SECOND AMENDMENT TO ROAD DESIGN, PERMITTING & CONSTRUCTION AGREEMENT [EXTENSION NW 35 TH STREET PHASE 2a]

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1 This Instrument Prepared by and return to: Steven H. Gray Gray, Ackerman & Haines, P.A. 125 NE First Avenue, Suite 1 Ocala, FL TAX PARCEL NOS.: RECORD: $ THIS SPACE ABOVE RESERVED FOR RECORDING INFORMATION SECOND AMENDMENT TO ROAD DESIGN, PERMITTING & CONSTRUCTION AGREEMENT [EXTENSION NW 35 TH STREET PHASE 2a] This Second Amendment to Road Design, Permitting & Construction Agreement (the Second Amendment ) is made and entered into, effective as of the Effective Date below, by and between: OCALA 489, LLC, a Florida limited liability company ( Ocala 489 ); and MARION COUNTY, a Political subdivision of the State of Florida ( County ). RECITALS: A. Effective as of May 6, 2015 Ocala 489 and County entered into an Agreement ( Road Design, Permitting & Construction Agreement ), which Agreement was recorded in Official Records Book 6208, at Pages of the Public Records of Marion County, Florida (the Road Agreement ). The Road Agreement was subsequently amended by the parties thereto by First Amendment executed on October 20, 2015 and recorded in OR Book 6300 at Pages of the Public Records of Marion County, Florida (the Road Agreement First Amendment ). B. The Parties execute this Second Amendment to the Road Agreement to amend, modify and supplement the terms and provisions of the Road Agreement (as previously amended by the Road Agreement First Amendment). Except as is specifically herein amended, modified or supplemented by this Second Amendment, all of the terms of the Road Agreement, as amended by the Road Agreement First Amendment, remain in full force and effect, and are confirmed and ratified by both Ocala 489 and County. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows, which terms shall be binding upon the Parties and their respective successors and assigns, as may be applicable: 1. Amendment. This is a Second Amendment to the Road Agreement, as amended by the Road Agreement First Amendment. As set forth above, other than as specifically amended, modified or supplemented by this Second Amendment the terms and provisions of the Road Agreement, as amended by the Road Agreement First Amendment remain in full force and effect. Later references in this Second Amendment to the Road Agreement refer to the Road Agreement, as amended, modified or supplemented by the terms of the Road Agreement First Amendment, and this Second Amendment. Defined terms in the Road Agreement shall have the same meanings in this Second Amendment. 2. Amendment Legal Descriptions. The legal descriptions of the Parcels of real property described in the Road Agreement have been revised as a result of engineering. The revised legal descriptions and acreages of the Parcels, to be used from this date forward on all matters involving the Road Agreement, for which the legal descriptions have been modified are as follows: Page 1 of 14

