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HomeMy WebLinkAboutTab 28 Barclay Woods II, LLC.pdfTHIS INSTRUMENT WAS PREPARED BY: Patrick K. Rinka, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, FL 32802-2809 (407)843-4600 D SHOULD BE RETURNED TO: Anthony Garganese, Esquire Brown, Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 MARY .!MORSE, CLERK OF CIRCUIT COURT SEMINDLE C0U0M BK 05643 PGS 1555-1571 CLERK'S # 2005040516 RECORDED 03/10/2005 09 M30 AM RECORDING FEES 146.00 RECORDED BY t holden DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and executed this day ofj�6fu , 005, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporate (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and BARCLAY WOODS II, LLC, a Florida limited liability company ("Barclay Woods"), whose address is 1085 West Morse Boulevard, Suite A, Winter Park, Florida 32789. WITNESSETH: WHEREAS, Barclay Woods'is the fee simple owner of (or has the contractual right to purchase) certain real property located within the City in Seminole County, Florida and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, Barclay Woods intends to develop the Property as a single-family residential (townhouse) community at a density of approximately one hundred eighty-five (185) units to be known as "Jesup's Landing" (the "Project"); and WHEREAS, pursuant to the approval of the City Commission on February 28, 2005, Barclay Woods desires to facilitate the orderly development of the Project on the Property as depicted in that certain Conceptual Plan for Winter Springs Town Center - 17.15 Acre Townhouse Site prepared by Canin Associates under Job No. 204055, dated February . 2005 and approved by the City Commission on February 28, 2005 (thd."Canceptual:Flar.") in compliance with the laws and regulations of the City; and Development Agreement Barclay Woods II, LLC / City of Winter Springs Page 1 of 14 WHEREAS, the City Commission has recommended entering into this Agreement with Barclay Woods for the development of the Project; and WHEREAS, in addition to Barclay Woods' compliance with the City Land Development Code and the City Town Center District Code (together the "Code"), permitting and construction not in conflict herewith, the City and Barclay Woods desire to set forth the following special terms and conditions with respect, to the development and operation of the Project. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Obli ations and Commitments. In consideration of the City and Barclay Woods entering into this Agreement, the City and Barclay Woods hereby agree as follows: (a) Approval of Conceptual Plan. The City hereby acknowledges and agrees that the Conceptual Plan is acceptable and was duly approved by the City Commission in compliance with the laws and regulations of the City. A copy of the Conceptual Plan is attached hereto as Exhibit `B" and fully incorporated herein by this reference. Barclay Woods acknowledges and agrees that the.Conceptual Plan was prepared with preliminary dimensions and that during the final subdivision and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. As such, Barclay Woods and the City agree that the Conceptual Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final subdivision and final engineering phase in order to bring the Project into full compliance with the City Code. (b) Utilities. The City hereby acknowledges and agrees that it currently has sufficient water and sewer treatment plant capacity available to service the Property and shall provide such services to the Project as depicted in the Conceptual Plan. Barclay Woods shall install a six inch sanitary force main, to extend approximately 4,400 feet from a planned on -site lift station to the existing six inch force main located south of the Property near State Road 434 to serve the Property. All water and sewer improvements required on -site and off -site to service the Property shall be at Barclay Woods' expense. However, to the extent any other properties utilize the force main constructed by Barclay Woods, they will reimburse Barclay Woods their prorated share of the force main prior to construction commencement. The City hereby agrees to provide a temporary construction easement along the southern border of Central Winds Park to facilitate the force main construction; provided, however, Barclay Woods shall provide the legal description for such easement. The terms and condition of said easement shall be in a form acceptable to the City Attorney. Development Agreement Barclay Woods II, LLC / City of Winter Springs Page 2 of 14 (c) Construction of Orange Avenue Se ent. Subject to final City approval, Barclay Woods agrees to (a) design and permit that portion of Orange Avenue contemplated in the City's Town Center Transportation Master Plan as a fifty (50) foot right-of-way to run from Tuskawilla Road to Central Winds Park, and (b) construct that portion of such Orange Avenue from Tuskawilla Road to the western boundary of the Property (together the "Orange Avenue Segment"); provided, however, the City shall reimburse Barclay Woods for the reasonable costs thereof or provide transportation impact fee credits as set forth below. For purposes of this Agreement, (i) the design costs subject to City approval shall include the costs and expenses of land surveying, civil engineering, landscape architecture, and irrigation design, and (ii) the construction costs shall include the costs and expenses for clearing, grubbing and earth excavation, and for the construction of all storm drainage facilities, Progress Energy -approved decorative streetlights, landscaping, hardscape, irrigation, sidewalks, curbs, pavement, striping, signage, and any required offsite improvements related to the Orange Avenue Segment (all of the foregoing costs and expenses are hereinafter collectively referred