HomeMy WebLinkAbout2010 01 25 Regular 601 Winter Springs Holdings, Inc. Phase II Amend Recorded Implementation Agreement COMMISSION AGENDA
Consent
ITEM 601 Informational
Public Hearing
Regular x v
1 ?/I
January 25. 2010 MGR. /DEPT.
Regular Meeting Authorization
REQUEST: The City Attorney requests the City Commission provide direction regarding the request
made by the current property owner (Winter Springs Holdings, Inc.) of the Winter Springs Town Center
Phase II property to amend the recorded Implementation Agreement related to the development of the
property.
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 Tuscawilla Road behind
McDonalds east towards the trail bridge. Phase II-A has received final engineering approval by the City
Commission. Due to the recent recession, 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. The
property owner's request raises a series of very complicated issues in light of the long history associated
with the subject property and the Town Center project. Based on several meetings between the City
Attorney, City Staff and the new owner to discuss these issues, the new owner has submitted a formal
request to the City Commission requesting that the Agreement be amended. Several options are
presented for the City Commission's consideration: Option A (Approve the request and amend the
Agreement as outlined in the agenda item); Option B (Approve the request by the City exercising its
unilateral right to terminate the Agreement); or Option C (Deny the request and maintain the existing
Agreement).
CONSIDERATIONS:
Background
1. On July 10, 2006, the City Commission approved Final Engineering Plans for Phase II-A of the
Winter Springs Town Center subject to the completion of an Implementation Agreement.
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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.
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
including allowing the property owner to change the minimum mix of uses and street network required to
be built under the Agreement. After careful consideration, City Staff determined that the proposed
amendments to the Agreement were not in the City's best interests due to the fact that the City
Commission had already approved final engineering plans for the project. In other words, City Staff felt
that the proposed amendments to the Agreement, if approved, could not be reconciled with the already
approved final engineering plans and would have made the final engineering plans approved by the City
Commission obsolete and worthless. The City Commission was kept advised of the City's position and
was periodically updated at previous Commission meetings.
6. Thereafter, the City Attorney and staff continued discussions with the property owner's
representatives. During these discussions, the City was able to finalize the closing on the Magnolia Park
Expansion property required by the Agreement, and the City Commission approved an impact fee credit
agreement related to the closing. In addition, the discussions between the parties evolved into
considering how best to accommodate the property owner's need for flexibility to attract a future buyer
and/or developers for the property in this economic climate, and the City's need to secure the agreed
upon infrastructure related to the Town Center Master Plan (Spine Road; Neighborhood Parks; Magnolia
Park Expansion), as well as the City's continued use of portions of the property owner's vacant land for
Town Center parking and special events.
Spine Road (Michael Blake Boulevard)
7. The Town Center Master Plan has always included the future construction of Spine Road (now
named Michael Blake Boulevard) as a major collector road running from State Road 434, north around
Wetlands Park to Tuscawilla Road. The road is important for the future development of the Town
Center, particularly for the vacant land east of Tuscawilla Road. The future construction of Spine Road
not only provides ingress /egress benefits to the subject property, but will also provide such benefits to
other property to the north including the undeveloped Engle Site and existing development along the
northern portion of Tuscawilla Road (e.g. St. Johns Landing) and Orange Avenue. Since the original
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REGULAR AGENDA ITEM "601"
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development agreement for the property was negotiated between Schrimsher and the City on July 26,
2000, the owner of the property has agreed to convey the real property necessary to build Spine Road at
such time the property was developed.
8. Relative to Spine Road, Paragraph 6.2 of the Agreement requires the property owner to design and
permit the road. The Agreement also provides a schedule to complete the permitting and construction of
the road. The Agreement also provides that if the property owner fails to commence construction of the
road within the scheduled time frame, the City has the right to construct the road in accordance with the
plans prepared by the property owner. Furthermore, the property owner agreed to convey Spine Road to
the City. In exchange, the City agreed to reimburse the property owner for the "reasonable costs"
associated with the design, permitting, and construction of the road including wet detention, stormwater
conveyance systems, and wetland mitigation costs.
