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HomeMy WebLinkAbout2006 11 14 Other Letter for Special Meeting Date: November 14, 2006 The attached documents were discussed during the November 14, 2006 City Commission Special Meeting, during the discussion of Regular Agenda Item "300." t., CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 Ronald W. Mclemore City Manager November 13, 2006 George Tullos James Doran Company 216 Seven Farms Road, Ste. 200 Charleston, SC 29492 Dear Mr. Tullos, Please find enclosed the City's second proposed implementation agreement as provided for in the Winter Springs Town Center Phase II Development Agreement dated December 15, 2005 inclusive of discussions occurring at the November 8, 2006 City Commission Workshop regarding Town Center parking issues. The purpose of this agreement is to effect a permanent solution to the parking issues in the Town Center through the accomplishment of the following objectives. 1. Restoration of City owned on-street spaces and developer owned on-site spaces that have been lost over the life of the Town Center to date, and 2. Replacement of spaces eliminated by the widening of Main Street sidewalks which are needed to make Main Street a more pedestrian friendly and customer active place, and 3. Facilitation of an active and on-going program of special events which adds dramatically to the economic success of Town Center merchants. To accomplish these objectives, the City proposes the following: 1. Consistent with the development agreement and first implementation agreement proposed by the City and the final engineering plans adopted by the City Commission, to add not less than 62 parking spaces in the North Garage as provided for in the final engineering plans approved by the City Commission. The City proposes to amend the initial proposal for the City to pay cash upon the issuance of a Certificate of Occupancy and final completion of the construction of the garage in an amount equal to $15,000 per space. 2. To the extent feasible, the City desires to add up to 108 general use public spaces over and beyond those currently shown in the approved South Garage final J engineering plans for which the City will pay cash upon the issuance of a Certificate of Occupancy and final completion of construction in an amount equal to $15,000 per space. 3. Consistent with the City's original proposal, if it is not feasible to add the additional 108 spaces to the South Garage, the City desires to have the option to add all or that portion of the 108 spaces which could not be built in Phase II-A to the first parking facility constructed in Phase II-B which would be in addition to the minimum requirements of parking spaces needed to meet the development program for Phase II-B. In recognition of the fact that construction of a Phase lI- B parking facility could take place months or years after the construction of Phase II-A parking facilities, the City agrees to pay cash for these spaces in an amount equal to $15,000 per space plus an increase in cost mutually acceptable to the parties resulting from increased constructions costs. As a reminder, in Section 3.9 of the Winter Springs Phase II Development Agreement, J.D.C. agrees that it will construct sufficient parking within the two parking structures planned for Phase II-A to provide the parking requirement of Phase II-A, and in addition to provide to the extent feasible for additional public parking spaces upon the City's request. Nothing in this agreement says anything about these parking facilities being utilized for Phase II-B parking. In the City's first proposed implementation agreement provided to you in August 2006, the City requested 62 additional public spaces in the North Garage. This number was arrived at according to your representations as to the number of additional spaces you felt you could provide. The initial proposal also requested an additional 100 public spaces to be built in Phase II - B. In the final engineering plans approved by the City Commission, the North Parking Garage contains the 62 additional spaces requested by the City. The City proposes now to pay for these additional spaces in cash payable upon delivery at $15,000 per space. Subsequent to approval of the final engineering plans, J.D.C.'s position changed. J.D.C. now desires to utilize the extra 62 spaces in the North Garage for Phase II-B parking due to the fact that a Phase II-B tenant is on the horizon. This appears to be an obvious contravention to the spirit if not the letter of the development agreement. We do not have any issues with the South Garage being utilized to accommodate Phase II-B parking provided that the 62 spaces in the North Garage are retained for the City and the Phase II-B tenant spaces are in addition to the other 693 spaces required for the Phase II-A development program. In order to simplify the complications raised by the Phase II-B parking requirements my question is this; is it out of the question to consider construction of an extension of the South Garage or a Third Garage on the hotel site to provide the additional parking similar to the following: PHASE II-A PHASE II-B Developer Paid City Paid 693 62 755 Developer Paid - Estimated Hotel City Paid - Estimated Office Building City Paid 100 100 108 308 We hope you find this revised agreement acceptable. We are certainly open to all other suggestions that would allow us to resolve parking and all other issues so that we can move ahead as rapidly as possible. Sincerely, ~d./t/.