to as the "Roadway Expenses"). To the extent any of the Roadway Expenses also benefit other aspects of the Project not related to the Orange Avenue Segment (e.g., stormwater improvements for the buildings and common areas), the City shall only be responsible for reimbursing the proportionate share of the particular expense related to the Orange Avenue Segment. The City shall reimburse Barclay Woods in the amount of the Roadway Expenses within ninety (90) days after the Orange Avenue Segment has been completed and accepted by the City. The City shall designate Orange Avenue as a "Collector Road" and provide transportation impact fee credits to Barclay Woods to be applied to the Roadway Expenses owed by the City. The payment of the transportation impact fee credits by Barclay Woods shall be reconciled at the time the Orange Avenue Segment is accepted by the City. If the Roadway Expenses exceed the amount of the transportation impact fee credit, the City shall reimburse Barclay Woods, by check, the amount of the Roadway Expenses in excess of the transportation impact fee credit. On the other hand, if the Roadway Expenses are less than the amount of the transportation impact fee credit, Barclay Woods shall pay the City, by check, the amount of the transportation impact fee in excess of the Roadway Expenses. Barclay Woods agrees that all Roadway Expenses shall be subject to an informal competitive bid process under which Barclay Woods shall obtain three (3) written quotes or bids. Each quote or bid and all change orders shall be submitted to the City for review and approval prior to Barclay Woods entering into any contract or modifications thereto for the design, permitting and construction of the Orange Avenue Segment. Barclay Woods further agrees that at the time reimbursement for any Roadway Expense is requested, Barclay Woods shall provide the City with a copy of all applicable invoices, receipts, warranties, maintenance bonds and documentation, including all change orders, which shall clearly evidence each reimbursable Roadway Expense. The City shall not be responsible for reimbursing any Roadway Expense which was not approved in advance by the City and cannot be properly and reasonably documented in writing. The City shall not unreasonably withhold any approvals required under this paragraph. Development Agreement Barclay Woods H, LLC / City of Winter Springs Page 3 of 14 Barclay Woods shall submit all engineering drawings and construction plans and specifications related to Orange Avenue to the City for final approval prior to the commencement of construction. (d) Project Roadways. As depicted on the conceptual plan, the City hereby acknowledges and agrees that the following internal Project roadways will deviate from the design standards set forth in the Town Center District Code, and the City hereby grants the following waivers to Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): (i) The roadway adjacent to the eastern boundary of the Property shall be an Alley rather than a Neighborhood Lane. (ii) The roadway running north - south through the center of the Property (approximately 400 feet) from Orange Avenue shall be an Edge Drive and shall not be required to connect with the high school located to the south of the Property. A Bus Stop for public and school transportation shall be located on said Edge Drive approximately 100 feet from Orange Avenue. (iii) The Neighborhood Lane contemplated to be located along the northern boundary of the Property pursuant to the Code shall be shifted to the south as depicted on the Conceptual Plan, and an Alley shall be located between the foregoing Neighborhood Lane and Orange Avenue. Except as set forth above, all other internal Project roadways shall be designed and constructed pursuant to the Town Center District Code and City Land Development Code. (e) Additional Non -Roadway Town Center Code Waivers. Based on the Conceptual Plan and Barclay Woods' agreement to the terms and conditions set forth herein, the City Commission hereby grants the following additional non -roadway waivers to the Town Center District Code pursuant to the special exception criteria enumerated in Section 20-321(c): (i) In exchange for the green space east of the pool and around the existing pond, and the related amenities thereto (walkways, benches, trees, lighted fountain feature), as depicted on the Conceptual Plan, the northeast portion of the Property shall be utilized for a stormwater retention pond for the Orange Avenue Segment and the Property, rather than for the "Orange Avenue Park" as contemplated under the Code. (ii) Townhouse buildings facing the Lake, Stormwater Retention Pond and Orange Avenue (all as depicted on the Conceptual Plan) shall not have streets located in front of such buildings; provided, however, all such buildings shall have Alleys located behind them. Development Agreement Barclay Woods IT, LLC / City of Winter Springs Page 4 of 14 (iii) The six -unit townhouse unit building located in the northwest comer of the Property shall be configured so that the rear of such building faces the adjacent City park. (iv) The Project shall provide only pedestrian and non -automotive access to the adjacent high school property. (v) Approximately sixty-four percent (64%) of the townhouse units depicted on the Conceptual Plan shall meet or exceed the two (2) foot (minimum) finished floor elevation above the highest adjacent sidewalk grade in front of the applicable unit. The remaining townhouse units shall be permitted to have a finished floor elevation less than twenty-four inches above the highest adjacent sidewalk grade (all as depicted on the Conceptual Plan), so long as the average of all units is twenty-one (21) inches or higher and no finished floor elevation for any one unit is less than six (6) inches. A schedule detailing the