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HomeMy WebLinkAboutMcGaba Binding Development Agreement Stone Gable -2003 05 28 ,'" .-, .. , .. fi-":J u - -4" '.. ........................ .... ..... I1.EJiK CF ctroJIT aurr 9EJlIMU aum OK 048,lq PG 1896 a..ERK"S . 200308~380 lffOfIB 05/'l81tJ1fJ3 08s58sS .. .--INS FEES 13-50 HlBU BY S 0' Kelley TIllS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony A. Garganese, Esquire Brown, Salzman, Weiss & Garganese, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 (407) 425-9566 PARCEL LD. NO.'S 26-20-30-5AR-ODOO-0080 26-20-30-5AR -ODOO-009B FOR RECORDING DEPARTMENT USE ONLY BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT, made and executed this _ day of March, 2003, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City") whose address is 1126 East S.R. 434, Winter Springs, FL 32708, and McGABA, LLC., a Florida limited liability company ("McGaba"), whose address is 4986 Courtland Loop, Winter Springs, FL 32708. WITNESSETH: WHEREAS, McGaba is constructing a shopping center development on real property located within the City of Winter Springs, Florida; and WHEREAS, pursuant to the approval of the City of Winter Springs City Commission on March 24, 2003, McGaba desires to facilitate the orderly development of a shopping center (the "Shopping Center") on the Subject Property (defined in Section 3 below) asdepicte~ in the! ;sil~ ~,' . "i ~ f 1 " "..- plan attached hereto. as Exhibit "A" and incorporated herein by this reference (the "Site Plan"), iin . . ... . . j ~ compliance with the laws and regulations of the City; and Page 1 of 12 T.t FILE NOM 200.308~.380 OR BOOK 0483~ ~ 18~7 . , WHEREAS, the City Commission has recommended entering into a Binding Development Agreement, ("Agreement"), with McGaba for the development of the Shopping Center; and WHEREAS, in addition to McGaba's compliance with all City Codes, permitting and construction not in conflict herein, the City and McGaba 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 ("Subject Property") which is the subject to, and bound by, the terms and conditions of this Agreement is legally described on Exhibit "B" attached hereto and made a part hereof by reference. Section 4. Representations of McGaba. McGaba hereby represents and warrants to City that McGaba 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 McGaba and recorded in the public records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against McGaba and the Subject Property in accordance with the terms and conditions of this Agreement. McGaba represents it has Page 2 of 12 , . - . , FILE NOM 2OO.lO89380 OR BOOK ()4839 PAGE 1898 voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. Section 5. Obligations and Commitments. In consideration of the City and McGaba entering into this Agreement, the City and McGaba voluntarily agree as follows: (a) Buffer Wall and Buffer Area. In compliance with Section 20-469 Buffers and Walls, Winter Springs Land Development Code, McGaba shall provide a 6' (measured from grade level) concrete panel buffer wall containing a dye cast brick or stone facing east to the Stone Gable Subdivision property to the reasonable satisfaction of the City (the "Wall"). The Wall shall be constructed as soon as reasonably practical and prior any permanent vertical construction for the Shopping Center. The City recognizes that prior to construction of the Wall, McGaba must: (i) clear a sufficient amount of the Subject Property for the eastern portion of the Shopping Center and the eastern and 'southern portion of the Service Driveway; (ii) install utilities and storm sewer (and restore grading); and (iii) pour a portion of the concrete slab for the Shopping Center in order to utilize a portion of the concrete slab for the Shopping Center as a casting bed for pouring pre cast sections of the Wall. McGaba shall construct the Wall utilizing construction techniques thaLwill preserve a total of 61 trees in the Buffer with a total of 582" in diameter at breast he~ght (" dbh ") consisting of 44 oak trees with a total of 3 94" dbh and 17 palm trees with a total of 188" dbh. In the event that any of the 61 trees described above die or are damaged during the construction of the Shopping Center or for a period of 1 year after the lasCcertificate of occupancy is issued for the Shopping Center, McGaba shall be required to replace any dead or damaged trees with like or similar species of trees properly approved by the City Forester. Such replacement shall be made according to the standard