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THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
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
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WINTER SPRINGS TOWN CENTER PHASE H
IMPLEMENTATION AGREEMENT
THIS WINTER SPRINGS PHASE H IMPLEMENTATION AGREEMENT (the
"Phase II Implementation Agreement") is made and entered into this 20d' day of November,
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 MAIN
STREET ASSOCIATES, LLC., a Georgia limited liability company ("MSA"), whose address
is 216 Seven Farms Drive, Suite 200, Charleston, South Carolina 29492
WITNESSETH:
WHEREAS, JDC Calhoun 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, MSA has recently acquired approximately 46.5 acres of additional real
property located within the Winter Springs' Town Center which is more particularly described in
EDIT "A", which is attached hereto and fully 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, MSA and the City also
previously entered into a development agreement for the Phase II Property, dated December 15,
2005 ("Phase II Development Agreement"), which, although it automatically terminated, said
agreement served as a basis for this Implementation Agreement; and
WHEREAS, paragraph 4 of the Phase II Development Agreement provided that MSA
and the City will work in good faith to develop and memorialize in writing the mutual
expectations of City and MSA regarding the implementation of the development set out in the
Phase II Development Agreement including, but 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 ("Final
Engineering Plans"); and
WHEREAS, the City and MSA 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 Monday, November 20, 2006 ("Effective Date").
2.0 Authority. This Phase II Implementation Agreement is entered into pursuant to
the Florida Municipal Home Rule Powers Act.
3.0 Development Program, Multiple Phase Proiect.
3.1 Intensity of Development. The City and MSA hereby acknowledge and agree that
the entire proposed Phase II development project shall be a minimum of 383,000 square feet of
retail, 465,000 square feet of office, and 935 multi -family units, all in buildings up to six (6)
stories in height, as well as appropriate private parking structures.
3.2 Multiple Phases. The City and MSA agree that the Project will be developed in
multiple phases, which shall be identified herein as Phase II -A and Phase II-B. Phase II -A has
already been engineered and shall be constructed in accordance with the Final Engineering Plans.
MSA shall engineer Phase II-B after the Effective Date in accordance with applicable law. Each
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such phase may be developed over time. Without limiting the generality of the foregoing, Phase
II -A need not be developed all at one time.
3.3 Change in Mix of Uses. MSA may submit to the City a written request to deviate
from the mix of uses (retail, office, multi -family) in the development program stated in
Paragraph 3.1. If the request would result in a cumulative deviation for any one type of use of
less than or equal to ten (10) percent, the City Manager may grant the deviation. The City
Manager's decision shall be made within (15) days of the City receiving the request. The City
Manager shall not unreasonably withhold approval of the deviation request, provided the request
is in compliance with applicable law. The denial of any deviation request by the City Manager
may be appealed to the City Commission by providing written notice of appeal to the City
Manager within fifteen (15) days of the City's Manager's decision. Unless otherwise mutually
agreed, the appeal shall be heard by the City Commission at the next regularly scheduled City
Commission meeting following receipt of the notice, provided, however, placement on the City
Commission meeting agenda shall be subject to the City Commission's agenda cycle rule which
requires agenda items to be submitted one week prior to the City Commission meeting. Any
deviation request that could result in any one type of use exceeding a total cumulative deviation
of ten percent shall be subject to the City Commission's prior approval.
3.4 Applicable City Land Development Codes for Phase II A. In recognition of the
fact that Phase II -A has already received final engineering approval by the City, the City agrees
as follows relative to Phase II -A only:
(A) Amendments to the City's Town Center Code after the Effective Date of this
Implementation Agreement shall not apply to Phase II -A for a period of four (4) years after said
Effective Date, except if the City Commission holds a public hearing and determines:
(1) The amendments are essential to the public health, safety, or welfare, and
expressly state that they shall apply to a development that is subject to a development agreement;
(2) The City demonstrates that substantial changes have occurred in pertinent
conditions existing at the Effective Date of this Implementation Agreement; or
(3) This Implementation Agreement or the Final Engineering Plans are based on
substantially inaccurate information supplied by MSA.
(B) Nothing contained in this Paragraph 3.4 shall be construed to limit or restrict, or
apply to, in any way the City's authority to adopt conduct based laws and policies, other laws
and policies not limited to the Town Center, and laws and policies affecting the list of permitted,
conditional, and prohibited uses in any land use or zoning category.
4.0 Parking Re uirements. MSA agrees to design, engineer, construct, and maintain
parking spaces for the Project as follows:
4.1 Phase H-A Parking Required By MSA's Development Plans. The following
applies to Phase II -A:
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(A) MSA 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 MSA's particular
development demands for Phase II -A and the additional public parking needs required by the
City as specifically described herein.
(B) MSA 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 MSA 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 (i 10) shall
be unassigned general use public parking spaces. Additionally, at least eighty-five (85) parking
spaces shall be surface level on -street spaces (excluding Tuskawilla Road).
(C) MSA 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 MSA 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. MSA
and the City further acknowledge and agree that should MSA 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 MSA's development
demands shall not be provided from the public parking spaces which are identified herein for
purchase by the City.
4.2 Phase H-B Parking Required By MSA's Development Plans. MSA and the
City acknowledge and agree that MSA has not proposed any final development plans for Phase
II-B as of the Effective Date of this Implementation Agreement. As such, Phase II-B parking
requirements are not addressed in this Implementation Agreement and shall be determined at a
later date based on the development demands proposed by MSA and in accordance with the
City's Town Center Parking Guidelines. MSA shall be responsible for the cost of providing
parking spaces that are required to meet the Developer's Phase II-B development demands.