2 ROAD AGREEMENT PARCELS Parcel Description Current Tax Parcel No. Modified Legal Description (referenced Exhibit to this Second Amendment) DRA Parcel (see Note 1) Exhibit A Wetland Parcel (see Note 1) Exhibit B Ocala 489 Parcel Exhibit C Ocala 489 Parcel Exhibit D Note 1: The DRA Parcel and Wetland Parcel described above constitute, in aggregate, Ocala 489 Parcel 3 described in the Road Agreement and on Exhibit C to the Road Agreement. Both Parcels will be conveyed, separately, by Ocala 489 to County. The DRA Parcel includes all of the property on which the DRA described in the Road Agreement is being constructed. The Wetland Parcel is unimproved and in its natural condition, which shall be the condition of the Parcel when conveyed to the County. 3. Stormwater Management Facilities. Under the provisions of Section 7.1 of the Road Agreement the Parties agreed to later enter into a Stormwater Management Facilities Agreement ( SMFA ) under which the responsibilities and procedures for the costs of operation, maintenance, repair and replacement of the being constructed on the DRA Parcel under the terms of the Road Agreement (collectively, the Stormwater Management Facilities constructed on the DRA Parcel are the DRA ). The Parties have, by mutual agreement, modified the plans for the future maintenance and operation of the DRA and stormwater management infrastructure located outside the boundaries of the DRA Parcel, as follows: 3.1. The Parties have agreed to the establishment of a Municipal Services Benefits Unit ( MSBU ) under the provisions of Chapter 125 of the Florida Statutes, which will provide the funds for maintenance and operation of the DRA, with the costs thereof being assessed as an MSBU assessment against the parcels of property being serviced by the DRA. On January 12, 2016 County approved the establishment of the MSBU, which will handle the operation and maintenance of the DRA, the costs of which shall be the assessed on an agreed proportionate basis to the owners of parcels of real properties which are provided drainage retention capacity by the DRA The Road Agreement further provides that County will provide to Ocala 489 the following insurable easements: (i) for discharge, transmission, and storage of stormwater and surface runoff from the Ocala 489 Parcels to, and upon, the DRA Parcel; and (ii) construction easements to construct Stormwater Management Facilities located on, or under, the 35 th Street ROW and the DRA Parcel. These provisions of the Road Agreement are amended. The parties will not execute a separate SMFA. Because Ocala 489 has retained title to all of the subject Parcels of property, and has completed construction of the DRA and the NW 35 th Street infrastructure Immediately upon completion of: (i) County s inspection, and acceptance, of the construction of the DRA and the NW 35 th Street infrastructure; and (ii) execution of this Second Amendment; Ocala 489 will, by separate instruments of conveyance, convey to County the DRA Parcel and the Wetland Parcel. The conveyances shall be in accordance with the provisions of the Road Agreement. 4. DRA Parcel Easements. County hereby grants and conveys to Ocala 489, appurtenant to Ocala 489 s ownership of Ocala 489 Parcel 1 and Ocala 489 Parcel 2, and to each successor-in-title to Ocala 489 as to any portion of Ocala 489 Parcels 1 and 2, and to their successors and assigns, for the use of said owners or successor owners of Ocala 489 Parcels 1 and 2, or sub-parcels thereof, in common with others entitled to use the same, perpetual, non-exclusive easements for the discharge to, transmission over, and storage in the DRA to provide stormwater runoff management for parcels of property which include Ocala 489 Parcel 1, Ocala 489 Parcel 2, and the 35 th Street ROW. Page 2 of 14