of 1 inch dbh total replacement for each 1 inch dbh of dead or damaged trees and shall occur within ninety (90) days of death or damage Page 3 of 12 '. . F lLE NOH 2003089.380 OR BOOK 048.39 PAGE l8~ unless a greater replacement period is granted by the City Forester for good cause. However, each replacement tree shall be a minimum of 4" dbh and may be planted outside the Buffer on the Subject Property upon the City's prior approval. McGaba shall not be required to place a wall in the area designated as a jurisdictional wetland by the St. John's River Water Management District or the United States Army Corps of Engineers (the "Wetland"). The Wall shall be located around the east and south sides of the Subject Property and configured in a manner along the east side of the Subject Property (abutting the Stone Gable Subdivision) that provides approximately a thirty (30) foot buffer area between the Stone Gable Subdivision resident property lines and the service driveway that surrounds the Shopping Center (the "Service Driveway") and meanders southward closer to the Stone Gable Subdivision to accommodate the storm water pond and then westward to the eastern most boundary of the 25 foot wetland buffer area in substantial conformity with the Site Plan (the "Buffer"). The Wall, Wetland, Service Driveway and Buffer are depicted on the Site Plan. (b) Tree Ordinance / Tree Replacement Assessment. Since McGaba originally filed its Application for Preliminary and Final Site Plan Approval prior to the adoption of Ordinance No. 2002-08 repealing Chapter 5, Winter Springs Land Development Code, regarding tree protection and preservation, McGaba is vested to a limited extent to be regulated under Chapter 5 of the Winter Springs Land Development Code as it existed prior to the adoption of Ordinance 2002-08 (Chapter 5 prior to its repeal shall be referred to as the "Tree Ordinance"). Particularly, McGaba is only vested with respect to tree removal and replacement rights and tree replacement assessments and credits as more specifically granted and set forth in the Site Plan and this Agreement. McGaba acknowledges and agrees that no other vesting from Ordinance 2002- 08 has been granted by the City. In the event that the approved Site Plan should ever be deemed Page 4 of 12 , . FILE NUM 200.3089.J90 OR BOOK 048.39 PAGE 19C)o to be abandoned pursuant to the City of Winter Springs Land Development Code, the limited vested right involving the Tree Ordinance granted hereunder shall no longer be applicable and any development on the Subject Property subsequent to such abandonment of the Site Plan shall comply with Ordimince 2002-08 as amended from time to time. Pursuant to the Tree Ordinance and in consideration of the trees on the Subject Property which shall be cut, removed or destroyed in connection with the development of the Shopping Center, McGaba shall be responsible for payment of the sum of ONE HUNDRED FOUR THOUSAND THREE HUNDRED AND NO/I 00 DOLLARS ($104,300.00) in fees to the City as a tree replacement assessment (the "Tree Replacement Assessment") and NINE THOUSAND SEVEN HUNDRED THIRTY AND NO/IOO DOLLARS ($9,730.00) in arbor permit fees (the "Arbor Permit Fees"). The City hereby agrees that McGaba may deduct from the Tree Replacement Assessment and Arbor Permit Fees, certain tree replacement assessment and permit fee credits ("Credits") in the amounts designated for and in consideration of certain items as set forth in Exhibit "C" attached hereto and made a part hereof by reference. (i) McGaba shall receive $20,000.00 in Credits for its additional costs and expenditures associated with constructing the Wall utilizing special construction methods designed to preserve trees in the Buffer. The City recognizes that such construction techniques increase costs with respect to design, materials and installation costs and the Credit described above in this subparagraph (i) reflect the differences in such costs. Moreover, the placement of the Wall in this location and utilizing these construction techniques will help preserve the east side of the Subject Property. in its natural state and save specimen and non-specimen trees~ Page 5 of 12 FILE MUM c:00308938C) OR BOOK 04839 PAGE 190 1 (ii) McGaba shall receive $15,000.00 in Credits for conveying to the City that portion of the Subject Property comprising the Buffer, which is approximately .2107 acres as depicted on the Site Plan. Such deed of conveyance shall state the property is being conveyed for conservation purposes to allow for a permanent