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Home My WebLink About2002 02 11 Regular H Tuskawilla Office Park Binding Development Agreement COMMISSION AGENDA ITEM H Consent Informational Pu blie Hearing Regular X February 11. 2002 Meeting r&v- Mgr. I 0epl. Authorization REQUEST: The Community Development Department requests the City Commission approve a Binding Development Agreement between CHC Development and the City of Winter Springs for the development of Tuskawilla Office Park. PURPOSE: The purpose of this agenda item is to request the City Commission approve a Development Agreement addressing issues and providing conditions under which the Tuskawilla Office Park will be developed. APPLICABLE LAW AND PUBLIC POLICY: Section 166.021, Florida Statutes. (1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the government, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law. (2) "Municipal purpose" means'any activity or power which may be exercised by the state or its political subdivisions. February 11, 2002 REGULAR AGENDA ITEM H Page 2 CONSIDERATIONS: · The Development Agreement sets forth special terms and conditions for the development of the Tuskawilla Office Park. · Office structures 1 through 4 shall be two (2) stories in height. All other structures may be one (1) story or two (2) story in height. · Vinyl fencing will be installed fifteen (15) feet from the wetland vegetative buffer. · Lots 1-3 shall be developed as a passive park including paved walkways, park benches, street lighting and landscaping. · The developer may deduct from the tree replacement assessment, credit for tree replacement as provided in the preferred plant material list. · The landscape plan is to be prepared by a licensed landscape architect. · Front, rear and side yard setbacks are to be 0-10 feet. FINDINGS: The Development Agreement is authorized pursuant to the Municipal Home Rule Powers Act, as provided in s 2(b), Article vm of the Florida Constitution and Chapter 166, Section 166.021, Florida Statutes. The Development agreement is consistent with the City's Comprehensive Plan and Code of Ordinances. The Development Agreement provides for reasonable use of the subject property, while addressing issues and concerns pertinent to the present and future use of the site. RECOMMENDATION: Staff recommends that the City Commission approve the attached Development Agreement subject to approval of legal format and content by the City Attorney. 2 February 11, 2002 REGULAR AGENDA ITEM H Page 3 ATTACHMENTS: Development Agreement as provided by City Attorney on February 6, 2002. COMMISSION ACTION: 3 Prepared by and Return to: Anthony A. Garganese, City Attorney Brown, Ward, Salzman & Weiss, PA 225 E. Robinson Street, Suite 660 P.O. Box 2873 Orlando, FL 32802-2873 PARCEL I.D. NO. 01-21-30-501-??oo-0550 BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT, made and executed this day , 2002, by and between the CITY OF WINTER SPRINGS, a Florida municipal of corporation ("City") whose address is 1126 East State Road 434, Winter Springs, FL 32708, and TUSKA WILLA OFFICE PARK, L.L.C., a Florida corporation ("TOP"), whose address is 800 Westwood Square, Suite E, Oviedo, FL 32765. WIT N E SSE T H: WHEREAS, TOP is constructing an office park development on real property located within the City of Winter Springs, Florida; and WHEREAS, the real property is currently located within the City of Winter Springs and is currently part of the Winter Springs Town Center; and WHEREAS, the parties desire to memorialize their mutual understanding that the real property will be developed as TUSKA Wll.LA OFFICE PARK DEVELOPMENT project in accordance with the Town Center Zoning District requirements adopted by the City, (the AProject@); and WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, (AAgreement@), with TOP for the development of the Project; and WHEREAS, in addition to TOP=s compliance with all City Codes, permitting and construction not in conflict herein, the City and TOP desire to set forth the following special terms and conditions. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. Section 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. Section 3. Subiect Property. The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit AA@ attached hereto and made a part hereof by reference. Section 4. Representations of TOP. TOP hereby represents and warrants to City that TOP has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by TOP and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against TOP and the Property in accordance with the terms and conditions of this Agreement. TOP represents it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. -2- Section 5. TOP=s Obligations and Commitments. In consideration of the City entering into this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All office structures located on and fronting the Tuskawilla Road (Lots 1-4) shall be two (2) stories in height. All other office structures may be either one (1) or two (2) stories in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fencing. Vinyl picket fencing four (4) feet in height shall be installed fifteen feet (15=) from the north property line behind Lots 4-11 and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. (c) Wetland Buffer. In consideration of the peculiar site constraints, the property will be developed with a fifteen-foot (15') wetland vegetative buffer provided said buffer is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City=s Comprehensive Plan. (d) Parks. A land area west of Lots 1-3 shall be developed as a passive park including paved walkways, park benches, street lighting, and landscaping material suitable to the City and consistent with the Town Center design theme of the Project. Final details shall be subject to the City Manager=s approval. (e) Arbor Ordinance Requirement. In consideration of trees which shall be cut, removed or destroyed from the property by TOP or its agent, TOP shall replace trees or monetarily compensate the City as provided in the Arbor Ordinance according to the Tree Replacement Assessment established by the City. TOP may deduct from their Tree Replacement Assessment, Tree Replacement credits based on the number of replacement credits as provided in the Preferred Plant List, provided that: (i) All plant materials are Florida Grades and Standard One (1) or better; and (ii) All plant materials are properly installed; maintained and replaced as deemed necessary under the City=s Arbor Ordinance. (iii) Tree removal inspection fee to be capped at $200.00 for all trees to be removed on the Property. (iv) The landscape plan for the proposed development to which the credits are to be applied is prepared by a landscape architect licensed by the State of Florida. For purposes of this Section 5, the following words shall have the meaning ascribed below unless the context clearly indicates otherwise: (v) ACity Arbor Ordinance.@ City Arbor Ordinance shall mean Chapter 5 of the City Code of Ordinances otherwise known as the city Arbor Ordinance. (vi) APreferred Plant List.@ Preferred Plant List shall mean that list of plant materials and corresponding Tree Replacement Credits shown in Exhibit AB@ of this Agreement. (vii) ATree Replacement Assessment,@ Tree Replacement Assessment shall mean the total amount of monetary compensation owed to the City of Winter Springs as provided in the Arbor Ordinance for the replacement of trees cut, -4- destroyed, or removed from a property in the City as a result of development or redevelopment. (viii) Tree Replacement Credit. Tree Replacement Credit shall be equal to One Hundred Dollars ($100.00) and no cents in tree replacement value. (f) Setbacks. Building front set back shall be 0-10 feet, side set back shall be 0-10 feet and rear set back shall be 0-10 feet. Section 7. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. Section 8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 9. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 10. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and TOP as to the subject matter hereof. Section 11. Severability. If any provision of this 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 Agreement. Section 12. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution of this Agreement by both parties. Section 13. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 14. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and TOP 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. Section 15. Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City=s right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City=s potential liability under state and federal law. Section 16. City=s Police Power. TOP agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. Section 17. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 18. Permits. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve TOP or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 19. Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. -6- Section 20. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by suit in equity. Section 21. Attomey=s Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attomey=s fees and costs through all appeals to the extent permitted by law. Section 22. Future Rezonings/Development Permits. Nothing herein shall limit the City=s authority to grant or deny any future rezoning or development permit applications or requests subsequent to the effective date of this Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in TOP or on the Property. IN WITNESS WHEREOF the parties have hereunto set their hands and seal on the date first above written. Signed, sealed and delivered in the presence of TUSKA WILLA OFFICE PARK, L.L.C a Florida Corporation By: WILLIAM BARRETT, PRESIDENT (Print Name of Witness) CITY OF WINTER SPRINGS, a Florida Municipal Corporation, By: PAUL P. PARTYKA, MAYOR (Print Name of Witness) By: ANDREA LORENZO-LUACES City Clerk (Print Name of Witness) NOTARIAL ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of ,2002, BY WILLIAM BARRETI, as President of TUSKA WILLA OFFICE PARK, L.L.C.., a Florida corporation, U who is personally known to me, or U who has produced as identification. NOTARY PUBLIC, State of Florida My commission expires: (SEAL) -8- EXHIBIT AA@ The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit AA@ attached hereto and made a part hereof by reference. Legal description: THAT PORTION OF LOTS 53,54,55,58,59,62,63 AND THOSE UNIMPROVED RIGHT-OF-WAYS LYING BETWEEN LOTS 55 AND 58, LOTS 59 AND 62 AND THE NORTH 2 OF THAT 30= V ACA TED RIGHT OF WAY LYING SOUTHERLY OF LOTS 55, 58, 59, 62 AND 63, D.R. MITCHELL=S SURVEY OF THE LEVY GRANT, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHWEST CORNER OF THE AFOREMENTIONED LOT 63; THENCE RUN SOUTH 87002=40@ EAST, ALONG THE SOUTH LINE OF LOT 63, A DISTANCE OF 62.14 FEET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID SOUTH LINE RUN SOUTH 02057=20@ WEST, A DISTANCE OF 15.00 FEET TO THE CENTERLINE OF A 30= UNIMPROVED RIGHT OF WAY V ACA TED IN OFFICIAL RECORDS BOOK 4112, PAGE 0597 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; THENCE RUN SOUTH 87002=40@ EAST ALONG SAID CENTERLINE A DrST ANCE OF 1129.20 FEET TO THE WESTERLY RIGHT-OF-WAY OF TUSKAWILLA ROAD AS DESCRIBED IN OFFICIAL RECORDS BOOK 3603, PAGE 1095 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; SAID POINT LYING ON A CURVE CONCAVE NORTHWESTERLY HAVING THE FOLLOWING ELEMENTS: A RADIUS OF 5677 .58 FEET, A CENTRAL ANGLE OF 03042=36@, A CHORD LENGTH OF 367.57 FEET AND A CHORD BEARING OF NORTH 12013=06@ EAST; THENCE FROM A TANGENT BEARING OF NORTH 140 04=24@ EAST, RUN NORTHEASTERLY ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE A DISTANCE OF 367.64 FEET TO THE POINT OF REVERSE CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY HAVING THE FOLLOWING ELEMENTS: A RADIUS OF 5781.58 FEET, A CENTRAL ANGLE OF 0IOI2=46@, A CHORD LENGTH OF 122.38 FEET AND A CHORD BEARING OF NORTH 10058=11@ EAST; THENCE RUN NORTHEASTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 122.38 FEET; THENCE DEPARTING SAID CURVE AND RIGHT OF WAY LINE RUN SOUTH 20020=33@ WEST, A DISTANCE OF 64.52 FEET; THENCE RUN SOUTH 45038=29@ WEST, A DISTANCE OF 59.63 FEET; THENCE RUN SOUTH 71030=38@ WEST, A DISTANCE OF 48.60 FEET; THENCE RUN NORTH 75028=56@ WEST, A DISTANCE OF 27.98 FEET; THENCE RUN NORTH 54016=32@ WEST, A DISTANCE OF 44.31 FEET; THENCE RUN SOUTH 44013= 12@ WEST, A DISTANCE OF 18.82 FEET; THENCE RUN SOUTH 51018=33@ WEST, A DISTANCE OF 345.75 FEET; THENCE RUN SOUTH 86031=22@ WEST, A DISTANCE OF 82.36 FEET; THENCE RUN NORTH 62037=17@ WEST, A DISTANCE OF 63.47 FEET; THENCE RUN SOUTH 76027=47@ WEST, A DISTANCE OF 62.38 FEET; THENCE RUN NORTH 84034=12@WEST, A DISTANCE OF 83.22 FEET; THENCE RUN SOUTH 76044=49@ WEST A DISTANCE OF 45.06 FEET; THENCE RUN NORTH 81018=28@ WEST, A DISTANCE OF 49.25 FEET; THENCE RUN SOUTH 85001=56@WEST, A DISTANCE OF 48.02 FEET, THENCE RUN SOUTH 52042=01@ WEST, A DISTANCE OF 67.33 FEET, THENCE RUN SOUTH 80017=21@ WEST, A DISTANCE OF 52.69 FEET; THENCE RUN SOUTH 03027=55@ WEST, A DISTANCE OF 23.12 FEET; THENCE RUN SOUTH 69034=23@ WEST, A DISTANCE OF 95.27 FEET; THENCE RUN NORTH 82016=34@ WEST, A DISTANCE OF 77.56 FEET; THENCE RUN SOUTH 84055=50@ WEST, A DISTANCE OF 75.60 FEET TO THE POINT OF BEGINNING. CONTAINING: 199,036 SQUARE FEET (4.569 ACRES) +/- K:rrSW/JlILEGAL DESCRIPTION. DOC REV 8/6101 JEM EXHIBIT AB@ Jl.N-20-2001 17:27 CHC DEVELOP/'ENT 407 B4: 1623 P.98/0S CREDIT AviRAGE ClU!OIT NET TREE OR LAROE 8HRUg NAME SRE RATIO COST vAL.1JC aAlN VlUllOri Holly MIAlJ.lNnk ~o gaL,O" 2-1 $ OOAD S ZOO.OO $ 110.00 SIn\pIOll Stopper a5-30 gal.e' 2-1 $ 80.00 . 2.00.00 S 110.00 PYOfYIY Dstw Pllm, dill. ~i.I..4' $01 $ lali.OO , 300.00 a 175.00 Butla-PInClO Palm 30 gal, 5' Sot S 100.00 S 300.00 $ 175,00 Ill/ropo.n "an Palm 30 IJDL, ~ 301 . 150,00 $ 300.00 . 175.00 .Chlll" FlIn Palm 30 gal, 5' 3-1 S 100,00 $ SOQ.OO $ 175.00 Canary IaIancI Date Palm )0 gal, e' 3-1 S 100.00 S 300.00 S 175.00 0.1. Palm. P. d~Jf'rI 30 gal," 3-1 S 100,00 S 300.00 $ 175.00 INIndmill Palm :J00I1..O' 3-1 S 150.00 S 300.00 $ 150.00 SagO 30 gll.. )' 3-1 . 1 SO,OO S 300.00 S 150.00 LUlIe Gem MagIlOIII awo gll..8' 8-1 $ 100.00 . 300.00 S 200.00 Rad !kid 25030 gal..e' 3-1 $ 125.00 I 300.00 S 175.00 . Canlinall10lIy zs.SO gal..S' 3-1 . 12.5.00 $ 300.00 S 175.00 Pe3l1v. Holly 2WOoal,8' )..1 . 125.00 S 300.00 . 175.00 Robin Holly ~O gaL.O' '.1 S 128.00 S 300.00 & 171.00 0111I11I1 HolIJ 2~IO gal,B' )..1 S 125.00 S 800,00 S 175.00 spartan JW1lper ~ Qal.6' ),,1 S l1UO S 300,00 $ 165.00 Torulosa JI/nlper zs.3(l gll..8' 2.1 $ 110.00 S 200,00 $ \1 0,00 PI_rinG DoQwo~ 25-30 1l.1,,6' S,1 S 12.5.00 S 1110.00 . 175.00 Camollla 25-30011.,5' S,1 $ 145,00 S 300.00 . 15S.00 JIPlUI'" Blueberry 25030 gal,,8' 3-1 S 120.00 . 300.00 $ 180.00 LabIoIIy 8IIy 25-30 gal.,6' 2-1 $ 110,00 . 200.00 S 110.00 Uprtghl V.upon HoUy l!!Oal.. e' 2-1 $ 110.00 $ 200.00 S 110.00 w..p1ng V,upon Holly 25-30 gll..O' 3-1 $ 100.00 $ :500.00 S 200.00 LGrapotalum SWldarcl IS0.l,6' 3-1 . 100.00 $ 300.00 s 200.00 Clllckuaw Plum 25 011., 8' 2-1 . 115.00 $ 200.00 . 105.00 Rtc:I Allr.lulYI 15 val.. 5' 2.' I 60.00 . 200,00 $ 150.00 Myrtle 0Ik 15 gal., 5' ~-1 S SUO C 2OO.DO $ 1~M ~\11 15011.. S' 2-1 S 50.00 . ZOO.OO $ 150.00 F/Inge Tree 15 gal., G' 2.1 $ 50.00 S ZIIO.OO S 150.00 Tabebula 30gll..&' 2.1 S 75.00 S 2110.00 . 126.00 BlW/llIlIll geJplnle 10 all., 5' 2.1 S SO.OO . 200.00 $ 1SO.00 SWHI/TelI OlIva 15011..&' 2.1 S 50.00 $ 200.00 . 150.00 L1g11S1Nm st.and~ '5 gII.,&-10' $-1 . 300.00 . 500.00 S 200.00 Orapo Myrtle Standard 45011.,5-10' 5-1 . 350.00 $ 500,00 $ 150.00 YaullOll HCIIIY 8\lndlnI 25030 QaJ.'u' 3-1 $ , 00.00 $ 300.00 . 200.00 Wane'" VIburnum standard 2WO gIL,e' 3-1 S 100.00 . 300.00 $ 200.00 Ne9cIl. PallTl 25-30 OIl"S 4-1 S 200.00 S 400.00 S 200.00 . Pygmy Oatt PIIm.lrlplt SO gal., 4' 3-1 $ 150.00 $ 300.00 S 1SO.00 8u1ll-Plndo Palm 65 gal.. 8' 4-1 $ 200.00 S 400.00 S 200.00 I!unlputI Fen Palm &5 gal" S- 5.1 $ m.DO S 600.00 I ~.oo Chlneaa Fan PtIITI 8ll11aL. If &-1 S 210.00 . 500.00 I 250.00 CanIIrY Island Dlllt Palm 85 gal. 8' 5-1 S 260.00 S 500.00 . 250.00 Dale Palm, P. deetytlfera Il5 gaL,S' 5-1 . 250.00 . 500.00 $ 250.00 Wln4mlU Palm as gaL. .. 5.1 S 300.00 $ 600.00 $ ZOO.OO Sagu e5 gal.. 04' 5-1 , 250.00 $ 500.00 $ 260.00 UlUI G.m Magnolil liS gal. B' 5-1 . 250.00 . 500.00 . 250.00 $partIn Junlpll' lIS OIL, S' 601 S 25a.D0 S 500.00 $ 250.00 TOMON Juniper 65ll1L, S' 5-1 . 250.00 . 5110.00 $ 250.00 OII\OClC1 Holly 6& gll.. 10~'lc2' 5-1 S 225.00 , 500.00 $ 275.00 U.,. OIk 65 gal.14'x8'llS' 5-1 . 300.00 S 500.00 $ 200.00 ~elm 85 gaJ..I2'll5'lC2112 4-1 $ 225.00 S 400,00 $ 176,00 Red Mapll lIS llaL.12'xS'X2112 401 $ 225.00 S ~O.OO S 176.00 "1"'-~""II'IiI'II' TOTR.. P. 0S 1":'''' 407 J:i? 41SJ P.08 TOTFl. P, 00 -11- .. Prepared by and Return to: Anthony A. Garganese, City Attorney Brown, Ward, Salzman & Weiss, P.A. 225 E. Robinson Street, Suite 660 P.O. Box 2873 Orlando, FL 32802-2873 PARCEL to. NO. 01-21-30-501-0000-0550 BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT, made and executed this d?