3 5. 35th Street ROW Easements. County hereby grants and conveys to Ocala 489, appurtenant to Ocala 489 s ownership of Ocala 489 Parcel 1 and Ocala 489 Parcel 2, and to each successor-in-title to Ocala 489 as to any portion of Ocala 489 Parcel 1 or Ocala 489 Parcel 2, and to their successorsin-title, for the use of said owners of Ocala 489 Parcels 1 and 2, or sub-parcels thereof, in common with others entitled to use the same, perpetual, non-exclusive easements for the use of those Stormwater Management Facilities (including but not limited to sub-surface pipes and drainage structures) which have been constructed in the NW 35 th Street ROW to transmit surface and stormwater runoff from Ocala 489 Parcel 1 and Ocala 489 Parcel 2 to the DRA Parcel. 6. Maintenance of Stormwater Management Facilities. Maintenance of all Stormwater Management Facilities which have been constructed on those parcels of property specifically described in the Road Agreement (Ocala 489 Parcel 1; Ocala 489 Parcel 2; Ocala 489 Parcel 3; DRA Parcel), and responsibility for the cost of operation, maintenance, repair and replacement of such Stormwater Management Facilities, shall be as follows: 6.1. As to all Stormwater Management Facilities constructed on, or under, Ocala 489 Parcel 1, Ocala 489 Parcel 2, and the 35 th Street ROW the record title owner of each Parcel (or any subparcel of a Parcel) shall be fully responsible for all costs of maintenance, repair, and replacement of Stormwater Management Facilities constructed on or under the Parcel or subparcel and such record title owner shall be obligated to maintain the Stormwater Management Facilities in good repair and operating condition, and in compliance with all permits or government authorizations applicable to use and operation of the Facilities. Any successor-intitle to any of the described Parcels on which Stormwater Management Facilities are constructed, or any sub-parcel thereof shall, by the purchase and record ownership of such property, automatically assumes and agree to be responsible for the operation of, and the costs of maintenance, repair and replacement of the Stormwater Management Facilities located on, or under, the owner s property which is Ocala 489 Parcel 1, Ocala 489 Parcel 2, or the 35 th Street ROW, or a sub-parcel thereof The operation and responsibility of all costs of maintenance, repair and replacement of the Stormwater Management Facilities constructed on the DRA Parcel (collectively, the constructed Stormwater Management Facilities are the DRA ) shall, by agreement of the parties, be handled by the Municipal Services Benefit Unit ( MSBU ) established and approved by Marion County on January 12, 2016 pursuant to the provisions of Section (1)(a) and of the Florida Statutes. Parcels making use of the DRA facilities, including Ocala 489 Parcels 1 and 2, shall be assessed an agreed percentage of the operating and maintenance costs of the DRA, which assessment shall be billed and collected in a uniform manner with ad valorem taxes for said Parcels. Ocala 489, as the owner of Ocala 489 Parcels 1 and 2 expressly consents to the establishment of the MSBU, the allocation of assessments for the benefitted Parcels, and the allocation of assessment for the Benefitted Parcels, including Ocala 489 Parcels 1 and Conveyances. As of the date of finalization of the original Road Agreement Ocala 489 was the owner, in a single contiguous parcel, of all of the property included in the DRA Parcel, Wetland Parcel, Ocala 489 Parcel 1 and Ocala 489 Parcel 2 described in Section 2 above. Ocala 489 will, immediately upon finalization of this Agreement and execution by both parties convey to County the DRA Parcel [Ocala 489 has completed construction of all stormwater management facilities to be constructed on the DRA Parcel, County has accepted and approved the constructed stormwater drainage facilities]. Ocala 489 will also convey to County the 35 th Street ROW Parcel immediately upon completion of the construction thereon of the 35 th Street roadway improvements by Ocala 489 for the benefit of County, and approval of the constructed improvements by the County. County acknowledges that it will accept conveyance of such parcels as divisions of land for use by a governmental entity, which divisions do not trigger a requirement to plat the remaining property owned by Ocala 489 (being Ocala 489 Parcels 1 and 2, described in Section 2 above). This acknowledgement of County in this Section 5 shall constitute the instrument accepting the Page 3 of 14

4 conveyances to County required under the provisions of Section (B)(4) of County s Land Development Code. 8. Acceptance of Improvements; Conveyances. Ocala 489 has, pursuant to the terms of the Road Agreement, as amended by the Second Amendment, completed construction of the improvements for the extension of NW 35 th Street that are located within the 35 th Street ROW, and has completed construction of the stormwater management facilities improvements located on the DRA Parcel. County has inspected such improvements and accepts the constructed improvements as completed in accordance with all approved plans and specifications. 9. General Provisions Notices. With respect to any Notices required to be given under the terms of this Road Agreement, such Notices shall be deemed given and effective: Three (3) calendar days after the date they are deposited in the United States Mail, postage prepaid, return receipt requested, addressed to the parties at the following respective addresses or such other address as provided by a party pursuant to this Section; or The date of actual delivery by hand or by a recognized national overnight delivery service such as Federal Express, UPS, or Express Mail, addressed to the parties at the following respective addresses or such other address as provided by a party pursuant to this Section: AS TO THE OCALA 489: With Copy To: AS TO COUNTY: With Copy To: Ocala 489, LLC Attn: Joseph W. Nisbett, Manager 303 East Par Street Orlando, FL Gray, Ackerman & Haines, P.A. Attn: Steven H. Gray, Esq. 125 NE 1 st Avenue, Suite 1 Ocala, FL (352) Marion County, FL Attn: County Administrator 601 SE 25 th Avenue Ocala, FL Marion County Transportation Department Attn: County Engineer 601 SE 25th Avenue Ocala, FL Any party may modify the address for notices set forth above by providing notice of the change of address to all parties to this Road Agreement, which notice is to be provided in accordance with the requirements of this Section Negation of Partnership. None of the terms or provisions of this Road Agreement shall be deemed to create a partnership by or among Ocala 489, County in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprises. Each Party shall be considered a separate Party, no Party shall have the right to act as an agent for another Party unless expressly authorized to do so in this Agreement. Page 4 of 14

