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HomeMy WebLinkAbout2010 04 26 Regular 606 Winter Springs Holdings Agreement To Terminate The Town Center Implementation AgreementCOMMISSION AGENDA ITEM 606 Consent Informational Public HearinLy I Reealar a 1 X I April 26, 2010 Regular Meeting n REQUEST: The City Attorney and the Community Development Department request that the City Commission consider approving an agreement with Winter Springs Holdings, Inc. to terminate the Town Center Phase ll Implementation Agreement under the terms and conditions set forth in a new agreement. EXECUTIVE SUMMARY: On February 23, 2007, the City and Main Street Associates, LLC. recorded the Winter Springs Town Center Phase II Implementation Agreement (O.R.B 6599, Pgs 1705 - 1726). The Agreement sets forth a multiple phase development program for Phase II of the Town Center from Tuskawilla Road behind McDonalds east towards the Cross Seminole Trail bridge. Phase II -A has received final engineering approval by the City Commission. Due to the recent economic downturn, the prior owner was not able to commence construction of Phase II -A as required by the Agreement. Ultimately, the prior owner was required to convey the property to its lender (International Brotherhood of Electric Workers Pension Fund, aka Winter Springs Holdings, Inc.) by special warranty deed on September 12, 2007. The new owner has informed the City that they believe the terms and conditions of the Agreement make the property less competitive for development in the current real estate market, and that they would like to amend the Agreement. On February 11, 2010, the City Commission directed the City Attorney and City Manager to negotiate the termination of the Implementation Agreement. The attached Agreement calls for the eventual termination of the Implementation Agreement under certain terms and conditions including submission of final engineering plans and boundary survey for Spine Road, conveyance of Spine Road and the associated SR 434 right turn lane to the City, conveyance of a temporary parking license agreement for public parking along Tuskawilla Road, conveyance of a temporary license agreement to allow the City to use a portion of the undeveloped property for Town Center special events, future assurances being made to the City that the Owner shall convey to the City the small neighborhood squares upon development of the property and that the City will be permitted to use a portion of the property for temporary stormwater retention to accommodate the construction of Spine Road, use a portion of the undeveloped property as a temporary staging area for emergency disaster relief, and the conveyance of a 15 foot utility easement along SR 434. CONSIDERATIONS: Background 1. On July 10, 2006, the City Commission approved Final Engineering Plans for Phase II-A of the Winter Springs Town Center (Lochrane Engineering Plans, dated June 30, 2006) subject to the COMMISSION AGENDA I Consent I I ITEM 6�6 Informational Public Hearin Reuular '4 X 0 April 26 2010 Regular Meeting REQUEST: The City Attorney and the Community Development Department request that the City Commission consider approving an agreement with Winter Springs Holdings, Inc. to terminate the Town Center Phase II Implementation Agreement under the terms and conditions set forth in a new agreement. EXECUTIVE SUMMARY: On February 23, 2007, the City and Main Street Associates, LLC. recorded the Winter Springs Town Center Phase II Implementation Agreement (O.R.B 6599, Pgs 1705 - 1726). The Agreement sets forth a multiple phase development program for Phase II of the Town Center from Tuskawilla Road behind McDonalds east towards the Cross Seminole Trail bridge. Phase II -A has received final engineering approval by the City Commission. Due to the recent economic downturn, the prior owner was not able to commence construction of Phase 1I -A as required by the Agreement. Ultimately, the prior owner was required to convey the property to its lender (International Brotherhood of Electric Workers Pension Fund, aka Winter Springs Holdings, Inc.) by special warranty deed on September 12, 2007. The new owner has informed the City that they believe the terms and conditions of the Agreement make the property less competitive for development in the current real estate market, and that they would like to amend the Agreement. On February 11, 2010, the City Commission directed the City Attorney and City Manager to negotiate the termination of the Implementation Agreement. The attached Agreement calls for the eventual termination of the Implementation Agreement under certain terms and conditions including submission of final engineering plans and boundary survey for Spine Road, conveyance of Spine Road and the associated SR 434 right turn Iane to the City, conveyance of a temporary parking license agreement for public parking along Tuskawilla Road, conveyance of a temporary license agreement to allow the City to use a portion of the undeveloped property for Town Center special events, future assurances being made to the City that the Owner shall convey to the City the small neighborhood squares upon development of the property and that the City will be permitted to use a portion of the property for temporary stormwater retention to accommodate the construction of Spine Road, use a portion of the undeveloped property as a temporary staging area for emergency disaster relief, and the conveyance of a 15 foot utility casement along SR 434. CONSIDERATIONS: Background 1. On July 10, 2006, the City Commission approved Final Engineering Plans for Phase 11 -A of the Winter Springs Town Center (Lochrane Engineering Plans, dated June 30, 2006) subject to the REGULAR MEETING - April 26, 2410 REGULAR AGENDA ITEM "606" PAGE 2 Or 4 completion of an Implementation Agreement. The approved plans for Phase 11 -A only require the construction of 312 condominium units, 33,240 square feet of retail/restaurant space, two parking garages, and other related roadways and infrastructure improvements. 2. In January of 2007, the City and the former property owner approved the Implementation Agreement. The Implementation Agreement was recorded in the Official Records of Seminole County Florida on February 23, 2007. The intensity of the development for the entire Phase 11 development consists of 383,000 square feet of retail, 465,000 square feet of office, and 935 multi - family units, all in buildings of six (6) stories in height. 3. On September 12, 2007, the previous owner conveyed the property to the lender, the International Brotherhood of Electrical Workers Pension Benefit Fund, and the property is now held by the lender in the name of Winter Springs Holding, Inc (hereinafter sometimes referred to as "property owners "). 4. Paragraph 33.0 provides that the "City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if the [property owner] 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 the [Agreement]. While small secondary portions of the Agreement have been implemented, the prior and current property owners have not pulled any building permits to complete the Project, as set forth in the Final Engineering Plans and the Agreement. Therefore, as written, the City Commission now has the unilateral right to terminate the Agreement if it so desires. 5. As previously reported to the City Commission, the City Attorney and City staff were approached by the property owner's representatives to discuss the current status of the Agreement. During the summer of 2009, the property owners proposed several amendments to the Agreement which were designed to afford the property owner more flexibility in marketing and developing the property in the future. Ultimately, the property owner requested that the City agree to terminate the Agreement. 6. On February 11, 2010, the City Commission directed the City Attorney and the City Manager to negotiate a termination of the Agreement under terms and conditions deemed beneficial to the City. 7. The attached termination agreement was negotiated by the City Attorney and staff. The termination agreement provides for the eventual termination of the Agreement under substantially the following terms and conditions: A. Lochrane Engineering submitting to the City the final engineering plans and boundary survey for Spine Road. B. Conveyance of Spine Road and the associated SR 434 right turn lane to the City. C. Conveyance of a temporary parking Iicense agreement for public parking along Tuskawilla Road. D. Conveyance of a temporary license agreement to allow the City to use a portion of the undeveloped property for Town Center special events. E. Future assurances being made to the City that the Owner shall convey to the City the small neighborhood squares upon development of the property. F. The City will be permitted to use a portion of the undeveloped property for temporary stormwater retention to accommodate the construction of Spine Road before the construction of the Master Stormwater facility constructed by the property owner. REGULAR MEETING -April 26, 2010 REGULAR AGENDA ITEM "606" PAGE 3 OF 4 G. The City shall be permitted to use a portion of the undeveloped property as a temporary staging area for emergency disaster relief similar to what occurred during Hurricane Charlie in 2004. H. Conveyance to the City of a 15 foot utility easement along SR 434 for future utility services to the owner's and other property in the Town Center. 