4.3 North and South Garage - Public Parking Purchased by the City. In addition to
the parking spaces required in Paragraph 4.1(B), MSA shall provide to the City an additional
sixty-two (62) parking spaces consisting of thirty-seven (37) parking spaces in the North Garage
and twenty-five (25) parking spaces in the South Garage. The parking spaces shall be dedicated
by MSA to the City by perpetual easement for the exclusive benefit of the general public. Said
easement shall be in a form deemed reasonably acceptable by the City Attorney and the
easement shall be free and clear of all encumbrances including, but not limited to, taxes, and
liens. Any and all lenders with a mortgage encumbering the garage property shall be required to
approve of the conveyance by executing a joinder and consent agreement. The City agrees to
pay for the sixty-two (62) parking spaces at a cost of Fifteen Thousand Dollars ($15,000.00) per
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space. Within (30) days after MSA receives a permit to construct the North or South Garage, the
City shall deposit, into an interest bearing escrow account, the payment for the parking spaces
related to the garage that has been permitted. The City shall pay MSA for the parking spaces at
such time they are delivered to the City for the public's use and a fully executed easement is
delivered to the City. Payment for the parking spaces shall be in U.S. funds and shall be made
by check or wire transfer to MSA. Further, the payment to MSA shall include any interest earned
on the money deposited into the escrow account, not to exceed one (1) year's worth of interest.
Any interest earned beyond one year shall belong entirely to the City and may be withdrawn
from the account at the City's discretion. For purposes of securing the public's perpetual benefit
to the sixty-two (62) parking spaces, MSA 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. MSA 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.
4.4 Phase II-B Additional Public Parking by the City. At the time that MSA
submits a formal application for site plan review, which evidences MSA's intent to construct any -
parking facility within Phase II-B, MSA shall provide the City a right -of -first -refusal to purchase
a perpetual parking easement for twenty-seven (27) public parking spaces in each such facility.
However, this right -of -first -refusal shall not extend to more than one hundred eight (108) public
parking spaces. The public parking spaces provided herein shall be in addition to the parking
required for the Phase II-B development under the City's Town Center Parking Guidelines. The
cost of the public parking spaces shall be on a per space basis and shall be equal to MSA's actual
cost to construct said spaces. The City shall have, at its discretion, sixty (60) days to accept or
reject MSA's offer. If the City accepts MSA's offer, the conveyance, payment, and signage shall
be in the same manner as provided in Paragraph 4.3.
4.5 Phase II -A Temporary Parking. MSA 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) To the extent deemed necessary by the parties, 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.
(B) Within sixty (60) days of the Effective Date of this Implementation Agreement,
MSA, in lieu of the 123 temporary parking spaces depicted on the Final Engineering Plans on
property east of the McDonalds, shall make available approximately fifty-six (56) temporary
parking spaces on vacant real property adjacent to the east side of Main Street and north of the
existing McDonald's Restaurant. However, MSA may discontinue the temporary parking spaces
within ninety (90) days following the application of a building permit for the Phase II -A South
Garage.
4.6 Special Conditions for Garage Parking Spaces. The following special
conditions shall apply to the garage spaces:
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(A) Any 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 and 4.4 shall be located at
the lowest level of the parking garages.
(B) In addition to the signage requirement set forth in Paragraph 4.3 for public
parking spaces purchased by the City, MSA shall provide other appropriate measures to separate
assigned residential parking from unassigned general use parking spaces and parking spaces
purchased by the City.
(C) MSA may petition the City to reclassify assigned residential spaces to unassigned
residential spaces or unassigned general use public spaces. However, under no circumstances
will MSA be permitted 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 Building #2 Enhancements and South Garage Buffer Building.
5.1 Buffer Building, Contingency Plan. It is MSA's intent to buffer the exposed
south side of the South Garage 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 MSA may impede
MSA's ability to construct the Buffer Building 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) MSA shall keep a fifty (50) foot natural buffer from and along S.R. 434 until such
time as MSA begins development of the Buffer Building.
(B) After construction of the South Garage, MSA shall install and maintain a line of
relocated palm trees along S.R. 434 in order to create an additional buffer if requested by
the City Commission.
5.2 Building #2 Enhancements. In consideration of the reality that the south
elevation of Building #2 of Phase II -A may be exposed for many years to the public due to the
existing McDonalds, MSA agrees to construct decorative enhancements to the southern exterior
of the western end of Building #2 directly behind McDonalds as approved by the City
Commission on November 20, 2006. The cost of such enhancements shall not exceed fifty
thousand dollars ($50,000.00) unless otherwise agreed to by MSA.
6.0 Phase 1I-A and H-B infrastructure Improvements. The following conditions
shall apply to certain Phase Il-A and II-B public infrastructure improvements:
6.1 Compliance with Applicable Laws; Timing Except as specifically stated herein
to the contrary, all Phase -R-A and II-B public infrastructures will be built in accordance with all
applicable laws, codes, regulations, and special conditions established by the City. It is
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understood that the Phase IIA and Phase II B infrastructure projects may begin at different times
as determined by the marketplace or at times otherwise agreed upon by MSA and the City.
6.2 Spine Road. MSA and the City acknowledge that prior to the Effective Date,
MSA 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 design, permitting, and construction of Spine Road
shall be performed under the following conditions:
(A) MSA agrees to fully cooperate with the City to complete the design, .permitting,
and construction of Spine Road.
(B) MSA agrees to dedicate the Spine Road right-of-way to the City, at no cost to the
City. Such dedication shall occur at such time required under this paragraph and shall be free
and clear of any and all encumbrances including, but not limited to, taxes, and liens. Any and all
lenders with a mortgage encumbering the property shall be required to approve of the
conveyance by executing a joinder and consent agreement. Further, the written instruments of
conveyance shall be in a form acceptable to the City Attorney. The City agrees to incorporate
Spine Road into the City's Town Center Master Plan.
(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 and the traffic signal at the intersection of Spine Road and S.R. 434 if approved by
FDOT. The Spine Road right-of-way shall be located as shown in EXIMIT "B", which is
attached hereto and fully incorporated herein by this reference.
(D) Regarding Spine Road design, permitting, and construction costs incurred by
MSA under this Implementation Agreement, the City shall reimburse MSA for such reasonable
costs in U.S. funds or impact fee credits, whichever is desired by MSA. 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,
permitting, and construction costs incurred by MSA that are specifically related to Spine Road.
(E) MSA shall have the exclusive right to commence construction of Spine Road for
a period of one (1) year from the date that City approves the engineering plans for Spine Road.
