 'Upon being made available to the public through the issuance of Certificate of Occupancy'?" Attorney Garganese added, "The City shall pay - for the parking spaces upon - them being made available to the public through the issuance of a Certificate of Occupancy. The issue that we have to address is, we have a fifteen thousand dollar ($15,000.00) per space provision put in the Agreement. The issue is that the garage could be completed and C.O.'d (Certificate of Occupancy) before they're made available to the public because they have to construct the residential units and other - retail as well, around the parking structure. So, they won't be made available to the public. And, they're claiming that there'd be a certain - carrying cost associated with that." Deputy Mayor Blake stated, "1 know we had a discussion about the garages and how long they take to construct and also the construction around them. But, what we talked about was getting the garages so that they would be available for parking as soon as possible. That was the discussion we had. And, then we were talking about that temporary space and how we hopefully would lose the temporary space at the same time that the garage spaces on the north garage would become available. Understanding that my recollection of that discussion was that we weren't holding to that in the Agreement, but that we were trying to get the garage, the north garage spaces available as soon as possible, and that the payment would be made at the time of those spaces being made available." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 12 OF 29 Ms. M Rebecca Furman, Attorney, Lowndes Drosdick Doster Kantor & Reed, P.A., 215 North Eola Drive, Orlando, Florida: stated, "I think Anthony (Garganese) was getting there; that there's a carrying cost for those few months between when we actually C.O. (Certificate Occupancy) the garage and when we can finish those buildings around. I don't think the City, nor does the James Doran Company want the public entering those garages while we're still under construction around them." Ms. Furman added, "We're going to say that, 'We're going to make them available when you pay for them, therefore, when the public's allowed to enter them'. There is however - we're paying a considerable amount of money when - you take your large chunk of a construction loan out and you have to start paying interest on that as soon as you draw it. And, we're going to be carrying that amount that we're paying for extra spaces that we wouldn't normally be building. So, I think where Anthony (Garganese) was going is we calculated that the actual cost would be sixteen thousand and fifty dollars ($16,050.00) for that extra time in which we would be carrying it. The alternative would be that you all pay for it when we C.O. (Certificate of Occupancy) and you have a problem with taking and paying for it before the public's able to use it." Deputy Mayor Blake stated, "The cash piece was the really important part of that discussion and what I am hearing now is that you either - want them paid for some period of time before they're available; thus, creating a carrying cost on the City, if you will; or, paying an additional amount to cover that carrying cost for the Developer until they show up and until they're available." Continuing, Deputy Mayor Blake remarked, "What happens if something occurs beyond the Developer's control between the time of the payment by the City and the actual delivery of the spaces when they're available. That puts us at a great risk that we have really no remedy of." Deputy Mayor Blake said, "Fifteen thousand dollars ($15,000.00) was always the number." Ms. Furman stated, "But, also I believe it was a mistake on both parts. It was not our intent to C.O. that building and then to wait several months for our payment." Deputy Mayor Blake added, "And, it was never our intent to pay for the spaces before we could use them." Attorney Garganese stated, "4.4, third line, we're going to change the language. It will say, 'A right of first refusal to purchase a perpetual parking easement for twenty-seven (27) public parking spaces in each such facility'. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 13 OF 29 Paragraph 4.5, subparagraph (B), it will read, 'In lieu of the 123 temporary parking spaces depicted on the Final Engineering plans on property east of McDonalds'. Section 4.5, subparagraph (B), begins 'Within sixty (60) days', will read, 'In lieu of the 123 temporary parking spaces depicted on the Final Engineering plans on property east of McDonalds, JDC within sixty (60) days of the effective date of this Implementation Agreement shall make available approximately' and the rest of the language will stay the same. What this language is intended to do is on the Final Engineering plans that the Commission already approved, that is conditioned upon this Agreement being worked out _ it's depicted on the Final Engineering plans, 123 temporary parking spaces east of the McDonalds. That is going away and this releases that obligation by Development Agreement rather than submit another revised Final Engineering plans sheet. Moving on to 4.6 - 'Special Conditions for Garage Parking Spaces', needs to be generic and it will apply to any garage parking space that the City may purchase pursuant to the terms of this Agreement. So, in order to make it generic, 4.6 (A), we are striking the language, 'The 110' and putting the word 'Any' in place of that language. 