8. Pursuant to the Implementation Agreement, the City will reimburse the property owner $247,561.80 for the "reasonable costs" associated with the design, permitting, and construction of the road including wet detention, stormwater conveyance systems, and wetland mitigation costs. 9. Upon completion of certain terms and conditions of the new agreement, the City will file a notice of termination in the official records of Seminole County releasing the property from the Agreement. At that time, no development agreement would govern the property and the property would only be subject to the applicable City Codes including the Town Center District Code. I. The fiscal impact to the City is that it will reimburse the property owner $247,561.80 for the "reasonable costs" associated with the design, permitting, and construction of the road including wet detention, stormwater conveyance systems, and wetland mitigation costs. 2. The City would be relieved of its financial commitment to purchase 62 garage public parking spaces which amounts to $930,000.00 (62 x $15,000 per space), and any other incidental financial commitments under the Agreement. 3. The construction costs related to Spine Road (approx. $900,000.00) will be deferred to a time uncertain rather than subject to the terms of the current Agreement. 4. The City will be relieved of the reconstruction of east Tuskawilla Road sidewalks and parking ($250,000.00). 5. The City will be relieved of the relocation of water mains along east Tuskawilla Road ($50,000.00) 6. The City receives the value associated with the land conveyed to the City for Spine Road (inclusive of the SR 434 turn lane) and Neighborhood Parks 44 and #5. 7. The City receives the value of a long term commitment to use portions of the vacant land for Town Center parking and events and for disaster relief (if necessary). COMMUNICATION EFFORTS: 1. No public advertisements are required for this item. However, this item, and any subsequent related item, will be placed on a City Commission agenda and posted at City Hall and on the City's website. REGULAR MEETING -April 26, 2010 REGULAR AGENDA ITEM "606" PAGE 4 OF 4 2. A copy of the agenda item has been delivered to the representatives prior to the Commission meeting. The representatives should be in attendance at the Commission meeting to answer any questions regarding the property owner's request. RECOMMENDATIONS: 1. The City Attorney, City Manager and City Staff recommend the City Commission consider approving the attached agreement, and authorize the Mayor to execute the same on behalf of the City. 2. In addition, some technical changes to the documents may need to be made if the City Commission approves the attached agreement. The City Attorney requests that the City Commission also authorize the City Attorney and City Manager to make technical revisions to the attached agreement before final signature by the parties, if necessary. ATTACHMENTS: 1. Agreement terminating the Implementation Agreement with attachments. Prepared by and return to: Anthony A. Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802 AGREEMENT THIS AGREEMENT (the "Agreement ") is made and entered into effective this day of , 2010, by and between Winter Springs Holdings, Inc., a Delaware corporation, whose address is 900 Seventh Street NW, Ste. 1020, Washington, DC 20001, and its successors and assigns (the "Owner "), and the City of Winter Springs, Florida (the "City "), a Florida Municipal Corporation, whose address is 1126 E. State Road 434, Winter Springs, FL 32708. COMMON RECITALS: WHEREAS, the Owner is the owner in fee simple title to certain real property (the "Property ") described in EXHIBIT " A " attached hereto and incorporated herein by this reference; and WHEREAS, the Property is subject to that certain Implementation Agreement (the "Implementation Agreement "), recorded in the Public Records of Seminole County, Florida in Official Records Book 6599, Pages 1705 -1726; and WHEREAS, pursuant to the Implementation Agreement, Owner predecessor in interest committed to constructing a two phase development project on the Property generally consisting of 383,000 square feet of retail, 465,000 square feet of office, and 935 multi - family units, all in buildings of six (6) stories in height; and WHEREAS, due to the recent economic downturn and the slow housing market, the parties realize that the approved project under the Implementation Agreement is no longer economically feasible; and WHEREAS, the parties now desire to terminate the Implementation Agreement in order to make the Property more flexible for future development in furtherance of, and consistent with, the City's Town Center Comprehensive Plan Policies and Town Center District Code; and WHEREAS, the parties also acknowledge and agree that the termination of the Implementation Agreement is being conditioned upon the City receiving certain public benefits under the Implementation Agreement and this Agreement. City of Winter Springs/Winter Springs Holdings, Inc. Page 1 of 7 WITNESSETH: NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the parties, and exchanged with Owner's predecessor in interest under previous developer's agreements binding the Property, and in consideration of the mutual promises, commitments and covenants contained herein, the parties agree as follows: 1. Recitals The parties agree and acknowledge that the recitals above are true and correct and that it is the intent of the parties by entering into this Agreement to create a legally binding contract. 2. Termination. Upon the full and complete satisfaction of all of the conditions of termination set forth in paragraph 3 of this Agreement, the parties agree that the City shall record a notice of termination in the Official Records of Seminole County, Florida terminating the Implementation Agreement. Said notice of termination shall also acknowledge the Property is no longer bound by the following two predecessor development agreements: (i) Agreement between the City and Schrimsher Land Fund et al, dated June 26, 2000; and (ii) the WSTC Phase 11 Developer's Agreement between the City and JDC Calhoun, Inc., dated December 15, 2005. Said notice of termination shall be recorded within five (5) days of the conditions of termination being fully completed. Said notice shall be in a form mutually acceptable to the parties. Upon recordation, the Implementation Agreement shall be deemed terminated and the parties will no longer have any rights or obligations under the Implementation Agreement. 3. Conditions of Termination. Prior to the City recording the notice of termination required under paragraph 2 of this Agreement, the parties shall complete the following to the satisfaction of each other: 3.1 In accordance with paragraph 6.2 of the Implementation Agreement, Owner shall require their engineer, Lochrane Engineering, to finalize and submit to the City for final approval the plans and specifications for Spine Road (Michael Blake Boulevard) ( "Spine Road Plans "). Upon receipt of the Spine Road Plans, the parties shall diligently work together to obtain final approval of the plans and specifications from the City Commission. Approval of the plans and specifications shall not unreasonably be withheld by the City Commission. Lochrane shall submit a PDF file for all design documents and the CAD files for the design drawings. 3.2 Within seven (7) days of the Spine Road Plans being approved by the City Commission, Owner shall cause Lochrane Engineering to deliver to the City five (5) original sets of certified and sealed Spine Road Plans which the City may fully rely upon for the future reconstruction of Spine Road. Lochrane shall also submit the Spine Road Plans in PDF format. Certification shall be in the name of the "City of Winter Springs, Florida." The future construction of Spine Road shall be at the City's sole discretion. However, upon written request to the City, Owner may be permitted to construct Spine Road in accordance with the Spine Road Plans, provided such request is approved by the City Commission. If Owner is permitted to construct Spine Road, the City shall reimburse (in U.S. funds or impact fee credits) the Owner City of Winter Springs /Winter Springs Holdings, Inc. Page 2 o €7 the reasonable costs associated with the construction under written terms and conditions deemed acceptable to the City. In addition, Lochrane Engineering shall deliver to the City five (5) original sets and a PDF file of a separate boundary survey and sketch of Spine Road inclusive of the SR 434 right turn lane ( "Boundary Survey ") which may be relied upon by the parties for the Spine Road closing required under paragraph 3.3 of this Agreement. The Boundary Survey shall be certified in a manner necessary for the City to obtain title insurance for the Spine Road conveyance. Notwithstanding the above, whoever proceeds with the construction of Spine Road shall be responsible for making sure that the Spine Road Plans are in compliance with all applicable codes at the time of construction. 