breakdown of the finished floor elevations for each unit shall be provided with the final engineering plans. (vi) 144 of the 185 total townhouse units (78%) shall meet the ten (10) foot build -to line required from the right-of-way of any Neighborhood Street, Neighborhood Lane and Edge Drive, and the remaining 41 townhouse units (22%) shall be permitted to have a six (6) foot build -to line. A schedule showing the breakdown of the final build -to lines for all individual units will be provided with the final engineering plans. Barclay Woods acknowledges and agrees that any deviation from the Town Center District Code not specifically enumerated in paragraphs (d) and (e) above shall require separate city commission approval in accordance with the special exception application procedure and criteria set forth in the Town Center District Code. (f) Formation of Homeowners' Association. Barclay Woods hereby acknowledges and agrees that it intends to form a mandatory homeowners' association (the "Homeowners' Association") for purposes of maintaining any and all common areas, landscaping, entrance signs, walls, fences, alleys, recreational areas and stormwater drainage facilities associated with the Project. A separate Declaration of Covenants, Conditions and Restrictions (the "Declaration") will be executed and recorded among the Public Records of Seminole County, Florida to evidence the formation of the Homeowners' Association and establish its rights, duties and obligations. The Declaration shall be in a form acceptable to the City Attorney and shall require the Homeowners' Association, and the members thereof to be bound by the terms and conditions of this Agreement. (g) Buffer Walls and Fences. Trail Access. Notwithstanding the requirements of Section 20-417 of the Code, Barclay Woods shall install (i) a six (6) foot tall wrought iron or similar fence along the southern boundary line of the Property which shall have at Development Agreement Barclay Woods 11, LLC / City of Winter Springs Page 5 of 14 least three (3) pedestrian access points to the Seminole County trail, and (ii) a six (6) foot tall wrought iron or similar fence along the western boundary of the Property. The foregoing fences shall each be erected as soon as reasonably practical and prior to any permanent vertical construction for the Project. Notwithstanding the foregoing to the contrary, access will be available at all times for emergency vehicles. All pedestrian access points to and from the Seminole County Trail shall be dedicated to the City on the Final Plat, and any Project gates will remain unlocked. (h) Sipiage. The City hereby acknowledges and agrees that Barclay Woods shall have the right, upon the full execution of this Agreement, to erect on -site construction signs, marketing signs and temporary signs (including up to four (4) "banner" signs) as described in Sections 20-470(10), 20-470(11) and 20-470(16) of the Code, in locations reasonably acceptable to the City, which signs shall be permitted to remain for a period of nine (9) months from the date hereof. Barclay Woods shall thereafter have the right to erect permanent Project identification signage at the main entrance to the Project, which shall consist of lettering attached to the two pier and garden walls spelling "Jesup's Landing" (total signage dimensions to be approximately 1 foot high and 11 feet wide) as depicted on Exhibit "C" which is attached hereto and fully incorporated herein by this reference. Any construction signs or marketing signs erected on the Property shall not exceed sixty-four (64) square feet in size (total on -site). The City hereby acknowledges and agrees that the Property shall not be subject to the fourteen (14) day limitation on the erection of temporary "banner" signs as provided in Section 20-470(16) of the Code. Barclay Woods and its successors and assigns shall maintain all of the signs erected pursuant to this Section 3(h) in a good condition and state of repair. (i) Sidewalks. All sidewalks shall comply with the Code (minimum six (6) feet) except the sidewalk to be located around the lake and to the pedestrian access located at the southwest corner of the Property as depicted on the Conceptual Plan shall be a minimum of eight (8) feet in width. Further, a twenty (20) foot emergency access sidewalk shall be constructed at the southeast corner of the Property and shall be stabilized to facilitate emergency vehicle access. In addition, the Declaration shall establish easement rights in favor of the Homeowners' Association to permit sidewalks to extend into individual townhouse lots as depicted in the Conceptual Plan. 6) Model Units/Sales Office. Prior to the recording of the final plat, the City agrees to permit Barclay Woods to construct model townhouse units under the following conditions: (i) The model townhouse units shall be contained in a single building (the "Model Building") and shall not exceed five (5) individual units. (ii) The model townhouse units shall remain under Barclay Woods' ownership and control until such time as the final plat is recorded by the City and a final certificate of occupancy for each unit is issued under the conditions set Development Agreement Barclay Woods 11, LLC / City of Winter Springs Page 6 of 14 forth below. In other words, Barclay Woods shall not contract for sale, sell, or lease any of the individual model townhouse units until such time as the City approves and records the final plat for the Project and issues a final certificate of occupancy for each unit. (iii) The model townhouse units shall be constructed in a location reasonably acceptable to the City. Vertical construction shall not commence until stabilized access and fire protection is available. (iv) Prior to the model townhouse construction, the model townhouse units shall be duly permitted by the City