'Any unassigned general use garage spaces'. Also in subparagraph (C), in order to make it generic, we are striking the language, 'A portion of the four hundred ninety-eight'. So, it will read, 'JDC may petition the City to reclassify assigned residential spaces', and the rest of the language stays the same." Regarding subparagraph (C), Attorney Garganese restated, "Strike the language, 'A portion ofthe four hundred ninety-eight'. The rest ofthe language stays the same." Attorney Garganese continued, "Moving on to 5.0 - we need to have some more discussion about the particular buffering. I think we're going to be showing you a few depictions. 5.1 is going to be stricken. And, then we're going to talk about the buffering. Do we have all of the exhibits for that?" Discussion. Attorney Garganese stated, "I want to explain to you the southern elevation of the building, that you can view from [State Road] 434, the whole issue of buffering. That building from [State Road] 434, I thought it would be important to have a picture up so you can go along with the discussion and they also have an aerial that we want to show you. I think you need to see existing vegetation that exists on the property." Commissioner McGinnis returned to the Special Meeting at 9:45 p.m. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 14 OF 29 Mayor Bush called a Recess at 9:46 p.m. The Special Meeting was called back to Order at 9:58 p.m. Discussion. Attorney Garganese stated, "Paragraph 5 is all about this particular building that's up on the screen. It's the south elevation of building number 2 for Phase II-A of the Town Center plan. And, at the last Commission Meeting we talked about JDC expending up to fifty thousand dollars ($50,000.00) to do some building fa<;ade improvements on this building or this part of the building - right about here." Mr. George Tullos, James Doran Company, 216 Seven Farms Road, Suite 200, Charleston, South Carolina: "Yes, that's correct, right there." Attorney Garganese continued, "In addition, as originally proposed - there is a vacant, soon to be vacant lot in front of this portion of the building, right where Ron [McLemore], we were talking in the draft Development Agreement building a buffer building that would help eventually block a lot of this from [State Road] 434. And, the way we've come down on this particular issue at this time; it's always subject to change. Actually, it probably still hasn't been finalized, is one (1) - they're going to present this evening a revised concept for this building for you to review. This is the area, this building right here is behind the McDonalds. In addition, the Developer is proposing to go back to their language that they had in their Draft of the Agreement. Where they would agree to keep a fifty foot (50') natural buffer along State Road 434, as shown on the approved Plans until the Developer begins development of Phase II-B. And JDC shall install and maintain a line of relocated palm trees along State Road 434 after Phase II-A and prior to Phase II-B construction is complete if requested by the City Commission. So, in other words, this portion would be blocked from visibility from [State Road] 434 with a natural buffer and if the Commission requests it, then they would install additional palm trees to help block the visibility ofthat from [State Road] 434. With that said, pull up the aerial depiction so you can see what that natural buffer currently looks like. I think what the Developer is telling you is that there is a natural buffer, real thick buffer, oftrees already that would buffer the future building that's going to be built here. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 15 OF 29 Mr. George Tullos, James Doran Company, 216 Seven Farms Road, Suite 200, Charleston, South Carolina: stated, "When Anthony (Garganese) was describing where the building would be built, it's not here, if you drew the line - if you drew this road straight out from McDonalds, the actual building is here. So, you will have a space between, and your fifty foot (50') buffer, is roughly right there. So, from that line, to [State Road] 434 is your natural buffer." Mayor Bush stated, "So, you're just going to leave the trees that are there, there?" Mr. Tullos stated, "That's right. And, it's pretty dense now. It's a mixture of vegetation, some high trees, some low stuff and leave it right there." Manager McLemore stated, "Leave it right there, means fifty feet (50') of right there. It's important not all of those trees are going to stay there. I hope they will until you're ready to really use them." Mr. Tullos stated, "I'm being very clear, if you draw a line from here out to here, where this entrance comes in, that's part of our Phase II-A requirement, that whole line, this whole rectangle will stay in fifty feet (50') - obviously, this is not completely accurate. Fifty feet (50') feels like there, judging from what I know on the Site Plan." With discussion on the staging and the site work, Mr. Tullos stated, "Site work - could include if we brought another building online at that time, while we're doing it, could include taking in this pad. But, we don't have that yet. So, that's the reason we're able to leave a buffer - got to construct that alleyway back there." Discussion. Attorney Garganese said, "The last component would be the new plan that the Developer has prepared - and this plan would modify the west end most portion of the building. Building number 2, behind McDonalds." Deputy Mayor Blake said to Attorney Garganese, "Where on 5.1 or 5.2 did you put that fifty foot (50') language?" Attorney Garganese said, "It would just be inserted. 