3.3 Within thirty (30) days of the City receiving the Spine Road Plans and the Boundary Survey, Owner shall convey the Spine Road property (inclusive of the SR 434 right turn lane) to the City by special warranty deed. Said conveyance shall be free and clear of any mortgages, taxes, liens and any encumbrances that would interfere with the City's intended use of the property for roadway purposes. Owner and City agree to cooperate to remove any encumbrances that may interfere with the City's intended purpose for the Property. Further, the conveyance shall be at no cost to the City, except the City shall be responsible for ordinary and reasonable closing costs such as recording fees for the deed and costs required to obtain title insurance and preparing. The City will be responsible for preparing the ordinary and customary closing documents, which shall exclude, however, any closing documents required to be prepared by Owner to remedy title defects and to provide fee simple title free and clear of any and all encumbrances. Additionally, the City agrees to pay Owner Two Hundred Forty -Seven Thousand Five Hundred Sixty -One and 801100 Dollars ($247,561.80) at closing, which shall be for purposes of fully and completely satisfying the reimbursement payment required by the City pursuant to paragraph 6.2 (D) of the Implementation Agreement. Owner shall be responsible, and indemnify and hold harmless the City, for paying Lochrane Engineering for the Spine Road Plans and Boundary Survey. 3.4 At closing of the Spine Road Property, Owner shall convey, and the parties shall execute, a temporary public parking easement agreement for purposes of allowing the City to maintain the existing temporary unpaved, stabilized parking area on the Property along Tuskawilla Road within the Town Center. Said temporary easement shall be in a form substantially similar to the easement attached hereto as EXHIBIT `B." The City will be responsible for recording the easement in the Official Public Records of Seminole County, Florida. 3.5 At closing of the Spine Road Property, Owner and the City agree to execute a special events agreement that will permit the City to use undeveloped portions of the Property for future Town Center special events, such as Hometown Harvest, on an on -going basis. Said agreement shall be in a form substantially similar to the agreement attached hereto as EXHIBIT « » 3.6 At closing of the Spine Road Property, Owner and the City agree to execute a future development obligations agreement in a recordable form mutually acceptable to the parties that memorializes two (2) remaining development obligations under the Implementation Agreement that can not be terminated because of previous actions by the parties, and Owner's predecessor's in interest, regarding the development of the Property, as follows: City of Winter Springs/Winter Springs Holdings, Inc. Page 3 of 7 A. Owner and City acknowledge and agree that the conveyance of the small neighborhood squares # 4 (minimum .42 acres) and 45 (minimum .44 acres) required in the Schrimsher Development Agreement, dated July 26, 2000, 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, is still binding on the Property. This obligation shall be restated in the future development obligation agreement to provide that said neighborhood squares shall be conveyed to the City, at no cost, at such time the City determines the squares are needed in conjunction with the future development of the Property. B. Under the Implementation Agreement, the Owner was responsible for designing, permitting, and constructing a master stormwater plan for the Property, which is intended to include the handling of stormwater runoff from Spine Road. As such, the permanent stormwater facilities consist of all necessary conveyance and treatment facilities located outside of the Spine Road property. Owner remains committed to constructing the permanent master stormwater facilities at such time the Property is developed in accordance all applicable SJRWMD and any other regulatory permitting requirements. The permanent stormwater facilities located outside of the Spine Road Property shall remain privately owned and maintained, with a drainage easement dedicated to the City over all stormwater facilities supporting Spine Road at such time the permanent facilities are constructed and approved by the City. In the event that the City chooses to construct Spine Road in advance of substantial development of the Property and before the permanent stormwater facilities are in place, Owner shall grant the City a right -of -entry to construct and maintain temporary stormwater facilities on the Property located outside of the Spine Road Property in accordance with a temporary drainage casement that is mutually acceptable to the Owner and the City. The area for the temporary stormwater facilities shall be generally located in the area depicted on EXHIBIT "E," which is attached hereto and deemed fully incorporated herein by this reference. The right -of -entry and easement shall remain in place until the permanent stormwater facilities are constructed by the Owner. At the time the permanent drainage facilities are constructed and accepted by the City and the applicable regulatory agencies, Owner shall be responsible for the removal of all temporary drainage facilities. In addition to the right -of -entry and easement Owner shall grant the City authorization to utilize and /or modify any permits applicable to the construction of Spine Road. Owner agrees to cooperate with the City regarding any permit utilization and /or modification and shall execute applicable permit documents authorizing the permit utilization or modification to the extent required by the SJRWMD. This obligation shall be restated in the future development obligation agreement. 3.7 At closing of the Spine Road Property, Owner and the City agree to execute a Temporary Staging License Agreement that will permit the City to use a portion of the undeveloped Property for staging emergency or disaster relief operations that exist within the City of Winter Springs including, but not limited, hurricanes, flooding, tornados, missing persons, and other civil emergencies. Said agreement shall be in a form substantially similar to the agreement attached hereto as EXIIIBIT "D." 3.8 At closing of the Spine Road Property, Owner and the City agree to execute a fifteen (15') foot general utility easement adjacent to State Road 434 from Spine Road southeasterly to the Owner's eastern property boundary (east of the existing trail bridge) for the City's general utilities which will eventually service parts of the City's Town Center including the Property. City of Winter Springs /Winter Springs Holdings, Inc. Page 4 of 7 4. Miscellaneous Provisions. i. Apiplicable Law and Venue. This Agreement shall be governed by and construed under the laws of the State of Florida. The parties shall attempt in good faith to resolve any dispute concerning this Agreement through negotiation and/or mediation between authorized representatives. If these efforts are not successful, and there remains a dispute under this Agreement, either party may then file an action in the Circuit Court of Seminole County, which shall be the exclusive venue with respect to any disputes arising out of this Agreement. This Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Agreement Act. ii. Entire Agreement. This Agreement is the entire agreement between the parties related to the subject matter expressed herein, and supersedes all previous oral and written representations, agreements and understandings between the parties related thereto. Except as otherwise provided herein, this Agreement shall only be amended or cancelled by mutual written consent of the parties hereto or by their successors in interest. iii. Effective Date. The effective date of this Agreement (the "Effective Date ") shall be the date when the last one of the Parties has properly executed this Agreement as determined by the date set forth immediately below their respective signatures and shall be binding upon all successors in interest to the parties. iv. Notices. Whenever any of the parties desire to give notice to the other, such notice must be in writing, sent by U.S. Mail, postage prepaid, addressed to the party for whom it is intended at the place last specified; the place for giving of notice shall remain such until it is changed by written notice in compliance with the provisions of this paragraph. Until otherwise designated by amendment to this Agreement, the parties designate the following as the respective places for giving notice: For the Owner: Winter Springs Holdings, Inc. Attn: 900 Seventh Street NW, Suite 1020 Washington, DC 20001 Telephone: Fax: For the City: City of Winter Springs Attn: City Manager 1126 E. State Road 434 Winter Springs, FL 32708 Telephone: 407 -327 -5957 Fax: 407- 327 -4753 V. Attorneys Fees. Each party shall bear their own attorneys fees regarding the drafting and implementation of this Agreement. City of Winter Springs /Winter Springs Holdings, Inc. Page 5 of 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. WITNESSES: CITY OF WINTER SPRINGS By: (signature) John F. Bush, Mayor (print name) ATTEST: (signature) (print name) Andrea Lorenzo- Luaces, City Clerk Date: STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this day of , 2010, by John F. Bush, Mayor of the City of Winter Springs, (check one) ❑ who is personally known to me or ❑ who produced as identification. Notary Public Print Name: My Commission expires: City of Winter Springs/Winter Springs Holdings, Inc. Page 6 of 7 WITNESSES: WINTER SPRINGS HOLDINGS, INC., a Delaware corporation (signature) By: Lindell K. Lee, President (print name) Date: (signature) (print name) STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this day of , 2010, by Lindell K. Lee, President of the Winter Springs Holdings, Inc., a Delaware corporation, (check one) ❑ who is personally known to me or ❑ who produced as identification. Notary Public Print Name: My Commission expires: City of Winter SprinoWinter Springs Holdings, Inc. Page 7 of 7 w LEGAL DESCRIPTION: A PORTION OF LOTS 7 AND 8, BLOCK W. D.R. MITCHELL' S