in accordance with all City Codes. As part of the building permit application, Barclay Woods shall submit, along with all construction plans for the townhouse units, a duly certified boundary survey which shall depict the location and legal description of the model townhouse site and each individual model townhouse lot. Barclay Woods acknowledges and agrees that this legal description is intended to coincide with the eventual location of the townhouse lots as depicted and legally described on the final plat. Barclay Woods assumes full and complete responsibility and liability in the event that said legal descriptions do not conform to the lot lines required by the City in final plat. (v) At such time the City Building Official completes and approves a final inspection of the model townhouse units, the City will issue a temporary certificate of occupancy. Said temporary certificate of occupancy shall be issued for the Model Building as a whole, not by individual units. Occupancy of the townhouse units shall be limited to the sale and marketing efforts for the Project. In addition, Barclay Woods shall have the right to utilize one garage in the Model Building as a temporary sales office. (vi) At the request of Barclay Woods or at such time the Project development is completed, whichever occurs sooner, Barclay Woods shall file a re -conversion permit application requesting that the model townhouse units be converted into permanent residential units and the City shall issue individual certificates of occupancy for each model townhouse unit; provided, however, the final plat is approved and recorded by the City and the City Building Official determines that the units are suitable for permanent residential occupancy and in compliance with the City Codes. (k) Trash/Refuse Service. The City hereby agrees that trash and refuse pickup will be provided for each individual residential unit, therefore no Project dumpsters will be located on the Property as otherwise required pursuant to Section 9-280 of the Code. (1) Platting, Barclay Woods shall be required to plat the Property in accordance with Section 9-75 of the Code. Neighborhood Lane and Neighborhood Street which are perpendicular to the trail shall be depicted on the Plat extending to the southern boundary of the Property. Barclay Woods shall submit a proposed lighting plan to the Development Agreement Barclay Woods H, LLC / City of Winter Springs Page 7 of 14 City contemporaneously with its submittal of the proposed plat, unless the applicable information is received from Progress Energy in time to submit such plan at the time final engineering plans are submitted. (m) Wetlands. The City hereby acknowledges and agrees that Barclay Woods has sufficiently addressed the City's Comprehensive Plan requirements with respect to wetland impacts and preservation, (n) Recreational Area. Barclay Woods shall be required to provide recreational areas within the Project in accordance with the Conceptual Plan. (o) Guest Parking Spaces. Barclay Woods shall construct a minimum of 111 on -street guest parking spaces within the Project. The guest parking spaces on Edge Drive and Neighborhood Street shall be marked with appropriate parking stripes as depicted on the Conceptual Plan. The guest parking spaces on Neighborhood Lane shall not be striped. No parking shall be allowed on Alleys. (p) Stormwater Pond Maintenance Berth. The City hereby agrees that Barclay Woods shall only be required to maintain a six (6) foot maintenance berm around the Project retention pond rather than a ten (10) foot berm as required pursuant to Section 9- 241(d)(3) of the Code. (q) Tree Mitigation. The City hereby acknowledges and agrees that Barclay Woods has submitted a tree survey together with the Conceptual Plan, and that Barclay Woods shall comply with the following conditions with respect to tree mitigation: (i) Barclay Woods shall be permitted to utilize the northeast comer of the Property (depicted as "Orange Avenue Park" in the Code) for stormwater retention, with sufficient capacity to accommodate the volume of stormwater runoff generated by the Orange Avenue Segment and the Project; provided, however, the use of such area shall meet the requirements of Chapter 5 - Tree Protection and Preservation - of the Code. The City hereby agrees that it shall permit the removal of all existing trees in such area to facilitate the construction of the planned retention pond. Barclay Woods shall mitigate for the removal of the trees in such area in accordance with Table 1 of Section 5-9 of the Code, provided that all existing trees to be removed with a caliper measured 12 inches above grade of 24 inches or greater shall be replaced at the rate of five credits per tree and an additional one replacement credit per four inches of caliper above 28 inches. (ii) At the request of the City, Barclay Woods will provide an Alley along the eastern boundary of the Property. The City hereby agrees that it shall permit the removal of all existing trees in such area in order to facilitate the construction of the Alley. Barclay Woods shall mitigate for the removal of such existing trees in accordance with Table 1 of Section 5-9 of the Code, provided that Development Agreement Barclay Woods If, LLC / City of Winter Springs Page 8 of 14 all existing trees to be removed with a caliper measured 12 inches above grade of 24 inches or greater shall be replaced at the rate of five credits per tree and an additional one replacement credit per four inches of caliper above 28 inches, or as directed by the City Manager. (iii) Barclay Woods agrees to mitigate the removal of the foregoing trees by replacement with canopy trees planted upon the Property in accordance with Table 1 of Section 5-9 of the Code in lieu of a contribution to the City Tree Bank or as directed by the City Manager. (r) Orange