natural tree buffer between the Shopping Center and the Stone Gable Subdivision. The deed shall be in a form deemed acceptable to the City Attorney prior to recording. Further, the Buffer property shall be free of all encumbrances, mortgages, liens, and other impediments to free and clear title at the time of conveyance to the City. McGaba shall be responsible for maintaining the Wall and the deed of conveyance for the Buffer shall reserve a maintenance easement providing access for such purposes. McGaba shall convey the Buffer to the City prior to the issuance of any building permit from the City of Winter Springs for the construction of the Shopping Center. (iii) McGaba shall receive $5,020.00 in Credits for designing and developing the Shopping Center parking area and parking islands to save two (2) oak specimen trees depicted on the Site Plan, which total 50" dbh. The City hereby agrees to allow McGaba flexibility regarding the relocation of some parking islands in an effort to save said trees, provided that such relocation is acceptable to the City staff and does not reduce the number and size of the parking islands required by the City of Winter Springs Land Development Code. (iv) McGaba shall receive $20,000.00 in Credits for replacing 200 trees. Page 6 of 12 ,.>---.. '," , , FILE IMUH 2()o.1089.l&) OR BOOK 04839 PAGE 19(J2 (v) McGaba's net arbor obligations shall be $54,010.00 and shall be payable to the City prior to issuance of the building permit for the shopping center on the Subject Property. ( c) Stone Gable Deceleration Lane. If, within seven (7) years of the date hereof, the City and/or Florida Department of Transportation ("FDOT") determines that a deceleration lane on S.R. 434 is necessary to serve the Stone Gable Subdivision entrance in the area east of both entrances to the Subject Property (depicted on the Site Plan), McGaba shall provide a deed to the City conveying a portion of the Subject Property to the City or FDOT (only for such purposes) within thirty (30) days of a written request (referencing this Agreement) by the City or FDOT to do so subject to the restrictions set forth in this subparagraph (c). The area to be conveyed (the "Deceleration Lane Area") shall be an area no greater than eleven (11) feet in width and shall be located within the area to be used as a landscape buffer required by the City as shown on the Site Plan. Furthermore, the conveyance of the Deceleration Lane Area by McGaba to the City or FDOT shall not cause reconfiguration or relocation of either of the two (2) existing entrances to the Subject Property or the Shopping Center parking area in any manner. The Deceleration Lane Area is depicted on the Site Plan attached hereto. In addition, the parties hereby acknowledge that the conveyance of the Deceleration Lane Area may require re-Iocation of the Shopping Center sign in proximity. to that area. In such event, McGaba may remove and relocate such sign within the tract (in accordance with the City of Winter Springs Land Development Code) without modification of the Site Plan or other City processes or permits. (d) Tree Protection Guidelines. McGaba and its construction contractor's shall fully comply at all times with the Tree Protection Guidelines set forth in Exhibit "D" attached hereto and made part hereofby reference. Page 7 of 12 , " F lLE NUM 2fJO.JOS9.J80 OR BOOK 04839 PAGE l '30.3 (e) Cross-Access Easements. In a form acceptable to the City Attorney, the following cross-access easement shall be granted to the City for public use and/or to the adjacent property owner in accordance with Section 20-472, Winter Springs Code, prior to the first Certificate of Occupancy for the Subject Property: (i) A vehicular and pedestrian cross-access easement, centered approximately 170 feet south of the northwest comer of the Subject Property in a width acceptable to the City engineer, but no greater than twenty-five (25) feet. (f) Wetland Easements. Pursuant to the City of Winter Springs Comprehensive Plan, Conservation Element, Policy 1.4.4, McGaba shall dedicate to the City a conservation easement over all jurisdictional wetlands and wetland buffers depicted on the Site Plan. Said easement shall be in a form deemed acceptable to the City Attorney and said dedication shall occur prior to the issuance of a certificate of occupancy for the Subject Property. (g) Drainage Easement. McGaba shall convey a drainage easement located at the southeast corner of the Subject Property, south of the stormwater retention pond, prior to the issuance of a