URVEY OF THE LEVY GRANT ON LAKE JESSUP, IN RANG S SAID EA TN A CORDING TO T14E T PLAT THEREOF AS RECORDED IN PLAT OO 1 . PAGE 5, OF THE I K G 2 PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAVlkLLA ROAD (PER FLORIDA DEPARTMENT RUN S 9 23'34 DISTANCE OF 27.48 SEC 77 THE BASELINE SH OF SURVEY 1 S SHOW S TAT ION ON SAO RIGHT 600+32.11 OF HENCE EASTERLY RIGHT OF WAYY LINE OFOTUBSKAW BA ROAD (FORMERLY KNOWN AS BRANTLEY AS POINT ON THE SHOWN ON SAID RIGHT OF WAY MAP; THENCE CONTINUE N3(704'56 "E, ALONG SAID EASTERLY BRIGHT OF WAY LINE, A DISTANCE Of 55.62 FEET FOR A POINT OF BEGINNING; THENCE: CONTINUE N30'04'56'E. ALONG SAID EASTERLY RIGHT OF WAY LINE. A DISTANCE OF 1279.13 FEET TO A POINT ON A NON - TANGENT CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 1110.99 FEET AND A CHORD BEARING OF S12'25'14'W. SAID POINT ALSO BEING ON THE WESTERLY LINE OF THE C.S.X. TRANSPORTATION INCORPORATED 'LAKE CHARM BRANCH" RAIL CORRIDOR, THENCE DEPARTING SAID RIGHT OF WAY LINE RUN ALONG SAID WESTERLY LINE AND ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 6'17'06`, A DISTANCE; OF 121.87 FEET TO THE POINT OF TANGENCY; TH THENCE RUN S1533'47W A DISTANCE OF 1013.17 FEET TO THE NORTHWEST CORNER OF RELEASE PARCEL 2 AS DESCRIBED IN OFFICIAL RECORD BOOK 3988, PAGE 1095; ENCE DEP SAID WESTERLY SHE NORTHEAST01CORNE.R�OF SAID PARCEL 'LIN SAID OF POINT BEING O N T HE SOUTHERLY 1 LINE O OF ( F EET TO ACOUISITION PARCEL B THE RAILS TO TRAILS CORRIDOR) AS DESCRIBED IN OFFICIAL RECORD BOOK 4092, PAGE 154; THENCE CONTINUE S57'01'44 "E, ALONG SAID SOUTHERLY LINE; A DISTANCE OF 95.46 FEET; THENCE RUN S54'37'59 "E A DISTANCE OF 147.17 FEET TO A POINT OF 4'URVATURE OF A TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 85.00 FEET; THENCE RUN ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 61'16 51" A DISTANCE OF 90.91 FEET TO THE POINT OF REVERSE CURVATURE, SAID CURVE' BEING CONCAVE SOUTHERLY, HAYING A RADIUS OF 500.00 FEET' THENCE RUN ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 38'11'46" A DISTANCE OF 333.52 FEET TO THE POINT OF TANGENCY; THENCE RUN S7743`04 "E A DISTANCE OF 187.98 FEET; THENCE RUN S4E7 13 52 "E A DISTANCE OF 177.70 FEET; THENCE RUN S32'50'43 "E A DISTANCE OF 862.97 FEET TO THE INTERSECTION OF SAID SOUTHERLY LINE AND THE NORTHWESTERLY LINE OF SAID ACQUISITION PARCEL B; THENCE RUN S50'31'58" w, ALONG SAID OFF STATE ROAD 434 �(PER FLORIDA DEPARTMENT T A PO RIGHT OF R IGHT OF WAY 77070 NE 2516, SHEET 11 OF 13); THENCE DEPARTING SAID NORTHWESTERLY LINE RUN N38'43'16 "W, ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE, A DISTANCE OF 431.17 FEET TO THE POINT OF CURVATURE OF A NON TANGENT CUR CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 7905.47 FEET AND A CHORD BEARING OF N37'00'57"W; THENCE RUN ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 3'24'37' A DISTANCE OF 470.54 FEET TO THE END OF SAID CURVE; THENCE RUN S51' 16'44'W A DISTANCE OF 14.00 FEET; THENCE RUN N38'43'16'W A DISTANCE OF 136.42 FEET TO THE SOUTHEAST CORNER OF AFORESAID RELEASE PARCEL 2: THENCE CONTINUE N38 "43'1611 A DISTANCE OF 138.78 FEET To THE SOUTHWEST CORNER OF RELEASE PARCEL 2; THENCE CONTINUE N38'43 1 b W A DISTANCE OF 308.12 FEET TO THE MOST SOUTHERLY CORNER OF THOSE LANDS DESCRIBEU IN OFFICIAL RECORD BOOK 2803, PAGE 643: THENCE DEPARTING SAID NORTHEASTERLY RIGHT OF WAY LINE RUN N30 04 56 :E, ALONG THE SOUTHEASTERLY LINE OF SAID PROPERTY, A DISTANCE OF 220 FEET 0 TH HE POINT 13 BEGINNING. G ' ALONG TE NORTHEASTERLY LINE OF SAID PROPERTY, A DISTANCE OF IOGETHER WITH: "A" A PORTION OF LOTS 7 AND S. BLOCK "A D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE dE U , UTH SAID RANGE 31 EAST, ACCORDING TO THE PLAT I THEREOF O AS . RECOROED I IN PLAT BOOK C 1 , O PACE 5. OHTHE2PUBC S O UT H, RECORDS OF SEMkNOIE= COUNTY. FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD {PR FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070 -2516, SHEET 10 OF 13. P.I. STATION 600 +32.11); THENCE RUN S38'23'34 'E A DISTANCE OF 1729.58 FEET ALONG THE BASELINE OF SURVEY AS SHOWN ON SAID RIGHT OF WAY MAP; THENCE DEPARTING SAID BASELINE RUN N50 O '31'58 "E A DISTANCE OF KNOWN B S S BR T A POINT ON THE AS NORTHEASTERLY RIGHT OF WAY LINE TUSKAWILLA ROAD (_FORMERLY 50'3 AVENUE}, 1'58 A DISTANCE NCE O SHOWN ON SAID RIGHT OF WAY MAP FOR THE POINT 0- BEGINNING; THENCE RUN N5D 1,033.48 FEET: THENCE RUN N39'2802"W A DISTANCE OF 15.00 FEET; THENCE RUN 1450 E A DISTANCE OF '36 106.4 H N RUN S133O NCDI DI OF F E ET7 THENCE HE4 S682 S 4'08 EADISTANCELOF�52.48FF£ET 0 FEET; TO THE EASTERLY LINT: OF BLOCK A ", D.R. MITCHELL S SURVEY OF THE LEVY GRANT ON LAKE 4ESSUP AS RECORDED IN PLAT BOOK 1. PAGE. 5; THENCE RUN 505'13'52'W ALONG SAID EASTERLY LIN£ 6' BLOCK A" A BK 'A RUN DISTA OF 109.52 FEET; THENCE RUNS 50 54 D4'W A 0 S ANCE 1 1.72 FEET: THENCE 2 RUN� "W A 522'0i' "W A DISTANCE OF 65.99 FEET: THENCE RUN 529'00'27114 A DISTANCE OF 44.28 FEET; THENCE RUN S52'03 '03'W A DISTANCE OF 9.80 FEET; THENCE RUN S28'03'23W A DISTANCE OF 97.92 FEET; THENCE RUN S44'20 WE A DISTANCE OF 176.05 FEET THENCE RUN S37'21'37 "E A DISTANCE OF 71.69 FEET TO A POINT ON THE AFOREMENTIONED EASTERLY LINE OF BLOCK 'A"; THENCE RUN ALONG SAID EASTERLY LINE OF BLOCK A" S05' 13'52 "W A DISTANCE OF 42.89 FEET: THENCE DEPARTING SAID EASTERLY LINE OF BLOCK A' RUN N27'5B'26'W A DISTANCE OF 41.29 FEET; THENCE RUN N36'31'04"W A DISTANCE OF 54.59 FEET; THENCE RUN N52'32'01"W A DISTANCE OF 245.40 FEET; THENCE RUN S89'06 27 W A DISTANCE OF 57.99 FEET; THENCE RUN S66'37'02'W A DISTANCE OF 39.09 FEET; THENCE RUN 546'9'24W A DISTANCE OF 41.50 FEET S28'55 33"W A DISTANCE OF 34.27 FEET, THENCE RUN S 1 O'42' 16'W A DISTANCE OF 55.95 FEET; ; TENCE E RUN N S03'05'47"W A DISTANCE OF 52.29 FEET: THENCE RUN S07'51'13'W A DISTANCE OF 30.86 FEET; THENCE RUN SOO'47'47 - W A DISTANCE; OF 49.12 FEET; THENCE RUN S07'25'22W A DISTANCE OF 52.87 FEET; THENCE RUN S67'013'00 "W A DISTANCE OF 15.29 FEET ; THENCE RUN S79'35'01'W A DISTANCE OF 69.29 FEET. THENCE,-RUN N89' 18'43'W A DISTANCE OF 96.92 FEET• THENCE RUN NSO'50'07"W A DISTANCE OF 119.48 FEET; THENCE: RUN S86'04'53'W A DISTANCE O 188.65 FE6; THENCE RUN S09'51'29'W A DISTANCE OF 3.05 FEET: THENCE RUN 1438'52'1 1 "W A DISTANCE OF 121.02 FEET; THENCE RUN S51' 16'44 W A DISTANCE OF SAID FEET TO A POINT ON THE AFOREMENTIONED NORTHEASTERLY RIGHT OF WAY LINE OF ROAD 33' ROAD; THENCE RUN ALONG THE SAID N RIGHT OF WAY LINE OF TUSKAWILLA ROAD 1438'43 16`111 A DISTANCE OF 73.56' TO THE CONTAINS 46.553 ACRES (2,027,848,68 SO. FT.), MORE OR LESS. EXHIBIT 8 „ EXHIBIT 16 Prepared by and Return to: Katherine W. Latorre Winter Springs Assistant City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802 -2873 Parcel Id: 26 -20 -3 0- 5AR- OA00 -006C TEMPORARY PUBLIC PARKING EASEMENT AGREEMENT THIS TEMPORARY PUBLIC PARKING EASEMENT AGREEMENT ( "Agreement "), is made and entered into this day of 2010 by and between WINTER SPRINGS HOLDINGS, INC., a Delaware Corporation authorized to conduct business in Florida ( "Grantor ") and the CITY OF WINTER SPRINGS, a Florida municipal corporation ( "Grantee "). WITNESSETH: WHEREAS, Grantor is the owner of certain real property in the City of Winter Springs, Seminole County, Florida, generally located north of the McDonald's restaurant on northeast the corner of State Road 434 and Tuskawilla Road ( "the Property "); and WHEREAS, the Property is located directly adjacent to the Winter Springs Town Center and is currently vacant and unimproved; and WHEREAS, the City desires to temporarily utilize a portion of the Property depicted herein as an unpaved, stabilized parking area; and WHEREAS, the parties desire to enter into this Agreement for the purpose of granting the Grantee a temporary public parking easement over a portion of the Property, to be occupied, used and maintained for public parking purposes; and NOW, THEREFORE, in consideration of the public purpose stated herein, and the mutual covenants, terms, and conditions and restrictions contained herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference. 2. Easement Property The real property subject to the terms and conditions of this Agreement is identified by the Seminole County Property Tax Appraiser as Parcel Id: 26-20-30 - 5AR-OA00-006C, and is generally located to the North and to the East of the McDonald's restaurant located on the northeast corner of State Road 434 and Tuskawilla Road, directly across Tuskawilla Road from the Winter Springs Town Center, and is generally depicted in the Easement Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page I of 6 shaded area on Exhibit "1," attached hereto and fully incorporated herein by this reference ( "the Easement Property "), 3. Effeetive Date; Termination. This Agreement shall become effective upon full execution by both parties hereto and shall become terminable at such time the Grantor is issued a building permit to develop the Easement Property. Any such termination shall be noticed in writing to the non - terminating parry at least ten (10) days prior to the effective date of the termination. 4. Grant of Easement. Grantor hereby voluntarily grants and conveys to Grantee, subject to any previous and duly recorded easements or grants of record, a temporary public parking easement over, through, and across the Easement Property. Said easement shall be of the nature and character and to the extent hereinafter set forth. 5. Purpose of Public Parking Easement The Temporary Public Parking Easement is granted for the express and sole purpose of allowing Grantee to occupy, use and maintain the Easement Property for public parking purposes. 