Avenue — Undergrounding Utilities.. In conjunction with the construction of Orange Avenue, and in accordance with the purchasing and reimbursement provisions set forth in paragraph 3(c), Barclay Woods shall underground all existing utility lines running along Orange Avenue. Barclay Woods shall be responsible for the pro rata share of the cost of undergrounding for only that portion of the utilities running along the frontage of the Property. The City shall reimburse Barclay Woods for the remainder of said costs related to the other segments of Orange Avenue not fronting the Property. Transportation impact fee credits are not available for undergrounding utilities (s) Construction Truck Route. Barclay Woods acknowledges and agrees that the City desires to keep construction truck traffic along Tuskawilla Road north of State Road 434 to an absolute minimum, especially over the brick paved portion of Tuskawilla Road. As such prior to the commencement of Project construction, the City shall determine (with the assistance of Barclay Woods), an acceptable transportation route to and from the Property for all large construction trucks and heavy machinery (e.g. dump and concrete trucks). The City's determination shall be memorialized and delivered to Barclay Woods in writing. Barclay Woods shall provide a copy of said determination to all construction companies working at the Project. At all times, Barclay Woods shall require all such trucks to utilize the transportation route selected by the City. The City may modify the transportation route at any time by providing written notice to Barclay Woods. Barclay Woods agrees to indemnify and hold harmless the City for any damage occurring to any City roadway located within the Town Center north of State Road 434 which is caused by any large construction trucks servicing the Project. (t) Eastern Alley. The Alley located along the eastern boundary of the Property as depicted on the Conceptual Plan shall be subject to a cross -access easement which permits the adjoining property to use said Alley for pedestrian and vehicular traffic at such time the adjoining property is developed. The cross -access easement shall ensure connectivity between the Project and the future development project of the adjoining property and shall be in a form acceptable to the City Attorney. (u) Other Code Deviations. Excluding the deviations from the Town Center District Code which are addressed in paragraphs (d) and (e), Barclay Woods Development Agreement Barclay Woods H, LLC / City of Winter Springs Page 9 of 14 acknowledges and agrees that the only other deviations from the City's Land Development Code authorized by this Agreement are: (i) The posting of banner signs in the manner provided in paragraph (ii) Permission to construct model homes prior to the recordation of the final plat as set forth in paragraph 0). (iii) Permission to require individual trash pick-up instead of dumpsters and permission to require submittal of a street lighting plan with final engineering/subdivision plans as set forth in paragraph (k). (iv) The requirement of a six (6) foot wide maintenance berm around the stormwater pond as set forth in paragraph (p). Any other deviations from the City's Land Development Code shall require separate approval from the City Commission by development agreement. 4. Representations of the Parties. The City and Barclay Woods hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this 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 the City and Barclay Woods and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. Barclay Woods represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Property and the Homeowners' Association, and the members thereof, to the terms and conditions set forth in this Agreement. 5. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Barclay Woods and their respective successors and assigns including, but not limited to, the Homeowners' Association and the members thereof. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 6. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 8. Entire A reemen . This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Barclay Woods as to the subject matter hereof. Development Agreement Barclay Woods II, LLC / City of Winter Springs Page 10 of 14 9. 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. 10. Effective Date. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. 11. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 12. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Barclay Woods 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. 13. 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 the state and federal law. 14. City's Police Power. Barclay Woods 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. 15. 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. 16. Permits. The failure of this Agreement to address any particular City, county, state, and/or federal permit, condition, term, or restriction shall not relieve Barclay Woods or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. 17. Third-ParpL 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. 18. 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 a suit in equity. 19. Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs through all appeals to the extent permitted by law. Development Agreement Barclay Woods II, LLC / City of Winter Springs Page 11 of 14 20. Develo ment 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. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Barclay Woods or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Barclay Woods is in breach of any term or condition of this Agreement. [SIGNATURES FOLLOW ON NEXT PAGE] Development Agreement Barclay Woods H, LLC / City of Winter Springs Page 12 of 14 IN WITNESS WHEREOF, the parties have hereunto set their hands a 'o e date first above written._ ~� CITY OF WIN'ITEAW -[ Z4D w ►f J Z 7.. CITY SEAL STATE OF FLORIDA COUNTY OF SEMINOLE • %�, By - � • $r J F. Bush, Mayo'bi -1,��'•4.....