~~ Ronald W. McLemore / City Manager / Ijp TIDS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Preliminary Draft 11/13/06 Prepared by City Anthony Garganese City Attorney of Winter Springs Brown Garganese, Weiss & D' Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 WINTER SPRINGS TOWN CENTER PHASE II IMPLEMENTATION AGREEMENT THIS WINTER SPRINGS PHASE II IMPLEMENTATION AGREEMENT (the "Phase II Implementation Agreement") is made and executed this day of , 2006, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and JDC CALHOUN, a Georgia corporation ("JDC"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, South Carolina 29492 WITN ESSE T H: WHEREAS, JDC is currently developing Phase I of its Winter Springs' Town Center project on real property generally located north of State Road 434 and west of Tuskawilla Road (aka Main Street); and WHEREAS, JDC has recently acquired approximately 46.5 of additional real property located within the Winter Springs' Town Center which is more particularly described in EXHIBIT "A" attached hereto and incorporated herein by this reference (the "Phase II Property"); and 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 the Winter Springs Town Center Plan, the City entered into a development agreement, dated July 26, 2000, with Schrimsher Land Fund 1986-II, LTD., Schrimsher Land Fund V, LTD., and Schrimsher Land Fund VI, LTD which incorporates the Phase II Property, and which a Short Form Memorandum of Agreement is recorded in the public records of Seminole County, Florida in Official Record Book 3988, Page 1063 (" Schrimsher Development Agreement"); and WHEREAS, pursuant to the Winter Springs Town Center Plan, JDC and the City have also entered into a development agreement for the Phase II Property, dated December 15, 2005, and recorded in the public records of Seminole County, Florida in Official Record Book , Page , which includes a mixed use concept site plan for the Phase II Property ("Phase II Development Agreement"); and WHEREAS, paragraph 4 of the Phase II Development Agreement provides that JDC and the City will work in good faith to develop and memorialize in writing the mutual expectations of City and IDC regarding the implementation of the development set out in the Phase II Development Agreement including, but is not limited to, cost sharing of infrastructure, parking, aesthetics, impact fee credits, expedited permits review, and construction schedules; and WHEREAS, on July 10, 2006, the City Commission approved Final Engineering Plans for Phase II-A, subject to the completion of this Phase II Implementation Agreement; and WHEREAS, the City and JDC desire to set forth the following special terms and conditions with respect to the proposed Phase II development Project on the Phase II Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained . herein, the parties mutually agree as follows: 1.0 Recitals: Effective Date. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. The Effective Date of this Phase II Implementation Agreement shall be ("Effective Date"). 2.0 Authoritv. This Phase II Implementation Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3.0 Two Phase Project. The City and JDC agree that the Project will be developed in two phases, which shall be identified herein as Phase II-A and Phase II-B. 4.0 ParkinS! Reauirements. JDC agrees to design, engineer, construct, and maintain in perpetuity parking spaces for the Project as follows: 4.1 Phase II-A Parking Required By JDC's Development Plans. applies to Phase II-A: The following (A) IDe shall construct two parking garages on the Phase II-A Property. The parking garages shall be identified as the ''North Garage" and the "South Garage." As more specifically required hereunder, the garages shall be required to service JDC's particular development demands for Phase II-A and the additional public parking needs required by the City. Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 2 - (B) JDC and the City agree that six hundred ninety-three (693) parking spaces are required to specifically meet the development demands approved for Phase II-A regarding building sizes and occupancies as set forth in the Final Engineering Plans. The parking spaces provided by JDC shall be identified as six hundred eight (608) garaged spaces, of which, four hundred ninety eight (498) shall be assigned residential spaces and one hundred ten (110) shall be unassigned general use public parking spaces. Additionally, eight-five (85) parking spaces shall be surface level on-street spaces. (C) IDC and the City acknowledge and agree that the number of parking spaces required in accordance with Paragraph 4.1 (B) was calculated based on development demands that have been proposed by JDC under the Final Engineering Plans. Said demands constitute three hundred twelve (312) condominium units, ten thousand (10,000) square feet of restaurant space, and twenty-three thousand two hundred forty (23,240) square feet of retail space. The condominium units are broken down into one hundred two (102) one bedroom units; one hundred ninety-three (193) two bedroom units; and seventeen (17) three bedroom units. JDC and the City further acknowledge and agree that should IDC desire to change the building occupancies and/or the unit mix approved under the Final Engineering Plans, an additional parking study may be required by the City in order to recalculate the number of required parking spaces for Phase II-A. Additional parking spaces required because of JDC's development demands shall not be provided from the public parking spaces which are identified herein for purchase by the City. 4.2 Phase II-B Parking Required By JDC's Development Plans. JDC and the City acknowledge and agree that JDC has not proposed any final development plans for Phase II- B at the Effective Date. As such, Phase II-B parking requirements are not addressed in this Agreement and shall be determined at a later date based on the development demands proposed by JDC and in accordance with the City's Town Center Parking Guidelines. JDC shall be responsible for the cost of providing parking spaces required to meet the Phase II-B development demands. 4.3 North Garage - Public Parking Purchased by the City. In addition to the parking spaces required in Paragraph 4.1(B), IDC shall provide to the City an additional sixty- two (62) parking spaces in the North Garage. The parking spaces shall be dedicated by IDC to the City by perpetual easement for the exclusive benefit of the general public. Said easement shall be in a form deemed acceptable by the City Attorney and the easement shall be free and clear of all encumbrances including, but not limited to, mortgages, taxes, and liens. The City agrees to purchase the sixty-two (62) parking spaces at a cost of Fifteen Thousand ($15,000.00) per space. At such time the City issues a certificate of occupancy for the North Garage and JDC delivers a fully executed easement to the City, the City shall pay JDC for the parking spaces. Payment for the parking spaces shall be in U.S. funds and shall be made by check or wire transfer to JDC. For purposes of securing the public's perpetual benefit to the sixty-two (62) parking spaces, JDC agrees to post appropriate signage at the parking spaces which shall conspicuously advise the public that the spaces shall be reserved for the benefit of the general public and shall not be used for residential use. Violators shall be subject to being towed. JDC and the City shall finalize the design of, and wording on, the signage no later than the date that the easement is delivered to the City. ToWn Center Phase II Developer's Agreement City of Winter Springs and mc CALHOUN, Inc. - 3 - 4.4 South Garage - Public Parking Purchased by the City. At the Effective Date, IDC and the City acknowledge that the City desires to purchase additional public parking spaces in the South Garage. However, the Final Engineering Plans do not provide for such spaces. Notwithstanding, if IDC decides to expand the size of the South Garage within two (2) years from the Effective Date, the City agrees to purchase up to one hundred eight (108) parking spaces under the same terms and conditions set forth in Paragraph 4.3. 4.5 Phase II-B - Option to Purchase Public Parking by the City. To the extent that the City has not acquired the full number of the one hundred eight parking spaces identified in Paragraph 4.4, the City shall have the option, but not the obligation, to purchase additional public parking spaces in the first parking facility constructed in Phase II-B. The number of parking spaces available under this option shall be equal to whatever number of spaces that were not purchased by the City in the South Garage. The purchase of the parking spaces shall be under the same terms and conditions set forth in Paragraph 4.3. However, the purchase price shall be subject to an annual inflation adjustment commencing on the first anniversary of this Phase II Implementation Agreement. The adjustment shall be based on the Consumer Price Index, Southeast Region. 