6. Rights and Obligations of Grantee To accomplish the purpose stated above, and at Grantee's sole expense, the following rights are conveyed to Grantee by this Agreement: (a) the right for Grantee to make the Easement Property available for public parking purposes to serve the general public and the merchants and customers of the Winter Springs Town Center shopping center; (b) all other rights and privileges reasonably and customarily necessary for the safe and efficient occupancy, use and maintenance of the Easement Property for public parking purposes, including reasonable access to such facilities; (c) the right to take appropriate action to protect the easement rights granted hereunder including, but not limited to, the right to evict trespassers and file actions in a court of competent jurisdiction. In addition, upon termination of this Agreement, Grantee agrees to and shall promptly restore, or cause to be restored; the surface of the Easement Property to the same condition it was in upon execution of this Agreement, minus reasonable wear and tear. Any such restoration shall be in a workman like manner. 7. Easements Run with the Land The easement granted hereunder shall remain a charge against the Property. Therefore, the easement shall run with the land and be automatically assigned by any deed or other conveyance conveying the Property, or a portion thereof, relating to this easement, even though the conveyance makes no reference to this easement as such. Easement Agreement City of Winter springs / Winter Springs Holdings, Inc. Page 2 of 6 8. Recordation. Upon full execution of this Agreement by both parties hereto, Grantee shall record this instrument in the Official Records of Seminole County, Florida and may re-record it at any time to preserve the rights of either party to this Agreement. 9. Sovereign Immunity Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the Grantee's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the Grantee's potential liability under state or federal law. As such, the Grantee shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the Grantee shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 10. Indemnification. To the extent provided by law and subject to the limitations set forth in paragraph 9 of this Agreement, Grantee agrees to indemnify, defend and hold harmless Grantor from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability, arising from, out of, or caused by: Grantee, its officers, employees, agents, or contractors, negligent or intentional acts, errors, omissions in the occupancy, use or maintenance of the Property, except to the extent of negligence or wanton misconduct of the Grantor. The indemnification provided above shall obligate the Grantee to defend at its own expense or to provide for such defense, at the option of the Grantee, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the Grantor which may result under this Agreement. 11. Injunctive Relief The parties agree that, in the event of default, there may not be an adequate remedy at law, and therefore, it is agreed the parties shall be entitled to seek injunctive relief, including a mandatory injunction. 12. Governing Law and Venue This Agreement shall be governed by the laws of the State of Florida. Venue for all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the easement is in Seminole County, Florida. 13. Notice All notices, demands, requests, consents, approvals or other communications (collectively, "Notices ") required or permitted to be given hereunder or which are given with respect to this Agreement shall be effective only if in writing and delivered by personal service, or delivered to an overnight courier service with guaranteed next day delivery or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: Basement Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 3 of 6 TO GRANTOR: Winter Springs Holdings, Inc. 900 Seventh Street NW, Suite 1020 Washington, DC 20001 TO GRANTEE: Attn: City Manager City of Winter Springs, Florida 1126 W. State Road 434 Winter Springs, FL 32708 or to such other address as such party shall have specified most recently by like Notice. The attorneys for the parties hereto are also hereby respectively authorized to give any Notice permitted under this Agreement. Any Notice given as provided herein shall be deemed received as follows: if delivered by personal service, on the date so delivered; if delivered to an overnight courier service, on the business day immediately following delivery to such service; and if mailed, on the third business day after mailing. 14. Modification. This Agreement shall only be modified by a written instrument executed by the parties hereto or any successor, assigns, heirs, or representatives thereto. 15. Entire Agreement This Agreement constitutes the full and entire agreement between the parties hereto and supersedes any oral or written prior communications between the parties related to the subject matter contained in this Agreement. The laws of Florida shall govern this Agreement. 16, Representations. The undersigned representatives hereby represent and warrant that this Agreement has been dully authorized by their respective agencies and that the undersigned representatives have the authority to execute this Agreement on behalf of their respective agencies. IN WITNESS WHEREOF, Grantor and Grantee have set their respective hands on the day and year first below written. [EXECUTION PAGES FOLLOW] Easement Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 4 of 6 GRANTOR: WINTER SPRINGS HOLDINGS, INC. WITNESS: Print Name: Print Name: Title: Print Name: STATE OF COUNTY OF I hereby certify that the foregoing instrument was executed before me this day of 2010 by as of Winter Springs Holdings, Inc. ❑ who is personally known to me, or ❑ who has produced as identification. Notary Public, State of Print Name: My Commission: expires: Easement Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 5 of 6 GRANTEE: CITY OF WINTER SPRINGS, FLORIDA Kevin L. Smith, City Manager ATTEST: Andrea Lorenzo - Luaces, City Clerk CITY SEAL: Easement Agreement City of Winter Springs 1 Winter Springs Holdings, Inc. Page 6 of 6 EXHIBIT TOWN CENTER SPECIAL EVENTS LICENSE AGREEMENT THIS LICENSE AGREEMENT ( "Agreement ") is made and entered into as of the day of , 2010, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ( "City "), WINTER SPRINGS HOLDINGS, INC., a Delaware corporation qualified to do business in Florida ( "Owner "). WITNESSETH: WHEREAS, from time to time, the City of Winter Springs will be holding special events at the Winter Springs Town Center, generally located on the corner of State Road 434 and Tuskawilla Road, for the benefit of the public (the "Events "); and WHEREAS, such Events may include holiday festivals, music, concerts, food, small -scale fireworks displays, art festivals, and other traditional community activities; and WHEREAS, the City of Winter Springs is in need of additional space in the vicinity of the Winter Springs Town Center in order to provide more parking and to stage the Events; and WHEREAS, Owner owns certain unimproved property in the immediate vicinity of the Winter Springs Town Center, more specifically located to the North of the McDonald's restaurant on the northeast corner of State Road 434 and Tuskawilla Road; and WHEREAS, upon future written request of the City, Owner desires to permit the City to use all or part of Owner's property for Event purposes identified by the City; and WHEREAS, it is the intent and purpose of this Agreement to provide for the City's temporary use of Owner's property by letter agreement signed by the parties on a case -by -case basis in the future; and NOW, THEREFORE, in consideration of mutual covenants and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated into the terms of this Agreement by this reference. 2. Duration of License Agreement This Agreement shall become effective upon execution by both parties hereto and shall continue in full force thereafter until either party terminates this Agreement. Either party may terminate this Agreement by providing at least seven (7) days written notice to the other party. LICENSE AGREEMENT City of Winter Springs / Winter Springs Holdings, Inc. Page I of 6 3. Property. The real property subject to the terms and conditions of this Agreement is a portion of that property identified by the Seminole County Property Tax Appraiser as Parcel Id. 26- 20-30-5AR-OA00-006C, and is generally located to the North and to the East of the McDonald's restaurant located on the northeast corner of State Road 434 and Tuskawilla Road, directly across Tuskawilla Road from the Winter Springs Town Center, as depicted in Exhibit "1," attached hereto and fully incorporated herein by this reference ( "Property "). 4. Use of Property Use of the Property by the City shall only be permitted upon execution of a separate letter of agreement for a specific Event. The City may request use of the Property by providing Owner with reasonable written notice. Upon receipt of said notice, the parties may enter into a separate letter of agreement which provides for the City's temporary use of all or part of the Property identified in paragraph 3. Said letter agreement shall be signed by both parties and shall identify the specific property involved, the date(s) of the Event which will require the City's use of the Property, the expiration date of the letter of agreement, duration of the use, the nature of the use, and any other terms and conditions deemed necessary by the parties; provided, however, all such terms shall be consistent and not in conflict with this Agreement. Upon full execution of a particular letter of agreement, the terms and conditions of this Agreement shall be deemed to be automatically incorporated into the letter of agreement as if fully set forth therein. 