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HomeMy WebLinkAbout2010 02 11 Regular 600 Remove From Table And Provide Direction Regarding Town Center COMMISSION AGENDA Consent Informational I TEM 600 Public Hearing Regular A X 3-I fll February 11.2010 MGI . d lt�!! PT. Special Meeting Authorization REQUEST: The City Attorney and the Community Development Department requests the City Commission remove this item from the table and then 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 Tuskawilla Road behind McDonalds east towards the Cross Seminole Trail bridge. Phase II -A has received final engineering approval by the City Commission. Due to the recent economic downturn, the prior owner was not able to commence construction of Phase II -A as required by the Agreement. Ultimately, the prior owner was required to convey the property to its lender (International Brotherhood of Electric Workers Pension Fund, aka Winter Springs Holdings, Inc.) by special warranty deed on September 12, 2007. The new owner has informed the City that they believe the terms and conditions of the Agreement make the property less competitive for development in the current real estate market, and that they would like to amend the Agreement. 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 (Lochrane Engineering Plans, dated June 30, 2006) subject to the completion of an Implementation Agreement. The approved plans for Phase II -A only require the construction of 312 condominium units, 33,240 square feet of retail /restaurant space, two parking garages, and other related roadways and infrastructure improvements. SPECIAL MEETING - FEBRUARY 11, 2010 REGULAR AGENDA ITEM "600" PAGE 2 OF 6 2. In January of 2007, the City and the former property owner approved the Implementation Agreement. The Implementation Agreement was recorded in the Official Records of Seminole County Florida on February 23, 2007. The intensity of the development for the entire Phase II development consists of 383,000 square feet of retail, 465,000 square feet of office, and 935 multi - family units, all in buildings of six (6) stories in height. 3. On September 12, 2007, the previous owner conveyed the property to the lender, the International Brotherhood of Electrical Workers Pension Benefit Fund, and the property is now held by the lender in the name of Winter Springs Holding, Inc (hereinafter sometimes referred to as "property owners "). 4. Paragraph 33.0 provides that the "City shall have the unconditional right, but not obligation, to terminate this Agreement, without notice or penalty, if the [property owner] fails to receive building permits and substantially commence construction of Phase II -A of the Project within three (3) years of the effective date of the [Agreement]. While small secondary portions of the Agreement have been implemented, the prior and current property owners have not pulled any building permits to complete the Project, as set forth in the Final Engineering Plans and the Agreement. Therefore, as written, the City Commission now has the unilateral right to terminate the Agreement if it so desires. 5. As previously reported to the City Commission, the City Attorney and City staff were approached by the property owner's representatives to discuss the current status of the Agreement. During the summer of 2009, the property owners proposed several amendments to the Agreement which were designed to afford the property owner more flexibility in marketing and developing the property in the future 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 development SPECLAL MEETING - FEBRUARY 11, 2010 REGULAR AGENDA ITEM "600" PAGE 3 OF 6 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 EnRineerinf 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 $250,000.00. The City Engineer has reviewed Lochrane's invoices, and has prepared several technical comments that could potentially slightly reduce that amount. 