4.6 Phase II-A Temporary Parking. IDC and the City acknowledge and agree that there will be a need for temporary unpaved, stabilized parking during the construction of Phase II-A. In order to accommodate this need, the parties agree as follows: (A) IDC shall implement a temporary valet parking service, with not less than sixty (60) spaces, located at a vacant area of Phase I on the south side of Blumberg Boulevard until such time as the North and South Garages have been completed. (B) The City shall make available not less than thirty (30) temporary parking spaces on the real property known as Magnolia Park until such time as the North and South Garages have been completed. (C) While existing on-street parking located on the east side of Main Street is unavailable due to scheduled Phase II-A underground utility work and construction activities, IDC shall make available not less than thirty (30) temporary parking spaces on vacant real property adjacent to the east side of Main Street. The temporary spaces may be removed at such time the on-street parking on the east side of Main Street is fully restored. 4.7 Special Conditions for Garage Parking Spaces. The conditions shall apply to the garage spaces: (A) The one hundred ten (110) unassigned general use garaged spaces provided for in Paragraph 4.1 (B) and all public parking spaces purchased by the City under Paragraphs 4.3, 4.4, and 4.5 shall be located at the lowest level ofthe parking garages. following special (B) In addition to the sign age requirement set forth in Paragraph 4.3 for public parking spaces purchased by the City, IDC shall provide other appropriate measures to separate assigned residential parking from unassigned general use parking spaces and parking spaces purchased by the City. Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 4 - (C) IDC may petition the City to reclassify a portion of the four hundred ninety-eight assigned residential spaces to unassigned residential spaces or unassigned general use public spaces. However, under no circumstances will IDC be pennitted to increase the number of assigned residential parking spaces by reclassifying unassigned general use public parking spaces or City purchased public parking spaces. 5.0 South Garal!e Buffer BuUdin!!. Relative to the Buffer Building defined below, the parties agree as follows: 5.1 Liner Buildings Required for Garages. The City requires parking garages to be encompassed with useable liner buildings in order to prevent the unsightly effect of exposed parking decks to the public, and that such exposure must be prevented to accomplish the quality of design and amenities the city desires for the Town Center. 5.2 Limited Exception. Notwithstanding the fact that the south side of the South Garage in Phase II-A does not temporarily meet liner building requirements, the parties agree that the south side of the South Garage in Phase II-A faces a service alley and that it is IDC's intent to buffer the exposed south side with a building or buildings of sufficient height and width to fully block the view of the exposed south side of the garage from State road 434 ("Buffer Building"). However, the parties acknowledge and agree that since the Project is a very large development that will span the course of several years, conditions outside the control of JDC may impede JDC's ability to construct the Buffer Buildings within the time frame intended. As such, the parties desire to agree on the following contingency plan for the construction of the Buffer Building: (A) As a temporary buffering measure until the Buffer Building is constructed, JOC shall install and maintain in good condition a line of trees and other plant material acceptable to the City that shall serve to buffer the view ofthe South Garage from S.R. 434. (B) JOC shall make a sincere and good faith effort to commence construction 0 the Buffer Building not more than two years from the effective date of this Agreement. (C) In consideration of the reality that the south elevation of the building located behind McDonald's may be exposed for many years to the public, JOC and the City agree to hold discussion for the purpose of exploring mutually acceptable conditions under which decorative enhancements could be added to the exterior of the structure which do not impact the internal design and/or function of the building as designed. 6.0 Phase II-A and I1-B Infrastructure Improvements. The following conditions shall apply to certain Phase II-A and II-B public infrastructure improvements: 6.1 Compliance with Applicable Laws. All Phase II-A and II-B public infrastructures will be built in accordance with all applicable laws, codes, regulations, and special conditions established by the City. Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. -5- 6.2 Spine Road JDC and the City acknowledge that prior to the Effective Date, JDC was in the process of designing and permitting Spine Road including obtaining an Environmental Resource Permit from the St. John's River Water Management District. Notwithstanding, the parties agree that the City will complete the design, permitting, and construction of Spine Road under the following conditions: (A) IDC agrees to fully cooperate with the City to ensure that all design and permit work previously obtained by IDC is promptly provided to the City for purposes of allowing the City to complete the design, permit, and construction of Spine Road. (B) IDC agrees to dedicate the Spine Road right-of-way to the City, at no cost to the City, prior to issuance of any building permits for Phase IIA. Such dedication shall be free and clear of any and all encumbrances including, but not limited to, mortgages, taxes, and liens. Further, the written instruments of conveyance shall be in a form acceptable to the City Attorney. (C) Spine Road shall generally consist of a standard 60-foot wide right-of-way section and shall include additional right-of-way necessary for the roundabout at the intersection of Spine Road and Tree Swallow Drive, and the right turn deceleration lane from S.R. 434 onto the Spine Road. The Spine Road right-of-way shall be located as shown in EXHIBIT "D." (D) Regarding Spine Road design and permitting costs incurred by JDC prior to the Effective Date, the City shall reimburse IDC for such reasonable costs in U.S. funds or impact fee credits, whichever is desired by JDC. The costs which are subject to reimbursement shall be limited to: (1) reasonable costs associated with that portion of the Phase II wet detention pond and stormwater conveyance system that is specifically constructed to support Spine Road; (2) reasonable wetland mitigation costs specifically related to that portion of Spine Road which requires wetland mitigation; and (3) reasonable design and permitting costs incurred by JDC that are specifically related to Spine Road. (E) The City's construction of the Spine Road shall comply with the terms and conditions of Section V (c) of the Schrimsher Development Agreement. (F) The City agrees to construct Spine Road within twenty-four (24) months from the date that IDC is issued the first City building pennit for Phase II-A. 6.3 Other Phase II Roadways. Upon completion of the construction of Tree Swallow Loop and Town House Roads, as more specifically depicted in EXHIBIT "B", to the satisfaction of the City, JDC agrees to convey said roads to the City inclusive of all water, sewer, stormwater, and other related public improvements identified on the Final Engineering Plans. Such conveyances shall be free and clear of any encumbrances including, but not limited to, mortgages, taxes, and contractor's liens. Further, the written instruments of conveyance shall be in a form acceptable to the City Attorney. 6.4 Reconstruction of East Tuskawilla Sidewalks and Parking. The parties acknowledge that JDC needs to construct underground utilities along the east side ofTuskawilla Road, between McDonald's and Magnolia Park, that will result in the temporary removal of sidewalks and parking on said road. The City agrees to reimburse IDC for the direct and reasonable costs related to the reconstruction of said sidewalks and parking located on the east Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 6- side of Tuskawilla Road, provided said reimbursement shall not exceed two hundred fifty thousand dollars ($250,000.00). Further, reimbursement does not include any costs associated with the construction of new or relocated utilities for Phase II-A. Reimbursement shall be made in U.S. funds by check or wire transfer at such time that JDC has completed the construction of Phase II-A of the project. 6.S Reimbursement Procedure; Private Under Taking. JDC agrees that all public infrastructure costs which are eligible hereunder for City reimbursement (by direct payment or impact fee credit), if any, shall be subject to an infonnal competitive bid process under which JDC shall obtain three (3) written quotes or bids. The bidding documents shall be submitted to the City for review and approval. In addition, each bid shall be submitted to the City for review and approval prior to JDC entering into any contract for the design, pennitting and construction of the infrastructure. JDC shall be required to accept the lowest and most qualified bidder unless otherwise approved by the City. JDC further agrees that at the time reimbursement for any infrastructure costs is. requested, JDC shall provide the City with a copy of all applicable invoices, receipts, warranties, maintenance bonds, and documentation, including all change orders, which shall clearly evidence each reimbursable expenditure. The City shall not be responsible for reimbursing any infrastructure cost which can not be properly and reasonably documented in writing. The project expenditures eligible for reimbursement shall consist of the design, permitting, and construction of the associated infrastructure improvement projects and the associated environmental mitigation costs assessed by the 8t. Johns Water Management District and the United States Army Corps of Engineers. Project expenditures eligible for reimbursement that have been incurred prior to the Effective Date shall be reimbursed based on the reasonableness of actual invoiced costs and supported by documentation acceptable