~ay of ~?2002' by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City") whose address is 1126 East State Road 434, Winter Springs, FL 32708, and TUSKA WILLA OFFICE PARK, L.L.c., a Florida corporation ("TOP"), whose address is 800 Westwood Square, Suite E, Oviedo, FL 32765. WIT NE SSE T H: WHEREAS, TOP is constructing an office park development on real property located within the City of Winter Springs, Florida; and WHEREAS, the real property is currently located within the City of Winter Springs and is currently part of the Winter Springs Town Center; and WHEREAS, the parties desire to memorialize their mutual understanding that the real property will be developed as TUSKA WILLA OFFICE PARK DEVELOPMENT project in accordance with the Town Center Zoning District requirements adopted by the City, (the "Project"); and WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, ("Agreement"), with TOP for the development of the Project; and WHEREAS, in addition to TOP's compliance with all City Codes, permitting and construction not in conflict herein, the City and TOP desire to set forth the following special terms and conditions. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. Section 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. Section 3. Subiect Property. The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Section 4. Representations of TOP. TOP hereby represents and warrants to City that TOP has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by TOP and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against TOP and the Property in accordance with the terms and conditions of this Agreement. TOP represents it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. -2- Section 5. TOP's Obligations and Commitments. In consideration of the City entering into this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All office structures located on and fronting the Tuskawilla Road (Lots 1-4) shall be two (2) stories in height. All other office structures may be either one (l) or two (2) stories in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fencing. Vinyl picket fencing four (4) feet in height shall be installed fifteen feet (IS') from the north property line behind Lots 4-11 and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. (c) Wetland Buffer. In consideration of the peculiar site constraints, the property will be developed with a fifteen-foot (IS') wetland vegetative buffer provided said buffer is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City's Comprehensive Plan. (d) Wall Buffer. A six (6') foot high brick wall shall be constructed along the south property line (Oak Forrest Subdivision) from Tuskawilla Road to the west end of the detention pond. Said wall shall be fully constructed prior to the first building permit being issued for the office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the wall. -3- (e) Dumpster Pad. No Dumpster Pad shall be located along the south (Oak Forrest Subdivision) or State Road 434 property lines. A Dumpster Pad shall be located near Lot 4. (t) Lighting. All exterior lighting on the Property will be directed inward towards the Property, so as to minimize or eliminate the effects of glare on the adjacent residential property, particularly the Oak Forrest Subdivision. (g) Additional Tree Buffer. TOP acknowledges that due to site restrictions on the Property, there are several landscape gaps depicted on the Landscape Plan along the south boundary where no oak trees can be planted on the Property ("Landscape Gap"). In order to fill in the Landscape Gaps with oak trees, TOP agrees to offer the Oak Forrest Subdivision lot owners located adjacent to the south side of the wall and a Landscape Gap, an opportunity to have installed, on their lot, at TOP's expense, a 3-4" caliper oak tree(s) with a height of at least 6-8 feet. Said oak trees shall be installed in addition to the landscaping required on the Landscape Plan and prior to the completion of the wall at a spacing distance of 45 feet, unless a lot owner states in writing that they do not desire a tree(s) in which case the spacing distance may be greater to accommodate that lot owner's desire not to have a tree. Any tree planted pursuant to this subparagraph (g) shall be counted for purposes of satisfying TOP's Tree Replacement requirements. TOP shall also require the nursery providing the oak trees to provide each lot owner with the nursery's standard tree warranty. -4- (h) Parks. A land area west oLLots 1-3 shall be developed as a passive park including paved walkways, park benches, street lighting, and landscaping material suitable to the City and consistent with the Town Center design theme of the Project. Final details shall be subject to the City Manager's approval. (i) Arbor Ordinance Requirement. (A) In consideration of trees which shall be cut, removed or destroyed from the property by TOP or its agent, TOP shall replace trees or monetarily compensate the City as provided in the Arbor Ordinance according to the Tree Replacement Assessment established by the City. TOP may deduct from their Tree Replacement Assessment, Tree Replacement credits based on the number of replacement credits as provided in the Preferred Plant List, provided that: (i) All plant materials are Florida Grades and Standard One (I) or better; and (ii) All plant materials are properly installed; maintained and replaced as deemed necessary under the City's Arbor Ordinance. (iii) Tree removal inspection fee to be capped at $200.00 for all trees to be removed on the Property. (iv) The landscape plan for the proposed development to which the credits are to be applied is prepared by a landscape architect licensed by the State of Florida. (B) For purposes of this Section 5, the following words shall have the meaning ascribed below unless the context clearly indicates otherwise: -5- (i) "City Arbor Ordinance." City Arbor Ordinance shall mean Chapter 5 of the City Code of Ordinances otherwise known as the city Arbor Ordinance. (ii) "Preferred Plant List." Preferred Plant List shall mean that list of plant materials and corresponding Tree Replacement Credits shown in Exhibit "B" of this Agreement. (iii) "Tree Replacement Assessment." Tree Replacement Assessment shall mean the total amount of monetary compensation owed to the City of Winter Springs as provided in the Arbor Ordinance for the replacement of trees cut, destroyed, or removed from a property in the City as a result of development or redevelopment. (iv) Tree Replacement Credit. Tree Replacement Credit shall be equal to One Hundred Dollars ($100.00) and no cents in tree replacement value. Additionally, TOP agrees to install and maintain in a first class condition landscaping on the Property in accordance with the Landscape Plan attached hereto as Exhibit "C," which is hereby fully incorporated herein by this reference. TOP shall promptly replace dead trees and shrubs to a condition equal to or better than required by the Landscape Plan. U) Setbacks. Building front set back shall be 0-10 feet, side set back shall be 0-10 feet and rear set back shall be 0-10 feet. Section 7. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. -6- Section 8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 9. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 10. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and TOP as to the subject matter hereof Section II. Severability. If any provision of this 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 Agreement. Section 12. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution of this Agreement by both parties. Section 13. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 14. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and TOP 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. Section 15. Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state and federal law. -7- Section 16. City's Police Power. TOP agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. Section 17. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 18. Permits. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve TOP or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 19. Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. Section 20. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by suit in equity. Section 21. Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. Section 22. Future RezoningslDevelopment Permits. Nothing herein shall limit the City's authority to grant or deny any future rezoning or development permit applications or requests -8- subsequent to the effective date of this Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in TOP or on the Property. IN WITNESS WHEREOF the parties have hereunto set their hands and seal on the date first above written. Signed, sealed and delivered in the presence of A \. /------ By: TUSKAWILLA OFFICE PARK, L.L.C a Florida Corporation ~ (t?NDRA BIE Y, as Attorney in Fact for William Barrett, President (Print Name of Witness) 0. I \ a.. 4...:.... CITY OF WINTER-SPRINGS, \Flofl M~;<;i~Corporation, \ ~J '~ vl.- ~-jj/ By: (LJ{~!\l tt\!J/l PAUL . PARTYKA, 1\UY6R ~L~b City Clerk NOTARIAL ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this Z <1 day of FiJx.,,"1' tl, 2002, by SANRDA BIERLY, as Attorney in Fact for William Barrett, as the President ofTUSKAWILLA OFFICE PARK, L.L.c.., a Florida corporation, 1.1 who is personally known to me, or l~who has produced Pi- 'D... ~ t'f'J Lul1i.c as identification. 1H 'fO-7Q-r')"L-CS1-0 .' SUSAN SANDRIDGE CON\MlSSlO>HI CC872109 EXPIRES OCT 08. 2003 eOt<<>ID THROUGH ADVANTAGE NOTAAY (SEAL) -9- EXHmIT "A" The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Legal description: THAT PORTION OF LOTS 53,54,55,58,59,62,63 AND THOSE UN1MPROVED RIGI-rr-OF-WA YS LYING BETWEEN LOTS 55 AND 58, LOTS 59 AND 62 AND THE NORTH Yz OF THAT 30' VACATED RlGHT OF WAY LYING SOUTHERL YOF LOTS 55, 58, 59, 62 AND 63, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLA T BOOK I, PAGE 5 OF THE PUBUC RECORDS OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHWEST CORNER OF THE AFOREMENTIONED LOT 63; THENCE RUN SOUTH 87002' 40" EAST, ALONG THE SOUTH LINE OF LOT 63, A DISTANCE OF 62.14 FEET TO THE POINT OF BEGINNING; THENCE DEP ARTINGSAID SOUTH LINE RUN SOUTH 02057'20"WEST,ADIST ANCEOF 15.00 FEET TO THE CENTERLINE OF A 30' UNIMPROVED RlGHT OF WAY VACATED IN OFFICIAL RECORDS BOOK 4112, PAGE 0597 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORlDA; THENCE RUN SOUTH 87002'40" EAST ALONG SAID CENTERLINE A DISTANCE OF 1129.20 FEET TO THE WESTERLY RIGHT-OF-WA Y OF TUSKAWILLA ROAD AS DESCRIBED IN OFFICIAL RECORDS BOOK 3603, PAGE 1095 OF THE PUBUC RECORDS OF SEMINOLE COUNTY, FLORIDA; SAID POINT LYING ON A CURVE CONCAVE NORTHWESTERL Y HAVING THE FOLLOWING ELEMENTS: A RADIUS OF 5677.58 FEET, A CENTRAL ANGLE OF 03042'36", A CHORD LENGTH OF 367.57 FEET AND A CHORD BEARING OF NORTH 12013'06" EAST; THENCE FROM A TANGENT I3EARING OF NORTH 140 04'24"EAST, RUN NORTHEASTERIJY ALONG SAID RlGHT OF WAY AND THE ARC OF SAID CURVE A DISTANCE OF 367.64 FEET TO THE POINT OF REVERSE CURVATURE OF A CURVE CONCA VESOUTHEASTERL YHA VINGTHE FOLLOWING ELEMENTS: ARADillS OF 5781.58 FEET,ACENTRALANGLE oF01 012'46", A CHORD LENGTH OF 122.38FEET AND A CHORD BEARING OF NORTH 10058' II " EAST; THENCE RUN NOR THEASTERL Y ALONG THE ARC OF SAID CUR VE A DISTANCE OF 122.38 FEET; THENCE DEPARTING SAID CURVE AND RIGHT OFWA YLINERUN SOUTH 20020'33"WEST, A DISTANCE OF 64.52 FEET; THENCE RUN SOUTH 45038 '29"WEST, A DISTANCE OF 59.63 FEET; THENCE RUN SOUTH 71 030'38"WEST, A DIST ANCEOF 48 .60FEET; THENCE RUN NORTH 75028'56" WEST, A DISTANCE OF 27.98 FEET; THENCE RUN NORTH 54016'32" WEST, A DISTANCE OF 44.31 FEET; THENCE RUN SOUTH 44013'12" WEST, A DISTANCE OF 18.82 FEET; THENCE RUN SOUTH 51018'33" WEST, A DISTANCE OF 345.75 FEET; TI-IENCE RUN SOUTH 86031 '22" WEST, A DISTANCE OF 82.36FEET; THENCE RUN NORTH 62037' 17"WEST, A DISTANCE OF 63.47 FEET; THENCE RUN SOUTH 76027'47" WEST, A DISTANCE OF 62.38 FEET; THENCE RUN NOR TH 84034' 12 "WEST, A DISTANCE OF 83.22 FEET; THENCE RUN SOUTH 76044'49" WEST A DISTANCE OF 45.06 FEET; TI-IENCE RUN NORTH 81018'28" WEST, A DISTANCE OF 49.25 FEET; THENCE RUN SOUTH 85001 '56"WEST, A DISTANCE OF 48.02 FEET, THENCE RUN SOUTH 52042'01 " WEST, A DISTANCE OF 67.33 FEET, THENCE RUN SOUTH 800 17'21 "WEST,ADISTANCEOF 52.69 FEET; THENCE RUN SOUTH 03027'55" WEST, A DISTANCE OF 23.12 FEET; TI-IENCE RUN SOUTH 69034'23" WEST, A DISTANCE OF 95.27 FEET; THENCE RUN NORTH 82016'34" WEST, A DISTANCE OF 77.56 FEET; THENCE RUN SOUTH 84055'50" WEST, A DISTANCE OF 75.60 FEET TO THE POINT OF BEGINNING. CONTAINING: 199,036 SQUARE FEET (4.569 ACRES) +/- K:rrSW/J1/LEGAL DESCRIPTION. DOC RE V 8/6/0 1 JEM -1- EXHIBIT "B" JUH-20-2ffi1 :7:27 CH'~ DEl!ELOP~EtlT 4e7 Ie"": 1623 P.OS-1)S CREDIT AVERA<;E CREDIT NET TREE OR lARGE SHRUB NAME SIZE RATIO COST VA.l.UE GAIN Y.upori HOlly MUltl-lNnk 25-30 gat,O' 2-1 $ 00.00 S 200.00 S 110.00 Slmp&On Slopper 2S.~ gal..6' 2.' S 110.00 $ 200.00 $ 110.00 pr'!lmyoat. Palm, db!. 30 gal.. 4' ~1 $ 125.00 $ 300.00 S 175.00 &iUI-PI!1dO P~lm 30 gal., S' ~1 S 100.00 $ 300.00 $ 175,00 european Fan Palm 30 gal. 4' 3-1 $ 150.00 $ 300.00 $ 175.00 .cnlr1OP Flln Palm 30 gal., 5' 3-1 $ 100.00 $ 300.00 $ 175.00 Canll)' Island Dale Palm 30 gal.. 6' 3-1 $ 100.00 S 300.00 S 175.00 Dele Palm. P. daetyllfilra 30 gal., 4' 3.1 S 100.00 S 300.00 $ 175.00 Windmill Palm 30 gal., e' 3-1 $ 150.00 $ 300.00 $ 150.00 Sego 30 ga!.. 3' ~1 $ , !l(l,oo S 300.00 IS 150.00 Utile Gem MBgnolia 25-30 gal..6' 3-1 $ 100.00 S 300.00 S 200.00 Rid Bud 25-30 gal.,6' 3-1 $ 125.00 $ 300.00 $ 175.00 Cardinal Holly 25-30 gal. ,0' 3-1 S 125.00 $ 300.00 $ 175.00 Fe$ive Holly 2S-30 oal. ,$' 3.1 S 125.00 S 300.00 $ 175.00 Ro\);n Holly 25-30 glll..6' 3.1 S 125.00 $ 300.00 $ 175.00 oa~It81 HOlly 25-30 gal.,6' 3-1 S 125.00 S acO.OO IS 175,00 $pa~n Juniper 25-30 gal.,6' 3-1 $ 1111.00 S 300,00 $ 185.00 TorulClSll Juniper 2S-30 gal..9' 2.1 S 110.00 $ 200.00 $ '10.00 Flowering DogwoIlCl 25--3<1001..6' 3-1 $ 125.00 $ 300.00 $ 175.00 Camenla 25-30 galS 3-1 S 146,00 $ 300.00 II 155.00 JapanltW BfuBberry 2,5.30 ~al.,8' 3-1 s 120.00 , 300.00 $ 180.00 Loblolly Bay 25.,10 gal..e' 2-1 S 90.00 S 200.00 S 110.00 Uprlghl Vaupon Holly 15 gal.. 6' 2-1 S 90.00 S 200.00 S 110.00 Weeping Vaupon HollY 25.30 "01..8' 3-1 $ 100.00 S 300.00 S 200.00 LOrapctalum SlandBrd 15011.. 5' 3-1 S 100.00 $ 300.00 S 200.00 C~lckllS8w Plum 25 SII., If 2-1 S 95.00 $ 200.00 S 105.00 R4'I1 Allr.iI'!YB 15 QII., 5' 2.1 S 50.00 $ 200,00 $ 150,00 Myrtle Oak '5~I.,5' ~.1 S 58.00 C 200.00 S 1511 on crataegus I! 001..6' 2.1 S ~.OO $ 200.00 S 150.00 Fringe Tree 15 gAl., 5' 2.1 $ 50.00 S 200.00 S 150.00 Tabebula 30 gal., 8' 2.1 S 75.00 S 200.00 S 125.00 eaunlnJa galplnla 10~aJ.. 5' 2.~ $ 50.00 $ 200.00 $ lSO.00 sweetlT'u. O~v. 15911.. C' 2.1 S 50.00 $ 200.00 $ 150,00 Ugusltum standard 4S 031..6-10' 5-1 S 300.00 S 500,00 S 200.00 C11Ipe Myrtle SllIndard 45 aal.,6-10' 5-1 S 350.00 $ 500.00 $ 150.00 YlIUJ)OIl ",olly Standarti . 25-30 g81..6' 3-1 $ 100,00 $ 300.00 $ 200.00 Waner'$ Vibumum standard 25-30 g"..8' ".1 $ 100.00 $ 300.00 S 200.00 Nfi(llt Palm 25-~ galS 4-1 S 200.00 $ 400,00 S 200.00 . Pygmy 081a Palm, trip" 30011., 4' ).1 $ 150.00 $ 300.00 s 150.00 IMie-Pindo P.lm 65 ~I.. B' 4-, $ 200.00 $ 400.00 $ 200.00 I'!urop&an Fen Palm 65 gal.. SO 5-1 $ 250.00 $ 500.00 $ 250.00 Chinese Fan Palm 85 aal.. a' 5-1 $ 250.00 S 500,00 $ 2S0.00 C8t1ary 11lalld Date PlIlm 65 gal., 8' 5-1 $ 250.00 S 500,tIO S 250.00 Oala Palm, P. da~lfera 65 gll.. 5' 5-1 S 250.00 $ 500.00 $ 250.00 Windmill Palm es 981.. 8' 5-1 II 300.00 S 500.00 S 200.00 Sago 659.31.,4' 5-, S ;lSO.OO $ 500.00 $ 250.00 UtUe Gem MagnOlia !l50al.. 6' 5-1 S 250,00 $ 500,00 $ 250.00 Sparten Junlptr as gal., 6' 5-1 $ 250.00 S 500.00 $ ;l50.00 TOMON Juniper e5 Qal., 6' S-l S 250.00 S ~.OO $ 250.00 0./10011 Holly 65 gal.. 10')(4')(2' 5.1 $ 225.00 $ SOO.OO $ 275.00 Uve ~k 65 gal.. 14'x5'x3' S.l $ :>00.00 $ 500,00 S 200.00 WInged Elm es ~,.. 12'xS'x2112 4-1 S 225.00 S 400,00 $ 175.00 Red Maple 65 gal.. 12'xS'x2112 401 $ 22:5,00 S 400,00 $ 175.00 "" "'l-""1nl.-""Jl'1It'I, TOT~ P.08 17: 1li' 40" 327 4?S3 P.IlS TOTK. P.08 -ll- ..nd Re1urn 10: .... 'GlIrl}ll~e. City Atlorney ..,:Wlld. SalZfl1an 8. Wei5s., P.A. .J5 E. Robil\sOIl Streel. Sulte 660 P.O. Box 2673 '-, Orlando. FL 32602.2873 \~WARD,SAlZMANIATTACHMENT B,~ 11:~:AMj. IMWII& ..... CUM IJr CJIWJT aaar _NIU t1ILtrr1 8M 0~J~7 PO 1670 CLERK'S. 2002844030 NIDIu 61111/100I ot1 U. S3 ,. ....... IJ.OO ~..... rt L Nate..l., raye ~ \ ", r.'