Spine Road Reimbursement Engineering Costs
9. While the former property owner substantially completed the design and permitting of Spine Road,
the design and permitting have not been fully completed and the road has not been constructed. As part
of the recent discussions with the property owner, the City Engineer has had discussions with the
property owner's engineer (Lochrane Consulting Engineers) to determine the status and completeness of
the permits and plans for Spine Road.
10. The City Engineer has completed a general assessment on the permits and plans for Spine Road.
Based on discussions with Lochrane, it appears that the plans have been updated and are almost ready to
be resubmited to the City for final approval. Further, Lochrane has confirmed that the approximate 8.99
acres of wetlands that would be impacted by the construction of Spine Road have been mitigated with the
SJRWMD by means of a conservation easement recorded on the 120 acre Bergman Mitigation Tract.
However, the permit required by FDOT for the SR 434 intersection has not been obtained.
11. Should the property owner complete its obligation to design and permit Spine Road, Lochrane
estimates that the reimbursement amount owed by the City under the Agreement would be approximately
$272,536.00. The City Engineer has reviewed Lochrane's invoices, and has prepared several technical
comments that could potentially reduce that amount by approximately $50,000.00.
Property Owner Request and Options
12. The Town Center Phase II Plan is an ambitious two phase project. However, given the current real
estate market in Florida, it appears that it is very unlikely that these ambitious plans will be implemented
as currently approved, and adjustments will need to be made as the market permits development to
resume. As such, the property owner's attorney has requested through the City Attorney, by letter dated
December 30, 2009, that the property be released from the terms and conditions of the Agreement in
order to make the property "competitive for development in a very tight market."
13. As explained below, the City Commission has the discretion to approve or deny the property owner's
request.
14. If the City Commission desires to approve the request, the City Commission has two (2) options:
(1) Exercise the City's unilateral right to terminate the Agreement, without notice or penalty,
under paragraph 33.0 of the Agreement. In which case, the property is relieved of the Agreement
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REGULAR AGENDA ITEM "601"
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and prior approvals are terminated. However, the City would forego any future benefits provided
in the Agreement, or potentially forego the opportunity to receive the benefits outlined in
paragraph 14 (2), below, in an amended agreement; or
(2) Negotiate a new agreement which ensures the City receives the following important
considerations:
A. The City will be permitted to maintain temporary unpaved, stabilized parking for the Town
Center over portions of the property, as long as those portions remain undeveloped.
B. On an on -going basis, the City will be permitted to use portions of the property for future
Town Center special events, such as Hometown Harvest. Said use will be substantially similar to
the terms and conditions previously agreed to between the parties on a case -by -case basis.
C. Subject to reimbursement by the City, the property owner will direct Lochrane Engineering
to complete, and submit to the City, the plans and specifications for final approval of Spine Road
(Michael Blake Boulevard). The plans and specifications will be assigned to the City with all
rights and benefits. Relevant to the plans, the property owner must also agree to allow the City
to modify the SJRWMD permit for the property (if necessary), and allow the City to enter and
use the property for construction and maintenance of drainage facilities as shown on the Michael
Blake Boulevard plans.
D. Upon final approval of the plans and specifications for Michael Blake Boulevard, the
property owner will immediately convey to the City the land required to build the portions of
Michael Blake Boulevard.
E. The property owner will continue to be obligated to convey Neighborhood Parks 4
(minimum .42 acres) and #5 (minimum .44 acres) on the property. The parks will be conveyed at
such time the City determines the parks are needed in conjunction with the development of the
property.
15. If the City Commission desires to approve the property owner's request and require a new
agreement, the City Attorney and staff will work with the property owner to prepare a new agreement to
incorporate the terms and conditions generally set forth in paragraph 14 (2) above. The new agreement
will be brought back to the City Commission for final approval. Once the new agreement is approved
and fully implemented, the City would then reimburse the property owner for the design and permitting
of Spine Road and 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.