••''` aOra Hw��■ter APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. j Dated: ll 34165' By: Anthon arganese, City Attorney for the City of Winter Springs, Florida Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this =day of _ JW&W-dt , 2005. (NOTARY SEAL) Notary Public My commission expires: 3 r� C FFranjd f Explrae F-W--y 22.200 Development Agreement Barclay Woods H, LLC / City of Winter Springs Page 13 of 14 Signed, sealed and delivered in the presence of the following witnesses: L�. 5i ature of Witness Printed Name of Witness /11� Signature o es ��►r. Printed Name of Witness STATE OF FLORMA COUNTY OF �5e41 V/Lf BARCLAY WOODS II, LLC, a Florida limited liability company B: Y 7-e&e � Printed Name: I.JA `3 Title; 44t The foregoing instrument was acknowledged before me this 3 day of , 2445, by `t'holn4sc G'ciPpler , as ,e-&e-F- of BARCLAY WOODS II, LLC, a limited liability company, on behalf of said company. He is personally known tome or produced r(- 6 L as identification. (NOTARY SEAL) (Notary blic i ature) (Print dame Notary Public, State of 1--to 9 t Cif Commission No.: My Commission Expires: 1�+ M.trattn W titl My C0M WWon DD28M44 a Anwy 14.2000 Development Agreement Barclay Woods U, LLC / City of Winter Springs Page 14 of 14 EXHIBIT "A" Legal Description Parccl 1: Lot 15, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. Parcel 2: Lot 16, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. EXHIBIT x HUN ,ZL loan _ 6g1NBoi�P�}y�n+�n�n e'stl�4� gc�ddns�y'LN�i�6b�i�W RUM. C� x > o go H ' �> � r jilipI1,'11��� 9 ■ ■ L EMUS U I A.- Pier and Gar WaU a THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony A. Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite A660 Orlando, FL 32801 (407) 425-9566 MARYANNE MORSE, CLERK OF CIRCUIT COURT 3:-MINOLE COUNTY BK 05735 PGS O422-0430 CLRRk'E # 2005084465 RECORDED 05/20/2005 04:33:14 PK RECORDING FEES 78.00 RECORDED BY G Harford FOR RECORDING DEPARTMENT USE ONLY TOWN CENTER PHASE I SITE DEVELOPMENT PERMIT AGREEMENT THIS TOWN CENTER PHASE I SITE DEVELOPMENT PERMIT AGREEMENT (the "Permit") is issued by the CITY OF WI-NTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to by BARCLAY WOODS II, LLC.., a Florida limited liability company ("Barclay Woods"), whose address is 1085 W. Morse Blvd., Suite A, Winter Park, 32789, on this 10th day of May, 2005. WITNESSETH: WHEREAS, Barclay Woods and the City previously entered into a binding Pre - Annexation Developer's Agreement dated February 28, 2004 and recorded March 10, 2005 in Official Records Book 05643, Pages 1555-1571 of the Public Records of Seminole County, Florida (the "Developer's Agreement"), relating to certain real property located in Seminole County, Florida and more particularly described therein and in Exhibit "A" (the "Property"); and WHEREAS, in accordance with the Developer's Agreement, Barclay Woods has submitted final engineering plans and other site development data and information to develop the Property which are currently being reviewed by the City for final approval; and WHEREAS, pending final engineering approval, Barclay Woods has requested that the City permit preliminary site development work consistent with the submitted final engineering plans; and WHEREAS, although the final engineering plans have not been finalized and approved by the City, said plans and the site development data and information submitted to -date are sufficient enough for the City to issue a Phase I site development permit in order to allow Barclay Woods to perform a limited scope of preliminary site development work in advance of final engineering approval under the terms and conditions stated herein; and WHEREAS, substantial land clearing and restoration of the Property is specifically contemplated and required by the City's Town Center policiesland code in order permit dense Town Center Phase I Site Development Permit Agreement City of Winter Springs and Barclay Woods II, LLC -1- 0909536\104086\840970\l development and a neo-traditional scheme of new tree canopied streets and planned green spaces; and WHEREAS, in furtherance of this request, the City desires to permit a limited scope of Phase Z site development work under the terms and conditions stated herein and agreed to by Barclay Woods; and NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to the terms and conditions set forth under this Permit as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference. 2.0 Scope of Work; The scope of this Permit is limited to the following preliminary site development work on the Property: 2.1 Demolition. The demolition and removal of any existing buildings and structures. 2.2 Removal of Vegetation. The removal of any existing trees, stumps and other vegetation which will not be preserved on the Property. 2.3 Removal of Muck 2.4 Dewatering. ground water. 2.5 Gradin&fillin furtherance of the planned development. The removal of any existing muck. The dewatering of any existing surface and/or The gradhig and filling of the Property in 2.6 Removal of Septic Tanks. The removal of any existing septic tanks and drainage fields. 