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 and prior approvals are terminated. However, the City would forego any future benefits provided SPECIAL MEETING - FEBRUARY 11.2010 REGULAR AGENDA ITEM "600" PAGE 4 OF 6 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 at least 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. F. Other considerations deemed necessary by the City Commission. 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 and/or as directed by the City Commission. The new agreement will be brought back to the City Commission for final approval. Assuming a new agreement is approved and fully implemented as outlined in paragraph 14(2), 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 cannot be determined until the property owner submits 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. SPECIAL MEETING - FEBRUARY 11, 2010 REGULAR AGENDA ITEM "600" PAGE 5 OF 6 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 $250,000.00 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 construction costs related to Spine Road (approx. $900,000.00) will be deferred to a time uncertain rather than subject to the terms of the current Agreement. 4. The City will be relieved of the reconstruction of east Tuskawilla Road sidewalks and parking ($250,000.00). 5. The City will be relieved of the relocation of water mains along east Tuskawilla Road ($50,000.00) 6. The City receives the value associated with the land conveyed to the City for Spine Road and Neighborhood Parks #4 and #5. 7. The City receives the value of a long term commitment to use portions of the vacant land for Town Center parking and events. 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 SPECIAL MEETING - FEBRUARY 1 1.2010 REGULAR AGENDA ITEM "600" PAGE 6 OF 6 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 ($250,000.00), the public parking spaces in the garages ($930,000.00), Spine Road construction costs ($900,000.00), relocation of water main ($50,000.00), and reconstruction of Tuskawilla Road sidewalks and parking ($250,000.00). 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. RECOMMENDATIONS: 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 3. Winter Springs Town Center Phase II Map DEC. 30. 2009 10:I6AM GREENBERG NO. 891 P. 2 GT GreenbergTrau ig Julie P. Y•nei•Sehada Tel. 407.413.2417 Fez 407.420.5909 F4edise3t1•w.e•en December 30, 2009 Anthony A. Garganese, Esq. Brown, Garganese, Weiss & D' gresta, 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 rreviously, 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 is 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 Implemented.. Agreement for the Phase II property have either expired or been satisfied. That said, o client understands that there are three provisions of the Implementation Agreement tha are stilt significant and would be willing to enter into a separate agreement to address 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 the subject of a stand alone agreement between our clients to ensure the continuation of these xisting obligations. We respectfully request • =t this request be placed on the January 11, 2010 agenda of the Winter Springs City Co • ission for discussion. Thank you very much for your consideration. Sincerely, GREENBERG TRAURIG, P.A. J e P. Kendig - Schrader G JPK cc: Mr. Brian Love Robert J. Lochrane, P.E. Jeaninne R. Shavitz, Esq TCOKENDI0358,217,928v 1 12.30 -09 GREENBERG TRAURIG, R A. • ATTORNEYS AT LAW WW W.GTLAW.COM 450 Sarah Orange Averue • Suite 650 • Orlando, F 32801 . Tel 407.420.1000 • Fa 407.420.5909 M>ARYANNE !g!! , CLERK OF CIRCUIT COURT IINOL.E COUNTY K 16599 Pp 1705 - 1726; Lapps) CLERK'S * 20070281158 THIS INSTRUMENT WAS PREPARED BY .RECORDFf 18/83/'2417 eStE9IM AN AND SHOULD BE RETURNED TO: RECORDING FITS 186.51 RECORDED 8Y l McKinley Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. lei 