In furtherance of this right, MSA will submit to the City by January 17, 2007, a complete set of
engineering plans for the construction of Spine Road, and thereafter MSA shall diligently and in
good faith pursue final approval of said plans by the City. MSA agrees to construct Spine Road
within twenty-six (26) months of the plans being approved by the City. Upon completion of
construction of Spine Road and final acceptance by the City, MSA shall convey Spine Road, and
all related public infrastructure improvements, to the City.
(F) In the event that MSA does not commence construction of Spine Road within the
time set forth in subparagraph (E) above, the City shall have the right to construct Spine Road by
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delivering written notice to MSA stating the City's intent to do so. Upon receipt of said notice,
MSA shall convey Spine Road to the City within thirty (30) days and MSA's right to construct
Spine Road shall terminate. The City agrees to construct Spine Road within twenty-six (26)
months of delivering the notice.
(G) The City acknowledges and agrees that the construction of Spine Road, in and of
itself, will not be a basis of delaying or denying the issuance of permits for Phase II -A as set
forth in the Final Engineering Plans approved by the City Commission.
6.3 Other Phase II Roadways. Upon completion of the construction of Tree
Swallow, Loop, and Town House Roads, as more specifically depicted in EXMBIT "C", which
is attached hereto and fully incorporated herein by this reference, to the satisfaction of the City,
MSA 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, taxes, and contractor's liens.
Any and all mortgage companies shall be required to approve of the conveyance by executing a
joinder and consent agreement. Further, the written instruments of conveyance shall be in a form
acceptable to the City Attorney. The City agrees to incorporate such roadways into the City's
Town Center Master Plan.
6.4 Reconstruction of East Tuskawilla Sidewalks and Parking. The parties
acknowledge that MSA needs to construct underground utilities along the east side of Tuskawilla
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 MSA for the direct and
reasonable costs related to the reconstruction of said sidewalks and parking located on the east
side of Tuskawilla Road, provided said reimbursement shall not exceed two hundred fifty
thousand dollars ($250,000.00). In addition, the City will reimburse MSA for the relocation of
any existing water lines located on the east side of Tuskawilla Road, in an amount equal to fifty
thousand dollars ($50,000.00). Further, reimbursement does not include any costs associated
with the construction of new utilities for Phase II -A. Reimbursement shall be made in U.S.
funds by check or wire transfer at such time that MSA has completed the construction of Phase
II -A site infrastructure and the City has accepted said infrastructure.
6.5 State Road 434 FDOT Traffic Issues. Consistent with the City's Comprehensive
Plan (including, but not limited to, the goals, policies and objectives for the Town Center and
Central Business District), the Town Center Code and the "Victor Dover Grid," the City shall
continue to diligently pursue with FDOT street calming and beautification efforts;
access/signalization; textured crosswalks; entry features at the outer perimeter of the Town
Center; lowered speed limits; the approval, funding, and installation of traffic lights for
Phase IIA; and other issues that may be identified by the City from time to time.
6.6 Reimbursement Procedure; Private Under Taking. MSA 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 informal competitive bid process under which
MSA 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
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and approval prior to MSA entering into any contract for the design, permitting and construction
of the infrastructure. MSA shall be required to accept the lowest and most qualified bidder unless
otherwise approved by the City. MSA shall have the right to use a higher, more qualified bidder,
provided MSA pays the entire difference between the higher bid chosen by MSA and the lowest
and most qualified bidder chosen by the City. MSA further agrees that at the time
reimbursement for any infrastructure costs is requested, MSA 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 St. Johns River 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. MSA 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
MSA and shall not be considered a public works project. MSA 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 MSA, either
directly or indirectly, to design, permit, and construct the infrastructure which is subject to
reimbursement hereunder.
6.7 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 or
letter of credit pursuant to section 9-76 of the City Code.
6.8 City Right to Complete Public Infrastructure Projects Upon MSA's Default. If
MSA 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
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, MSA shall be
provided with an opportunity to cure the default as provided in paragraph 32.0 of this Phase II
Implementation Agreement. In addition, if the City undertakes the completion of the
infrastructure, MSA agrees to fully and reasonably cooperate with the City and, at the City's
request, MSA 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.
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-� Further, the written instruments of conveyance shall be in a form reasonably acceptable to the
City Attorney. MSA 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 MSA's default under this Phase H Implementation Agreement
or MSA's default under any other agreement which was entered into by MSA to complete the
design, permit, and construction of the infrastructure referenced under this paragraph.
6.9 Temporary Construction Easement. Within forty-five (45) days of both parties
executing this Agreement, MSA agrees to convey a temporary public construction easement to
the City in a form reasonably acceptable to the City. The primary purpose of said easement is to
allow construction access by the City and other third parties to the property north of S.R. 434 so
as to avoid the use of Tuskawilla Road. The initial location of the temporary construction
easement shall be along the stabilized road area which is depicted on the Phase II -A Final
Engineering Plans approved by the City. MSA reserves the right to modify the location of the
temporary construction easement in order to accommodate the development of the Property. The
temporary construction easement shall terminate at such time that Spine Road is fully completed
and conveyed to the City or within three (3) years from the date of conveyance of the temporary
construction easement, whichever occurs first. In the event that the developer of Sonesta Pointe
is permitted to use Spine Road for construction traffic, the City will attempt, in good faith, to -
require said developer to provide a maintenance bond or letter of credit, in an amount deemed
acceptable by the City, to cover any potential damage cause by the developer's construction
traffic.
6.10 Optional Force Main Utility Easement. MSA acknowledges and agrees that a
force main will be constructed from a connection point along S.R. 434 through Spine Road to the
northern boundary of MSA's Property, as set forth in the Final Engineering Plans approved by
the City Commission. In the event the developer of Sonesta Pointe desires to install the force
main in advance of MSA's planned construction of said force main in Phase II -A, MSA shall
provide the City with an utility easement, in a form acceptable to the City Attorney, to allow the
installation of the force main by the developer of Sonesta Pointe.
7.0 Amphitheater; Magnolia Park. The City shall use its best efforts to secure
financing for an amphitheater at Magnolia Park. In addition to the 0.15 acres of Magnolia Park
which MSA agreed to dedicate by prior Agreement to the City at no charge, MSA agrees to
convey an additional approximate 0.25 acres of land abutting the north side of Magnolia Park for
the purpose of expanding Magnolia Park within sixty (60) days of the Effective Date. The City
agrees to reimburse MSA for the additional land by providing MSA a park and recreation impact
fee credits in an amount equal to the fair market value of the land as determined by licensed
property appraiser authorized to do business in the State of Florida. The City shall obtain the
appraisal at its expense prior to conveyance.