5. Restoration of Property Upon expiration of any letter of agreement, the City shall leave the Property subject to the letter of agreement in substantially good condition and restore it to its condition immediately preceding the letter of agreement, excepting reasonable wear and tear from the use therein permitted. The City shall be responsible for pick -up and removing any litter and trash on said Property caused by City and its guests and invitees attending the Event. The litter and trash will be removed within forty -eight (48) hours of the termination of the letter of Agreement. If the City fails to remove the trash and litter within said time period, Owner may, but is not required to, cause the trash and litter to be removed and the City will reimburse Owner the reasonable cost for said removal. Under no circumstances shall Owner be subject to, or liable for, any code violations that may be caused by the City's use of the Property, including but not limited to any trash and litter than may be on the Property as a result of such use. 6. Reservation of Rights. Owner reserves the right to use the Property for any and all purposes that do not unreasonably interfere with the use of the Property permitted hereunder or by any letter of agreement, including without limitation, the right to grant easements on, over, across or under the Property. 7. Security Deposit No security deposit shall be required from the City. 8. Use of the Property. A. Prior to and During Event. City and its guests and invitees of the Event shall be permitted to use the Property subject to the terms and conditions of the particular LICENSE AGREEMENT City of Winter Springs 1 Winter Springs Holdings, Inc. Page 2 of 6 letter of agreement. The use of the Property shall include the right to set -up and store materials to be used as part of the Event, the public's right to park vehicles, and the right to conduct any of the various Event activities specifically identified in the letter of agreement. B. Ingress /Egress. The City's use of the Property shall also include ingress and egress rights to said Property. 9. Responsibilities. The City shall be responsible for any and all damage to Owner's Property or code or regulatory violations caused by its use of the Property, which damage or violation is cause by the City, its agents, invitees, licensees and guests, and provided that such damage or violation is not the result of the willful act or negligence of Owner. The City shall not allow, permit or suffer any unlawful or illegal activity by its employees, agents, contractors, guests or invitees, nor create any nuisance on the Property. 10. Condition of the Property. The City accepts the Property "as -is." Owner shall not be required, and the City shall not be permitted, to make any alterations or improvements to the Property. 11. Licenses & Permits; Compliance with Laws. The City, at its sole cost and expense, shall obtain any and all necessary permits or licenses required for its use of the Property and shall confirm that any activity by its employees, agents, contractors, guests or invitees is properly permitted and authorized by any applicable governmental agency. In addition, the City, its employees, agents, contractors, guests or invitees shall use the Property in a safe and appropriate manner and in accordance with all applicable governmental requirements and applicable industry safety standards. 12. Insurance. The City will provide and maintain, or cause to be provided and maintained, at no expense to Owner, a special, single event endorsement to the City's insurance policy that is issued in the name of "Winter Springs Holdings, Inc." and that encompasses the subject matter of any letter of agreement entered into pursuant to this Agreement in a form acceptable to Owner. The amounts of coverage for each of the following categories shall be determined on an event -by -event basis and shall be enumerated in each letter of agreement: A. Comprehensive general liability insurance; B. Product liability insurance; C. Automobile liability insurance including all owned, non - owned, and hired vehicles used in conjunction with the Event for bodily injury or property damage; D. Personal and advertising injury coverage; and E. Coverage for damage to rented property. LICENSE AGREEMENT City of Winter Springs / Winter Springs Holdings, Inc. Page 3 of 6 All policies shall be specifically endorsed to provide that the coverages obtained by virtue of any letter of agreement will be primary and that any insurance carried by Owner shall be excess and non - contributory. The City shall furnish Owner with a copy of the certificate of such insurance policy no later than the commencement of the term of any letter of agreement. 13. Interest Created. This Agreement is a license and shall not create any easement right, leasehold interest or other interest in land. The rights and obligations of the City in and to the Property created hereunder shall not be subject to levy, sale, assignment or subletting, without the prior written consent of Owner, which consent shall not be unreasonably withheld, conditioned or delayed. 14. Securily. The City acknowledges that Owner shall not be responsible for the personal safety of the users on or about the Property, or for any damage to or theft to the uses located on or about the Property, and the City shall advise the users that their use of the Property is at their own risk. 15. Indemnity. To the extent permitted by law, the City shall indemnify and hold harmless Owner from and against every demand, claim, cause of action, judgment and expense, including reasonable attorney's fees, and all loss and damage arising from any injury (including death) or damage to the person or property of the Owner or to the person or property of the Owner's agents, servants, employees, guests, invitees, or to any other person or property on the Property where the injury or damage is caused by any act or omission of the City, its agents, servants or employees, or of any other person entering upon the Property for the express or implied purpose of those conducting or participating in those activities outlined in any of the letters of agreement that may be entered into pursuant to this Agreement. 16, Governing Law and Venue This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions, any objections as to jurisdiction or venue in such courts being expressly waived. 17. Non - Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 18. Non - Recordation. This Agreement will not be recorded in the public records of Seminole County, Florida. 19. Modifications. This Agreement may be modified only by a written instrument, which is executed with the same formality as this original agreement. LICENSE AGREEMENT City of Winter Springs / Winter Springs Holdings, Inc. Page 4 of 6 20. Headings. Headings are for the convenience of the parties and are not to be construed as part of this Agreement. 21. SeverabiIity. In the event any portion of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the remaining provisions shall be valid and enforceable. 22. Third Party Rijjhts. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Owner. 23. Entire Agreement. This Agreement constitutes the entire agreement between City and Owner with respect to the license specified herein and all previous representations relative thereto, either written or oral, are hereby annulled and superseded. 24. Attorney's Fees. In the event that either of the parties hereto shall institute litigation or other legal proceedings against the other to interpret or enforce any term, provision, warranty, covenant or condition set forth in this Agreement, the prevailing party in such litigation or other legal proceedings following all appeals therefrom, if any, shall be entitled to recover from the non - prevailing parry in such litigation or other legal proceedings reasonable attorneys' and paralegals' fees and expense and court costs incidental thereto, including those incurred on any appeal of a lower court decision. 25. Assignment. This Agreement may not be assigned by either party hereto. 26. Authori . A. The City hereby represents, covenants and warrants to Owner, as of the effective date of this Agreement, that the execution and delivery of this Agreement by the City and the consummation by the City of the transaction contemplated by this Agreement: (i) are within the City's capacity and all requisite action has been taken to make this Agreement valid and binding on the City in accordance with its terms; and (ii) does not and will not (a) result in a breach of or default under any indenture, agreement, instrument or obligation to which the City is a party and/or which affects all or any portion of the Property; or (b) constitute a violation of any governmental requirement. The person executing this Agreement on behalf of the City has been duly authorized to act on behalf of and to bind the City, and this Agreement represents a valid and binding obligation of the City. B. Owner hereby represents, covenants and warrants to the City, as of the effective date of this Agreement, that the execution and delivery of this Agreement by Owner and the consummation by Owner of the transaction contemplated by this Agreement: (i) are within Owner's capacity and all requisite action has been taken to LICENSE AGREEMENT City of Winter Springs / Winter Springs Holdings, Inc. Page 5 of 6 make this Agreement valid and binding on Owner in accordance with its terms; and (ii) does not and will not result in a breach of or default under any indenture, agreement, instrument or obligation to which Owner is a party and /or which affects all or any portion of the Property. The person executing this Agreement on behalf of Owner has been duly authorized to act on behalf of and to bind Owner, and this Agreement represents a valid and binding obligation. 27. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, all such limitations on the City's liability shall be deemed fully incorporated herein by this reference. However, without limiting such incorporation and in general, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. IN WITNESS WHEREOF the parties have hereunto set their hands and seals on the day first above written. CITY OF WINTER SPRINGS, WINTER SPRINGS HOLDINGS, INC. a Florida municipal corporation. a Delaware corporation. Kevin L. Smith, City Manager LN Print Name: Title: LICENSE AGREEMENT City of Winter Springs / Winter Springs Holdings, Inc. Page 6 of 6 TEMPORARY STAGING LICENSE AGREEMENT THIS TEMPORARY STAGING LICENSE AGREEMENT'Agreement ") is made and entered into as of the day of , 2010, between WINTER SPRINGS HOLDINGS, INC., a Delaware corporation authorized to conduct business in Florida, with a principal address of 900 Seventh Street NW, Suite 1020, Washington, DC 20001 ( "Property Owner "), and THE CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, with a principal address of 1126 East State Road 434, Winter Springs, FL 32708 ( "City WHEREAS, the Property Owner owns certain unimproved property in the City of Winter Springs, more specifically located to the North of the McDonald's restaurant on the northeast corner of State Road 434 and Tuskawilla Road ( "the Property "); and WHEREAS, from time to time, the City may need to stage equipment and personnel necessary to conduct emergency or disaster relief activities and operations for the benefit of the public; and WHEREAS, the City is need of a staging area at which to perform said emergency or disaster relief activities and operations; and WHEREAS, given that the Property is currently vacant and centrally located within the City of Winter Springs, it is suitable to serve as an emergency staging area for the City; and WHEREAS, the parties desire to enter into this License Agreement for purposes of facilitating emergency or disaster relief efforts within the City of Winter Springs on an as- needed basis. NOW, THEREFORE, in consideration of the mutual covenants and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference. 2. Term of Agreement. This Agreement shall become effective upon execution by both parties hereto and shall continue in full force thereafter until either party terminates this Agreement by providing at least fourteen (14) days written notice to the other party. Additionally, this Agreement shall terminate 30 days following any transfer of ownership of the Property. Owner shall provide the City with reasonable notice of any such transfer of ownership. License Agreement City of Winter Springs 1 Winter Springs Holdings, Inc. Page 1 of 8 3. Property The real property subject to the terms and conditions of this Agreement is identified by the Seminole County Property Tax Appraiser as Parcel Id: 26- 20- 30- 5AR -OA00 -0070 and 06- 21 -31- 300 -0010 -000, said property being particularly described and depicted in Exhibit "1," which is attached hereto and incorporated herein by this reference ( "Property "). 4. License to Use the Property. 4.1 Grant of License. The Property Owner hereby grants the City and its authorized contractors license to use the Property consistent with the terms and conditions of this Agreement. The City and its authorized contractors shall be permitted use of the Property upon the City's written notification to the Property Owner that an emergency or disaster situation exists in the City of Winter Springs that necessitates the City's use of the Property as a temporary staging area for emergency or disaster relief operations, equipment and personnel. For purposes of this Agreement, the term "emergency or disaster situation" shall include, but not be limited to hurricanes, tornados, floods, missing persons and other civil emergencies. The City's written notification to the Property Owner shall identify the anticipated dates the Property will be used and the nature of the use. No permanent structures shall be erected or constructed on the Property. 4.2 Duration of License. For each emergency or disaster situation, the City shall be authorized to use the Property for an initial term of 90 days and, upon written request of the City, Owner may authorize the City to use the Property for an additional 60 days. Any such request shall be submitted to Owner no later than 14 days prior to the expiration of the initial 90 -day term. 4.3 Quiet Enjoyment. Property Owner shall warrant and defend the City in the quiet enjoyment and possession of the Property during any use of the Property by the City and its authorized contractors, subject to the terms and conditions of this Lease. 4.4 Covenants of Property Owner and City. Property Owner covenants that it is seized with fee simple ownership of the Property, that Property Owner will observe and perform all of the terms and conditions of this Agreement, and that the executor of this Agreement, on behalf of Property Owner, is duly authorized to execute this Agreement. City covenants to perform all of the terms and conditions of this Lease. 4.5 Property Owner's Access to the Property. The Property Owner shall have access at all reasonable times to the Property, for purposes of accessing adjoining property owned by Property Owner and which is otherwise unaccessible, provided however, such access by Property Owner shall have a minimum impact upon the City's use of the Property for the purposes provided herein. License Agreement City of Winter Springs 1 Winter Springs Holdings, Inc. Page 2 of 8 5. Condition of Property. Except as otherwise specifically provided in this Agreement, Property Owner disclaims any warranty regarding the condition of the Property, whether patent or latent, and the City shall accept the Property in its "as is" condition, including, without limitation, any defects which exist upon the commence of any use of the Property by the City. The City acknowledges that the Property is now in suitable condition for staging emergency and disaster relief efforts. 6. Maintenance of Property. City shall maintain the Property in the condition it exists upon commencement of any use of the Property by the City, less reasonable wear and tear, at the City's sole cost and expense. 7. Alterations by CitX The City may, from time to time and at its own expense make changes, additions and improvements in the Property to better adapt the same to be used in accordance with the purposes set forth herein, provided that any such change, addition or improvement shall comply with the requirements of any governmental authority having jurisdiction. 8. Insurance. The City will provide and maintain, or cause to be provided and maintained, at no expense to Owner, a special, single event endorsement to the City's insurance policy that is issued in the name of "Winter Springs Holdings, Inc. " and that encompasses the subject matter of any emergency or disaster operation conducted on the Property. Any such endorsement shall be in a form acceptable to Owner. The amounts of coverage for each of the following categories shall be determined on an case -by case basis based on the scope of the emergency or disaster operation conducted on the Property: A. Comprehensive general liability insurance; B. Product liability insurance, C. Automobile liability insurance including all owned, non - owned, and hired vehicles used in conjunction with the Event for bodily injury or property damage; D. Personal and advertising injury coverage; and E. Coverage for damage to rented property. All policies shall be specifically endorsed to provide that the coverages obtained will be primary and that any insurance carried by Owner shall be excess and non - contributory. The City shall furnish Owner with a copy of the certificate of such insurance policy no later than the commencement of license granted hereunder. 9. Indemnification. To the extent permitted by law, the City shall indemnify and hold harmless Property Owner from and against every demand, claim, cause of action, judgment and expense, including reasonable attorney's fees, and all loss and damage arising from any injury (including death) or damage to the person or property of the Property Owner or to the person or License Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 3 of 8 property of Property Owner's agents, servants, employees, guests, invitees, or to any other person or property on the Property where the injury or damage is caused by any act or omission of City, its subcontractors, agents, servants or employees, or of any other person entering upon the Property for the express or implied purpose of providing the services referenced herein. 10. Assignment or SubAgreement by City City shall not assign this Agreement or sublet the Property without the prior written consent of Property Owner. 11. Termination. Upon termination of the Agreement, the City shall have fifteen (15) days to remove all materials, equipment and improvements made to the Property, by the City and its authorized contractors, and restore (less reasonable wear and tear) the affected portion of the Property to the condition that existed at the date the City commenced use of the Property. If the City fails to complete the removal within this time period, Property Owner shall have the right to remove the improvements and restore the Property, and the City shall reimburse the Property Owner for the actual and reasonable costs incurred in said removal and restoration. The reimbursement shall be made by the City within ten (10) days of receipt of a written invoice itemizing said costs. 12. Sale Conveyance and Assi nment. Nothing in this Agreement shall restrict the right of the Property Owner to sell, convey, assign, mortgage or otherwise deal with the Property or the right of Property Owner to assign its interest in this Agreement subject only to the rights of City under this Agreement. 13. Subordination This Agreement is and shall be subject and subordinate in all respects to any and all mortgages and deeds of trust now or hereafter placed on the Property, and to all renewals, modifications, consolidations, replacements and extensions thereof. 14. Notices All notices, demands, requests, instructions, approvals, and claims of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: City of Winter Springs Attn: City Manager 1126 East State Road 434 Winter Springs, FL 32708 -2799 407 - 327 -5957 (Phone) 407 -327 -6686 (Fax) License Agreement City of Winter Springs 1 Winter Springs Holdings, Inc. Page 4 of 8 TO THE PROPERTY OWNER: Winter Springs Holdings, Inc. Attn: 900 Seventh Street NW, Suite 1020 Washington, DC 20001 ( } (Phone) ( } - (Fax) Notice shall be deemed to have been given and received on the date the notice is physically received, if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U. S. mail addressed in the manner set forth above. Any party hereto, by giving notice in the manner set forth herein, may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 15. Default. 15.1 Right of Property Owner to Perform Covenants. All covenants and agreements to be performed by City under any of the terms of this Agreement shall be performed by City, at City's sole cost and expense. If City shall fail to perform any act required by this Agreement, and such failure shall continue for seven (7) days after written notice thereof from Property Owner, Property Owner may (but shall not be obligated to) perform such act without waiving or releasing City from any of its obligations relative thereto. All sums paid or costs incurred by Property Owner in so performing such acts under this Article 13.01, together with interest thereon at the highest rate allowable by law from the date each such payment was made or each such cost incurred by Property Owner, shall be payable by City to Property Owner on demand. 15.2 Events of Default; Remedies. An event of default shall occur whenever: 15.2.1 Any party fails to observe, perform and keep each and every one of the material covenants, agreements, provisions, stipulations and conditions herein contained to be observed, performed and kept by the respective party and persists in such failure after seven (7) days notice by the non- breaching party requiring that the breaching party remedy, correct, desist or comply. However, if any such breach would reasonably require more than seven (7) days to rectify, and the breaching party commences rectification within seven (7) days of such notice and thereafter promptly and effectively and continuously proceeds with the rectifications of the breach, the seven (7) day time period may be extended by mutual written consent of the parties. License Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 5 of 8 15.2.2 Upon occurrence of any event of default, the non- defaulting party shall have the option, in addition to and not in limitation of any other remedy permitted by law or by this Agreement, to terminate this Agreement, in which event City shall immediately surrender the Property to Property Owner and all improvements made by the City shall be removed pursuant to Section I1 of this Agreement. However, if City shall fail to do so, Property Owner may without notice and without prejudice to any other remedy Property Owner may have, enter upon and take possession of the Property and expel or remove City and its authorized contractors and its effects without being liable to prosecution or any claim for damages. 16. Relationship of Parties Nothing contained in this Agreement shall create any relationship between the Property Owner and the City. It is acknowledged and agreed that Property Owner under this Agreement does not in any way or for any purpose become a partner of the City in the operation and maintenance of any temporary staging area for emergency or disaster relief efforts, or a joint venturer or a member of a joint or common enterprise with the City. 17.. Consent Not Unreasonably Withheld Except as otherwise specifically provided, whenever consent or approval of Property Owner or City is required under the terms of this Agreement, such consent or approval shall not be unreasonably withheld or delayed. If either party withholds any consent or approval, such party shall, on written request, deliver to the other party a written statement giving the reasons therefor. 18. Applicable Law and Construction This Agreement shall be governed by and construed under the laws of the State of Florida and its provisions shall be construed as a whole according to their common meaning and not strictly for or against Property Owner or City. The words Property Owner or City shall include the plural as well as the singular. 19. Entire Agreement This Agreement contains the entire agreement between the parties hereto with respect to the subject matter of this Agreement. 20. Amendment or Modification Unless otherwise specifically provided in this Agreement, no amendment, modification, or supplement to this Agreement shall be valid or binding unless set out in writing and executed by the parties hereto in the same manner as the execution of this Agreement. 21. Construed Covenants and,Seye_rability All of the provisions of this Agreement are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate Section hereof. Should any provision of this Agreement be or become invalid, void, illegal or not enforceable, it shall be considered separate and License Agreement City of Winter Springs / Winter Springs Holdings, Inc. Page 6 of 8 severable from the Agreement and the remaining provisions shall remain in force and be binding upon the parties hereto as though such provisions had not been included. 22. Successors Bound. Except as otherwise specifically provided, the covenants, terms and conditions contained in this, Agreement shall apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. 23. Headings The Section headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several Sections hereof. 24. Attorney's Fees In the event of any legal action or suit under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs, through all appellate proceedings. 25. City Not to Allow Liens or Encumbrances City shall not permit to be created nor to remain undischarged any lien, encumbrance, or charge arising out of any work of any contractor, mechanic, laborer, or materialman which might lien or encumber the Property for work performed on the City's behalf on the Property. If any lien or notice of lien on the account of any debt of the City or its authorized contractors shall be filed against the Property and City fails to discharge the lien or notice of lien within twenty (20) days of filing, Property Owner, in addition to any other legal rights or remedies, may, but shall not be obligated to, discharge the same by either paying the amounts claimed to be due, or shall be entitled to defend any prosecution of an action for foreclosure of such lien. Any amount paid by Property Owner and all costs and expenses (including reasonable attorneys fees and interest) incurred by Property Owner in connection therewith shall be paid by City depending on who was liable for the debt. 26. Time is of Essence The parties acknowledge and agree that time is of the essence under this Agreement. 27. Venue Venue for any legal actions under this Agreement shall be in Seminole County, Florida for state court actions and Orlando, Florida for federal court actions. [EXECUTION PAGE FOLLOWS] License Agreement City of Winter Springs I Winter Springs Holdings, Inc. Page 7 of 8 PROPERTY OWNER: WITNESSES: WITNESSES: WINTER SPRINGS HOLDINGS, INC., a Delaware corporation. Print Name: Title: Date: CITY: CITY OF WINTER SPRINGS, FLORIDA .2 Kevin L. Smith, City Manager Date: License Agreement City of Winter Springs 1 Winter Springs Holdings, Inc. Page 8 of 8 LEGAL DESCRIPTION Seminole County Parcel ID No.: 26- 20- 30- 5AR -OA00 -0070 PT OF LOTS 7 & 8 DESC AS BEG INT NLY LI LOT 7 & ELY R/W A_ RR RUN SLY ALONG ELY RR R/W TO NLY R/W OVIEDO RD SELY ALONG NLY R/W OVIEDO RD TO A PT 660 FT N OR N LI GARDENA FARMS S 85 DEG E TO E LI OF LEVY GRANT N 5 DEG E TO NE COR NOT 7 NWLY ALONG NLY LI LI LOT 7 TO BEG BLK A (LESS ESMT DESC IN ORB 3988 PG 1075 & PTS OF LOT 7 N & SE OF ESMT) Seminole County Parcel ID No.: 06 -21 -31 -300- 0010 -000 LEG SEC 06 TWP 21 S RGE 3 1E SCL RR R/W LYING NLY OF OVIEDO RD f f 6 N ki ,k" O r� > Pr - -.. bi ll I F w Qr` 1 Q na -jp L Pr_ • � TOTriL P. 13 m MICHAE SLAKE W 1 - BOULEVARD W t •:�J .w �sMEET i WINTER SPRINGS TQWN �I CENTER - PRASE, IIB I T�cF r NEEFC II $MEETS C -12, t9 G14 ANp C- t9 C-4 S t9 C-4