16. On the other hand, if the City Commission denies the property owner's request, the property will
continue to be subject to the terms and conditions of the Agreement. If the property owner wants to
develop the property contrary to the terms and conditions of the Agreement, the property owner will be
required to propose a specific amendment to the Final Engineering Plans and the Agreement. The impact
of any proposed amendment can not be determined until the property owner submitted an actual
amendment to the plans. Any proposed deviations from the Final Engineering Plans and Agreement
would require the parties to negotiate an amendment to the Agreement at the time the deviation is
proposed.
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REGULAR AGENDA ITEM "601"
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17. In sum, the City Attorney and City Staff are requesting direction from the City Commission
regarding the following options:
OPTION A: Approve the property owner's request subject to negotiating a new agreement as
generally outlined in paragraph 14 (2).
OPTION B: Approve the property owner's request by exercising the City's unilateral right to
terminate the Agreement.
OPTION C: Deny the property owner's request and maintain the existing Agreement at this
time.
FISCAL IMPACT:
The fiscal impact varies depending on which option the City Commission chooses.
OPTION A (Approve/New Agreement)
1. Subject to final verification by the City Engineer, the City would incur approximately
$272,536.00 to reimburse the property owner for the design and permitting of Spine Road
(Michael Blake Boulevard).
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 City receives the value associated with the land conveyed to the City for Spine Road
and Neighborhood Parks #4 and #5.
4. The City receives the value of a long term commitment to use portions of the vacant land
for Town Center parking and events.
OPTION B (Approve/Unilaterally Terminate Existing Agreement)
The City relieves itself of all remaining financial commitments under the Agreement. However,
the City loses the benefits under the Agreement including the design and permitting of Spine
Road and the value of the land necessary to build Spine Road. The City also loses the value of
the land for Neighborhood Parks #4 and #5. Further, the City loses other potential benefits under
a new agreement.
OPTION C (Deny/Maintain Existing Agreement)
The City maintains the existing financial commitments under the Agreement including
reimbursement for the design and permitting of Spine Road and the public parking spaces in the
garages.
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REGULAR AGENDA ITEM "601"
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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.
2. The presentation of this agenda item was scheduled with the property owner's
representative. 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.
RECOMMIENDATIONS:
The City Attorney and City Staff recommend the City Commission provide direction
regarding the property owner's request. If the City Commission desires to approve the request,
the City Attorney and City Staff recommend Option A because it furthers the long standing
Master Plan for the Town Center and offers other significant value to the City.
ATTACHMENTS:
1. December 30, 2009 Letter to the City Attorney from Attorney Julie Kendig- Schrader
2. Winter Springs Town Center Phase II Implementation Agreement
DEC. 30. 2009 10.16AM GREENBERG X1'0.691 P. 2
GT GreenbergTrau ig
Julie P. Kondig- Seliadc
Tel. 407.411.2417
Fax 407 420 5909
X.endigygtlaw,com
December 30, 2009
1
Anthony A. Garganese, Esq.
1
Brown, Garganese, Weiss D'Agresta, P.A.
Post Office Box 2873
Orlando, Florida 32802 2873
Re: Winter Springs Town Center, Phase II, Implementation Agreement
Dear Anthony:
As we have discussed ilreviously, I am writing to request that the City consider
terminating the Implementatio Agreement and associated development agreements that
currently encumber the prope that is owned by Winter Springs Holdings, commonly
referred to as Phase II of the inter Springs Town Center "Phase II In this changing
real estate market, flexibility i critical and the presence of the agreement terms limiting
the development options for Ph se II beyond the parameters of the City zoning code make
this property less competitive for development in a very tight market. Most of the
provisions of the Irnplementatio Agreement for the Phase II property have either expired
or been satisfied. That said, oiir client understands that there are three provisions of the
Implementation Agreement than are still significant and would be willing to enter into a
separate agreement to addressl those obligations. Specifically, Section 4.5 governing
temporary parking, Section 6.2 overning the Spine Road and Section 8.0 governing small
neighborhood parks will be thelsubject of a stand alone agreement between our clients to
ensure the continuation of these existing obligations.
1
We respectfully request that this request be placed on the January 11, 2010 agenda
of the Winter Springs City Corission for discussion. Thank you very much for your
consideration.
Sincerely,
GREENBERG TRAURIG, P.A.