to the City. The City shall not unreasonably withhold any approvals required under this Paragraph and shall endeavor to make payment within thirty (30) days of construction completion and acceptance of the infrastructure project. JDC acknowledges and agrees that until said infrastructure is fully constructed and accepted and conveyed to the City under the terms and conditions herein, the construction of the infrastructure is a private under taking by JDC and shall not be considered a public works project. JDC shall indemnify and hold the City and its mayor, commissioners, employees and attorneys harmless from any claims, lawsuits, or actions made against the City by any contractor or subcontractor engaged by IDC, either directly or indirectly, to design, permit, and construct the infrastructure which is subject to reimbursement hereunder. 6.6 Security; Bonding. All public infrastructure conveyed to the City under this Phase II Implementation Agreement shall be conveyed with a two (2) year maintenance bond in favor of the City. Said bond shall be issued by a surety deemed acceptable to the City in an amount not less than ten percent (10%) of the total construction cost of said infrastructure. The maintenance bond shall also be in a fonn acceptable to the City Attorney. 6.7 'City Right to Complete Public Infrastructure Projects Upon JDC's Default. If IDC fails to adequately complete the water, sewer, stormwater, and Public Roads infrastructure required to be dedicated to, and subject to reimbursement by, the City under this Phase II Implementation Agreement and Final Engineering Plans, by either defaulting under the terms and conditions of this Phase II Implementation Agreement or any agreement with a contractor to Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 7 - complete said infrastructure, the City shall have the right, but no obligation, to demand in writing that the City be entitled to take such steps that are reasonably necessary to complete the construction of the public infrastructure projects required to be dedicated to the City. However, before the City takes such steps to complete the public infrastructure projects, JDC shall be provided with an opportunity to cure the default as provided in paragraph 30.0 of this Phase II Implementation Agreement. In addition, if the City undertakes the completion of the infrastructure, IDC agrees to fully and reasonably cooperate with the City and, at the City's request, JDC shall promptly convey all rights of ways, easements and tracts of land intended and required to be dedicated to the City under this Phase II Implementation Agreement and all infrastructure and facilities already constructed thereon. Such conveyances shall be free and clear of any encumbrances including, but not limited to, mortgages, taxes, and contractor's liens. Further, the written instruments of conveyance shall be in a form acceptable to the City Attorney. IDC shall indemnify and hold the City and its mayor, commissioners, employees and attorneys harmless from any claims, lawsuits, or actions made against the City based directly or indirectly upon IDC's default under this Phase IT Implementation Agreement or JDC's default under any other agreement which was entered into by JDC to complete the design, permit, and construction of the infrastructure referenced under this paragraph. 7.0 Mal!Dolia Park. In addition to the 0.15 acres of Magnolia Park which JDC agreed to dedicate to the public by prior Agreement to the City at no charge, JDC agrees to convey an additional approximate 0.25 acres ofland abutting the north side of Magnolia Park for the purpose of expanding Magnolia Park. The City agrees to reimburse JDC for the additional land by providing JDC a park and recreation impact fee credits in an amount equal to the cost paid by JDC for the property on an average cost per square foot basis. 8.0 Small Neie:hborhood Parks. The parties acknowledge and agree that the small neighborhood squares #4 and #5 required in a previous Agreement between the City and Schrimsher Properties, dated June 26, 2000, shall remain binding upon the property and JDC, and shall be located in Phase II-B as mutually agreed upon by the City and JDC. 9.0 Expedited Permittine:. The parties acknowledge and agree that time is of the essence in the construction of Phase II-A and II-B infrastructure improvements and buildings, and that the City will endeavor to the extent feasible and practicable to dedicate personnel and appropriate resources to timely review Phase II-A and II-B completed applications. JDC will endeavor to provide the City with accurate, complete, and code compliant construction documents for review. The parties further agree to identify members of a project coordinating team which shall meet frequently to develop and administer IDC's project activity schedules and related City review and inspection schedules for purposes of resolving errors and omissions in plan documents, conflicts and disputes related to the interpretations of plan documents, and curative measures that need to be taken to expedite the project in a manner consistent with all applicable laws, codes, regulations and agreements. 