8.0 Small Neighborhood Parlo. The parties acknowledge and agree that the small
neighborhood squares #4 and #5 required in the Schrimsher Development Agreement shall
remain binding upon the Phase II Property and MSA, and shall be located in Phase II-B as
mutually agreed upon by the City and MSA.
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9.0 Ex edited Permittin . The City shall, if necessary, engage sufficient personnel -
either through City employees or third -party vendors — for the Building Department to perform
inspections on an expedited basis. 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. MSA 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 MSA'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 MSA's agreement to the
terms and conditions set forth in this Phase II Implementation Agreement, the City Commission
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.
10.3 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 4.5 of this Phase H Implementation Agreement.
10.5 Balconies. Each building entry -way on Tuskawilla Road shall have a second
floor balcony or entrance -way canopy of not less than six (6) feet in depth as depicted on
COMPOSITE EXHIBIT "D", which is attached hereto and fully incorporated herein by this
reference. Open grated metal floor balconies are prohibited. Balcony floors shall be constructed of
solid opaque material. All other balconies and canopies shall be a mix of depths as shown on the
plans (aesthetic and/or final engineering) approved by the City Commission.
11.0 Specimen Thee 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, MSA 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
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
- 11 -
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 Lighting and Si-nnaage. MSA 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, MSA 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 MSA may
create one or more condo or homeowner's associations during the development of the Phase II
Project. Upon approval by the City, MSA may turn over said payment responsibilities to the
condo and homeowner's associations. MSA, 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 MSA 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 October 1, 2007, Police, Fire, Parks, Public Buildings, and
Transportation impact fees relative to the Phase II -A and Phase II-B Property. Any reduction in
transportation impact fees shall be pursuant to City Code. However, water and sewer service
availability charges are not considered impact fees and shall be applied based on the rates in
effect at the time service availability charges are customarily due and owing to the City.
14.0 Utilities. The City hereby acknowledges and agrees that it currently has sufficient
water and sewer treatment plant capacity available to service the Project. Furthermore, all water,
sewer, and drainage improvements required on -site to service the Phase II Property shall be
designed, constructed and installed by MSA, and the City will reimburse MSA for any over -
sizing of the improvements required by the City to service properties other than the Phase II
Property. MSA shall design the Project to accommodate the stormwater requirements for the
Phase II Property and the adjacent parcel whose tax identification number is: 26-20-30-5AR-
OA00-007B ("McDonalds Site"), including the roadway improvements to be located adjacent to
and/or within the Project. The City shall permit MSA to use any existing City rights -of -way
and/or easements to accommodate stormwater generated from the Phase II Property subject to
plans approved by the City. The City shall reimburse MSA for such reasonable design,
permitting, engineering, and construction costs associated with that portion of the Phase II wet
detention pond and stormwater conveyance system that is specifically constructed to support
Spine Road. Said reimbursement shall be in U.S. funds or transportation impact fee credits,
whichever is desired by MSA. Upon completion of construction of the stormwater pond by
MSA, MSA shall convey ownership of, and permit rights to, said pond to the City.
15.0 East Market Square. MSA agrees, in exchange for the agreements and promises
herein, to relinquish its rights to develop the East Market Square as set forth in the Schimsher
Development Agreement, paragraph IX which includes: (i) a grocery store anchor building
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-12-
—� consisting of approximately 45,000 retail square feet; (ii) up to 45,000 square feet of additional
retail square feet; and (iii) a parking ratio of up to five (5) spaces per 1,000 retail square feet.
16.0 Representations of the Parties. The City and MSA 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
MSA 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. MSA
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.
17.0 Successors and Assigns; Assignment of Payments.
17.1 In General. This Phase II Implementation Agreement shall automatically be
binding upon and shall inure to the benefit of the City and MSA 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.
17.2 Payments Due MSA. Any payments to be made by the City to MSA under the
Phase II Implementation Agreement may, at MSA's option, be made payable to MSA's primary
lender or MSA. In addition, MSA may assign its right to receive such payments to its primary
lender for the Project required by this Implementation Agreement. Before any payment or
assignment is made to the primary lender under this section, MSA shall be required to provide
written notice and detailed instructions to the City that it desires any payment to be made directly
to the primary lender or if an assignment to the primary lender has been or will be made. In the
event that the City makes any payment to the primary lender pursuant to MSA's instructions,
MSA agrees to forever release and hold harmless the City from its obligation to make said
payment(s) to MSA under this Agreement.
18.0 Applicable Law. This Phase II Implementation Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
19.0 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.
20.0 Entire Agreement, 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 MSA as to the subject matter
hereof. The Exhibits attached hereto and referenced herein are hereby fully incorporated herein
by this reference.
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-13-
21.0 Severahility. If any provision of this Phase II Implementation Agreement shall
be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the
same shall not affect in any respect the validity or enforceability of the remainder of this Phase II
Implementation Agreement.
22.0 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.
23.0 Recordation. This Phase II Implementation Agreement shall be recorded in the
Public Records of Seminole County, Florida.
24.0 Relationship of the Parties. The relationship of the parties to this Phase II
Implementation Agreement is contractual and MSA 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.
25.0 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, 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 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).
26.0 City's Police Power. MSA 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.
27.0 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.
28.0 Third -Party Rights. 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.
29.0 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
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-14-
-� 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.
30.0 Attorneys 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.
31.0 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 MSA 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
certificates of occupancy for any building or unit if MSA is in breach of any term and condition
of this Phase II Implementation Agreement.
32.0 Default; Opportunity to Cure. Should either party desire to declare the other
party in default of any term 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.
33.0 Termination. The City shall have the unconditional right, but not obligation, to
terminate this Agreement, without notice or penalty, if MSA fails to receive building permits and
substantially commence construction of Phase H-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.