2.7 Closing Wells. The closing of any existing water wells. All preliminary site development work shall be performed and completed within one hundred and twenty (120) calendar days of the Effective Date of this Permit and in accordance with all applicable local, state, and federal laws, regulations, and permits. The completion date may be reasonably extended by the City Commission upon good cause shown. Any site development work not specifically authorized hereunder is hereby strictly prohibited. Barclay Woods shall be required to obtain other City permits required to implement the work authorized by this Agreement including, but not limited to, demolition and arbor permits. During the term of this Permit, the City and its agents shall have the unconditional right of entry onto the Property to conduct inspections to determine compliance with the terms and conditions of this Permit. Town Center Phase I Site Development Permit Agreement City of Winter Springs and Barclay Woods 11, LLC -2- 0909536\104086\840970\1 3.0 Condition Precedents to Commencement of Work. Prior to commencing the work set forth in section 2.0, the following documents shall be submitted by Barclay Woods to the City in a form acceptable to the City: 3.1 Sketch Plan. A sketch plan depicting the preliminary site development work authorized under section 2.0 and a stabilized construction entrance. 3.2 Construction Vehicle Routing Plan. A construction vehicle routing plan which is designed to provide for a safe and convenient route for construction vehicles and equipment to go to and from the Property. Said plan is subject to modification by the City Manager in order to safeguard persons and property. 3.3 father GovernonentAgencyPermits. A copy of any and all required permits issued by any other governrnent agency including, but not limited to, a St. John River Water Management District Incidental Work Permit and a Seminole County Health Department Septic Tank and Drainage Removal Permit. 3.4 Engineer Certifications. A written certification from the appropriate project engineer or consultant documenting that the work authorized under section 2.0 is in compliance with applicable environmental laws including, but not limited to, laws applicable to endangered or threatened species, artesian water wells, hazardous materials, and historical artifacts. Barclay Woods shall have the duty to keep updated and current plans, permits, 'and certifications on file with the City during the term of this Permit. This Permit shall not become effective until such time as the City receives and approves the documents required by this section. 4.0 Permit Fee. Upon issuance of this Permit, Barclay Woods shall pay a permit fee equal to one percent (1%) of the estimated construction value of the work authorized by section 2.0. 5.0 Default; Restoration of Property. The City reserves the right to revoke or suspend this Permit if the City determines that Barclay Woods is not in compliance with the terms and conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Barclay Woods with written notice identifying any default of the Permit terms and conditions. Upon receipt of the notice of default, Barclay Woods shall have five (5) days to cure the default to the City's satisfaction unless additional time is granted by the City Manager. If Barclay Woods fails to cure the default, the City shall have the right to revoke or suspend this Permit. If the City suspends or revokes the Permit, Barclay Woods shall immediately secure and restore the Property to a safe condition to the City's satisfaction so that the Property does not become a public nuisance or a health and safety hazard. At the City's discretion, restoration may include, but not be limited to, removal of debris and vegetation, grading of the Property, mulching, seeding, erecting sand barriers, fencing, and other activities to stabilize the Property from erosion. If Barclay Woods fails to properly restore the Property within a reasonable period of time, the City shall have the right to make claim to and use the Phase I Security to complete the restoration, In the event the amount of the Phase I Security is not sufficient to cover the City's expenses to restore the Property, Barclay Woods agrees, upon written notice by the City, to Town Center ,Abase I Site Development Permit Agreement City of WinW Springs and Barclay woods n, LLC -3- 090953 6\ 104086\840970\1 reimburse the City for any incurred expenses not covered by the Phase I Security. If Barclay Woods fails to frilly reimburse the City, the City shall have the right to record, with the Seminole County Clerk of the Court, an assessment lien on the Property for any un-reimbursed expenses. 6.0 Security. Upon issuance of this Permit, Barclay Woods shall post a performance bond, irrevocable letter of credit, or escrow deposit with the City in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) guaranteeing that the work authorized and required by this Permit is performed and completed in full compliance with any and all terms and conditions of this Permit ("Phase I Security"). If the Phase I Security is a bond or irrevocable letter or credit, it shall be issued by a company and in a form deemed acceptable by the City Manager and City Attorney. Upon approval of the final engineering plans and issuance of the Phase II development permit for the Property, Barclay Woods shall post a performance bond, irrevocable letter of credit, or escrow deposit with the City guaranteeing the completion of the public infrastructure required for the Property to the City's satisfaction ("Phase II Security"). The amount of the Phase II Security shall be determined by the City based on Barclay Woods's engineers certifying to the City the estimated cost of said public infrastructure. If the Phase II Security is a bond or irrevocable letter of credit, it shall be issued by a company and in a form acceptable to the City Manager and City Attorney. Upon the City's receipt of the Phase II Security, the City shall release the Phase I Security. 7.0 Indemnity, Release, Hold Harmless. Barclay Woods hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees, and attorneys from and against all claims, losses, damages, personal injuries (including, but not limited to death), or liability (including reasonable attorneys fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of this Permit; and (2) any work performed under this Permit including, but not limited to any and all acts and omissions of Barclay Woods and their contractors. 