10.0 Phase II-A Town Center Code Waivers. Based on the Phase II-A Final Engineering Plans approved by the City Commission on July 10, 2006 and IDC's agreement to the tenns and conditions set forth in this Phase II Implementation Agreement, the City Commission Town Center Phase II Developer's Agreement City of Winter Springs and me CALHOUN, Inc. - 8 - hereby grants the following waivers/variances to the Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): 10.1 Building Width and Depth. The depth and width of the buildings as depicted on the Final Engineering Plans that exceed the requirements of section 20-325, Town Center District Code. 10.2 Build-to-lines. The build-to-lines as depicted on the Final Engineering Plans that exceed the requirements of section 20-325, Town Center District Code. 1 0.3 Exterior Access - Building 2. Exterior access facing the primary space is not required for four (4) first floor residential units located in the east end of Building 2 as depicted on the Final Engineering Plans and as otherwise required by section 20-325, Town Center Code. 10.4 Temporary Parking Surface. The unpaved surface for the temporary parking areas required pursuant to Paragraph 4.6 of this Phase II Implementation Agreement. 11.0 Specimen Tree Removal. The City Commission hereby approves of the removal of the specimen trees (24" or greater trunk diameter at 12" above grade) located on the Phase II Property, provided that in addition to the standard Arbor Permit Fee, JDC shall make a contribution to the City's tree bank in the amount of Five Hundred Dollars ($500.00) for each specimen tree removed in order to partially offset the loss of tree canopy value to the City caused by the removal of existing trees located on the Phase II Property. Said contribution shall be used to purchase and install trees and landscape material within the Town Center. 12.0 Lil!:htinl!: and Sil!:nal!:e. JDC shall be required to install decorative street lighting and street signage in accordance with the Town Center District Code and lighting and signage plans approved by the City Commission. With respect to any street lighting and street signage installed on rights of way conveyed to the City pursuant to this Phase II Implementation Agreement, IDC shall be required to pay any cost differential between maintaining and replacing standard street lights and signs and the decorative street lighting and sign requirements of the Town Center District Code. The parties acknowledge and agree, however, that JDC may create a one or more condo or homeowner's associations during the development of the Project. Upon approval by the City, JDC may turn over said payment responsibilities to the condo and homeowner's associations. JDC, prior to turning the condo and homeowner's association over to its members, shall require the condo and homeowner's association to execute an agreement memorializing this requirement and that said agreement shall be substantially in conformance with the standard decorative street light and signage form agreement that was previously approved by the City Commission to be utilized on a citywide basis. 13.0 Impact Fee Freeze. As further consideration to JDC and in support of the option to acquire public parking spaces as set forth in Paragraphs 4.4 and 4.5, the City hereby agrees to freeze (not increase), until July 1, 2007, Police, Fire, Parks, Public Buildings, and Transportation impact fees relative to the Phase II-A and Phase II-B Property. However, water and sewer service availability charges are not considered impact fees and shall be applied based Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 9- on the rates in effect at the time service availability charges are customarily due and owing to the City. 14.0 Representations of the Parties. The City and JDC hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Phase II Implementation Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Phase II Implementation Agreement. This Phase II Implementation Agreement will, when duly executed and delivered by the City and JDC and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Phase II Property in accordance with the terms and conditions of this Phase II Implementation Agreement. IDC represents that it has voluntarily and willfully executed this Phase II Implementation Agreement for purposes of binding the Phase II Property to the terms and conditions set forth in this Phase II Implementation Agreement. 