34.0 Force Maieure. The parties agree that in the event that the failure by either party
to accomplish any action required hereunder within a specified time period ("Time Period")
constitutes a default under the terms of this Phase II Implementation Agreement and, if any such
failure is due to any unforeseeable or unpredictable event or condition beyond the control of such
party, including, but not limited to, acts of God, acts of government authority (other than the
City's own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages
of labor or materials, injunction or other court proceedings beyond the control of such party, or
severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision
of this Phase II Implementation Agreement to the contrary, that failure shall not constitute a
default under this Phase II Implementation Agreement and any Time Period proscribed
hereunder shall be extended by the amount of time that such party was unable to perform solely
due to the Uncontrollable Event. The extended time period shall be agreed to in writing by the
parties and said agreement shall not be unreasonably withheld by either party.
Town Center Phase H Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-15-
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written.
A
.By:
Luaces, City Clerk
CITY OF WINTER SPRINGS
By: -C
30 I
Bush, Mayor
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida, only.
Dated:
7
By:
Anthony Garganese, City Attorney for
the City of Winter Springs, Florida
Town Center Phase H Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-16-
Signed, sealed and delivered in the
presence of the following witnesses:
t V
Si �'f Wi r es oxh-ick
r
Printed Name. of Witness
Signature of Witness
,c4) r•hael Aap ssnn
Printed Name of Witness
MAIN STREET ASSOCIATES, LLC, a
Georgia limited liability company
By: Main Street
limited liabi]
e
WA
IC, a Georgia
i s sole member
Jr.
STATE OF SOUTH CAROLINA
COUNTY OF [ e rkEjLLr
-- ``
The foregoing instrument was acknowledged before me this day of �1Q"Ihiabili
2007, by Robert J. Doran, Jr., Manager of Main Street Investors, LLC, a Georgia limit
company, as the sole Member of MAIN STREET ASSOCIATES, LLC, a Georgia limited
liability company. He is personally known to me.
(NOTARY SEAL)
(Notary Public Sign e)
►��k►'f KI
llrl�l►►►
(Print Name)
NtiTARY y� ' Notary Public, State of a Z C�
Commission No.
•. p U g 00 ,: My Commission Expires: 03 / f 2 01(A
0. •' .
►��►111I11111►►►`►��
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-17-
LEGAL DESCRIPTION:
A PORTION OF LOTS 7 AND 8. BLOCK "A", O.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
RLANDS LYING IN SECTiON 31,
ANOGE 311 EAST, ACCORDING IO THEOPt T THEREOF WNSHIP 20 SOUTH. RANGE i EAST AND SECTION
TOWNSHIP 2SOUTH,
AS RECORDED IN PLAT BOOK I PAGE 5,OF THE PUBLIC
RECORDS OF SEMINOLE COUNTY. FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD (PER FLORIDA DEPARTMENT
OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-2516, SHEET 10 OF 13. P.I. STATION 600+32.11). THENCE
RUN 538'23'34"E A DISTANCE OF 27.48 FEET ALONG THE BASELINE OF SURVEY AS SHOWN ON SAID RIGHT OF
WAY MAP; THENCE DEPARTING SAID BASELINE RUN N30'04'56"E A DISTANCE OF 258.26 FEET TO A POINT ON IHE
EASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD (FORMERLY KNOWN AS BRANTLEY AVENUE , AS
SHOWN ON SAID RIGHT OF WAY MAP; THENCE CONTINUE N30'04'56"£, ALONG SAID EASTERLY IGHT 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; THENCE RUN S1533'47"W A DISTANCE OF 1013.17 FEET TO THE NORTHWEST CORNER OF RELEASE
PARCEL 2 AS DESCRIBED IN OFFICIAL RECORD BOOK 3988. PAGE 1095; THENCE DEPARTING SAID WESTERLY
LINE RUN S57'01'44"E. ALONG THE NORTHERLY LINE OF SAID RELEASE PARCEL 2. A DISTANCE OF 104.80 FEET TO
THE NORTHEAST CORNER OF SAID RELEASE PARCEL 2, SAID POINT ALSO BEING ON THE SOUTHERLY LINE OF
ACQUISITION PARCEL 8 (THE RAILS TO TRAILS CORRIDOR) AS DESCRIBED IN OFFICIAL RECORD BOOK 4092.
PAGE 164; THENCE CONTINUE 557*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 CURVATURE 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. HAVING 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 333.32 FEET TO THE POINT OF TANGENCY;
THENCE RUN S7743'04"E A DISTANCE OF 187.98 FEET; THENCE RUN S46'13'52"E A DISTANCE OF 177.70 FEET;
THENCE RIJN 532'50'43"E A DISTANCE OF 662.97 FEET TO THE INTERSECTION OF SAID SOUTHERLY UNE AND THE
NORTHWESTERLY LINE OF SAID ACQUISITION PARCEL 0; THENCE RUN S50'31'58"W, ALONG SAID
NORTHWESTERLY LINE, A DISTANCE OF 997.55 FEET TO A POINT ON THE NORTHEASTERLY RIGHT OF WAY LINE