J e P. Kendig Schrader b
JPK.
cc: Mr. Brian Love
Robert J. Lochrane, P.E.
Jeaninne R. Shavitz, Esq
TCOK NDIG358,217,92Bv 1 12 -30-09
GREENBERG TRAURIG, P.A. ATTORNEYS AT LAW WW W.GTLAW.COM
450 South Orange Avenue Suite 650 Orlando, F 32801 a Tel 407,420.1000 Fax 407.420.5909
WINNE 1 1R:> CLEW OF UK 111T CWifi
SSe#It COUNTY
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CLERK'S 4 Ewoo, 8 58
THIS INSTRUMENT WAS PREPARED BY :REQRDF31 W23Ic 7 69:2'3:35.
AND SHOULD BE RETURNED TO: RELffl DINS FEES 188.56
RIIRDED BY L Nd inley
Anthony Garganese
City Attorney of Winter Springs
Brown, Garganese, Weiss D'Agresta, P.A.
IL./ 225 E. Robinson St., Suite 660
Orlando, FL 32801
(407) 425-9566
WINTER SPRINGS TOWN CENTER PHASE II
IMPLEMENTATION AGREEMENT
THIS WINTER SPRINGS PHASE II IMPLEMENTATION AGREEMJ NT (the
"Phase II Implementation Agreement is made and entered into this 20` 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 N
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
EXHIBIT "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, L'I'D.,
Schrimsher Land Fund V, LID., 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, T}OEREFORE, 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 Project.
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 11-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
To Center Phase I1 Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-2-
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 Requirements. MSA agrees to design, engineer, construct, and maintain
parking spaces for the Project as follows:
4.1 Phase H Parking Required By MSA's Development Plans. The following
applies to Phase II -A:
Town Center Phase 11 Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-3-
(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 ll -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 (110) 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 emits, 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 II 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
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-4-
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:
Town Center Phase 11 Implementation AD
City of Winter Springs and Main Street Associates, LLC
-5-
(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 arties acknowledge and agree that since the Project is a very large development
acknowledge gT J ry ment g
P
that will span the course of several years, conditions outside the control of MSA may impede
MSA's ability to construct the 13 Building within the time frame intended. As such, the
parties desire to agree on the following contingency plan for the construction of the Bnffer
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 II A and II Infrastructure Improvements. The following conditions
shall apply to certain Phase II A and II B public infrastructure improvements:
6.1 Compliance with Applicable Laws; Timing. Except as specifically stated herein
to the contrary, all Phase II-A and II-B public infrastructures will be built in accordance with all
applicable laws, codes, regulations, and special conditions established by the City. 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 grees 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 tum 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
k DOT. The Spine Road right -of -way shall be located as shown in EXHIBIT `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 en 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 EXHIBIT "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 gees 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
q P q
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 11 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 II 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 Parks. 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 Expedited Permitting. 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 ll -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 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 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 II 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 Tree Removal. The City Commission hereby approves of the removal
of the specimen trees (24" or greater trunk diameter at 12" above grade) located on the Phase II
Property, provided that in addition to the standard Arbor Permit Fee, 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
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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 Signage. 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 tum 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-
0A00-007B "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
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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 govemed 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 t� the subject matter
hereof. The Exhibits attached hereto and referenced herein are hereby fully incorporated herein
by this reference.
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21.0 Severability. 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 76828, 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
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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 Attorney's Fees. In connection with any arbitration or litigation arising out of
this Phase II Implementation Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs through all appeals to the extent permitted by law.
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 II-A of the Project within three (3) years of the
effective date of this Phase II Implementation Agreement. If the City terminates this Phase II
Implementation Agreement, the City shall record a notice of termination in the public records of
Seminole County, Florida
34.0 Force Majeure. 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.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the
date first above written.