\RCEl.l.D. NO. OI"2L1U-~UI"UWU~HU BINDING DEVELOPMENT AGREEMENT THIS BINDING I>EVELOPMENT AGREEMENT, made and executed this ;)~~ay of ~2002, by and between the CITY OF WINTER SPRINGS, .a Florida municipal corporation ("City") whose address is 1126 Fast State Road 434, Winter Springs, FL 32708, and TTJSKA WILLA OFFICE PARK, L.LC., a Florida corporation ("TOP"), whose address is 800 Westwood Square, Suite E, O'viedo, FL 32765. WIT N E SSE T H: WHEREAS, TOP is constructing an office park development on real property located within the City of Winter Springs. Florida; and WHEREAS, the real properly is currently located within the City ofWinler Springs and is currently part of the Winter Splings Town Center; and WHEREAS, the parties desire to memorialize their mutual understanding that the real ." property will be developed as TUSKAWILLA OFFICE PARK DEVELOPMENT project in accordance with tht: Town Center Zoning District requirements adopted by the City, (the "Project"); and WHEREAS, tht: City Commission has recommended entering into a Binding Development Agreement, ("Agreemem"), with TOP for the development of the Project; and sent, By: t1HOWN, \'IAHU, ::iALLi"Af.<,>WC 1::;::;, r-. A. j llUI 'lc:J ~:t:l~D; ;~a y - tl. U~ I I : JUI\~'; r-age J t FILE NlJM 200B644030 ~ 8OOt< ~J47 PAOE 1671 WHEREAS, in addition to TOP's compliance with all City Codes, pcrmirting and constructiun nut in wnflil.:l h~reill, the City and TOP dcsirc to set forth the following special terms and conditions. NOW 1 THEREFORE. in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section I . Recitals. The foregoing recitals are hereby incorporated herein by this reference. Section 2. Authority. This Agreement. is entered into pursuant to the Florida Municipal Home Rule Powers Act. Section 3. Subiect Property. The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit" A" auached hereto and made 8 part hereof hy reterence. Section 4. Representations of TOP. TOP hereby represents and warrants to City that TOP has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performMce of this Agreement. This Agreement will. when duly exe..cuted and delivered by TOP and r~orded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation cnforccable against TOP and the Property in accordance with the terms nnd conditions of this Agreement TOP represents it has voluntarily and willfully executed thi's Agreement for purposes of binding the Properly lo the terms and conditions sct forth in this Agreement. -2- Qenl Ijy: IjI1UWN.'I'JAMU,::;J..IL0J1ANoVVC1::;::;,r'.J..I.; 'lV( 'l~::J ~::J!:lb; May-tJ-U<! 11 ::JUAM; Page 4 FILE HUM 2002844030 OR IK)()X ~~ 1 PAGE 1672 Section 5. TOP's Obligations and Commitments In l;unsit.leratiun ufth~ City ent~ring illtu this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All otlice structures located on und fronting the Tuskawilla Road (Lots 1-4) shall be two (2) stories in height. All other office structures may be either one (J) or two (2) sto~jes in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fencing. Vinyl picket fencing four (4) feet in height ~halJ he installed tifteen feet (15') from the nonh property line behind Lots 4-11 and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. (<.:) Wetland Buffer, In consideration of the peculiar site constraints, the property will be developed with a tifteen-tbot (15') wetland vegetative buner provided said butler is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City's Comprehensive Plan (d) Wall Buffer. A six (6') fOOl high hrick wall shall be constructed along [he south propc:rty line (Oak Fl)n~st Subdivision) from Tuskawilla Road lOlhe west end oflht detention pond. Said wall shall be fully,'f;:onstructed prior to the first building pennit being issued for thc office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the wall. -3- """': l oy: OMUWN, VVAMU, 0ALLMANlloWtC lbb, t"'. A. ; 4U/ 4;ej ~j~ti; May-e-D2 11 :3DAM; Page 5 FILE HLef ~8440JO OR ItOOf( 04347 PAGE 1673 (e) Dumpster Pad. No Dumpster Pad shall be located along the south (Oak Forrest . . . .'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subdivision) or Stale Road 434 property Jines. A Dumpster Pad shall be located near ::~i:i:i:i:i: & .. ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . . .'. . . . . . . . . .. . . . . . . Lot 4. (f) Lighting. All exterior lighting on the Property will be directed inward towards the Property, so as to minimize or diminate the effects of glare on the adjacent residential property, particularly the Oak Forrest Subdivision. (g) Additional Tree R\ltfer. TOP acknowledge~ that due to site re.<;trictions on the Property, there are several landscape gaps depicted on the Landscape Plan along the south boundary where no oak trees can be planted on the Property ("Landscape Gap"). In order to fill in the Landscape Gaps with oak trees, TOP agrees to offer the Oak ronest Subdivision Jot owners located adjacent to the south side ofthe wall and a Landscape Gap, an opportunity to have installed, on their lot, at TOP's expense, a 3-4" caliper oak rree(s) with a height of at least 6-8 feet. Said oak trees shall be installed in addition to the landscaping required on the Landscape Plan and prior to Ihe completion of the wall at a spacing distance of 45 feet. unless a lot owner slales in writing that they do not desire a lre~("s} in which case the spacing distance may be greater to accommodate thut lot owner's desire not to have 11 tree, Any tree planted pursuant to this subparagraph (g) shall be;: counted fur purposes of satisfYing TOP's Tree Repla<.:cment requirements. TOP shall also require the nursery providing the oak trees to provide each lot owner with the nursery's stllndard tree warranty. -4- Sent. By: BROWN,VlARD,SALZt,IAN&WE1SS,t-'.A.; 4UI 4~:> ~:>~bi Ma y - t:l - U~ )): JUAM ; t-'age b/l~ F IL€ NlM eooa&4.oJO Oft lOOt( 04~ 7 PAaIE 1 & 74 (h) Parks. A land area west of Lots 1-3 shall b~ dtvdup~d as a passivt: park including paved walkways, park benches., street lighting, and landscaping material suitable to the City and consistent with the Town Center design theme of the Project. FinaJ detaib shall be subject to the City Manager's approval. (i) Arbor Ordinance Requirement. (A) Tn consideration oftrces which shall be cut, removed or destroyed frolTl the property by TOP or its agent. TOP shall replace trees or monetarily compensate the City as . provided in the Arbor Ordinance according to th~ Tree Replacement Assessment established by the City. TOP may deduct from their Tree Replacement Assessment, Tree Replacement credits based on the number of replacement credits as provided in the Preferred Plant List, provided that: (i) All plant materiaJs are .Horida Grades and Standard One (1) or better; and (ii) All plant materiaJs are properly installed; maintained and replaced as deemed necessary under the City's Arbor Ordinance. (iii) Tree removaJ inspection fee to be capped at $200.00 for all trees to be removed on the Property. ." (iv) The landscape plan for the proposed development to which the credits are'to be applied is prepared by a landscape architect licensed by the State of Florida. (B) For purposes of this Seclion 5, the following words shall have the meaning ascribed below unless the context clearly indicates otherwise: -s- sent. By: BRDWN,WAHU,SALLMAN&WtlSS,~.A.; 4UI 4~~ ~~~ti; rAay-tl-U~ 11 ::.J1AM; f-'age 1/12 FILE NUH ~.JO ~ 800K 0.:147 PAeE 167S (i) "City Arbor Ordinanc~.>l City Arbor Ordinance shall mean Chapter 5 of the City Code of Ordinances otherwise known as the city Arbor Ordinance. (ii) "Preferred Plant List." Preferred Plant List shall mean that list of plant materials and corresponding Tree Replacement Credits shown in Exhibit "B" of this Agreement. (iii) "Tree Replacement Assessment." Tree Replacement Assessment shall mean the total amount of monetary compensation owed to the City of Winter Springs as provided in the Arbor Ordinance for the replacement of trees cut, destroyed, or removed from 8 property in the City as a result of development or redevelopment. (iv) Tree Replacement Credit. Tree Replacement Credit shall be equal to One Hundred Dollars ($100.00) and no cents in tree replacement value. Additionally, TOP agrees to )n~1all and maintain in a first class condition landscaping on the Property in accordance with the Landscape Plan attached htrtlO a~ Exhibit "C," which is hereby fully incorporated herein by this reference TOP shall promptly ....epJace dead trees and shrubs to a condition equal to or better than required by the Landscape Plan. U) Setbacks. Building front set back shall he 0-10 feet, side set back shall be 0-10 feet and rear set back shall be o-} 0 feet. Scction 7. Successors (Ind AssilPls This Agreement shall automatically be binding upon and shall inure to the henefit of the successors and assigns of each of the parties. -6- S-ent By: BROWN,\'JARO,SALLfI.ANi:I'::USS,r'.A.; 4UI 4~~ !:J:'!:Jb; ~.Iay-u-u~ 11 ::11AM; Page 8/12 FILE HUH aooae.. ~O.J() OR DOOK ~M7 PAGE 1676 Set:tiull 8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Scction 9. Amendments. This Agreement shall not be modified or umended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 10 Entire Asneement. This Agreement supersedes any other agreement, oral or written, <lno contains the entire agreement between the City Rnd TOP as to the subject matter hereof Section II. Severability. If any provision of this 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 Agreement. Section 12. Effective Date. This Agreement shall become etTective upon approval by the City of Winter Springs City Commission and el(ecution afthis Agreement by both panies. Section 13. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. S~CliOrl14 . Relationship oCtile Panies. The rdaliollship oCthe panics tu this Agrt:ement is contractual and TOP is an independent contractor and not an agent of the City. Nothing herein shall bc deemed to create a joint venture or principal-agcnt relationship between the parties, and neither party is authorized to', nOf shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. Section 15. Sovereign lmm\1nitv. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida SfahlfH, or Bny other limitation on the City's potential liability uriuer state and Icuerallaw. -7- Sent By: ,~ROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; May-8-02 11 :3IAM; Page 9/12 FILS HUM ~4-030 M 8000( 04.J4 7 PAe€ 1677 Section 16. City's Police Power. TOP agrees and acknowledges that the City hereby reserve:> all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers, Section 17. T nterprelalion. The parties hereby agree and ack nnwledge that they have both participated equaUy in the drafting ofthi!! Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 18. Permits. The failure: of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve TOP or the City of the ncccssity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 19. Third Party Rilthts. This Agreement is not It third party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. Section 20. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligati.ons may be obtained by suit ill equity. '. Section 21 Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to rccover reasonable attorney's fees and cost.s through all appeals to the extent remitted by law. Section 22, Future RezoningsfDevelopmenl Pennits. Nothing herein shall lirnil the City's authority to grant or deny any future rezoning or development permit applications or requests -8- ~ent ~y: ~HUWN,~A"UJ~ALLMAN6W~1~~J~.A.; aUI u~~ ~~~D; May.t\-u" 11 :~lAM; Page 10/12 FILE HUM ~"4030 Oft 8OOf< 04341 PAaE 1678 suhsequelllLO the effeclive dale oflhis Agreement. In addition, nOlhing herein :>hall b~ (;~)lI:>trut:d as granting or creating a vested properly right or interest in TOP or on the Property. IN WJTNESS WHEREOF the parties hl\vehercunto set their hands and seal on the date first above written. Signed, sealed and delivered in the presence of TUSKAWILLA OFFICE PARK, .L.L.C a Florida Corporalion -~~ By: (Print Nanlt ot"Wilfles,) NOTA~LACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF ", The foregoing inst~mcnt was acknowledged hefore me this Z <; day of FiJrl.t_". 2002, by SANRDA BJERL Y, as Attorney in Fact for William Barrett, as the President O~WILLA OFFICE PARK, L.L.C.., a Florida corporation, Ll who is personally known to me, or Lif'who has produced FL 1>(; r W') Ll gn-c as identification. lH'to-T'fY'-5"1.-H1-0 SlJS,A.N SANDRIDGE c~, CC8721()9 EXPtRES OCT os. 2003 toHOm~ 1olft( Nff A,QIf "",An' (SEAL) -9- Sent By: BRO'lIN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; May-B-02 11 :32AM; Page 11/12 , ' FlU HUM eoo.2044030 011I 800< <>4~1 ~ 1679 " '. ' . EXHmlT "An The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Legal description: TrIA T P()RTlON OFI.OTS 53,54,55,58,59,62,63 AND TIIOSF,1JNTMPROVEn RI(I1fHJF-WA YS LYING BETWEEN J.(Hs55ANI>511, IHrs59 ANI>o2 ANOn-IF. NORTH YzOFTHAT::w' VACATED RlGHTOFWA YL YING SOllTHERL YOF LOTS5S, 5&, 59, 62 AND63, T>,R, MITCHELL'SSURVEYOFTHELEVYtiHANT,ACCORT>lNG 1 (l THE PLAT THEREOF AS RECORDED IN PLA TBOOK ], PAGE 5 Of'Tftl:: l'UI:U.IC KECO({J>S OFSEMJNOLE COUNTY, FI.ORfl)A; BEYNG MORF. PARTICur .AJ(/.Y IlnSCIU!\I(J) AS FOI.J))W~: COMMi~(;E Al-n u, SOUTIIWliST CORNER OF TIlE A"'OIH~MENTlONEn I.OT 63; THENCE RUN SOU'fH 87002 '4U" EAST, AJ.ONO II m SOOTll LINE OF LOT 63, A DISTANCE OF 62.14 F'cET TO 1'HE POINT Of HEuINNINO; TJ fENCE DEP ARTlNG SAID SOtITHLINE RUN SOl.TT1l 02057'20"WEST, A DTST ANCE OF) 5.00 FEET TO THE CENTERLINE OF A 30' UNIMPROVED RIGHTOF WAY V ACA nm IN OFFICIAL RECORDS BOOK 4112, PAGE 0597 OFTHE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORlDA; THENCE RUN SOUTI-I 87002.40" EAST ALONG SAID CENTERLINE A DISTANCE OF 1129.20 FEET TO ruE WESTERLY I(lOllT-Of-WA Y OF T1J$KAWILLA ROAD AS DESCRlBED IN omclAL RECORDS nOOK 3603, I'A(Il~ l095 OF THE PUBUC RECORDS OF SEMINOLE COUNTY, FLORIDA; SAIl) POINT I.YING ON A CURVE CONCAVE NOHTIIWESTERI.Y IIAVlNG TI n, r-OU.OWING ELEMENTS: A RADlUS OF 5677.58 FEEl, ^ CENTRA1. ^NClJ.E OF 03042'36", A CHORD LENGrn OF 367.57 FEET AND A CHORD REARING OF NOKTiI 12013'06" EAST; THENCE FIHlM A TAN<lI.;.NTIJEAKJN<.IOFNORUI140 04 '24"EAST, RlINNORlHEASTERL Y ALONG SAIDRIGHTOFWA Y ANI) TIlE ARC. OF SAID CURVE A DISTANCE OF 367.64 fEET TO TIlE POINT OF IlliVERSE CIJHVATIJHE m; A cmWE CONCA VESOUlHEASTERi. Y riA VlNti 'nllil'OLI.OWINti EJ.J:-:MENTS:A RADIIJSOF 57R 1.58 FEET,ACENTRALANGLE 01'01012'46", A CHORD I.ENOTII OF 122.38 l:liEl A.NDA CHORDUEARlNO OF NORTH 100SS'II "EAST:. THENCE RUN NOR THEAS IERL Y ALONG THE ARC OF SAID CURVE A DISTANCE OF 122. 3R FEET; T1l1iNCI!. lll:'P AHTING SAID CIJHVEAND RICHIT OFWA Y I.INl,:RIJN SOl HI I 20020']3" W"':ST, A I)ISTANCF. OF 64.52 FEET; THENCE RUN SOUTlI 45038 '29"WEST, ADIST ANCE OF 59 .63 FEET; THENCE RUN sourn 71 030'38"wt-sr, A D1STAl'lCr:'OF 4R ,60FEET; THENCE RUN NORTH 75028'56" WEST, A ])!STANCJ:: Of 27.98 FEET; THENCE RUN NORTH 540 16'32" WEST, A DISTANCE OF 44.31 FEET; llfF.NCE RUN SOIJTII 44013' 12" WEST, A f>ISTAJl/CE OF l8.~2 FEET; THENCE RUN SOUTH 5101 R'33" WF},T, A OISTANCEOf 345,75 FEET; THENCE RUN SOIIm 86031 '22" WEST, A DISTANCE OF 82.36 FEET; THENCE RUN NORTH 62037' IT'WEST, A))IS"tANCfWf63.41I'EET; THENcr.: IUINSOHTI I 76"27'47" wl,s'r, AlJJSTANCE 01'62.31:1 FEET: THENCE RUN NORTH l:I4U]4' IT'wEsr, A DISTANCE Of 83.22 FEET; THENCE RUN sourn 76044'49" WEST A DISTANCE OF45.06 FEET; THENCE RUN NORrH 8I01ll'2K" WEST, A f}ISTAN<';I~ OF 49.25 FEET; THENCE RUN SOUHl 8500I'S6"WEST, A ()JSTANCE OF 48.02 FEE:r, THENCE RUN SOUTH 52042 '0 J" WI!.",., A DISTANCEOFo7.3J FEET, TlIENCE RUN SOl.lIH 80" 17'2 1 "WEST, A DISTANCE OF 52.69 FEET; THENCE RUN SOUTH 03027'55" WEST, ^ DlSTANCEOF 23.12 FEET; THENCE RIJN SOUTH 6\)")4 '23" WEST, A DISTANCE OF \)5.27 FEET; TUENCI!. RUN NORTH H2016'34" WEST. A lJISTANCE OF 77.56 FEET; THENCE RUN SOUTII 84055'SO"WEST, ^ DISTANCE OF 75.60 FEET TO THE POINTOFBEGINNIN<i. CONTAINING: 199,036 sQU!\RE FEET (4.569 ACRES) +/. K :rrSW/J I!LEG^,. OF..SCRIPTION.OOC KlOY H/G/OI JEI\I -1- s.ent By: BROWN,WARD,SALZ~IAN&WEISS,P.A.; .~ 407 425 9596; May-B-0211:32AMj Page 12/12 FILE HUM ~"O:lO OR aoot< 0.347 PABE 1680 ... -. .. .. ., EXIIIDIT un" J\A+o<e-zl?'a: :7:71 elt; OO.a.oPtFHT .~ e~: :,23 p,ea~ ClleOlT AYlAAOE CllUlfT NET Tll.U 0" LAMOII aHIIUI HMli IIZJ! ""TlO COlT II .lLUI CAI~ 't'..~ t10llJ _nm~ 2oS-aGlII.,1J' 2.\ . 80.011 ~ .zoo.OO . 110.00 Il~ IlPI'I*" 2:>-~ 0..,... 1.1 . 110.00 . zPJIl,OO , "1>.00 PJ'VI'Il1 t*e p..,. dill. all i'll, 4' ~I . 12S.0II . )00.00 . " $.00 II<IU"PillClO "'II'D 30 e-L. , Sol . lOO.lll , *.00 . 176,110 I!vtOpnn ,. III Ptlm .0 1Pt, ~ Sol . 150.00 . 3OO.0ll , t7~ .CIl~ ".n,.th ~~,. .-, , 'DUO . 10').00 . 17 5.1110 tinIlY 111""* OIIc P*, )Cl~.~ '" . I~.OO . 1CQ.00 . Ill-DO 011I. "'I!n. P. 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OI-21-30-501-0000-0550 ~ ~ ~ ~ CIN';UIT C~MT 8K 04347 PO 1670 CLERK~3 M 2002944030 03/1!/!00! 09~13~13 pl ~It~ ~ 'x1.00 o w ~ ~u~i.~- BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT, made and executed this aQ day of ~ 002, by and between the CITY OF WINTER SPRINGS a Flori da mumclpal corporation ("City") whose address is 1126 East State Road 434, Winter Springs, FL 32708, and TUSKAWILLA OFFICE PARK, L.L.C., a Florida corporation ("TOP"), whose address is 800 Westwood Square, Suite E, Oviedo, FL 32765. WITNESSETH: WHEREAS, TOP is constructing an office park development on real property located within the City of Winter Springs, Florida; and WHEREAS, the real property is currently located within the City of Winter Springs and is currently part of the Winter Springs Town Center; and WHEREAS, the parties desire to memorialize their mutual understanding that the real property will be developed as TUSKAWILLA OFFICE PARK DEVELOPMENT project in accordance with the Town Center Zoning District requirements adopted by the City, (the "Project"); and WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, ("Agreement"), with TOP for the development of the Project; and FILE NIJM 200264030 ~ ~~ 0434-7 PAGE 1671 WHEREAS, in addition to TOP's compliance with all City Codes, permitting and construction not in conflict herein, the City and TOP desire to set forth the following special terms and conditions. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. Section 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. Section 3. Subject Property. The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Section 4. Representations of TOP. TOP hereby represents and warrants to City that TOP has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by TOP and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against TOP and the Property in accordance with the terms and conditions of this Agreement. TOP represents it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. -2- . ' FILE IiN,M~ 2002e44030 OR BOOK 4~3~7 Pf~ISE 1672 Section 5. TOP's Obligations and Commitments In consideration of the City entering into this Agreement with TOP, TOP voluntarily agrees as follows: (a) Office Structures. All office structures located on and fronting the Tuskawilla Road (Lots 1-4) shall be two (2) stories in height . All other office structures may be either one (1) or two (2) stories in height, however, TOP understands the City prefers two (2) stories pursuant to the Town Center District Code. (b) Fe tine. 4'inyl picket fencing four (4) feet in height shall be installed fifteen feet (I 5') from the north property line behind Lots 4-11 and in compliance with all City Code requirements. The design of said fence shall be acceptable to the City. (c) Wetland Buffer. In consideration of the peculiar site constraints, the property will be developed with afifteen-foot (15') wetland vegetative buffer provided said buffer is permitted by the St. Johns River Water Management District and approved by the City Commission in accordance with the City's Comprehensive Plan. (d) Wall Buffer. A six (6') foot high brick wall shall be constructed along the south property line (Oak Forrest Subdivision) from Tuskawilla Road to the west end of the detention pond. Said wall shall be fully constructed prior to the first building permit being issued for the office structures except a building permit may be issued for, and an office structure constructed on, Lot 4 simultaneously with the construction of the wall, -3- F I lE M~1 gO0e944030 OR BOOK 04347 PEiOE 1673 (e) Dumpster Pad. No Dumpster Pad shall be located along the south (Oak Forrest Subdivision) or State Road 434 property lines. A Dumpster Pad shall be located near Lot 4 (fj Li htin .All exterior lighting on the Property will be directed inward towards the Property, so as to minimize or eliminate the effects of glare on the adjacent residential property, particularly the Oak Forrest Subdivision. (g) Additional Tree Buffer. TOP acknowledges that due to site restrictions on the Property, there are several landscape gaps depicted on the Landscape Plan along the south boundary where no oak trees can be planted on the Property ("Landscape Gap"). In order to fill in the Landscape Gaps with oak trees, TOP agrees to offer the Oak Forrest Subdivision lot owners located adjacent to the south side of the wall and a Landscape Gap, an opportunity to have installed, on their lot, at TOP's expense, a 3-4" caliper oak tree(s) with a height of at least 6-8 feet. Said oak trees shall be installed in addition to the landscaping required on the Landscape Plan and prior to the completion of the wall at a spacing distance of 45 feet, unless a lot owner states in writing that they do not desire a tree(s) in which case the spacing distance may be greater to accommodate that lot owner's desire not to have a tree. Any tree planted pursuant to this subparagraph (g) shall be counted for purposes of satisfying TOP's Tree Replacement requirements. TOP shall also require the nursery providing the oak trees to provide each lot owner with the nursery's standard tree warranty. -4- FILE N11N1 EOQgµ4O30 Olt ~001~ 043+7 pMtAE 1674 (h) Parks. Aland area west of Lots 1-3 shall be developed as a passive park including paved walkways, park benches, street lighting, and landscaping material suitable to the City and consistent with the Town Center design theme of the Project. Final details shall be subject to the City Manager's approval. (i) Arbor Ordinance Requirement. (A) In consideration of trees which shall be cut, removed or destroyed from the property by TOP or its agent, TOP shall replace trees or monetarily compensate the City as provided in the Arbor Ordinance according to the Tree Replacement Assessment established by the City. TOP may deduct from their Tree Replacement Assessment, Tree Replacement credits based on the number of replacement credits as provided in the Preferred Plant List, provided that: (i) All plant materials are Florida Grades and Standard One (1) or better; and (ii) All plant materials are properly installed; maintained and replaced as deemed necessary under the City's Arbor Ordinance. (iii) Tree removal inspection fee to be capped at $200.00 for all trees to be removed on the Property. (iv) The landscape plan for the proposed development to which the credits are to be applied is prepared by a landscape architect licensed by the State of Florida. (B) For purposes of this Section 5, the following words shall have the meaning ascribed below unless the context clearly indicates otherwise: -5- FILE MGM Pb0~44O3O OR SO011 4347 P~f~1~E 1673 (i) "City Arbor Ordinance." City Arbor Ordinance shall mean Chapter 5 of the City Code of Ordinances otherwise known as the city Arbor Ordinance. (ii) "Preferred Plant List." Preferred Plant List shall mean that list of plant materials and corresponding Tree Replacement Credits shown in Exhibit "B" of this Agreement. (iii) "Tree Replacement Assessment." Tree Replacement Assessment shall mean the total amount of monetary compensation owed to the City of Winter Springs as provided in the Arbor Ordinance for the replacement of trees cut, destroyed, or removed from a property in the City as a result of development or redevelopment. (iv) Tree Replacement Credit. Tree Replacement Credit shall be equal to One Hundred Dollars ($100.00) and no cents in tree replacement value. Additionally, TOP agrees to install and maintain in a first class condition landscaping on the Property in accordance with the Landscape Plan attached hereto as Exhibit "C," which is hereby fully incorporated herein by this reference. TOP shall promptly replace dead trees and shrubs to a condition equal to or better than required by the Landscape Plan. (j) Setbacks. Building front set back shall be 0-10 feet, side set back shall be 0-10 feet and rear set back shall be 0-10 feet. Section 7. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. -6- , FILE M,MI EOO~li4+1030 ~ ~~ 04347 P~iYE 1676 Section 8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 9, Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 10. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and TOP as to the subject matter hereof. Section 11. Severability. If any provision ofthis 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 ofthis Agreement. Section 12. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution ofthis Agreement by both parties. Section 13. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 14. Relationship of the Parties The relationship of the parties to this Agreement is contractual and TOP 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. Section 15. Sovereign Immuni~. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state and federal law. -7- FILE N~NM gpp~4,~O30 ~ >~i 0~~7 ~fiEE 1677 Section 16. City's Police Power TOP agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. Section 17. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting ofthis Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 18. Permits. The failure ofthis Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve TOP or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 19. Third Partv Rights. This Agreement is not a third party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. Section 20. ~ecific Performance. Strict compliance shall be required with each and every provision ofthis Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by suit in equity. Section 21. Attorney's Fees. In connection with any arbitration or litigation arising out ofthis Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. Section 22. Future Rezonin~s/Development Permits Nothing herein shall limit the City's authority to grant or deny any future rezoning or development permit applications or requests -8- FILE NUM gppg~4O3O ~ ~001't 0~3~7 PiAAE 1678 subsequent to the effective date of this Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in TOP or on the Property. IN WITNESS WHEREOF the parties have hereunto set their hands and seal on the date first above written. Signed, sealed and delivered in the presence of.• By ,,, (Print Name of Witness) TUSKAWILLA OFFICE PARK, L.L.C a Florida Corporation ~~•~ ,,,, S nA BIE ~' as Attonn~;y,in Fact for William Barrett;T`sidetit '' ` • ° ' ' ~~ > n ~ ~ ', ~ i r~ "s~ \ '^ CITY OF ~I1~1~I~PRIN~S, ~~ ~ - ~; Flori ~'` . ~~ Corpora~ion,®~ i "° ~ ~, ~ ~,, •. ' w Y~ ~. > . ,. ~F .. - PAUL 1T'. PARTY~~A,; x~0~.= REA LO NZO-LUACES City Clerk NOTARIAL ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this L ~ day of ~ ~~„ , 2002, by SANRDA BIERLY, as Attorney in Fact for William Barrett, as the President of TUSKAWILLA OFFICE PARK, L.L.C.., a Florida corporation, .~_~, who is personally known to me, or ~!~'who has produced ~L 'Dr ~ v Cr :, L; crtse as identification. •R4 ~G-~rqg -SL-G31-a ~$tJ$A NDRtDGE Caovr CC8721Q9 ~n EXPIRE ~ ncv~rrt~ wm,uv (SEAL) ~+- .. OTARY P LIC, State lorida My commission expires: -9- FILE I~N,NI 800Ei4~O3p ~ ~1 0~~7 1679 EXHIBIT "A" The real property ("Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "A" attached hereto and made a part hereof by reference. Legal description: THAT PORTION OF LOTS 53, 54, 55, 58, 59, 62, 63 AND THOSE UNIlvIPROVED RIGHT-OF-WAYS LYING BETWEEN LOTS 55 AND 58, LOTS 59 AND 62 AND THE NORTH %2 OF THAT 30' VACATED RIGHT OF WAYLYING SOUTHERLY OF LOTS 55, 58, 59, 62 AND 63, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT TIC SOUTINVEST CORNER OF THE AFOREMENTIONED LOT 63; THENCF, RU?1 SOUTH 87°02'40" EAST, ALONG THE SOUTH LINE OF LOT 63, !'. DISTANCE OF 62.14 FT~ET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID SOUTH LINE RUN SOUTH 02°57'20"WEST, A DISTANCE OF 15.00 FEET TO THE CENTERLINE OF A 30' UNIMPROVED RIGHT OF WAY VACATED IN OFFICIAL RECORDS BOOK 4112, PAGE 0597 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; THENCE RUN SOUTH 87°02'40" EAST ALONG SAID CENTERLINE A DISTANCE OF 1129.20 FEET TO THE WESTERLY RIGHT-OF-WAY OF TUSKAWILLA ROAD AS DESCRIBED IN OFFICIAL RECORDS BOOK 3603, PAGE 1095 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA; SAID POINT LYING ON A CURVE CONCAVE NORTHWESTERLY HAVING THE FOLLOWING ELEMENTS: A RADIUS OF 5677.58 FEET, A CENTRAL ANGLE OF 03°42'36", A CHORD LENGTH OF 367.57 FEET AND A CHORD BEARING OF NORTH 12°13'06" EAST; THENCE FROM A TANGENT BEARING OF NORTH 14° 04'24"EAST, RUN NORTHEASTERLY ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE A DISTANCE OF 367.64 FEET TO THE POINT OF REVERSE CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY HAVING THE FOLLOWING ELEMENTS: A RADNS OF 5 781.5 8 FEET, A CENTRALANGLE OF O 1 ° 12'46", A CHORD LENGTH OF 122.3 8 FEET AND A CHORD BEARING OF NORTH 10°5 8' 11 "EAST; THENCE RUN NORTHEASTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 122.38 FEET; THENCE DEPARTING SAID CURVE AND RIGHT OF WAY LINE RUN SOUTH 20°20'33" WEST, A DISTANCE OF 64.52 FEET; THENCE RUN SOUTH 45 °3 8' 29" WEST, A DIS TANCE OF 5 9.63 FEET; THENCE RUN SOUTH 71 ° 3 0' 3 8" WEST, A DISTANCE OF 48.60 FEET; THENCE RUN NORTH 75°28'56" WEST, A DISTANCE OF 27.98 FEET; THENCE RUN NORTH 54° 16'32" WEST, A DISTANCE OF 44.31 FEET; THENCE RUN SOUTH 44° 13' 12" WEST, A DISTANCE OF 18.82 FEET; THENCE RUN SOUTH 51°18'33" WEST, A DISTANCE OF 345.75 FEET; THENCE RUN SOUTH 86°31'22" WEST, A DISTANCE OF 82.36 FEET; THENCE RUN NORTH 62°37' 17" WEST, A DISTANCE OF 63.47 FEET; THENCE RUN SOUTH 76°27'47" WEST, A DISTANCE OF 62.38 FEET; THENCE RUN NORTH 84°34' 12"WEST, A DISTANCE OF 83.22 FEF,T; THENCE RUN SOUTH 76°44'49" VvEST A DISTANCE OF 45.06 FEFiT; TI~NCE RUN NORTH 81 ° 18'28" WEST, A DISTANCE OF 49.25 FEET; THENCE RUN SOUTH 85°01'56"WEST, A DISTANCE OF 48,02 FEET, THENCE RUN SOUTH 52°42'01 " WEST, A DISTANCE OF 67.33 FEET, THENCE RUN SOUTH 80° 17'21"WEST, A DISTANCE OF 52.69 FEET; THENCE RUN SOUTH 03°27'55" WEST, A DISTANCE OF 23.12 FEET; THENCE RUN SOUTH 69°34'23" WEST, A DISTANCE OF 95.27 FEET; TFIENCE RUN NORTH 82°16'34" WEST, A DISTANCE OF 77.56 FEET; THENCE RUN SOUTH 84°55'50" WEST, A DISTANCE OF 75.60 FEET TO THE POINT OF BEGINNING. CONTAINING: 199,036 SQUARE FEET (4.569 ACRES) +/- K:/TSW/J1/LEGAL DESCRIPTION.DOC REV 8/6/01 JEM -1- ' F I l.E WLIM 2002e44030 ' ~ ~ Olf E001( 04347 p~ 1680 'r EXHIBIT "B" JUN-20-2h01 :7:27 CHC BEUELOPh ENT 407 8~' 152 P.08.~08 CR@DIT AYBRAGE CREDIT NET TIRE OR L/1RSiE sHRUb NAME 6QE RATIO COST YALU! GAIN YwpOri HoOy aeuld-lrLnk 2630 pal.,0' 2-1 S 00.00 i 200,00 S 110.00 bimpe0rt stopper 25.30 pal.,a' 2.1 S 90.00 i 200.00 S 110.00 Pygmy C>ila Palm, dbl. 30 gas„ 4' 3.1 S 125.00 i 700.00 f 175.00 Buda•Pllkb Palm 30 pal., S 3.1 i 100.00 S 300.00 S 175A0 European Pqn Palm 30 pal, 4' 3.1 8 150,00 i 300.00 i 175.00 Cdk+ea Nan Palm 30 pal., S' 3-i S 100.00 S 300.00 i 175.00 Canary lalard Dale Palm 30 pal„ 6' 3.1 S /011.00 S 300.00 S 175.00 Dalf Palm, P. daolyllkn 70 pal„ 4' 3-1 S 100.00 S 300.00 S 17x.00 1Nlndrnie Palm 30 Oal., a' 3-1 S 150.00 S 300.00 S 150.00 Sago 30 gu., 3' 3.1 i 150,00 S 700.00 S 150.00 ume Gam Maprrolla 26-30 pel.,e' 8.1 S 1 00.00 8 300.00 s z00.oo Rea Bud 2s3D 0x1.,6' 3-1 s 125.00 s 300.00 s 175.00 Cardinal Holly 26.90 pal„6' 3.1 S 125.00 i 300.00 S 175.00 Featiw Holly 25.30 pal.,8' ~-1 3 125.00 S 300.00 i 1 ~ 5,00 Robin HoOy ZS30 pal.,6' 3.1 3 126.00 S 300.00 S 176.00 Oakleef Holly 26x0 pa1.,6' 3-1 i 123.00 i 800.00 6 17'6,00 Spartan Juniper 25.30 psl.,b' 3-1 i 115.00 S 300,00 i 185.00 Toruloa Juniper 25.30 pa1.,8' 2.1 S 00.00 i 200.00 S 110.00 Flovwrin0 Dogwood 25.30 pal„a' 3.1 i 12:,00 i 300.00 i 176.00 CamfDiq 2530 pgl.,5' 31 i 146,00 S 300.00 S 155.00 JgpaneN btuabarcy 23.30 pal„9' 3.1 S 190.00 i 300.00 i 180.00 Lobbtly bay 25.30 pal.,e' 2-1 i 90.00 i 200.00 S 110.00 Upright Yaupon HOOy 15 pal, 0' 2-1 S 90.00 S 200.00 S 1 ia.00 trVefplnp Yaupon dotty 25.30 paL,B' ~1 S 100.00 i 300.00 S 200.00 largpeealum Sgndard 160e1„ S' 3-1 i 100.00 i 300,00 i 200.00 CNickapw Plum 25 gal., E' 2-1 S 95.00 S 200.00 i 106.00 Rfr1 RnrJlrye 15 qal., 5' Z•1 i 60.00 ! 200,00 T 150,00 Myrtb Oak 1 S pal., S' [-1 S Sa.00 C 200.00 ~ 15n as Crateepus /5 prl., a' 2-1 S 30.00 S 200.00 ~ 150.00 Fringe Tnf 15 pal., a' Z-1 S 50,00 i 200.00 S 150,00 TabebWa 3D gal., a' 2-t i 75-DO i 200.04 i 126.00 Baunlnla pelplnle 10 pal„ 6' 2.1 i 60.00 S 200.00 S 150.00 awealrTa. os~. , s gu.. e' z•1 i so.oa s zoo.oo i 150,00 lJpuauum8Wldard 4S gal„5-10' 6.1 i 300.00 ! 500,00 S 200.00 Crape MyAle Standrro 45 001.,6-10' S-1 S 360.00 t 500.00 a 150.00 Ywpon Ndly 6tendard 26,'JO 081„9' ~1 i 100,00 3 300,00 S 200.00 Weflel's Viburnum Stendarcl 250 pe1.,0' S•1 S 100.00 i 300.00 i 200.00 Neo01e Pelm 21-70 pai.,s' 4.1 S 200.00 S 400,00 S 200.00 Pygmy Pa1• Ihlm,ldpN 30 ptl., 4' 3-1 S 150.00 i 300.00 S 150.00 butie•Pindo Pgkn a5 pal., 8' 4-1 S 200.00 b 100.00 S 200.00 Eurapeen Fen P81m as pal., S b-1 S 250.00 i 500.00 5 250.00 ChMeee Pert Palm 8y pal, a' b1 S 260.00 i 500,00 5 250.00 Canary lelend Data Palm 05 gel., 8' 6.1 S 250,00 S 500,00 a 260,00 Oats Palm, P. dectylNen aS gel., 5' S-1 S 260.00 a 500.00 S 250.00 Wlndmnl Palm ab pat.. 8' S-1 S 300.00 i 600.00 S 200.00 Sago 86 pas., 4' S-1 i 260.00 i SO0.00 i 260.00 LItOe oem Magnolia a3 pal„ 6' 6.1 f 960,00 i 500.00 S 250.00 Spartan Juniper ai pal„ a' S-1 S 250.00 S 500.00 i 250,00 TOnNOa Juniper a5 pe4, a' S•1 9 250.00 i 500.00 i 250.Go OenOOn Holly 66 pa1.,1gk1'rQ' S-1 S ?26.00 i 500.00 S 275.00 live C+ak 95 pai.,i4'xbk3' 6.1 8 300.00 i SOO,DO S 200.00 vVlnpad Elm a5 poi„12x5'>Q1/2 4.1 S 225.00 i 400,00 i 17:,00 Red Maple a5 pa1.,12'x5'7t21R 4-t 3 225.00 s 100,00 a 176.00 raTal. P, ge „ .,_•,,,_-ann, , ~ : , a 40° 327 d753 P.OB TpTFL P.Qg -11- LEGlBtLITY UNSATISFACTORY FOR SCANNING