OF STATE ROAD 434 (PER FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-
2516. SHEET i 1 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 CURVE 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 324'37" A DISTANCE
OF 470.54 FEET TO THE ENO OF SAID CURVE; THENCE RUN S51'16'44-W A DISTANCE OF 14.00 FEET; THENCE RUN
N38'43' 15'W A DISTANCE OF 136.42 FEET TO THE SOUTHEAST CORNER OF AFORESAID RELEASE PARCEL 2;
THENCE CONTINUE N38'43'16`W A DISTANCE OF 138.78 FEET TO THE SOUTHWEST CORNER OF RELEASE PARCEL
2; THENCE CONTINUE N38'43 16"W A DISTANCE OF 308.12 FEET TO THE MOST SOUTHERLY CORNER OF THOSE
LANDS OESCRIBEa IN OFFICIAL RECORD BOOK 2803, PAGE 643; THENCE DEPARTING SAID NORTHEASTERLY
RIGHT OF WAY LINE RUN N3O'O4'56"ES ALONG THE SOUTHEASTERLY LINE OF SAID PROPERTY, A DISTANCE OF
It 220.00 FEET' p THE PINT 3 BEGINNING. LONG THE NORTHEASTERLY LINE OF SAID PROPERTY, A DISTANCE OF
TOGETHER WITH;
"A"
A PORTION OF LOTS 7 AND S. BLOCK W. D.R. MITCHELL'S SURVEY OF THE LEVY GRANT 01d LAKE JE5 U
SAID LANDS LYING IN SECTION 31, TOWNSHIP 20 SOUTH, RANGE 31 EAST ANDSECTION 6, TOWNSHIP 21 50UTH,
RANCE RECORDS OF SEMINOLE COUNTY, FLORIDA; BEINNG TO THE PLAT GOF AS RECORED IN PLAT MORE PARTIICUL R Y DESCRIBED AS FOLLOWS:OF THE PUBLIC
COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD (PER 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 N50'31'58"E A DISTANCE OF 97.29 TO A POINT ON THE
NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD (FORMERLY KNOWN AS BRANTLEY AVENUE), AS
SHOWN ON SAID RIGHT OF WAY MAPS FOR THE POINT OF BEGINNING; THENCE RUN N50'31'581 A DISTANCE OF
1,033.48 FEET: THENCE RUN N39'28 ❑2"W A DISTANCE OF 15.00 FEET; THENCE RUN N50'31'58"E A DISTANCE OF
i 06.44 FEET; THENCE RUM S83'03 12"E A DISTANCE OF 94.74 FEET; THENCE RUN $47"5d'36'E A DISTANCE OF 34.00
FEET; THENCE RUN 537'59'33"E A DISTANCE OF 57.62 FEET; THENCE RUN 568'24'O8 E A DISTANCE OF 52.48 FEET
TO THE F-ASTERLY LINE OF BLOCK A", D.R. MITCHELL S SURVEY OF THE LEVY GRANT ON LAKE JESSUP AS
RECORDED IN PLAT HOOK 1 , PAGE 5; THENCE RUN S05' 13'52"W ALONG SAID EASTERLY LIME OF BLOCK A" A
DISTANCE OF 251.46 FEET; THENCE ❑EPARTING SAID EASTERLY LINE OF BLOCK A" RUN S62'36'00"W A
DISTANCE OF 109.52 FEET: THENCE RUN S50'54'04"W A DISTANCE OF 11.72 FEET; THENCE RUM
S22'01'13"W A DISTANCE OF 65.99 FEET; THENCE RUN S29'00'27 W A DISTANCE OF 44.28 FEET; THENCE RUN
5520.3 3"W A DISTANCE OF 9.60 FEET; THENCE RUN S28'03'23W A DISTANCE OF 97.92 FEET; THENCE RUN
S44'20'04"E A DISTANCE OF 176.05 FEET • THENCE RUN 537'21'37"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"
505'13'52W A DISTANCE OF 42.89 FEET; THENCE DEPARTING SAX EASTERLY LINE OF BLOCK 'A" RUN
N27:55:26-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 589'06'27 -1V A DISTANCE OF 57.99 FEET; THENCE RUN
S6637'02"W A DISTANCE OF 39.09 FEET; THENCE Rifts S45'29'24W A DISTANCE OF 41.50 FEET THENCE RUN
528'55'33"W A DISTANCE OF 34.27 FEET; THENCE RUN 51O'02'16"W A DISTANCE OF 55.95 FEET; THENCE. RUN
5O3'05'47"W A DISTANCE OF 52.29 FEET; THENCE RUN S07'51'13'W A DISTANCE OF 30.86 FEET; THENCE RUN
5O0'47'47-W A DISTANCE OF 49.12 FEET; THENCE RUN 507'25'22W A DISTANCE OF 52.87 FEET; THENCE RUN
S67'06'00"W A DISTANCE OF 15.29 FEET ; THENCE RUN S79'35'1)1'W A DISTANCE OF 69.29 FEET; THENCE RUN
N89'18'43-W A DISTANCE OF 96.92 FEET; THENCE RUN N60'50'07'W A DISTANCE OF 119.48 FEET; THENCE RUN
S86'04'53'W A DISTANCE OF 186.65 FEET; THENCE RUN 509'51'29'W A DISTANCE OF 3.05 FEET; THENCE RUN
N38'52' 1 I V A DISTANCE OF 121.02 FEET; THENCE RUN S51' 16'44W A DISTANCE OF 5.00 FEET TO A POINT ON THE
AFOREMENTIONED NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD; THENCE RUIN ALONG THE
SAID NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD N38'43' 16'W A DISTANCE OF 73.56' TO THE
POINT OF BEGINNING,
CONTAINS 46.553 ACRES (2,027,848.65 SO. FT.), MORE OR LESS.
EXHIBIT
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BUILDING SUMMARY:
s
� �
euBQINc,-u LEVELs
o
LL
°
.'--
W TYPF UNITS Rn FT
1-BEDROOM
s
l ,
27 2,p21
2-BEDROOI.1 7B
RET IL-1 TAURANT 61 SIX)
z
a
2
TOTAL I61,076
u
iP'
/� yt JJ /
BDILDIHG 2-1]LEVEl51
uff-JYTE UNITS 50 FT
�
W i
/ / /
'
I -BEDROOM 43 ]5,16,
2-BEDROOM 1„ 1 dl]0
W n
Z D =
f /
/
. ' l
BEDROOM ,B m,065
DR-
AaIRisTwwNr dxQ
UI ..
Z F
W I¢ M w
TDTAL ]2d16B
J
TOTAL RE$IDEMIAL 15 m
TOTAL RETAIL I RESTAURANT y=
2 O
f fI +
TOTAL ]90,061
r JJJJJ i,
PARKING SUMMARY:
f Ai f
BUILDING,
PARKING REWIRED:
f
/
RESIDENTIAL: 175:PACE 1, BEDROOM UNIT ]I
1.T5 SPACESI2BEDROOMUNIT 137
13,.