5.1 and 5.2 would have to be, actually the whole section 5.1 and 5.2 would be modified. We would insert the Developer's language that I read into the Record for the fifty foot (50') natural buffer. We would probably add some language to say that that fifty foot (50') runs from the right of State Road 434 right-of-way, and that would address the buffering on the eastern most portion of that building. And, then we have to address the Building number 2 enhancements which is paragraph 5.3, where they're agreeing to do the enhancements, not to exceed fifty thousand dollars ($50,000.00) and add a reference to a plan if the Commission finds this plan - a modified version of it acceptable and George (Tullos) is getting ready to go over that." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 160F29 Mr. Tullos stated, "This was the part of the building that was drawn into question last week and that we were asked to - go back and look at. We've certainly done that, but we were also told - to really make it nice. And, what we did, because we do always concern ourselves with what looks right and what's best for the project. We expanded the scope of the improvements over to this section. I apologize - in the shortness or the short time that we had to produce a document, I had a printing issue down here locally, and I just didn't get the full Elevation done. But, if you can recall, you have this - your garage is out here and we went all the way over to another section of that building right there. Okay? So what we did is, we not only looked at this, we said - 'Why dress that up, and then have this look completely different'. So, let's without being uniform, let's at least be consistent across that fayade. We added sun shades, or bahama shutters, here, here." Continuing, Mr. Tullos noted, "Just for clarification, that is - the building we were asked to look at - we went ahead did something here, here, and here. Unfortunately, you can't see, from right there over. But, what we did, we added - you can see a profile of one there; but, it's a bahama shutter, much like you've seen on the Phase I side of the Town Center. " Then, Mr. Tullos added, "So, you've got bahama shutters here, here, here, and over these, these are all balconies that were added. Actually, these balconies existed, but this canopy was changed and extended. These balconies were all added. Those are depicting what used to be these single windows, are now French doors. They're fixed closed. They don't open. But, they are French doors with transoms. Definitely a classier look. Same is happening here, here, and here. And, then we skip over to this building and we have the same treatment going down all the way. And, it exists here as well. So, what we hoped to do was capture the intent, provide a little more than you asked for, so that you see that we're serious about stepping to this compromise and we hope you like it. We like it. We think it looks great. And, we think it's consistent with the rest of the development. " With further discussion, Deputy Mayor Blake said, "Building II-B 1 - which is what I am calling it, it's the one that's just to the east of McDonalds on the temporary parking pad - Is that a multi-story building?" Mr. Shane Doran, James Doran Company, 216 Seven Farms Road, Suite 200, Charleston, South Carolina: stated, "We don't know yet. I think by Town Center Code, it has to be two (2) stories. Minimum. So, we don't know yet. Can't commit to it." Mr. Doran added, "I'm not sure you can see it from a car. I'm not sure I agree with George (Tullos)." Mr. Doran noted, "I'm not sure of that answer." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE I70F29 Deputy Mayor Blake then said, "This building right here, it would be nice to have some assurance that the same treatment, at least on the upper levels that these buildings are getting, that have happened there as well; at least maybe just one (1 )." Mr. Tullos responded, "I believe that it does. I don't want to misrepresent to you tonight that it does. But, I want to remind you, and I'm not, in the spirit of our compromise, the spirit of our deal, we took it a step beyond what we were asked to do." Deputy Mayor Blake stated, "You did. And, it looks great." Mr. Tullos noted, "It's just that concern that we keep reaching. At what point do we say, 'Yes, we get it, we like it, do that' ." Manager McLemore stated, "I think it would be worthwhile that there needs to be some additional work here that consideration for more than fifty thousand [dollars] ($50,000.00) would be greatly worthwhile." Mr. Tullos asked, "Consideration above the City's contribution?" Manager McLemore stated, "They gave you these enhancements at fifty grand ($50,000.00). And, what I was saying was - a little more enhancement to complete that to me would be worth the money we pay them to do it. I don't know how to really address that until we see what's provided for here." Mr. Tullos added, "The only thing I'd recommend is if you are willing to pay for it that we, that before we leave tonight decide exactly what the change is and agree to it now, without having to submit another Elevation. It costs a lot of money - if we did anything, we did exactly this same treatment. It was nothing different. So, if you could recommend that those are the treatments and we agree tonight that that's what they are." Manager McLemore stated, "You're showing two (2) of them." Mr. Tullos stated, "The third one is definitely like that." Tape 3/Side A Manager McLemore "The only other thing that I would ask you to do if you could do that side or that one (1), just like we talked about before." Mr. Doran remarked, "Even if you all pay for it, we need a clean approval, as to one (1) thing we've wanted this whole time. And so, I believe the City Manager's intentions are good, but what does that mean? Do the same thing? Do this and that and then the next thing you know, design dollars are flying out the window and he and I don't see eye to eye in six (6) weeks. I mean, we're looking to leave for a clean approval. I'll be glad to agree to some language where if we mutually agree in the future or you know, we will in good faith present a further redesign, but if I don't lean for the clean approval, then I haven't accomplished what I set out to." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 18 OF 29 Commissioner Krebs said, "The only thing I saw that, you have this filled in, then skip that, enhance. It does look a little bit off balance and I think what the Manager was saying is that if we pay for that right there, it would balance it because you continue with the same treatment. .." Deputy Mayor Blake added, "... Or you can move it to the center." Commissioner Krebs agreed and stated, "Move it to the center." Commissioner Krebs said, "Just do the same, do in the middle - trade spots." With continued discussion, Mr. Tullos said, "Well how about that, can we agree then that this Elevation works if we can move this bank, right here to the middle?" Commissioner Krebs said, "Yes." Commissioner McGinnis said, "Yes." Deputy Mayor Blake said, "I agree." Mr. Doran said, "I'll agree." Attorney Garganese remarked, "I think that addresses the issue of 5.0. Will we get a revised - Elevation?" Mr. Tullos responded by saying, "If we could just make notes on that one tonight, approve it as part of this, and substitute - yes, I will get you a revised." Attorney Garganese stated, "And let me layout the new concept for the construction of Spine Road. And we would, if the Commission agrees to this particular concept, we would just go back and wordsmith 6.2 to make it consistent." On the costs and timing of building Spine Road, Attorney Garganese remarked, "That temporary construction Easement would last until Spine Road has been constructed to its completion or three (3) years, whichever occurs first. And, we also discussed putting a provision that the construction of Spine Road would not, in and of itself, serve as the basis for the delay or denial of an issuance of a C.O. (Certificate of Occupancy) for Phase II-A, as set forth in the Final Engineering plans." With discussion on the timing and completion, Attorney Garganese noted, "There is a provision though in the draft Implementation Agreement where the City, we could play around with the language, but if the City has a right to complete public infrastructure projects upon default; so if they went into default on the construction of Spine Road, that's addressed. But there's no set time period to complete construction." Commissioner Gilmore said, "So, as long as they start construction within one (1) year, they can take six (6) years to build that road?" Further discussion ensued. Attorney Garganese spoke for the Record about Staff. Continuing this discussion, Attorney Garganese asked, "Twenty-six (26) months from when?" Deputy Mayor Blake said, "From approval of Plans - with Force Majeure language." Mayor Bush asked, "The rest of the Commission in agreement with that?" CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 19 OF 29 Discussion. Deputy Mayor Blake asked, "Can we live with twenty-six (26) months? We were told that Engle doesn't need that access in their first phases. If twenty-four (24) months, twenty-six (26) months, year and a half from now, I mean, two (2) and a half years from now, Engle's not going to be built out by then. Twenty-six (26) months works for everybody. " Mayor Bush asked, "Twenty-six (26), Commissioners, down here at this end?" Commissioner Krebs said, "I don't know." Mayor Bush said, "Twenty-six (26)?" Commissioner McGinnis said, "Yes, okay." Mayor Bush said, "Okay, I think twenty-six (26), we got it. Go on." Ms. Furman said, "Anthony (Garganese), there was one (1) thing that we mentioned in that paragraph also with respect to Engle's construction traffic is supposed to, it will be continuing on Spine Road after we build it. And we wanted them to put up the Maintenance Bond or LOC (Letter of Credit) on that road. We just don't think it's fair that if we build a brand new road..." Mr. Lockcuff said, ".. . Right, we talked about you putting up a Bond, but they'd put an additional on top of it." Ms. Furman stated, "Okay. Do we need to add that?" Attorney Garganese said, "We discussed having, because Engle's going to be using that- we're going to approach Engle and have some sort of Bond or some Letter of Credit that would, if this Spine Road gets constructed and they have to use it for their construction purposes, we want some extra protection because of the extraordinary demands that their development's going to be placed on that road." Deputy Mayor Blake said, "I absolutely agree." Ms. Furman asked, "So we're not going to put it in this Agreement?" Attorney Garganese said, "Well, I don't mind putting a reference in there that would work with Engle in good faith to get that put into their Development Agreement which we're currently negotiating." Mr. Fields said, "One more quick item on the Spine Road that we didn't discuss in our meeting earlier. This is a lift station here, there's a force main from James Doran Company going from this lift station, down the Spine Road, down [State Road] 434 to a connection point. If Engle was also utilizing that force main, if they're ahead of JDC in their process, we'd like to request to allow at least a Utility Easement, force mains in the Spine Road right-of-way. And it's just outside of the [State Road] 434 right-of-way here, to grant a Utility Easement for that construction if it's built in advance of JDC building that force main." Continuing, Mr. Fields said, "It could be four (4) to six (6) months. Engle's ready to go - it's the same force main, it's just a matter of who builds it. I'm going to say if they are there first, and they can build that, that you would allow them to build it in the Spine Road right-of-way." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 20 OF 29 Deputy Mayor Blake asked, "When will we end up owning the land?" Mr. Fields noted, "This will be platted and it will be platted right away, just like any subdivision." Deputy Mayor Blake then said, "So it will be conveyed at that time. So, they are going to be doing construction then on the City's property. Are there any special considerations there that we need to be concerned with Anthony (Garganese)?" Attorney Garganese said, "They're going to have to post a construction bond. - it's going to be handled just like we handle all other subdivisions. It happens all the time, where the Commission approves - the Commission approves a plat, they go out and they develop. We sign off on all of the infrastructure then we accept bills of sale. But the right-of-way's already been conveyed via plat. We could be getting it through plat. If for some reason their plat is delayed however, and the City commences construction after that one (1) year, then they may have to convey the right-of-way by right-of-way deed to the City before the City commences that construction. So, that's going to be built into the Agreement." Mr. Fields asked, "Can we put in something to grant them a Utility Easement?" Mr. Fields continued, "Same force main, no difference, no change in location. Just there first and they build it - if that were to happen." Attorney Garganese said, "We'll put a paragraph in the Development Agreement to address that." Deputy Mayor Blake said, "It's not a Developer's Agreement." Attorney Garganese said, "Implementation Agreement." Deputy Mayor Blake said, "By the way, it says it on the bottom of each page; that needs to be changed too." Continuing, Attorney Garganese said, "Moving on to page - 8 -, paragraph 6.4. About halfway down that paragraph beginning with the words, 'In Addition'. It says, 'In addition, the City will', strike the word' Also'. It'll read, 'The City will reimburse JDC for the relocation of any existing water lines located on the east side of Tuskawilla Road in an amount equal to fifty thousand dollars ($50,000.00)'. They want to eliminate that 'Shall not exceed fifty thousand dollar ($50,000.00) number'." Ms. Furman stated, "That is because I thought that's what our agreement was Commissioner, on the upgraded Elevation." Deputy Mayor Blake said, "No, it was very clear that it would be whatever cost to move that line, up to fifty thousand dollars ($50,000.00). And that's what it was." Discussion. Deputy Mayor Blake stated, "Fifty is fine for me." Attorney Garganese asked, "So we're agreeing on fifty thousand ($50,000.00). Not to exceed?" Commissioner McGinnis said, "Yes." No objections were noted. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 21 OF 29 Attorney Garganese said, "6.6, correct me if I'm wrong, Becky (Furman), I think JDC wanted the right to use a higher, more qualified contractor, in their opinion, and pay the difference." Ms. Furman said, "That was it. If there is, where the language says..." Attorney Garganese said, "...It says that, 'JDC shall be required to accept the lowest and most qualified bidder, unless otherwise approved by the City'. They wanted the right to use a bidder that may be higher, that they think is more qualified, but they are willing to pay the difference between, I guess, who the City thinks is the lowest qualified and who they think is the, I guess, higher more qualified." Mr. Furman said, "Who you think is the lowest, but who we think is the higher, more qualified." Ms. Furman said, "It would still be out of those same three (3) bids. But let's say that you all agree that the medium bid is the most qualified and lowest. And for some reason we want to use the higher one. Because remember, when we're wrapping up these bids, it's not just for the Spine Road, it's for all of our buildings. So to address the cost issue, we would be happy to pay up, to pay the difference; more money." Commissioner McGinnis said, "Good." "I WILL MAKE A MOTION WE EXTEND FOR ONE (1) HOUR." MOTION BY COMMISSIONER MILLER. SECONDED BY DEPUTY MAYOR BLAKE. DISCUSSION. WITH CONSENSUS OF THE COMMISSION, THE MOTION WAS APPROVED. MOTION CARRIED. Manager McLemore said, "Let's simply state what the problem is. The problem is we have that language as, or agreement, as per plan, it's just on plans, there are no dimensions, so we can't determine what we're agreeing to, except on the first floor, but there no upper dimensions." Discussion. Tape 3/Side B Discussion ensued on balconies, to which Mr. Tullos said, "If a balcony exists in a residential unit which is what floors 2, 3,4 are, they're real balconies. Juliette balconies, whether they're eighteen inches (18") or two feet (2'), function when the doors open inward and you can sit in that open space." Manager McLemore said, "So it functions as a real balcony? That was my initial question." Mr. Tullos said, "It does." Manager McLemore said, "Because we have those out there that really don't. It's just a fake window and a stick on..." Mr. Tullos said, "...In a commercial application." Manager McLemore said, "Right and that's what I was trying to clarify. These are real balconies. They have different depths, but they are real balconies." Mr. Tullos said, "They're real balconies. They are." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 22 OF 29 Commissioner McGinnis said, "You answered my question, I was going to ask you to please define the difference between a fake balcony and a real balcony." Mr. Tullos said, "I'll give you a good for instance. Right above GianCarlos', at the Town Center, if you look at the back of the building, that's a fake bolt-on balcony. Not only that, eighteen (18) balconies you're requiring us to put on, that garage evaluation, as part of the redesign, those are fake balconies." Mayor Bush asked, "But George (Tullos), none of those are fake, that's what you said, right?" Mr. Tullos said, "In the residential units, they are not." Attorney Garganese said, "So for 10.5, does Exhibit 'D' even work any more?" Manager McLemore said, "Yes, per plan, absolutely." Attorney Garganese asked, "All other balconies and canopies shall be a mix of depths on what?" Manager McLemore said, "As per the plans that you submitted, we're using these..." Ms. Furman asked, "... What if it says, 'Second floor balconies and canopies shall be a mix of depths as shown on Exhibit 'D' which is attached hereto?" Mr. Tullos added, "That is correct." Deputy Mayor Blake said, "As well, in 10.5, 'Balcony floors shall be constructed of solid opaque material and functional' ." Attorney Garganese said, "I want to make sure, the second floor balconies, as per Exhibit 'D', am I wrong?" Manager McLemore said, "Well, we might get some words to it which basically guarantees a six (6) foot depth at the entrance ways to the buildings and..." Mr. Tullos said, "... That all depicts where that condition exists and we changed it. That's what we agreed to do. We did exactly what you asked." Deputy Mayor Blake said, "I'm familiar with Exhibit 'D' and it is what we discussed." Attorney Garganese asked, "And then all other balconies as per plan. Which plan?" Manager McLemore said, "Basic, the Concept Plan and the floor plans that they've laid out to us." Continuing, Deputy Mayor Blake said, "And language in there that says all balconies of these residential units are functional. Maybe that's not the right word?" Mr. Furman said, "No grates, no grates." Mr. Doran explained, "If it opens to a unit, it will be functional. It could be a feature on an outside of a hall, that it's just aesthetic." Attorney Garganese spoke of page - 12 - and stated, "At the top of the page, paragraph 14, four (4) lines up from the bottom, it says 'Reimburse JDC for such reasonable construction costs'. It needs to say 'Reimburse JDC for such reasonable design, permitting, engineering and construction costs'." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 23 OF 29 Commissioner Gilmore said, "On, 'The City shall permit JDC to use any existing City rights-of-way and/or easements to accommodate stormwater generated from the Phase II Property'. What does that mean? Does that mean they can form a lake in the right-of- way?" Mr. Lockcuff said, "I would read it as they can put the pipes in the right-of-way. You're reading it as they can build a pond. I mean, there's got to be an approved plan. We wouldn't approve that." Ms. Furman said, "We can say 'Subject to approved plans'." Attorney Garganese stated, "How about adding the language, 'Subject to plans approved by the City'?" Commissioner Gilmore said, "That is good." Attorney Garganese said, "Page - 14 -, we just need to strike paragraph 34.0 - for the reasons I stated early on as proper contracting party." Next, related to 3.4 - Attorney Garganese said, "If you recall during the last Commission Meeting, the Developer is requesting that Phase II-A only be subject to the Town Center District Code that's in existence on the effective date of this Agreement. And I said, well, I had some concerns with that. Florida Statues, for Chapters 163 Developer Agreements, does permit this, permit that. This is not a 163 Development Agreement. But 163 provides certain safeguards that permit City Councils to go ahead and adopt new Codes that will apply, regardless of the Development Agreement. And I paraphrased Chapter 163 issues in sub-paragraphs (A), (1), (2), (3), (4), and (5). And they have requested that we strike (1), (3), and (4). I'm alright with striking (3), and during our discussions earlier this afternoon, I wasn't comfortable with striking (1) and (4). So those are the outstanding provisions." Attorney Garganese said, "Then there's the other issue of valet parking and temporary parking for the Phase I development." Commissioner Krebs said to Attorney Garganese, "There was another issue too, which was the cost of the parking spaces, the fifteen thousand [dollars] (15,000.00)." Deputy Mayor Blake said, "This is actually a Companion Agreement, right?" Attorney Garganese said, "Yes, it would be a separate Agreement. It addresses Phase I, however there are Phase II development issues that impact the overall parking that have an impact on Phase I that we're trying to address." Ms. Furman noted, "We would offer - and this is the exact language with respect to valet - 'To require that any sit-down Restaurant of 5,000 square feet or larger on the northwest comer of State Road 434 and Tuskawilla Road (Building 1) provide for valet parking in the evenings' . Discussion. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 24 OF 29 Mr. Doran explained, "We have a permanent loan on this and so - I can't really get in the valet business or do anything that's going to cost this property money that I can't recover from the tenants." Discussion. Mr. Tullos said, "Well, how about this - I can't go back, we cannot go back and do that. But what we can do is if a tenant would like to take it up on their dime, provide their customers with valet parking, we'd help them find, they need to define how many spaces they need, if we can work it in, we can agree to maybe do that." Manager McLemore said, "That's basically what I was saying." Mr. Tullos said, "Well, it'd be up to the tenant, it's not anything we can establish. Weare forcing the comer tenant to valet park." Mr. Doran said, "Is it the City's intention to provide Magnolia Park temporary parking at the same time we provide this number of temporary parking north of McDonald's?" Manager McLemore said, "Well, the intent was to bring it online when it was needed." Mr. Doran said, "Well, let's say it's needed for valet. Are you willing to do that? Are you willing to provide that temporary lot for valet? That would solve this issue. It would keep our partners out of the muck; you can bring that lot online and provide it for valet." Deputy Mayor Blake said, "Same ninety (90) days?" Deputy Mayor Blake continued, "5, 6, 7 - same ninety (90) days notice? That gives us ninety (90) days to do Magnolia Park, if we need to." Mr. Doran said, "Yes, let's do that." Manager McLemore said, "So you're saying, valet parking on 5, 6, and 7 with ninety (90) days notice?" Mr. Doran said, "Yes, and then you could revert over to Magnolia Park." Deputy Mayor Blake said, "Okay. It works." Mayor Bush asked, "Commission in agreement?" Commissioner McGinnis said, "Yes." No objections were noted. Continuing, Manager McLemore said, "They're going to make it available until ninety (90) days. Will they have someone that needs the pad, then they'll give us ninety (90) days notice - and then at that point in time we'll have time to make sure that Magnolia Park in on the line." Attorney Garganese asked, "And then the City has the right to terminate the valet parking spaces on Magnolia [Park] with ninety (90) days notice to them?" Manager McLemore said, "No, it would be until the north garages..." Deputy Mayor Blake finished, "... Garages available." Attorney Garganese asked, "So you want to commit to valet parking on Magnolia [Park] until the north garages are completed, if necessary?" Attorney Garganese said, "Okay, that would be memorialized in a separate understanding, written understanding, correct?" Deputy Mayor Blake said, "Correct." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 25 OF 29 Next, Attorney Garganese said, "That would leave 3.4 and then the issue of carrying costs on the garage spaces." Furthermore, Attorney Garganese said, "Now there would be exceptions and this is where the issue is. On the exemptions to the rule where a Code revision would not apply to Phase II-A; and one (1) of those exemptions is the Code amendment is essential to the public health, safety and welfare and expressly state that they shall apply to a development that is subject to a Development Agreement. I think they understand that we cannot change that provision so public health, safety, and welfare outweighs - our Agreement. Then they're going to be subject to the new Code provision. I'm not comfortable with changing sub-paragraph (4), that they're requesting be changed. Because there are some substantial changes that may occur that you just don't, that you can't consider it at this point. And if there are substantial changes in circumstances that are pertinent to the conditions that affect this Development Agreement, then I think this City - Commission should reserve its police powers to address those issues." Commissioner McGinnis said to Attorney Garganese, "Would you recommend any time period?" Attorney Garganese said, "I'm alright with the four (4) year time period, but I think the City Commission needs to reserve the ability to exercise some level of police powers to adopt changes to the Code that apply." Much discussion. Attorney Garganese said, "I'd be willing to wordsmith it, but I don't want to come back to the Commission and tell you sorry, I made a deal. You can't change the Code to make it apply to address a substantial change. I don't think you are going to want to be in that position two (2) years from now." Commissioner Krebs said, "I support that." Attorney Garganese continued, "I'm willing to strike number (1) and number (3), but (2) and (4) is going to give you the ability to address issues where the greater public good outweighs keeping the Code the same for this particular development." Regarding number (4), Mayor Bush asked, "How many want to leave it in?" Commissioner Krebs said, "I support Anthony (Garganese)." Commissioner McGinnis said, ''In.'' Deputy Mayor Blake said, "I will go with the Attorney." Commissioner Miller said, "Yes." Commissioner Gilmore said, "We'll have to leave it in." Attorney Garganese said, "Just to reiterate, that (2), (4), and (5) are in?" Deputy Mayor Blake said, "Yes." Mayor Bush said, "Yes." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 26 OF 29 Tape 4/Side A With further discussion, Deputy Mayor Blake suggested, "If we're paying fifteen thousand dollars ($15,000.00) at C.O. (Certificate of Occupancy), into an escrow account, and that escrow account is earning some rate of return, whatever - very low risk market rates are at that point in time, and you deliver the spaces a year later, then - you have gotten fifteen thousand dollars ($15,000.00), plus whatever that rate of return was during that year, and if that rate of return was seven percent (7%) by chance, then it would have been the same amount that you asked for at C.O. (Certificate of Occupancy), or at delivery rather. But here is the real key, if the cost of the spaces is actually only twelve thousand dollars ($12,000.00), which we all have agreed that the cost of the spaces is less than fifteen thousand dollars ($15,000.00), and that the additional - and we have talked any where from thirteen (13), fourteen thousand dollars ($14,000.00), some numbers were twelve (12), some were fourteen (14), but let's say thirteen, fourteen thousand [dollars] ($14,000.00), a portion of that money is over and above the cost of the space. You have earned the extra interest on that for that year plus it will be offsetting the interest that you have to pay going forward by virtue of us overpaying for the spaces for that period of time. It is more than fair." With further discussion on the costs and time, Ms. Furman noted, "Then it was an oversight on our part. We did not realize that there was going to be a time.. . " Deputy Mayor Blake remarked, "...By the way, it is up to a year." Manager McLemore added, "One (1) year." Deputy Mayor Blake then said, "If they don't load the spaces within a year of C.O. (Certificate of Occupancy), what happens then?" Manager McLemore said, "It doesn't increase." Deputy Mayor Blake added, "We can cap them at a years worth of earnings, but we have an arbitrage issue where we can't take the money back and call it as earnings, because that creates a different kind of bond issuance problem." Manager McLemore said to Deputy Mayor Blake, "There may be a way around that. I will talk to you about it." While Ms. Furman made a telephone call to her client, other City business was mentioned; to which Commissioner McGinnis asked if there could be an Agenda Item on Election Campaign Sign Fees. There was no Consensus on this. Ms. Furman stated, "If the other Commissioners are in agreement, we will agree to the fifteen thousand dollars ($15,000.00) per space, put into an escrow account by the City, to earn interest. We then receive that at the time of delivery of the spots - up to one (1) year's worth." Deputy Mayor Blake noted, "Which doesn't mean you receive the money in one (1) year. You receive the money on deliverance - but only earnings of one (1) year." Ms. Furman remarked, "I understand that." CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 27 OF 29 Mayor Bush asked, "The Commission in agreement with that? Commissioner Krebs remarked, "Sure." Commissioner McGinnis stated, "Yes." Commissioner Miller commented, "Absolutely." Commissioner Gilmore noted, "Yes." Mayor Bush said, "1 know Mr. Blake is. Okay, we all agreed." "I WOULD LIKE TO MAKE A MOTION THAT THE CITY COMMISSION ADOPT THE IMPLEMENTATION AGREEMENT AS AMENDED THIS EVENING AND AUTHORIZES THE CITY MANAGER AND THE CITY ATTORNEY TO DRAFT IT AND TO CORRECT ANY SCRIVENER'S ERRORS THAT MAY EXIST, THAT DO NOT CHANGE THE ESSENCE OF THE AGREEMENT AS PRESENTED." MOTION BY DEPUTY MAYOR BLAKE. SECONDED BY COMMISSIONER McGINNIS. DISCUSSION. VOTE: COMMISSIONER GILMORE: AYE DEPUTY MAYOR BLAKE: AYE COMMISSIONER MILLER: AYE COMMISSIONER McGINNIS: AYE COMMISSIONER KREBS: AYE MOTION CARRIED. "I WOULD LIKE TO MAKE A MOTION THAT THE CITY COMMISSION APPROVE THE AGREEMENT FOR - P ARKING, VALET PARKING, TEMPORARY PARKING IN IDC PROPERTY, PHASE I, 5, 6, AND 7 PADS WITH THE PROVISION OF NINETY (90) DAY NOTIFICATION OF CANCELLATION OF THAT PORTION TO ENABLE US TO PROVIDE REPLACEMENT TEMPORARY PARKING ON MAGNOLIA PARK." MOTION BY DEPUTY MAYOR BLAKE. SECONDED BY COMMISSIONER McGINNIS. DISCUSSION. VOTE: COMMISSIONER KREBS: AYE COMMISSIONER MILLER: AYE COMMISSIONER McGINNIS: AYE DEPUTY MAYOR BLAKE: AYE COMMISSIONER GILMORE: AYE MOTION CARRIED. CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 28 OF 29 Attorney Garganese stated, "If temporary parking is on Magnolia, it will be until the north garage has been completed and is open." Attorney Garganese added, "It was stated during the discussion. It wasn't in the Motion, but I think that was the intent." Deputy Mayor Blake noted, "It was." Deputy Mayor Blake noted, "To embody these discussions that we had this evening." In other City business, Mayor Bush stated, "Randy Stevenson [ASLA, Director, Community Development Department] had - notified us that Sonesta Pointe - there will be a road that runs through there. I would like to recommend to the Commission that this road be named after Mr. Blake." Commissioner Krebs noted, "That was why my light was on." "OF COURSE WE HAVE TO CHECK THE 9-1-1 RECORDS TO MAKE SURE THERE IS NO 'BLAKE'S WAY' OR SOMETHING LIKE THAT - BUT I WOULD LIKE TO MAKE A MOTION TO NAME SPINE ROAD AFTER COMMISSIONER BLAKE." COMMISSIONER McGINNIS STATED, "IT'S NOT SPINE ROAD IS IT?" COMMISSIONER KREBS REMARKED, "WHATEVER THAT ROAD THAT..." MAYOR BUSH ADDED, "...RUNS THROUGH THE SONEST A POINTE SUBDIVISION..." COMMISSIONER KREBS ADDED, "...RUNS INTO." MAYOR BUSH STATED, "SECONDED BY COMMISSIONER McGINNIS." DISCUSSION. COMMISSIONER GILMORE ADDED, "LET'S NOT CALL IT 'WAY'. I LOOK OUT HERE AND IT IS 'McLEOD'S WAY'. SOME DAY, SOMEBODY IS GOING TO SAY, YES, HE GOT HIS WAY." THEN, COMMISSIONER KREBS ADDED, "I THINK THAT'S PERFECT." COMMISSIONER GILMORE SUGGESTED, "BLAKE'S STREET OR..." COMMISSIONER KREBS ADDED, "...IT'S NOT IN THE MOTION." VOTE: COMMISSIONER McGINNIS: AYE COMMISSIONER KREBS: AYE COMMISSIONER GILMORE: AYE COMMISSIONER MILLER: AYE DEPUTY MAYOR BLAKE: AYE MOTION CARRIED. ADJOURNMENT Mayor Bush adjourned the Special Meeting at 12:08 a.m. RESPECTFULLY SUBMITTED: DEBBIE FRANKLIN, DEPUTY CITY CLERK AND " l APPROVED: f~ CITY OF WINTER SPRINGS, FLORIDA OFFICIAL MINUTES CITY COMMISSION SPECIAL MEETING - NOVEMBER 20, 2006 PAGE 29 OF 29 NOTE: These Minutes were approved at the February 12, 2007 Regular City Commission Meeting.