5 9.3. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Ocala 489 Parcels to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided no right, privileges or immunities of any Party hereto shall inure to the benefit of any third party, nor shall any third party be deemed to be a beneficiary of any of the provisions contained in this Agreement Default Provisions The terms of this Agreement shall not entitle any Party to cancel, rescind, or otherwise terminate this Road Agreement. However, such limitations shall not affect in any manner any other rights or remedies which a Party may have hereunder or under applicable law by reason of any such breach All easements, rights and covenants contained herein shall be enforceable by suit for specific performance and mandatory injunctive relief, in addition to any other remedy provided by law or equity No Party shall be entitled to pursue any action for specific performance, injunctive relief, or any other available remedy arising out of a default under this Road Agreement until the non-defaulting Party has provided to the Party alleged to be in default a written Default Notice specifying the specific nature of the default, and the alleged defaulting Party has failed to cure the default within thirty (30) days of the effective date of the Default Notice. In the event the cure of a default reasonably requires greater than the thirty (30) day time period specified, the grace period granted herein shall, if the defaulting Party has initiated cure of the default within the thirty (30) day time period and is continuing to pursue completion of the cure with due diligence, extend the reasonable time period required for the cure of the default In the event of a material default by Ocala 489 with respect to its obligations to County under this Road Agreement, and failure of Ocala 489 to cure the default within the grace period set forth above, in addition to any other remedies available to County under the terms of this Agreement County shall be entitled to withhold issuance of additional development permits or authorizations until the default has been cured. If Ocala 489 has, prior to the occurrence of the default, conveyed some or all of the Ocala 489 Parcels to unrelated third parties (such Parcel or Parcels then becoming a Third Party Parcel ) and the default of Ocala 489 is not with respect to, or does not impact, Ocala 489 s obligations regarding a Third Party Parcel, the right of County to withhold permits upon a default by Ocala 489 shall not extend to County permits pending or to be issued with respect to a successor in title to Ocala 489 to the Third Party Parcel Estoppel Statements. Each Party agrees that upon written request from time to time of any other Party it will timely issue at no charge to a current or prospective lender to such Party, or to a current or prospective purchaser or successor party to such other Party, or to another governmental entity requesting or requiring the same, an Estoppel Statement stating: Whether the Party to whom the request has been directed knows of any default by any Party under this Agreement, and if there are known defaults, specifying the nature thereof Whether this Road Agreement has been assigned, modified or amended in any way by such Party (and if it has, stating the nature thereof) That to the best of the requested Party s knowledge this Road Agreement, as of the Estoppel Statement date, is in full force and effect. Page 5 of 14