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425 -9566 WINTER SPRINGS TOWN CENTER PHASE II IMPLEMENTATION AGREEMENT THIS WINTER SPRINGS PHASE II IMPLEMENTATION AGREEMENT (the "Phase II Implementation Agreement ") is made and 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 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 EJHIIBIT "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 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 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 Each Town Center Phase 11 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 U -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 A Parking Required By MSA's Development Plans. The following applies to Phase II-A: Town Center Phase II 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 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 (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 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 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 Stmt 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 eamed 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 - 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 II Implementation Agreement 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 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 II -A and II-B Infrastructure Improvements. The following conditions shall apply to certain Phase U -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 Town Center Phase Il implementation Agreement City of Winter Springs and Main Strut Associates, LLC -6- 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 EXUIBIT "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 Town Center Phase D Implementation Agreement City of Winter Springs and Main Street Associates, LLC .7. 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 EXBIBIT t°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 Town Center Phase II Implementation Agreement City of Winter Springs and Main Street Associates, LLC -8- • 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. Town Center Phase 11 Implementation Agreement City of Winter Springs and Main Street Associates, LLC -9- 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. Town Center Phase Il Implementation Agreement City of Winter Springs and Main Street Associates, LLC 10 - 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 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 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 Tom Center Phase 11 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 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 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- 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 Town Center Phase 11 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 11 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 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 11 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 Citv'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 11 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 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 11 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 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 II 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. CITY OF WINTER SPRINGS , By: ASA—. X' -............./1 Jo i Bush, Mayor ATTE, T.. i By: . :.: _..... Andri orenth Luaces, City Clerk . , . APPROVED AS TO FORM AND LEGALITY .: Q., • , ' - ,..,.... . . .. t! For the use and reliance of the City of Winter Spring,s, Florida, only. : 4. 1) • r's : ''.,••>•• 1, - :':3 , • tota e er. Dated: 1 .3 0 7 "1' ..tgy SEAL 0 ;1 c> . - z•-. • c..) ; c s : ) .