2IAL PACES I ] B UNR
TOTAL RESIDENTIAL PARWHG REQUIRED
QUiAED 2N
RETAI ARIUNO REOUIREQ' 'IS
RESTAURANT PARKING REWIRED' Sfi
y
C�
I
TOTAL RETAILA]ESTAURANi PARKWG 101
Z
�FT
�^
I
iOTA[PNIAIND REWIREDo
G
I
W0.VE]IFI -
AV6'I5'T� I
PARKING PROVIDED:
GARAGE I(i LEVELS) RESDENTIAL 211
RETAILAiEST 48
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111111lINHui Bills III IIII IIII bl111II11111 [its III I III
MARYW E MORSEL CLERK OF CIRCUIT COURT
SEMIMIE COUNTY
BK W37 PIS OW - 6371 (19PRS)
CLERK'S # 2006075122
RECORDED 05/09/M 11i18iU AM
RECORDING FEES GLU
RECORDED BY H Bailey
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT
This TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT
(the "Permit") is issued by the CITY OF WINTER SPRINGS, a Florida Municipal Corporation
(the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to
by MAIN STREET ASSOCIATES, LLC., a Georgia limited liability company ("Main Street"),
whose address is 216 Seven Farms Drive, Suite 200, Charleston, South Carolina 29492, on this
,, 'yNay of April, 2006.
WrrNESSETH:
WHEREAS, Main Street has submitted final engineering plans and other site development
data and information to develop the Property depicted on the attached site plan, which plans and
data are currently being reviewed by the City for final approval; and
WHEREAS, pending final engineering approval, Main Street has requested that the City
permit preliminary site development work consistent with the submitted final engineering plans;
and
WHEREAS, although the final engineering plans have not been finalized and approved by
the City, said plans and the site development data and information submitted to -date are
sufficient enough for the City to issue a Phase IIA site development permit in order to allow
Main Street to perform a limited scope of preliminary site development work in advance of final
engineering approval under the terms and conditions stated herein; and
WHEREAS, substantial land clearing and restoration of the Property is specifically
contemplated and required by the City's Town Center policies and code in order to permit dense
development and a neo-traditional scheme of new tree -canopied streets and planned green
spaces; and
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
[� BROWN, GARGANESE City of Winter Springs and Main Street Associates, LLC
�L -I-
Post Office Box 2873
Orlando, Florida 32802-2873
WHEREAS, in furtherance of this request, the City desires to permit a limited scope of
Phase IIA site development work under the terms and conditions stated herein and agreed to by
Main Street;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties mutually agree to the terms and conditions set forth under this Permit as
follows:
1.0 Recitals. The foregoing recitals are true and correct and are hereby full incorporated
herein by this reference.
2.0 Scope of Work. The scope of this Permit is limited to the following preliminary site
development work on the Property:
2.1 Demolition. The demolition and removal of any existing fences,
debris, etc. necessary to accomplish the work hereinafter detailed.
2.2 Removal of Vegetation. The removal of any existing trees, stumps and other
vegetation which will not be preserved on the Property.
2.3 Removal of Unsuitable Soils. The removal of any unsuitable soils.
2.4 Dewatering. The dewatering of any existing surface and/or
ground water necessary for site development as described herein.
2.5 Grading/filling. The grading and filling of the Property in
furtherance of the planned development.
All preliminary site development work shall be performed and completed within one
hundred and twenty (120) calendar days after the Effective Date of this Permit (as hereinafter
described) and in accordance with all applicable local, state, and federal laws, regulations, and
permits. The completion date may be reasonably extended by the City Commission upon good
cause shown. Any site development work not specifically authorized hereunder is hereby strictly
prohibited. Main Street shall be required to obtain other City permits required to implement the
work authorized by this Agreement, including, but not limited to, demolition and arbor permits,
and said 120-day period shall be extended for such period of time as such implementation may
be delayed in order to obtain such other City permits. During the term of this Permit, the City
and its agents shall have the unconditional right of entry onto the Property to conduct inspections
to determine compliance with the terms and conditions of this Permit.
3.0 Conditions Precedent to Commencement of Work. Prior to commencing the work
set forth in section 2.0, the following documents shall be submitted by Main Street to the City in
a form acceptable to the City:
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agiix imt
City of Winter Springs and Main Street Associates, LLC
-2-
3.1 Sketch Plan. A sketch plan depicting the preliminary site development work
authorized under section 2.0 and a stabilized construction entrance.
3.2 Construction Vehicle Routing Plan. A construction vehicle routing plan which is
designed to provide for a safe and convenient route for construction vehicles and equipment to
go to and from the Property. Said plan is subject to reasonable modification by the City Manager
in order to safeguard persons and property.
3.3 Other Government Agency Permits A copy of any and all required permits issued
by any other government agency.
3.4 Engineer Certifications. A written certification from the appropriate project
engineer and/or consultant documenting that the work authorized under section 2.0 is in
compliance with applicable environmental laws, including, but not limited to, laws applicable to
endangered or threatened species, artesian water wells, hazardous materials, and historical
artifacts.
Main Street shall have the duty to keep updated and current plans, permits, and
certifications on file with the City during the term of this Permit. This Permit shall not become
effective until such time as the City receives and approves the documents required by this section.
4.0 Permit Fee. Upon issuance of this Permit, Main Street shall pay the City's standard
construction inspection fee equal to one percent (1%) of the estimated construction value of the
work authorized by section 2.0.
5.0 Default; Restoration of Property. The City reserves the right to revoke or suspend
this Permit if the City determines that Main Street is not in compliance with the terms and
conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Main
Street with written notice identifying any default of the Permit terms and conditions. Upon
receipt of the notice of default, Main Street shall have five (5) business days to cure the default
to the City's reasonable satisfaction unless additional time is granted by the City Manager. If
Main Street fails so to cure the default, the City shall have the right to revoke or suspend this
Permit. If the City suspends or revokes the Permit, Main Street shall immediately work to secure
the Property to a safe condition to the City's reasonable satisfaction so that the Property does not
become a public nuisance or a health and safety hazard. At the City's discretion, such work may
include, but not be limited to, removal of debris and vegetation, grading of the Property,
mulching , seeding, erecting sand barriers, fencing, and other activities to stabilize the Property
from erosion. If Main Street fails to properly restore the Property within a reasonable period of
time, the City shall have the right to make claim to and use the Phase IIA Security (as hereinafter
described) to complete such work. In the event the amount of the Phase IIA Security is not
sufficient to cover the City's expense for such work, Main Street agrees, upon written notice by
the City, to reimburse the City for any incurred expenses not covered by the Phase IIA Security.
