City Council Agenda and Packet 2013 12 16

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"14. Intergovernmental Agreement. Section 3(b) of the First Amendment to Intergovernmental Agreement (the "First Amendment") between the Town and the City of Louisville requires a certain minimum number of square feet of retail, sales-tax generating development occur on portions of the Property before certificates of occupancy are granted for a certain number of residential dwelling units within portion of the Property. To the extent such provisions are enforceable, Developer shall be bound by such provisions of the First Amendment. The sole remedy available to the Town for noncompliance with such provisions will be withholding the issuance of certificates of occupancy for residential dwelling units until the minimum standards are satisfied in accordance with Section 3(b) of the First Amendment." While the above is not the language preferred or requested by Louisville, Louisville has concluded this language references and incorporates the IGA's square footage requirement and that it would be premature to take any legal action since the incorporated language does not currently violate the IGA; therefore, Louisville will not pursue any legal action at this time regarding approval of the Plan Amendment. However, so it is unequivocally clear going forward, Louisville's position remains that the Town of Superior and developer must fully comply with the IGA as the Plan Amendment is implemented. As noted above, Superior "shall not permit or approve any development" that does not contain the minimum amount of retail, sales tax generating square footage required by the IGA. This requirement applies to Final Development Plan (FDP) approvals. As such, Superior and developer must include 250,000 square feet of retail, sales tax generating square footage within the FDP(s) for the South Property as the Town Center Project moves forward. Further, Louisville's position is that Superior's limiting of its remedies for noncompliance by the developer, as stated in the above-quoted Plan Sheet note, does not limit Louisville's remedies for future noncompliance with the IGA. Under the IGA, Louisville and Superior specifically agreed that the IGA may be enforced in an action for specific performance, injunctive or other relief. Under Sections 9 and 10 of the IGA, Superior also agreed to cooperate in the implementation of the IGA and not impair the revenue sharing provisions of the IGA. Superior and the developer should expect Louisville will seek to fully enforce its rights in the event of any future noncompliance with the IGA. To ensure the developer is aware of Louisville's expectations, we are copying its representative on this letter. Page 2 of 3