• -.,:•• . — :. -: . By: Anthony Garganese, City Attorney for % - ..t. . ,, . • ' .: the City of Winter Springs, Florida - - Town Center Phase 11 implementation Agreement City of Winter Springs 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 )west • ., C, a Georgia , to 1 limited liabili ' ompany, i s sole member Si iatil a 9f .! r i_ i / . � e tT C PrintedNs..eofWi ess By: 4 / ..e �. Prin :- s = ii. e: • ;ie e A . R o : Jr. Title:l'Ivlanager Signature of Witness ..t41 Mae? M an ssorl Printed Name of Witness STATE OF SOUTH CAROLINA COUNTY OF 13erkejeL The foregoing instrument was acknowledged before me this V of d uar 2007, by Robert J. Doran, Jr., Manager of Main Street Investors, LLC, a Georgia limited liabili company, as the sole Member of MAIN STREET ASSOCIATES, LLC, a Georgia limited liability company. He is personally known to me. (NOTARY SEAL) - LO tz.CL- (Notary Public Sign e) ``` i u nttnp rir ' c) NOTAR y (Print Name) Y Notary Public, State of S Oh Oa ttn , GP = Commission No.: NIA ' ° U B OO : . My Commission Expires: OVA I /ZD I (A Y '. o CAR.0. Is'- ' ' h ' rnanuu ►``t Town Center Phase 11 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, RRAANGE�315EAST. A CCORDING TO THE PLAT IP 20 AS REORDED1INE EAST 900KC1,OPAGE TOWNSHIP OFTHE2PUBLLIC H, Ali 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 RU TRANSPORTATION 3 2 DISTANCE OF 27 48 FEET n A O LON 77070-2516, E ANE SHEET OF 13. SHOWN STATION SAID RIGHT )O THENCE WAY MAP; THENCE DEPARTING SAID BASELINE RUN N30'04'56'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'S6'E. ALONG SAID EASTERLY RIGHT OF WAY UNE, A DISTANCE OF 55.62 FEET FOR A POINT OF BEGINNING; THENCE CONTINUE N30'04'561. ALONG SAID EASTERLY RIGHT OF WAY UNE. A DISTANCE OF 1279.13 FEET TO A POINT ON A NON- TANGENT CURVE CONCAVE ON THE WES E RLY UNE �OF C.S.X. 9TRANSPORTATION CHORD CORPORATED LAKE CHARM BRANCH" ALSO BEING POINT RAIL CORRIDOR; THENCE DEPARTING SAID RIGHT OF WAY UNE RUN ALONG SAID WESTERLY LINE AND ALONG THE ARC TANGENCY; THENCECRUN S115 33 47" A DIS TANCE OF 1013.17 6'17'06 FEE71 OISTANCE THE NORTHWEST CORNE OF POINT OF ASE PARCEL 2 AS DESCRIBED IN OFFICIAL RECORD BOOK 3988. PAGE 1095; THENCE DEPARTING SAID WESTERLY LINE ORTHEASTiCORNER�OF SAID THE RELEASE PNORTHERLY ARCEL 2. SAIDPOI RELEASE PARCEL 2, THSOUTHERLY 10 LINEET TO LINE OF ACQUISITION PARCEL B (THE RAILS TO TRAILS CORRIDOR) AS DESCRIBED IN OFFICIAL RECORD BOOK 4092. PAGE 554.37 THENCE A DIST OF 147.17 E 47 17 TO A POINTTUOFECURVATURE OF CONCAVE THENCE . ANG E E OF Y 61'16'51" A RADIUS NCE O85.00 1 FEET TO HE POINT GREVERSCCURVSAID CURVE 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 . 1 1'46" A DISTANCE OF 333.32 FEET TO HE POINT OF TANGENCY THENCE RUN 577'43'04 "E A DISTANCE OF 187.98 FEET; THENCE RUN S46 "E A DISTANCE OF 177.70 F EET ; THENCE RUN 532'50'43 "E A DISTANCE OF 862.97 FEET TO THE INTERSECTION OF SAID SOUTHERLY UNE AND THE NORTHWESTERLY UNE OF SAID ACQUISITION PARCEL 9; THENCE RUN S50'31'58'W, ALONG SAID NORTHWESTERLY LINE, A DISTANCE OF 997.88 FEET TO A POINT ON THE NORTHEASTERLY RIGHT OF WAY UNE OF STATE ROAD PE FLORIDA DEPARTMENT OF 2516. SHEET 11 OF 13)R THENCE DEPARTING SAID NOR TRANS LINE RIGHT OF WAY RUN N38'43'16 W. ALONG SAID O NORTHEASTERLY CURVE CONCA� SOUT WESTER DISTANCE HA G OF 431.17 FEET 7905 THE FEET AND CURVATURE CHOR EARING OF N3T00'57'W; THENCE RUN ALONG HE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 314'37" A DISTANCE N38 470.54 3 I6'W A ESTANCE END F 136.42 FEET O THE SOUTHEAS 551'16'44"W OER OFAAFORESAID OF FEET; THENCE RUN ; 2 E T N H C ENCE CONTINUE N38'43 6 A DISTANCE OF OF 308.2 FEETT TO THE SOUTHWEST SOUTOHERLY OF RELEASE PARCEL SE LANDS DESCRIBED IN OFFICIAL RECORD BOOK 2803, PAGE 643; THENCE DEPARTING SAID NORTHEASTERLY RIGHT OF WAY UNE RUN N30'04 E• ALONG THE SOUTHEASTERLY UNE OF SAID PROPERTY. A DISTANCE OF 220.00 FEET; T ; THENCE E N C POINT 3 '43' BEGINNING. 1 ALONG THE NORTHEASTERLY UNE OF SAID PROPERTY, A DISTANCE OF TOGETHER WITH: A PORTION OF LOTS 7 AND 8, BLOCK "A ", O.