certificate of occupancy for the Subject Property. Said easement shall be in a form deemed acceptable to the City Attorney. (h) S.R. 434 Median Trees. Any tree located within the S.R. 434 median that is damaged or removed by McGaba to accommodate the westbound left-turn median cut shall be replaced or replanted at a location deemed acceptable to the City. Damaged trees shall be replaced according to the standard of 1 inch dbh total replacement for each 1 inch dbh of damaged tree and shall be required to be replaced with a like or similar species of tree properly approved by the City Forester. Page 8 of 12 '~ FILE NJM 2OO.308>].J80 OR BOOK 04Q.39J PAGE 19()4 (i) Off-site Light Spillage. Off-site light spillage shall only be permitted at the main entrance of the Property so that the sidewalk and entrance along S.R. 434 are illuminated to enhance public safety. However, any such illumination shall not cause any unreasonable glare for motorists along S.R. 434 and shall first be approved by the City. Section 6. 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 7. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 8. 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 9. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and McGaba as to the subject matter hereof. Section 10. 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 11. 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 12. Recordation. This Agreement shall be recorded in the public records of Seminole County, Florida, and shall run with the land. Section 13. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and McGaba 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 Page 9 of 12 , ~ 'I FILE NUM 200.3089380 OR 800IK 04839 PAGE 1905 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 14. 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 15. City's Police Power. McGaba 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 16. 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 17. Permits. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve McGaba or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. Section 18. 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 19. 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. Page 10 of 12 FILE NUM 200.3089380 OR BOOK c)48.39 PAGE 1906 Section 20. 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 21. 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 Agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in McGaba or on the Subject 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 the following witnesses: -~ ~~.~ P 'nted Name of Witness McGABA, LLC, a Florida limited liability company By: CITY OF WINTl3R SPRINGS, a Florida Municipal Corporation, ATTEST: N F . BUSH .ayor Page 11 of 12 : :....~ FILE NUN 2:00.J08~.l8O OR BOOK 04839 PAGE 1907 STATEOFFL~~n ~. COUNTY OF 0 The foregoing instrument was acknowledged before me this --.lfL day of ~, 20JJ2, by SIllRLEY MACKERL Y, as President of McGABA, LLC, a Florida limited liability company, who is ~rsonally known to me or who has produced as identification. ........... LAURA A. MORRISON .,~'w. rv.t-. f.:' ~.~ MY COMMISSION # DD 095258 ~. :1 EXPIRES: February 26,2006 ". ,., Bonded Thru Notary PllbIIc Undetwrilel1l ~)1MLQ.1Uo~ Notary Public Signature'/ . LruJrcc A-. MtJVV/~ (Name typed, printed or ~ped) Notary Public, State of ~Oy f' viCe- Commission No.: 'Db Oc,5cr6~ My Commission Expires: J1~b dip, dOD{a (NOTARY SEAL) Page 12 of 12 ., J.. .; FILE MUM 200.3089380 OR BOOK 04839 PAGE 1908 EXHmIT "A" (SITE PLAN) Final Site Plan is on file at: City Hall City of Winter Springs 1126 East S.R. 434 Winter Springs, Florida 32708 ,,~..-..., ,......- ,~ " F [LE NUM 2OO.J089..l8O OR BOOK 04839 PAGE t. 9O'l EXHIBIT If B" PROPERTY That certain piece, parcel and tract ofland located in SEMINOLE County, Florida, described as follows: LE'GAL DESCRII~TI'ON'( ::....~;:\:>::' . .... "~. . : :'; - - ". ~ . THAT CERTAIN. PIECE;' PARCEL~:.\AND: TR~ci OF LAND LOCATED IN SEMINOLE COUNTY, FLORIDA, DESCRIBEO .A_S FOLLOVlS:. '. THE ViEST 231.JO FEET OF l()l" 8, BLOCK, D,OR, MITCHELL'S SURVEY OF LEVY GRANT, AS RECOROEDIN PLAT' B'OOK 1, PAGE 5, PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, LY!NG SOUTH OF SiA~ ROAD 419 (OVIEDO ROAD); i LESS il-IA T PART TAKEN II'J' THAT CERTAIN ORDER OF TAKING FOR ROAD RECORDED IN OFFlCIAL .RECORDS BOOK 2784, PAGE 1196, PUBLIC RECORDS OF SEMINOL~ COUNTY, FLORIDA, CONTAINS 190,13B SQUARE FEET OR 4,365 ACRES MORE OR LESS. TOGEn-IER WITH: THE EAST 253.6 FEET OF LOT 9, (LESS THE EAST 100 FEET OF THE NORTH 150 FEET THEREOF), BLOCK [)., DR. MITCHELL's SURVEY OF THE LEVY GRMH, . ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC' RECORDS OF SEMINOLE COUtHY, FLORIDA. ALSO LESS THE FOLLOWING PROPERTY EEIHG MORE PARTICULARLY DESCRIBED A.S tOLLOWS:' . COMMENCE AT THE NORTHWEST CORNER OF LOT E.' CHASE AND COMPANY'S SUBDIVlSI014 OF WAGNER, ACCORDING TO THE PLAT THEREOF AS RECORDEi:l .IN PLA T BOOR 6. PAGE' 64, OF THE PUBLIC RECORDS OF SEMINOLE. COUNTY, . FLORIDA; THENCE RUN SOUTH 06'55'04 ~ EAST ALONG THE WEST LINE or SAID LOT E, A DISTANCE or 1100.73 FEET TO A POIIH ON lHE BASELINE OF SURVEY OF S.R. 434. ACCORDJ.NGTO F.D,O.T. RIGHT-Or-WAY MAP SECTION NUMBER 77070-2516; THEI-lCE RUI-l NORTH 8.Y50'23~ .EAST ALONG SAID BASELINE OF SURVEY A. DISTANCE OF 390.41 FEET; THENCE DEPARTING SAID BASELINE OF SURVEY RUN SOUTH OT01'30" EAST A DISTANCE OF 24.39 FEET TO A POINT ON THE SOUlHERLY RIGHT-Or-WAY LINE OF S.R. 434; THENCE RJN NORTH 83'51'32" EAST ALONG SAID SOUTHERLY. RIGHT-OF-WAY lI~JE A' DISTANCE OF 168.42 FEET TO THE' WEST LINE OF THE EAST .25'3.6.' FEET OF SAI::> LOT 9, BLOCK D, FOR A POINT'OF BEGII-lNING; THENCE CONTINUE .NORTH 83'51'32" EAST ALO/-lG SAID SOUlHERL Y RIGHT-Of-WAY LINE A DISTANCE OF 153.62 FEET TO THE WEST LINE 01=' THE EAST 100 FEET OF THE NORTH 150 FEET OF SAID LOT 9,BLOCK 0; THENCE DEPARTING SlllD SOUTHERLY R1GHT-OF- WAY LINE RUN SOUTH 07"Ot'30" EAST ALONG SAID WEST LINE OF THE EAST 100 FEET OF THE NORTH 150 FEET OF LO:T9, BLOCK D, A DISTANCE OF 84.03 FEET; THE/-lCE DEPARTING SAID WEST LINE RUI-l SOUTH 83'53'17" WEST. A DISTANCE OF 153.62 FEET TO SAID WEST LINE or THE EAST 253.6 FEET OF. LOT 9, BLOCK D; THENCE RUN NORlH 01'01'30" WEST ALONG SAID 'WEST LINE OF THE EAST 253.6 FEET A DISTANCE OF 83,96 FEET TO THE SAID 'SOUTHERL Y RIGHT-OF-WAY LINE S.R. 434 AND THE. POIN.T OF BEGINNING. '1: ... \. ~ \I 'It... FILE MUM ,2()(t3c)89.38C) OR BOOK c)4839 PAGE 19l() EXHffiIT "e" ARBOR OBLIGATION This exhibit demonstrates the developer's arbor obligation as required in the Tree Ordinance. Arbor Obligation City Conveyance Clear Cut Obligation Arbor Permit Fees Replacement Requirements 9,730 104.300 TOTAL CLEAR CUT OBLIGATION 114.030 200 Tree Replacement Credits 20,000 30-Foot Buffer Credits 9,179-Sq. Ft. Property/Buffer Acquisition 15,000 Tree Preservation Construction Method 20.000 35,000 Specimen Tree Credits 2 Tree Preservations Arbor Permits 5,000 20 5.020 TOT AL CREDITS 60 020 NET ARBOR OBLIGATION 54.010 Hi Ill... '......-.. F lLENUM 2OO..lO89380 OR BOOK c)48.J9 PAGE 1911 EXHIBIT "D" TREE PROTECTION GUIDELINES 1. Prior to construction or during site preparation, barricading suitable to the City's arborist shall be erected and maintained around all trees to be preserved in order to establish a tree protection area. All trees to be preserved shall be identified on-site by harmless marking or banding. 2. Prior to construction, tree protection signs shall be posted and maintained at all tree protection areas. The contractor shall make every effort to protect all existing trees to be preserved during site preparation and. construction. Placement of material, machinery, utility lines, soil, hazardous liquids, or vehicles within the tree protection area shall be strictly prohibited. Materials, wires, signs, or nails shall not be attached to any tree unless such materials are needed to preserve the tree. 3. Unless another suitable technique is approved by the City's arborist, the tree protection barriers shall be constructed as follows: Uprights - 4" x 4" lumber on eight-foot (8) minimum centers; horizontals - the equivalent of one (1) course of2" x 4"lumber. 4. Tree protection barriers shall remain in place until construction is fully completed and all paving, construction, and heavy equipment is off the Subject Property. 5. All trees to be preserved shall have their natural soil level maintained. All efforts shall be made through the grading and drainage plan to maintain the natural drainage to and from such trees. 6. Any tree that may need to be moved for any reason during the construction process shall be relocated only under the direction and written approval of the City's arborist. 7. Properly install and maintain si1tration and sediment control barriers around trees. 8. Root and canopy pruning shall be required by a qualified ISA arborist. Any damaged roots shall be clean cut and covered by clean fill. 9. McGaba shall abide by the reforestation standards set forth in the Tree Ordinance and the terms set forth in subparagraph 5(a) of this Agreement. iv