15.0 Successors and Assiens. This Phase II Implementation Agreement shall automatically be binding upon and shall inure to the benefit of the City and IDC and their respective successors and assigns. The terms and conditions of this Phase II Implementation Agreement similarly shall be binding upon the Phase II Property and shall run with title to the same. 16.0 Applicable Law. This Phase II Implementation Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 17.0 Amendments. This Phase II Implementation Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 18.0 Entire Aereement: Exhibits. This Phase II Implementation Agreement and all attached exhibits hereto supersedes any other agreement, oral or written, regarding the Phase II Property and contains the entire agreement between the City and JDC as to the subject matter hereof. The Exhibits attached hereto and referenced herein are hereby fully incorporated herein by this reference. 19.0 Severabilitv. If any provision of this Phase II Implementation Agreement shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Phase II Implementation Agreement. 20.0 Effective Date. This Phase II Implementation Agreement shall become effective upon approval by the City Commission and execution of this Phase II Implementation Agreement by both parties hereto. 21.0 Recordation. This Phase II Implementation Agreement shall be recorded in the Public Records of Seminole County, Florida. Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 10- 22.0 Relationship of the Parties. The relationship of the parties to this Phase II Implementation 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. 23.0 Soverehm Immunitv. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to anyone person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). 24.0 Citv's Police Power. JDC agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Phase II Implementation Agreement be construed as the City bargaining away or surrendering its police powers. 25.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Phase II Implementation Agreement and no party shall be favored or disfavored regarding the interpretation to this Phase II Implementation Agreement in the event of a dispute between the parties. 26.0 Third-Pam Riehts. This Phase II Implementation Agreement is not a third- party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 27.0 Specific Performance. Strict compliance shall be required with each and every provision of this Phase II Implementation Agreement. The parties agree that failure to perform the obligations provided by this Phase II Implementation Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 28.0 Attornev's Fees. In connection with any arbitration or litigation arising out of this Phase II Implementation Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 29.0 Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Phase II Implementation Agreement. The failure of this Phase II Implementation Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve JDC or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 11 - certificates of occupancy for any building or unit if JDC is in breach of any tenn and condition of this Phase II Implementation Agreement. 30.0 Default: ODDortunitv to Cure. Should either party desire to declare the other party in default of any tenn and condition of this Phase II Implementation Agreement, the non- defaulting party shall provide the defaulting party a written notice of default. The written notice shall, at a minimum, state with particularity the nature of the default, the manner in which the default can be cured, and a reasonable time period of not less than thirty (30) days in which the default must be cured. No action may be taken in a court of law on the basis that a breach of this Phase II Implementation Agreement has occurred until such time as the requirements of this paragraph have been satisfied. 31.0 Termination. The City shall have the unconditional right, but not obligation, to tenninate this Agreement, without notice or penalty, if JDC fails to receive building permits and substantially commence construction of Phase II-A of the Project within three (3) years of the effective date of this Phase II Implementation Agreement. If the City terminates this Phase II Implementation Agreement, the City shall record a notice of termination in the public records of Seminole County, Florida. [SIGNATURES FOLLOW ON NEXT PAGE] Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 12 - IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS ATTEST: By: John F. Bush, Mayor By: Andrea Lorenzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. CITY SEAL Dated: Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 13 - Signed, sealed and delivered in the presence of the following witnesses: JDC CALHOUN, Inc., a Georgia corporation By: Printed Name: Title: Signature of Witness Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2006, by , as of JDC CALHOUN, INC, a Georgia corporation. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Town Center Phase II Developer's Agreement City of Winter Springs and IDC CALHOUN, Inc. - 14 - EXHIBIT" A " Legal Description EXHIBIT "B" Phase II Roadway Map EXHIBIT "C" Town Center Phase II-A Parking EXHIBIT "D" Spine Road Location Map