If Main Street fails to fully reimburse the City, the City shall have the right to record, with the
Seminole County Clerk of the Court, an assessment lien on the Property for any such un-
reimbursed expenses.
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-3-
6.0 Security. Upon issuance of this Permit, Main Street shall post a performance bond,
irrevocable letter of credit letter of credit, or escrow deposit with the City in the amount of
Twenty -Five Thousand and No/100 Dollars ($25,000.00) as security that the work authorized
and required by this Permit is performed and completed in full compliance with any and all terms
and conditions of this Permit ("Phase IIA Security"). If the Phase IIA Security is a bond or
irrevocable letter or credit, it shall be issued by a company or bank, and in a form, acceptable to
the City Manager and the City Attorney.
7.0 Indemnity, Release, Hold Harmless. Main Street hereby agrees to indemnify,
release, and hold harmless the City and its commissioners, employees, and attorneys from and
against all claims, losses, damages, personal injuries (including but not limited to death), or
liability (including reasonable attorneys fees and costs through all appellate proceedings),
directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of
this Permit; and (2) any work performed under this Permit, including, but not limited to any and
all acts and omissions of Main Street and its contractors.
8.0 Representations and Warranties. Main Street represents and warrants that the
work authorized by this Permit is being performed with the knowledge and understanding that
said work is being done prior to final engineering approval by the City and that final engineering
approval may be denied by the City or result in additional site development not contemplated by
this Permit. Main Street agrees that they are assuming the full and complete risk that final
engineering may de denied by the City or additional site development work may be required and
may include modification of the work performed under this Permit.
9.0 No City Representation and Warranties. Main Street acknowledges and agrees
that, although this Permit indicates that the City is considering final engineering approval for the
Property, the City in no way represents or warrants that the City has approved or will approve
said plans.
10.0 Prior Consent Required for Transfer of Permit. This Permit is not transferable or
assignable without the prior consent of the City Commission.
11.0 Applicable Law. This Permit shall be governed by and constructed in accordance
with the laws of the State of Florida.
12.0 Amendments. This Permit shall not be modified or amended except by written
agreement duly executed by both parties hereto and approved by the City Commission.
13.0 Entire Permit Agreement. This Permit is issued in furtherance of the Development
Agreement.- However, this Permit supersedes any other agreement, oral or written, and contains
the entire agreement between the City and Main Street as to the specific work authorized under
section 2.0 of this Permit.
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-4-
14.0 Severability. If any provision of this Permit shall be held to be invalid or
unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional
right to declare this Permit null and void and require that the work authorized by section 2 be
immediately stopped.
15.0 Effective Date. This Permit shall become effective upon approval by the City
Commission, execution of this Permit by all parties hereto, and the completion of the conditions
precedent set forth in section 3.0 of this Permit ("Effective Date").
16.0 Relationship of the Parties. The relationship of the parties to this Permit is
contractual and Main Street is no 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.
17.0 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, 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 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.
18.0 City's Police Power. Main Street agrees and acknowledges that the City hereby
reserves all police powers granted to the City by law, particularly with respect to whether or not
the City Commission will approve the final engineering plans for the Property. In no way shall
this Permit be construed as the City bargaining away or surrendering it police powers.
19.0 Third -Pa Rights. This Permit is not a third -party beneficiary contract and shall
not in any way whatsoever create any rights on behalf of any third party.
20.0 Attorneys Fees. Should the City take any action to enforce this Permit, Main Street
agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and
costs, through all appellate proceedings, in connection with said enforcement.
21.0 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
Permit. The failure of this Permit to address any particular City, County, State and/or Federal
permit, condition, term or restriction shall not relieve Main Street 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,
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-5-
suspend, or terminate any and all other permits for the Property in the event that Main Street
shall be in default hereunder beyond any notice and cure period, if any,
[SIGNATURE BLOCKS BEGIN ON NEXT PAGE]
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-6-
1
IN WITNESS WHEREOF, the parties have hereunto set their han(,�,Ind sell.- p the date
first above written. ��� 1D -, >
CITY OF WI�• NG%,
By:,,, 14F
J F. Bush; IvI�� v� ° • • • •c ��.1�� • -
. J
ATTE T:
By:
Andr orenzo Luaces, City Clerk
CITY SEAL
STATE OF FLORIDA
COUNTY OF SEMINOLE
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
Date: I
y,>-V/04
By:
nthony anese, City Attorney for the
City of Winter Springs, Florida
Personally appeared before me, the undersigned authority, John F. Bush and Andrea
Lorenzo Luaces, well know to me be the Mayor and City Clerk respectively, of the City of Winter
Springs, Florida, and acknowledged before me that they executed the foregoing instrument of
behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to
do so.
Witness my hand and official seal this
(NOTARY SEAL)
day of
Notary Public
My commission expires:
2006.
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-7-
Signed, sealed and delivered in the
presence of the following witnesses:
Signa Witness
pv-
Printed Natne of Witness
��.
Signatureot Witness
Printed Name of Wftnrss
STATE OF B -5Pu-tk Cc-cD I Ak1C.-
COUNTY OF M&&?t=V
MAIN STREET ASSOCIATES, LLC., a
Georgia limited liability company
By: Main Street Investors, -L.LC., Georgia
limited liability company
its Manager
��A�
The foregoing instrument was acknowledged before me this �2�7`day of
tlp—" L— , 2006, by Robert J. Doran, Jr., as Manager of Main Street Investors, LLC., a
Georgia limited liability company, the Manager of MAIN ST
KEET ASSOCIATES, LLC., a
Georgia limited liability company. He is ersonally lcno to me or has produced
as identification.
(NOTARY SEAL)
(Notary Public Signature)
(Print Name)
Notary Public, State of b
Commission No.
My Commission Expires:
TOWN CENTER PHASE IIA SITE DEVELOPMENT PERMIT AGREEMENT (2).DOCTown Center Phase IIA Site
Development Permit Agreement
City of Winter Springs and Main Street Associates, LLC
-8-