6 That, as to the Project or as to a specific parcel therein (as applicable, based upon the request) there are no moratoriums or suspensions of the right to procure Development Orders, Building Permits, or other development approvals in effect as of the date of the Estoppel Statement. Such written statement shall act as a waiver of any claim by the Party furnishing it to the extent such claim is based on facts contrary to those asserted against a bona fide mortgagee or purchaser for value without knowledge of contrary facts contained in the Estoppel Certificate who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the Party furnishing it to any liability whatsoever, notwithstanding the negligent or other inadvertent failure of such Party to disclose correct and/or relevant information Litigation. In the event of any litigation arising out of this Road Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred with respect to such litigation, including reasonable attorneys fees, and including reimbursement for such reasonable attorneys fees and costs incurred with respect to any appellate or post-judgment proceeding related thereto Binding Effect. The parties to this Road Agreement represent to each other that each party fully understands the facts surrounding this Road Agreement and each is signing this Agreement fully and voluntarily, intending to be bound by it. This Road Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective spouses, heirs, executors, administrators and assigns. There are no representations or warranties other than those set forth herein Headings. The headings contained within this Road Agreement are for identification purposes only, and shall not be construed to amend, modify, or alter the terms of the Road Agreement Severability. Except as otherwise set forth herein, in the event any provision or section of this Road Agreement is determined to be invalid or unenforceable, such determination shall not affect the enforceability or the validity of the remaining provisions of this Road Agreement Survival of Representations and Warranties. All representations and warranties contained herein are made in writing by the parties in connection herewith shall survive the execution and delivery of this Road Agreement Successors and Assigns All covenants and agreements in this Road Agreement made by or on behalf of any parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto, whether so expressed or not Upon a sale or other transfer of a Parcel or a portion thereof, the terms and provisions of this Road Agreement, as applicable, shall remain in full force and effect as to the Parcel or a portion of the Parcel Applicable Law. This Road Agreement is being delivered in the State of Florida, and shall be construed and enforced in accordance with the laws of the State of Florida. The venue for any legal proceeding arising out of this Agreement shall be Marion County, Florida Counterparts. This Road Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. Page 6 of 14

7 9.14. Amendment of Agreement. This Road Agreement cannot be changed, modified or released orally, but only by an agreement in writing signed by the parties against whom enforcement of said change, modification or discharge is sought Gender. As used in this Road Agreement, the masculine shall include the feminine and neuter, the singular shall include the plural, and the plural shall include the singular as the context may require Effective Date. This Road Agreement shall become effective upon the occurrence of both of the following events: (1) execution of this Road Agreement by both Ocala 489 and County; and (2) recordation of the Road Agreement in the Public Records of Marion County, Florida. IN WITNESS WHEREOF the Parties have executed this Agreement on the dates set forth below. SEE ATTACHED SEPARATE SIGNATURE PAGES OF OCALA 489, LLC; AND MARION COUNTY Page 7 of 14

8 SIGNATURE PAGE OF OCALA 489, LLC TO SECOND AMENDMENT TO ROAD DESIGN, PERMITTING & CONSTRUCTION AGREEMENT BETWEEN OCALA 489, LLC AND MARION COUNTY OCALA 489, LLC, a Florida limited liability company By: JOSEPH W. NISBETT Title: Manager Date: STATE OF FLORIDA COUNTY OF The foregoing SECOND AMENDMENT TO ROAD DESIGN, PERMITTING & CONSTRUCTION AGREEMENT was acknowledged before me by JOSEPH W. NISBETT as MANAGER of OCALA 489, LLC, a Florida limited liability company, who is: Personally known by me, OR Produced a driver s license as identification. Dated: this day of, Print Name: Notary Public, State of Florida Commission number: Commission expires: Page 8 of 14

9 SIGNATURE PAGE OF MARION COUNTY TO SECOND AMENDMENT TO ROAD DESIGN, PERMITTING & CONSTRUCTION AGREEMENT BETWEEN OCALA 489, LLC AND MARION COUNTY MARION COUNTY, FLORIDA, a political subdivision of the State of Florida By: KATHY BRYANT Title: Chairperson Date: APPROVED AS TO FORM AND LEGALITY: MATTHEW MINTER County Attorney ATTEST: DAVID R. ELLSPERMANN Clerk of the Circuit Court APPROVED BY THE MARION COUNTY BOARD OF COUNTY COMMISSIONERS ON:, Page 9 of 14

10 SCHEDULE OF EXHIBITS EXHIBIT REFERENCE DESCRIPTION A 2 Legal Description DRA Parcel B 2 Legal Description Wetland Parcel C 2 Legal Description Ocala 489 Parcel 1 D 2 Legal Description Ocala 489 Parcel 2 Page 10 of 14

11 EXHIBIT A Page 11 of 14

12 EXHIBIT B Page 12 of 14

13 EXHIBIT C Page 13 of 14

14 EXHIBIT D Page 14 of 14