CITY OF WINTER SPRINGS
By: �d
Jo Bush, Mayor
ATTE T:
1
By:
Andre `Lorenzo Luaces, City Clerk
.1 APPROVED AS TO FORM AND LEGALITY
`For the use and reliance of the City of Winter
Springs, Florida, only.
v r. Da ted:
5
IT�SEAL
r Anthony Garganese, City Attorney for
the City of Winter Springs, Florida
Town Center Phase II Implementation Agreement
City of Winter Sprins and Main Street Associates, LLC
16
Signed, sealed and delivered in the MAIN STREET ASSOCIATES, LLC, a
presence of the following witnesses: Georgia limited liability company
By: Main Street Invest C, a Georgia
�t r1 e limited liabiiompany, i sole member
Si e,9flAri■esp nirtrick
Printed N. 'se of Wi etfl ss B
Y:
Print ame: ertCYbo#,, Jr.
Title:
Signature of Witness
.+d iehael Alan sson
Printed Name of Witness
STATE OF SOUTH CAROLINA
COUNTY OF e
The foregoing instrum ent was acknowledged before me this ,),Y day of danU.a r L
2007, by Robert J. Doran, Jr., Manager of Main Street Investors, LLC, a Georgia limited liability
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 Sig' e)
P (Print Name)
o 140 tio Notary Public, State of SO Oh
Commission No.: rJif
P UBLIC' My Commission Expires: 02/i /20i(o
H o f l AR' P```
"nut n►s
Town Center Phase II Implementation Agreement
City of Winter Springs and Main Street Associates, LLC
-17-
t
LEGAL DESCRIPTION:
A PORTION OF L075 7 AND 8. BLOCK 'A D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
SAID LANDS LYING IN SECTION 31, TOWNSHIP 20 SourH, RANGE 31 EAST AND SECTION 6, TOWNSHIP 21 SOUTH,
RANGE 31 EAST, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC
40 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 53813'34"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 N30'04'55 "E A DISTANCE OF 258.26 FEET TO A POINT ON THE
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'E. ALONG SAID EASTERLY RIGHT OF WAY
LINE, A DISTANCE OF 55.62 FEET FOR A POINT OF BEGINNING; THENCE CONTINUE N307/4'56 "E, ALONG SAID
EASTERLY RIGHT OF WAY UNE. 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 512'25'14 -W, SAID POINT ALSO BEING
ON THE WESTERLY UNE 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 S15'33'471 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 55701'44 "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 B (THE RAILS TO TRAILS CORRIDOR) AS DESCRIBED IN OFFICIAL RECORD BOOK 4092.
PAGE 164; THENCE CONTINUE 557'01'44 "E, ALONG SAID SOUTHERLY UNE. A DISTANCE OF 95.46 FEET; THENCE
RUN S54'37'S9 "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 SAIO CURVE THRU A CENTRAL
ANGLE OF 61'16'51" A DISTANCE OF 90.91 FEET 70 THE POINT OF REVERSE CURvATURE, SAID CURVE' 8EING
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 57743'04 "E A DISTANCE OF 187.98 FEET; THENCE RUN 546'13'52 "E A DISTANCE OF 177.70 FEET;
THENCE RUN 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 8; THENCE RUN 550'31'58"W. ALONG SAID
NORTHWESTERLY LINE, A DISTANCE OF 997.88 FEET TO A POINT ON THE NORTHEASTERLY RIGHT OF WAY UNE
OF STATE ROAD 434 (PER FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY MAP, SECTION 77070-
2516, SHEET 11 OF 13); THENCE DEPARTING SAID NORTHWESTERLY LINE RUN N38'43'16"W, ALONG SAID
NORTHEASTERLY RIGHT OF WAY UNE, 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
N37'00'5714; 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 551'16'44"W A DISTANCE OF 14.00 FEET; THENCE RUN
N33 43'16'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 1138'43'16"W A DISTANCE OF 308.12 FEET TO THE MOST SOUTHERLY CORNER OF THOSE
LANDS DESCRIBED 1N OFFICIAL RECORD BOOK 2803, PAGE 643; THENCE DEPARTING SAID NORTHEASTERLY
0 RIGHT OF WAY UNE RUN N30'04'56 "E. ALONG THE SOUTHEASTERLY UNE OF SAID PROPERTY. A DISTANCE OF
220.00 FEET; THENCE RUN N38'43'16"W, ALONG THE NORTHEASTERLY UNE OF SAID PROPERTY, A DISTANCE OF
200.00 I- LE i TO THE POINT OF BEGINNING.
TOGETHER WITH:
A PORTION OF LOTS 7 AND 8, BLOCK "A Q.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
SAID LANDS LYING IN SECTION 31, TOWNSHIP 20 SOUTH, RANGE 31 EAST AND SECTION 6. TOWNSHIP 21 SOUTH,
RANGE 31 EAST, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PACE 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 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 UNE OF TUSKAWILLA ROAD (FORMERLY KNOWN AS BRANTLEY AVENUE), AS
SHOWN ON SAID RIGHT OF WAY MAP, FOR THE POINT OF BEGINNING; THENCE RUN N50'31'581 A DISTANCE OF
1,033.48 FEET; THENCE RUN N39'28 02"W A DISTANCE OF 15.00 FEET; THENCE RUN N50'31'58 "E A DISTANCE OF
106.44 l- f; THENCE RUN 38303'12 "E A DISTANCE OF 94.74 FEET; THENCE RUN 54754'36 "E A DISTANCE OF 34.00
FEET; THENCE RUN 53759'33 "E A DISTANCE OF 57.62 FEET; THENCE RUN 568'24'08 "E A DISTANCE OF 52.48 FEET
.TO INC EASTERLY LINE OF BLOCK 'A D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP AS
RECORDED IN PLAT BOOK 1, PAGE 5; THENCE RUN 505'13'52'W ALONG SAID EASTERLY LINE OF BLOCK 'A" A
DISTANCE OF 251.46 FEET; THENCE DEPARTING SAD EASTERLY LINE OF BLOCK "A RUN 552'35'00'W A
DISTANCE OF 109.52 FEET; THENCE RUN S50'54'04'W A DISTANCE OF 11.72 FEET; THENCE RUN
522'01'13"W A DISTANCE OF 65.99 FEET; THENCE RUN S29'00'27"W A DISTANCE OF 44.28 FEET; THENCE RUN
552'03'03 "W A DISTANCE OF 9.60 FEET; THENCE RUN 528'03'23"W A DISTANCE OF 97.92 FEET; THENCE RUN
544'20'04 "E A DISTANCE OF 176.05 FEET THENCE RUN S37'21'37 "E A DISTANCE OF 71.69 FEET 70 A POINT ON THE
AFOREMENTIONED EASTERLY UNE OF BLOCK 'A THENCE RUN ALONG SAID EASTERLY UNE OF BLOCK A"
S05'13'52'W A DISTANCE OF 42.89 FEET; THENCE DEPARTING SAID EASTERLY UNE OF BLOCK 'A` RUN
N27'56'26"W A DISTANCE OF 41.29 FEET; THENCE RUN 1436'31'04'W A DISTANCE OF 54.59 FEET; THENCE RUN
N52'32'01"W A DISTANCE OF 245.40 FEET; THENCE RUN 589'06'27"W A DISTANCE OF 57.99 FEET; THENCE RUN
S66'37'02'W A DISTANCE OF 39.09 FEET; THENCE RUN $46'29'24'W A DISTANCE OF 41.50 FEET THENCE RUN
528'55'33"W A DISTANCE OF 34.27 FEET; THENCE RUN S10'02'16'W A DISTANCE OF 55.95 FEET THENCE RUN
S03'05'47'W A DISTANCE OF 52.29 FEET; THENCE RUN S07'51' 13"W A DISTANCE OF 30.86 FEET THENCE RUN
$00'47'47'W A DISTANCE OF 49.12 FEET; THENCE RUN 507'25'22"W A DISTANCE OF 52.87 FEET THENCE RUN
567716'OO'W A DISTANCE OF 15.29 FEET THENCE RUN 579'35'01'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
N38'52'11 "W A DISTANCE OF 121.02 FEET; THENCE RUN S51' 16'44"W A DISTANCE OF 5.00 FEET TO A POINT ON THE
0 AFOREMENTIONED NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD; THENCE RUN 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 (2,027,848,68 SQ. FT.), MORE OR LESS.
EXHIBIT
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EXHIBIT B SPINE ROAD LOCATION MAP
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