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP, R ANG LANDS 11 EAST, ACCORDING�TO THEOPLAT IP AS ,RECORDEDIIN EAST PLAT BOOK 5 W OF H THE 2 PUBUC H, RECORDS OF SMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD (PER FLORIDA DEPARTMENT OF RUN TRANSPORTATION 8'23'34'E A DISTAN E OF WAY 1729.58 SECTION EET ALONG 77070-2516, AS SHOWN ON O SAAID R RIGHT THENCE T OF NORTH EASTERLYCRIGHTPOFnWAY UNE OFETUSKA ILLA ROAD (FORMERLY KNOWN F AS 7 BRANTLEY AVENUE). THE SHOWN ON SAID RIGHT OF' WAY MAP, FOR THE POINT OF BEGINNING; THENCE RUN N50'31'58 E A DISTANCE OF 1,033.48 FEET; THENCE RUN N3918 Qo"2 A DISTANCE OF 15.00 FEET; THENCE RUN N50'31'58 "E A DISTANCE OF FEET; THENCE RUN DISTA DISTANCE 57.62 FEET; HENCE RUN C S 88'24'08 E DIS ANCE DISTANCE 0 . TO THE EASTERLY LINE OF BLOCK A , D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP AS RECORDED IN PLAT 80014 1, PAGE 5; THENCE RUN S05'13'52"W ALONG SAID EASTERLY LINE OF BLOCK "A" A DISTANCE OF 251.46 9.2 FEET; THENCE RU 550 54 04"W A 72 FEET; THEN S82"36 °° w A 552'03'03" A DISTANCE OF 65.9 9 FEET�_THENCEERUNN5529'00'27"W A 92 THENCE AFOREMENTIONED DISTANCE OF 176.05 FEET CIC THENCE ; ENCE RUN ALONGESAID DISTANCE EASTERLY UNE 6OF FEET t �OCK T AA POINT ON THE 505'13'52"W A DISTANCE OF 42.89 FEET; THENCE DEPARTING SAID EASTERLY LINE OF BLOCK A RUN N27'56 A DISTANCE OF 41.29 FEET,. THENCE RUN N3611'04"W A DISTANCE OF 54.59 FEET; THENCE RUN S66 37'02'W A DISTANCE OF 39 09 THENCE ERUNN546'29'24 -W AADISTANCEEOFF41.509FEETT ; THENCE RUN 528 "W A DISTANCE OF 34.27 FEET; THENCE RUN S10'02'16'W A DISTANCE OF 55.95 FEET; THENCE RUN 503'05'47'W A DISTANCE OF 52.9 FEET; THENCE RUN sorsi• 1'w A DISANCE OF 30.8 FEET; THEN RU 500'47'47"W A DISTAN E OF 49.12 FE: HECE UN S07'25'2 A DISTANCE 2.87 FET' THENCE UN S67'06 A DISTANCE OF 15.29 FEET ; THENCE RUN 579'35'01 W A DISTANCE OF 69.29 FEET; THENCE_ RUN 5 W A DISTANCE TE OF 96.92 5 FEET; EET; THENNCERRUNN OF 1 3 05 THENCE RUN AFOREMENTIONED 1NORTHEASTERLY RIGHT FEET; OF THENCE LINE OF ROAD; 'THEN TO A POINT ON THE INC ill HE SAID NORTHEASTERLY RIGHT OF WAY LINE OF TUSKAWILLA ROAD N38'43' 16'W A OISTANCE OF 73.56' TO THE POINT OF BEGINNING. CONTAINS 46.553 ACRES (2,027,848.68 SQ. FT.), MORE OR LESS. EXHIBIT I „ A1, Pt 1 EXHIBIT B -- SPINE ROAD LOCATION MAP • • ', II 1 ��1 1 o • X 11 �'�' , 'y •. 7 • u / 111 1 '( 'n li �. [ Q 1 ♦�.� . tea+ w • I 1 _;.'.,...... J T Nt.) 1 �• z ��,v I 1! I g i , l il I , � '� tN. . [ 1 V I F i 'I I j 1 � �., • ' I .i I �,• I r I f 1 , tiC n a. Z �/M �y 1 I I �.�N 1 4 �... w' ' (� z 1 iiw ... {Yii 1 I IVA Y • ! �I� l �• ` W =144 t - I ■ $ '0 _ - -- - - - - i I i , 1 r i ti. , 11 — , c=2 -- f / • 1 ..v l . r l ® ...rx..a .w..w.wu if 1 3 i I .r t j : " � r•.rr.r 11 I I I - _ _ _, t w..- ........ 1 1 f V►l.Wwiw�iu. h • I 1 1 1 11 �l' � 1 .I 1 1 iI i 1 ®..............n !I r 11: i �i 1 1 1 II,:, I. 1 1 r j l 1 , [ 1 i [1 .!,,, :„. 11 / 111 11 , 11 1 1 I I k!�I " KEY MAP 1 " i l 1 . e 4 . 4 . . . . . . . . •. 1 . 1, u • Exhibit C - Town Center Phase II Roadwa , e • "...,,,..., . . .. .. . ....,, • ., il -..,.,2 ; :‘ '',. '''' " 7^, / 4 ' ■ j , ', ;■ 4 1 ,,.' '''';\■` C r „ •.,, , , Loop Road Phase IIB ../ ...... ...: I . 1 ,:...n7:,.---„, :' Tree Swallow Road 1 • -':','19--- f e( ,,,.., 4 ,,.„.:4, .,./.. Tree Swallow \,.',‘, ,,/ Phase IIA .,/,.::??. i ' .. 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NAM2••7.18AC b IMPERVIOUS (RON. 833. !T% E OPEN MACEMEOA). 1A211C I•% PONOAREA • 1.S1•C • SONOMA POINT WY OTFERS) MtCHAELBLARE BOU LEVARD._........ 1 1 1 4 TOWN CENTER PHASES SEGMENT 1111 :: ....77....._,.,....„ (c. ...:.... WEI"N°S ., .I. . /I' Mill f D \\N "` / APP' . 0'. �` ` 'P. 9 WETLANDS /' W6Y 1 ' - _ - _ —+ @*j al - ( i . rte b g � - ` il - -. ''' C '' ' '� `1 WETLANDS ANDS WINTER SPRINGS TOWN . �r WINTER TOWN I IIP � �� ? I '" D 1 CENTER -PHASE 118 I CENTER PHASE IIA - -- S PINE ROAD 1 WINTER SPRINGS TOWN 1 - I U I JJJ { CENTER - PHASE 1 .._ —�L_ — 1 ` . MICHAEL OLAOt OGIILEVARI] - - i I Y f D9 . r TOWN CENTER PHASE 11 SEGMENT 1 _ Y J -.1 o` STATE ROAD. E V ..., C-e