8.0 Representations and Warranties. Barclay Woods represents and warrants that the work authorized by this Permit is being performed with the knowledge and understanding that said work is being done prior to final engineering approval by the City and that final engineering approval may be denied by the City or result in additional site development not contemplated by this Permit. Barclay Woods agrees that they are assuming the full and complete risk that final engineering may be denied by the City or additional site development work may be required and may include a modification of the work performed under this Permit. 9.0 No City Representation and Warranties., Barclay Woods acknowledges and agrees that although this Permit indicates that the City is considering final engineering approval for the Property, the City in no way represents or warrants that the City has approved or will approve said plans. 10.0 Prior Consent Required for Transfer of Permit. This Permit is not transferable or assignable without the prior consent of the City Commission. 11.0 Applicable Law. This Addendum shall be governed by and construed in accordance with the laws of the State of Florida. Town Center Phase I Site Development Permit Agreement City of Winter Springs and Barclay Woods II, LLC -4- 090953 6\1040W840970\1 12.0 Amendments. This Permit shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. 13.0 Entire Permit Agreement. This Permit is issued in furtherance of the Development Agreement. However, this Permit supersedes any other agreement, oral or written, and contains the entire agreement between the City and Barclay Woods as to the specific work authorized under section 2.0 of this Permit. Any provision of the Development Agreement not in conflict with this Permit shall remain in full force and effect. 14.0 SeverabUity. If any provision of this Permit shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional right to declare this Permit null and void and require that the work authorized by section 2 be immediately stopped. 15.0 Effective Date. This Permit shall become effective upon approval by the City Commission, execution of this Permit by all parties hereto, and the completion of the conditions precedent set forth in section 3.0 of this Permit ("Effective Date'D. 14.0 Relationship of the Parties. The relationship of the parties to this Permit is contractual and Barclay Woods is 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. 15.0 SovereilM Immuni . Nothing contained in this Addendum 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 the state and federal law. 16.0 _City's Police Power. Barclay Woods agrees and acknowledges that the City hereby reserves all police powers granted to the City by law, particularly with respect to whether or not the City Commission will, in its absolute discretion, approve the final engineering plans for the Property. In no way shall this Permit be construed as the City bargaining away or surrendering its police powers. 17.0 Third-Pariy,_Right s. This Permit is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 18.0 AttornUls Fees. Should the City take any action to enforce this PMMit Barclay Woods agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and costs, through all appellate proceedings, in connection with said enforcement. 19.0 Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Permit. The failure of this Permit to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Barclay Woods of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Town Center Phase I Site Development Permit Agreement City of Winter Springs and Barclay Woods II, Ld.0 -5- 090953 6\104086\840970\1 Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all other permits for the Property until such time the work authorized under this Permit has been completed to the full satisfaction of the City. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] Town Center Phase I Site Deaelapment Permit Agreement City of Winter Springs and Barclay Woods IL LIC -6- 0909536\104096\840970\1 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRWGS By: f �� ATTEST: J F. Bush, Mayor By: Andrea L a Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY r/ For the use and reliance of the City of Winter Springs, Florida only. 3-r ) ')� CITY SEAL Da40f By ganese, City Attorney for the r Springs, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this EX day of 2005. (NOTARY SEAL) &A(�Z '4gaw� Notary Public My comunission expires: Town Center Phase I Site Development Permit Agreement City V. Winter Springs and R=hLy Wnods U. LLC -7- 0909536\104086\840970\1 a Debra C. Franklin My Commission DD292971 &. F, Expires February 22. 2008 Signed, sealed and delivered in the presence of the following witnesses: 6i atu of Witness Printed Name ❑ itness W,,, & P Lr,! Signature dMitneas • L W. I'c s /P� Printed Name df Witness BARCLAY WOODS H, LLC, a Florida limited liability company By: Thomas Corkery, M ing P er Date: , (-- 17-' o 6 " SWE 0-� VLORIDA CoLTNTY OF 5 CML-V o Imo: 'the "foregoing instrument was acknowledged before me this —qt day of 2001, by Thomas Corkery, as managing p5aer of BARCLAY WOODS IIas T� , LLC, a limited liability company. He is personailknown to me or has produced as identifica own- (NOTf�RY SEAL) ;OtARP ASignature.) (Print Name) Notary Public, State of Commission No.: _ My Commission Expires: ,p9l Debra C. FrankOn My Commission DD29MI a� Expires February 22, 2008 Town Center Phase I Site Development Permit Agreement Uty Of Winter Springs and Barclay Woods II, LL.0 -8- 090953 al04096i8d0§'ib\1 EXHIBIT "A" Legal Description Parcel 1: Lot 15, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. Parcel 2: Lot 16, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida.