2002-38 #
1 1111 1111111 III 011111 III 11 01 11 111 11 11 11 111 11 111 11 11 1 111
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CFN 2002123295
Bk 02209 Pgs 0867 — 886; (20pgs)
THIS INSTRUMENT PREPARED BY
DATE: 11/18/2002 12:14:23 PM
AND SHOULD BE RETURNED TO: JAMES C. WATKI NS, CLERK OF COURT
LAKE LAWN I Y
(1 a/ Robert M. Poppell, Esq KECORDING FEES 81.00
VC./ Akerman, Senterfitt & Eidson, P.A TRUST FUND 10.50
255 South Orange Avenue, 17th Floor
Orlando, Florida 32801
(407) 843 -7860
- - -- [SPACE ABOVE THIS LINE FOR RECORDING DATA]---------- - - --
DEVELOPMENT, CONSTRUCTION AND ESCROW AGREEMENT
THIS DEVELOPMENT, CONSTRUCTION AND ESCROW AGREEMENT
( "Agreement ") is made and entered into this i'-f day of No ie,,v, b ev—, 2002, by and between -
ROCK HANCOCK, INC., a Florida corporation, whose address is 1600 North Orange Avenue,
Orlando, Florida 32804 (hereinafter referred to as the "RHI ") and HANCOCK VILLAGE,
L.L.C., a Florida limited liability company, whose address is 300 International Parkway, Suite
184, Heathrow, Florida 32746 (hereinafter referred to as the "Hancock ").
RECITALS:
A. This Agreement pertains to that certain real property located in the City of
Clermont, Lake County, Florida, known generally as the Hancock Village and more particularly
described in Exhibit "A" attached hereto and by this reference incorporated herein ( "Hancock
Village ").
B. Pursuant to that certain Conditional Use Permit approved by the City of Clermont
( "City ") on October 8, 2002 ( "CUP "), Hancock Village has been approved for development as
depicted in that certain Master Site Plan for Hancock Village prepared by American Civil
Engineering Co., dated September 26, 2002, Job No. 99457, a copy of which is attached hereto
as Exhibit "B" and by this reference incorporated herein ( "Site Plan").
C. Simultaneously with, but before, the execution and recording of this Agreement,
(i) RHI has acquired fee title to that portion of the Hancock Village depicted as Lot 3 on the Site
Plan, which real property is more particularly described in Exhibit "C" attached hereto and by
this reference incorporated herein ( "RHI Property ") and (ii) Hancock has acquired fee simple
title to that portion of the Hancock Village depicted on the Site Plan as Lot 1 and Lot 2 (all
portions of the Hancock Village not included within the RHI Property), which real property is
more particularly described in Exhibit "D" attached hereto and by this reference incorporated
herein ( "Hancock Property "), and RHI and Hancock have agreed to enter into this Agreement for
purposes of setting forth their agreements with respect to development of Hancock Village, the
RHI Property and the Hancock Property, all as more specifically set forth in this Agreement.
D. At the time of execution of this Agreement, Hancock is processing for approval
with the City those certain Subdivision Improvement Plans for Hancock Village prepared by
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OR BOOK 02209 PAGE 0868
American Civil Engineering Co., Sheets 1 -14, last dated October 23, 2002, Job Nos. 99455,
99456 and 99457 (such plans, as ultimately approved by the City, are hereinafter referred to as
the "Construction Plans ").
E. Hancock and RHI have identified certain site work necessary for development of
Hancock Village as more particularly described in Section 4 of this Agreement ( "Site Work ")
and have agreed to enter into this Agreement for purposes of (i) evidencing their Agreement with
respect to completion of the Site Work and the sharing of the costs associated therewith, (ii)
providing for the creation of an escrow relationship pursuant to which Hancock and/or RHI will
deposit their share of the costs of completion of the Site Work and providing for terms and
conditions upon which such escrowed monies will be released, and (iii) granting to one another
easements necessary for the completion of the Site Work, all upon the terms and conditions as
more specifically set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and
conditions set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Recitals. The above recitals are true and correct, form a material part of
this Agreement and are incorporated herein by reference.
Section 2. Development Agreements. The RHI Property and Hancock Property
shall be developed and operated pursuant to and consistent with the CUP, Site Plan and
Construction Plans and Hancock, for itself, and its successors and assigns, hereby grants to RHI
the irrevocable right to design, plan, engineer, permit and construct improvements upon the RHI
Property pursuant to and in accordance with the rights, privileges and entitlements arising out of
the CUP and any City approvals of the Construction Plans. Hancock hereby reserves to itself the
right, without any consent or approval from RHI, to seek amendments or modifications to the
CUP, Site Plan or Construction Plans, so long as any such amendment or modification will not
adversely affect the rights or interests of RHI with respect to its ownership and development of
the RHI Property. RHI may, without any consent or approval from Hancock, seek amendments
or modifications to the CUP, Site Plan or Construction Plans as same pertain only to
development of the RHI Property; it being agreed that RHI may not pursue any amendment or
modification to the CUP, Site Plan or Construction Plans, and that the CUP, Site Plan and
Construction Plans may not be amended in any manner, that will adversely affect the rights and
interests of Hancock with respect to its ownership and development of the Hancock Property
without the consent of Hancock.
Except as and to the extent specifically set forth in this Agreement, each of Hancock and
RHI shall be responsible for complying with all conditions of approval of the CUP applicable to
development of, and for coordinating all matters pertaining to the delivery of any and all utility
services it may now or hereafter desire to extend to, or utilize on, the Hancock Property or RHI
Property, respectively. Further in this regard, and except as and to the extent specifically set
forth in this Agreement, each party shall be responsible for the construction of any and all
improvements required in order to extend utility services to such parties' property in accordance
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OR BOOK 02209 PAGE 0869
with any and all requirements of the City and any other applicable governmental authorities or
private utility companies. Each of Hancock and RHI shall be responsible for the payment of any
and all impact fees, development fees, or other fees, charges or expenses, including, but not
limited to, sewer and water taps, imposed by the City or other governmental authorities required
for their development and operation of improvements upon the Hancock Property and RHI
Property, respectively. Lastly, except as and to the extent specifically set forth in this
Agreement, each of Hancock and RHI shall be responsible for any subdivision or lot split
approval necessary for development of the Hancock Property and RHI Property, respectively;
provided, however, that each of Hancock and RHI agree to cooperate, at no cost or expense, with
the others efforts to obtain such subdivision or lot split approval including, but not necessarily
limited to, the joining in or consenting to any plat or other subdivision documentation necessary
to accomplish such subdivision or lot split approval.
Section 3. Agreement to Construct and Share Costs of Construction. RHI and
Hancock hereby agree that the Site Work shall be completed, that the costs of completion of the
Site Work shall be shared between RHI and Hancock, and that RHI and Hancock shall each
respectively grant the access and construction easements described herein, all upon the terms and
conditions as more specifically set forth in the following provisions of this Agreement.
Section 4. Completion of Site Work. Hancock hereby agrees to design, plan,
engineer, permit, install, construct and/or otherwise complete the Site Work in accordance with
the "Plans and Approvals" (defined below). Completion of the Site Work shall also include the
entering into of any and all construction contracts necessary for completion of the Site Work and
the preparation and obtaining of any necessary Plans and Approvals. The costs and expenses
associated with completion of the Site Work, including, but not necessarily limited to, the costs
of obtaining the Plans and Approvals and the costs incurred in connection with the construction
contracts necessary for completion of the Site Work (such costs and expenses being hereinafter
collectively referred to as the "Construction Costs ") shall initially be at the sole cost and expense
of Hancock and Hancock's obligation to complete the Site Work shall be secured as more
particularly set forth in the provisions of Section 10 of this Agreement. Notwithstanding
anything in the foregoing to the contrary, RHI shall be responsible for that portion of the
Construction Costs for the Site Work as more specifically set forth in Section 8 of this
Agreement.
Section 5. Site Work For all purposes of this Agreement, the "Site Work" shall
generally mean and refer to the following:
a. Mobilization, lay out, staking, cut and removal of approximately 30,000
cubic yards of dirt from, and grading of, the RHI Property so that the finished elevation of the
RHI Property shall be at approximately 217 feet and 50,000 cubic yards of dirt from the Hancock
Property.
b. Construction, grading and sodding of the Retention Pond depicted in the
Site Plan ( "Retention Pond "), including the construction of all necessary FDOT outfall
structures, and the installation of an underground stormwater conveyancing pipe ( "Off Site
Conveyancing Pipe ") extending from the Retention Pond to the RHI Property (approximately
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OR BOOK 02209 RAGE 0870
365 linear feet with one MES -1 and approximately 365 linear feet with one MES -2 as shown on
the Site Plan) to connect the development on the RHI Property to the Retention Pond; provided,
however, that the Site Work shall not include the construction or installation of any secondary
stormwater collection or conveyancing facilities necessary to cause the stormwater generated
upon the RHI Property to be conveyed to the Off Site Conveyancing Pipe nor shall the Site Work
include the construction or installation of any structures or facilities necessary to connect such
secondary collection and conveyancing facilities to the Off Site Conveyancing Pipe.
c. Completion of all right -of -way improvements to State Road 50, Hancock
Road and the Future Inverse Frontage Road required by the City in connection with its approval
of the CUP and as depicted in the Site Plan.
d. Completion of all internal driveways for Hancock Village that connect the
RHI Property to the ingress /egress access points on State Road 50, to the full access point onto
Hancock Road and the Future Inverse Frontage Road, all as depicted in the Site Plan.
e. Completion of a temporary access driveway to Hancock Road over, across
and upon the northern forty feet (40') of the Hancock Property, upon which portion of the
Hancock Property is intended to be constructed the Future Inverse Frontage Road, which
temporary access driveway shall be utilized for access to Hancock Road until such time, as any,
as the Future Inverse Frontage Road is constructed and dedicated to the City.
f. Installation of a sanitary sewer lift/pump station ( "Lift Station ") and
connection of the Lift Station to the City's force main line located in the Right -of -way of S.R. 50
by approximately 180 linear feet of 8 inch gravity sewer line, the installation of two (2)
manholes and extension of a 6 inch gravity sewer line from the Lift Station stubbed out to the
RHI Property; provided, however, that the Site Work shall not include the construction or
installation of any sewer lines or facilities necessary to connect the development on the RHI
Property to the aforedescribed stubbed out 6 inch gravity sewer line.
g. Installation of approximately 415 linear feet of retaining walls around the
south and west sides of the Retention Pond and north property line of Hancock Village.
Notwithstanding anything in the foregoing provisions of this Section 5 to the contrary,
including specifically the description of the Site Work for purposes of this Agreement, the Site
Work is more particularly described in the Construction Plans and in the event of any
inconsistency between the foregoing description of the Site Work and the depiction of the Site
work in the Construction Plans, the depiction of the Site Work in the Construction Plans shall
control.
Section 6. Plans, Permits and Approvals. Hancock will proceed to cause
completion of the Site Work pursuant to and in compliance with (i) the CUP, (ii) the Site Plan,
(iii) any and all permits and approvals from all applicable governmental or quasi - governmental
authorities necessary for completion of the Site Work (the CUP, Site Plan and such additional
permits and approvals are hereinafter referred to collectively as the "Approvals ") and (iii) the
Construction Plans (the Construction Plans and Approvals are herein referred to collectively as
the "Plans and Approvals ").
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OR BOOK 02209 RAGE 0871
Section 7. Timing for Construction of Site Work. Hancock shall commence
construction of the Site Work no later than the date that is three (3) months after the date of this
Agreement ( "Outside Commencement Date). Upon commencement of the Site Work, Hancock
shall diligently pursue completion of the Site Work by no later than the date that is nine (9)
months after the date of this Agreement ( "Outside Completion Date ").
Section 8. Allocation of Responsibility for Construction Costs. The Construction
Costs for the Site Work shall be shared by and between Hancock and RHI as specifically set
forth in this Section 8. Hancock shall be responsible for all Construction Costs of the Site Work
up to Six Hundred Fifty Thousand and No /100 Dollars ($650,000.00) ( "Initial Hancock Cap ").
In the event that the Construction Costs of the Site Work exceed the Initial Hancock Cap, then
RHI shall be responsible to pay all Construction Costs in excess of the Initial Hancock Cap up to,
but not exceeding, One Hundred Thousand and No /100 Dollars ($100,000.00) ( "RHI Cap ").
Hancock shall then be responsible for all Construction Costs of the Site Work that exceed the
Initial Hancock Cap and the RHI Cap.
Section 9. Failure to Timely Commence or Complete Site Work. In the event that
there exists a "Default" by Hancock as defined in Section 22, RHI shall have the right, at its sole
option, to complete the Site Work, or any portion thereof not timely completed by Hancock,
which completion of the Site Work by RHI shall be in accordance with the Plans and Approvals
and the provisions of this Agreement, and shall be entitled to draw down upon the Construction
Deposit and otherwise rely on the security provided in Section 10 below. In the event that RHI
elects to complete any of the Site Work, RHI shall conduct such Site Work in accordance with
the Plans and Approvals and shall commence and continue construction of such Site Work in a
diligent and workmanlike fashion.
Section 10. Security for Construction Obligations. Hancock's obligation to
complete the Site Work, and Hancock's and RHI's obligation to fund its share of the Construction
Costs in accordance with this Agreement, shall be secured as set forth in Sub - Paragraphs a. and
b. below:
a. Hancock hereby conditionally assigns to RHI all of its right, title and
interest in and to any construction contract(s) entered into by Hancock with respect to the
completion of the Site Work as well as any Plans and Approvals, applications, fees or deposits,
and appurtenant rights now or in the future existing, with respect to the Site Work. The
conditional assignment of the foregoing items shall automatically become an absolute
assignment in favor of RHI as to the Site Work if and at such time that there exists a Default by
Hancock under this Agreement. In the event that the foregoing assignment becomes effective
and RHI draws down funds available pursuant to the "Construction Deposit" (defined below),
RHI agrees to accept the obligations of Hancock under the above - referenced contracts with
respect to the completion of the Site Work arising subsequent to said acceptance by RHI, to
protect and defend Hancock from such obligations (provided that nothing in the foregoing shall
serve to limit Hancock's responsibility for payment of Construction Costs as provided in this
Agreement) and to limit the expenses incurred by RHI in connection with completion of the Site
Work to amounts reasonably necessary and appropriate in connection therewith. Any
construction contract to be entered by Hancock with respect to completion of the Site Work shall
{0R559748,3) 5
•
OR BOOK 02209 PAGE 0872
contain provisions providing for a ten percent (10 %) retainage of all proceeds payable under
such contract.
b. Simultaneously with the execution of this Agreement, Hancock has
delivered, or caused to be delivered, to the law firm of Akerman Senterfitt ( "Escrow Agent "), to
be held in escrow and disbursed by Escrow Agent pursuant to the provisions of this Section 10
and the escrow provisions set forth in Exhibit "E" attached hereto and incorporated herein, (i)
an amount equal to Six Hundred Fifty Thousand and No /100 Dollars ($650,000.00)
( "Construction Deposit "), and (ii) an amount equal to One Hundred Thousand and No /100
Dollars ($100,000.00) ( "Secondary Construction Deposit "). The Construction Deposit and
Secondary Construction Deposit shall be held in separate interest bearing accounts and invested
under Hancock's federal taxpayer identification number and all interest accruing on the
Construction Deposit and Secondary Construction Deposit shall become part of the Construction
Deposit and Secondary Construction Deposit, respectively, disbursable pursuant to the terms and
provisions of this Agreement.
Hancock shall be entitled to draw down the Construction Deposit and Secondary
Construction Deposit in accordance with the requirements of Section 12 of this Agreement. In
the event that there exists a Default by Hancock under this Agreement, RHI shall have the right
to commence and complete the Site Work, or any portion thereof, in accordance with the Plans
and Approvals, and to pay for the Construction Costs by drawing down the Construction Deposit
and Secondary Construction Deposit in accordance with the requirements of this Section 10 and
Section 12 of this Agreement; provided, however, and notwithstanding anything in the foregoing
to the contrary, that the Construction Deposit, including all increases contemplated in Section 11
of this Agreement, shall be completely exhausted prior to any drawing on the Secondary
Construction Deposit.
The Construction Deposit and Secondary Construction Deposit will be released
by Escrow Agent in accordance with the requirements of Section 12, and in the event that RHI
requests a release of all or any portion of the Construction Deposit and Secondary Construction
Deposit, only in the event that RHI delivers a sworn affidavit to Escrow Agent and Hancock
attesting to the fact that there exists a Default by Hancock under the Agreement.
Notwithstanding anything in the foregoing to the contrary, no disbursement of the Construction
Deposit and Secondary Construction Deposit will be made to RHI until five (5) days have
elapsed after Escrow Agent's and Hancock's receipt of the appropriate affidavit described above.
Section 11. Increase to Construction Deposit and Secondary Construction
Deposit. The parties acknowledge and agree that the initial determination of the amount of the
Construction Deposit is based on an estimate that the total Construction Costs will be less than
the Initial Hancock Cap, but that Hancock and RHI shall remain responsible for their respective
share of the Construction Costs as set forth in Section 8 above even if the Construction Deposit
proves insufficient to cover the Construction Costs. If at any time during the term of this
Agreement it is determined that the Construction Costs will exceed the Initial Hancock Cap, and
therefore that the amount of the Construction Deposit is insufficient to cover the Construction
Costs, then RHI shall, within three (3) business days of its receipt of written notification from
Hancock to such effect, deposit with the Escrow Agent an amount equal to the RHI Cap, which
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OR BOOK 02209 PAGE 0873
additional deposit shall form a part of the Construction Deposit to be held by Escrow Agent and
disbursed pursuant to the terms and provisions of Sections 10 and 12 of this Agreement. In the
event that at any time RHI deposits funds into the Construction Deposit, such funds shall be held
in a separate interest bearing account and invested under RHI's federal taxpayer identification
number. Any funds remaining in the Construction Deposit after disbursement by Escrow Agent
of the final disbursement with respect to the Construction Deposit, shall be disbursed by Escrow
Agent to the party that posted the Construction Deposit.
If, subsequent to the funding of the Construction Deposit by RHI up to the RHI Cap, and
the disbursement of the entire Construction Deposit, it is determined that the amount of the
Secondary Construction Deposit is insufficient to cover the Construction Costs, then Hancock
shall, within three (3) business days of its first knowledge of such deficiency, deposit with the
Escrow Agent an amount equal to the difference between Hancock's best, reasonable estimate of
the remaining Construction Costs and the remaining balance of the Secondary Construction
Deposit, which additional deposit shall form a part of the Secondary Construction Deposit to be
held and disbursed by Escrow Agent pursuant to the terms and provisions of Sections 10 and 12
of this Agreement. Any funds remaining in the Secondary Construction Deposit after
disbursement by Escrow Agent of the final disbursement with respect to the Secondary
Construction Deposit, shall be disbursed by Escrow Agent to Hancock.
Section 12. Construction Draw Procedures. The Construction Deposit and
Secondary Construction Deposit shall sometimes be hereinafter referred to collectively as the
"Deposit ". The Deposit shall be disbursed by Escrow Agent to pay for Construction Costs as
specifically set forth in Section 10 above, shall be disbursed to the party completing construction
of the Site Work ( "Constructing Party"), and shall otherwise be disbursed in accordance with the
following procedures. The Constructing Party shall have the option of having the Deposit
disbursed as a single disbursement upon completion of the work or in draws. Any single
disbursement of the Deposit shall be in accordance with the procedures for the final draw as
more particularly described below. The alternative to a single disbursement of the Deposit shall
be the disbursement in multiple draws (not exceeding five (5)) in accordance with the procedures
for multiple draws set forth below. Whichever of RHI or Hancock that requests disbursement of
funds from Escrow Agent shall be referred to in the following provisions of this Agreement as
the "Requesting Party ".
a. Multiple Draw Procedures. The Deposit shall be disbursed by Escrow
Agent at the times and under the terms and conditions set forth below. As general conditions
precedent to making each disbursement, Escrow Agent must be furnished by the Requesting
Party with (i) a complete cost breakdown of the Site Work to be paid for with the Deposit ( "Cost
Breakdown "), (ii) statements signed by the Requesting Party and the Contractor listing all
contractors, subcontractors, materialmen and suppliers who have or who are expected to perform
work at, or supply equipment, materials or services for, the improvements ( "List of
Contractors "), and (iii) a partial lien waiver(s) from the Contractor and those from the List of
Contractors who performed work or delivered materials, the total of such waivers to be in the
amount of the draw and, (iv) a sworn affidavit of the Requesting Party, the Contractor and
American Civil Engineering Co., or the then current engineer for Hancock Village, attesting to
{0R559748,3) 7
OR BOOK 02209 PAGE 0874
the level of completion of the work and that said work has been done in accordance with the
Plans and Approvals.
Requests for disbursements shall be submitted on AIA Forms G -7Q2 and S -702A
"Application and Certificate for Payment" and shall be received by Escrow Agent not less than
seven (7) business days prior to the date on which payment is desired. The Requesting Party
shall disburse the progress payments due for work done and materials supplied toward the
improvements in accordance with the Cost Breakdown.
Each request for a draw shall constitute the Requesting Party's certification that (i)
all previous advances of funds from the Deposit have been applied towards the full payment of
such work and materials for which the requests for the previous advances were made, and(ii) all
bills and invoices for amounts currently due will be paid from the advance being requested.
b. Final Draw Procedures. The final disbursement of the Deposit shall be
disbursed upon the requesting party providing Escrow Agent with (i) evidence that all the Site
Work has been completed and all work and materials incorporated therein, (ii) the contractor's
final affidavit and lien waiver conforming to the lien laws of the State of Florida, (iii) full and
complete releases of lien from each and every person identified on the List of Contractors and
any other person who may not be on the List of Contractors but who has performed any work or
supplied any materials towards the construction and installation of the Improvements, or
otherwise, and (iv) the acceptance of the Site Work by the City and any other governmental unit,
body or agency having jurisdiction thereover.
All rights of any contractor, sub - contractor, or materialman performing any of the
construction and installations referred to herein, or furnishing any service, labor or material
thereto shall be inferior and subordinate to RHI's and Hancock's interests in the Deposit under
this Agreement. Neither party shall be liable by virtue of this Agreement to (and nothing in this
Agreement shall constitute an obligation or promise in favor of) any contractor, sub - contractor,
materialman, laborer or others for materials or services furnished or delivered by them, or
employed in any such construction and installations. Unless specifically agreed to and
acknowledged in writing, neither party shall be the agent of the other for any purpose. Nothing
herein shall be construed to constitute the parties as partners or joint venturers, nor as obligating
either party as an insurer or guarantor as to any debt or obligation of the other, nor for the
payment for any such construction or installations.
Section 13. Early Construction by RHI. Prior to Hancock commencing or
completing construction of the Site Work, or any portion thereof, RHI shall have the right, but
not the obligation, upon sixty (60) days advance written notice to Hancock, to construct and
install the Site Work or any portion thereof, pursuant to and in accordance with this Agreement
and the Plans and Approvals. Within fifteen (15) days of the date of Hancock's receipt of such
notice, Hancock shall have the right, but not the obligation, to notify RHI of its decision to elect
to conduct the construction of the Site Work described in RHI's notice to Hancock, instead of,
and for, RHI. If Hancock does so notify RHI, then Hancock shall commence construction of this
work in accordance with the terms of this Agreement within sixty (60) days of the date RHI
receives Hancock's notice. However, if Hancock does not elect to undertake to construct that
{0R559748,3) 8
OR BOOK 02209 PAGE 0875
portion of the Site Work which RHI references in its notice, then RHI shall have the right to
commence construction of such portion of the Site Work and to request and receive payment of
the Construction Deposit and Secondary Construction Deposit pursuant to Section 10 of this
Agreement, and otherwise to rely on the security provided in said Section 10; provided, further,
that in the event that RHI constructs any of the Site Work pursuant to this Section 13, RHI shall
limit the expenses incurred in connection with completion of such Site Work to amounts
reasonably necessary and appropriate in connection therewith.
RHI shall conduct the Site Work in accordance with the Plans and Approvals. Hancock
shall cooperate with RHI to allow RHI to utilize the Plans and Approvals in installing and
constructing said improvements.
RHI shall commence and continue construction of the portion of the Site Work it elects to
construct in a diligent and workmanlike fashion.
Section 14. Maintenance of Site Work. Hancock and RHI each hereby acknowledge
and agree that the Site Work shall constitute improvements benefitting the Hancock Village,
including the Hancock Property and RHI Property, the costs and expenses of maintenance of
which shall be the responsibility of the owners of property within the Hancock Village, including
the Hancock Property and RHI Property, pursuant to and in accordance with the terms and
provisions of that certain Reciprocal Easement Agreement with Covenants, Conditions and
Restrictions entered into by and between Hancock and RHI, a copy of which will be recorded in
the Public Records of Lake County, Florida simultaneously with this Agreement ( "REA "). In the
event that the REA fails to allocate responsibility for maintenance of any of the Site Work, then
said Site Work shall be maintained by the owner of the real property upon which such Site Work
is located, and shall be maintained in accordance with any and all applicable governmental or
quasi - governmental rules, regulations or ordinances.
Section 15. Access and Construction Easement. RHI and Hancock hereby grant,
dedicate, convey and assign to one another, for the use and benefit of the Hancock Property and
RHI Property, respectively, an access and construction easement over, through and upon the RHI
Property and Hancock Property, respectively, as and to the extent reasonably necessary to
complete the Site Work as contemplated in this Agreement. The easement described above shall
automatically terminate upon completion of the Site Work. RHI and Hancock each agree to
execute and cause to be recorded in the Public Records of Lake County a notice of completion of
the Site Work and termination of the aforedescribed easements upon completion of the Site
Work as required by this Agreement.
Section 16. Fill Dirt. RHI and Hancock each hereby agree that the party constructing
the Site Work shall have the right and obligation to keep, relocate or dispose of all dirt or other
material excavated from the RHI Property or Hancock Property in connection with the
completion of the Site Work.
Section 17. Construction Liens. No rights created herein to enter upon the property
of another shall permit or empower any party to encumber the property of another with liens
arising from the construction, installation, maintenance, repair and/or replacement of the
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OR BOOK 02209 PAGE 0876
improvements contemplated hereunder. In this regard, each party shall not suffer nor permit any
construction lien to be placed upon or against any other owner's property and, in case of any such
construction lien attaching, shall immediately pay and remove same. If a party causes or allows
construction liens to be placed upon any property not owned by said party and, thereafter, fails to
pay and remove same within ten (10) days of said party's actual notice that said lien has been
filed, then the owner of the property affected by the construction lien ( "Satisfying Owner "), at its
election, may pay and satisfy the same, or transfer same to other security, and in such event the
party who allowed or caused the lien to arise shall reimburse the Satisfying Owner any and all
sums so paid, including interest at the highest rate allowed by Florida law accruing from the date
of payment by the Satisfying Owner of the lien amount and including all reasonable costs and
expenses incurred by the Satisfying Owner in connection therewith, including attorneys' fees.
Section 18. Indemnification. Each party hereto shall, at all times save, defend, and
keep the other party free and harmless from any and all damage or liability occasioned by any act
of negligence of the indemnifying party, or of any contractor, agent or employee of the
indemnifying party, or arising out of or in connection with the construction, reconstruction,
maintenance, repair, operation, or use of the improvements located within the indemnified party's
property; excepting, however, that no party shall be indemnified against loss or liability resulting
from its own negligence or the negligence of its contractors, employees and agents.
Section 19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the Site Work and it supersedes all prior
understandings or agreements between the parties.
Section 20. Binding Effect. All terms and provisions of this Agreement are binding
upon the parties hereto and their respective successors and assigns. Further, all terms and
provisions of this Agreement and all rights, privileges, benefits and burdens created hereunder
are covenants running with the property described herein, binding upon and inuring to the benefit
of the parties hereto.
Section 21. Amendment. Any amendment to this Agreement shall only be effective
if in writing, executed by RHI and Hancock, and recorded in the Public Record of Lake County,
Florida.
Section 22. Defaults and Remedies. In the event either party breaches any of its
covenants, obligations, promises or requirements set forth in this Agreement, the other party
shall be entitled to pursue and enforce all remedies or rights specified in this Agreement or that
may also otherwise be available at law or in equity, including, but not limited to, specific
performance. The failure to enforce any of the terms or provisions of this Agreement, however
long continued, shall in no event be deemed a waiver of the right to enforce the same thereafter
as to the same breach or violation, or as to any other breach or violation occurring prior to or
subsequent thereto. The parties acknowledge and agree that the pursuit by a party of any one
remedy shall not operate as an election of remedies prohibiting the pursuit of other remedies
established by this Agreement.
(0R559748,3 } 10
OR BOOK 02209 RAGE 0877
Notwithstanding anything in the foregoing to the contrary, a "Default" by Hancock with
respect to its obligations to timely commence, complete or otherwise perform its obligations to
complete the Site Work shall be deemed to exist only in the event that RHI notifies Hancock in
writing specifically describing the nature of the alleged failure by Hancock under this Agreement
and of its election to undertake to perform the Site Work on behalf of Hancock and only in the
event that Hancock has not cured such failure within fifteen (15) days of Hancock's receipt of
such written notice from RHI.
The parties acknowledge and agree that they have carefully considered and negotiated
this Section 22 concerning remedies upon possible breach or default and that in such negotiations
each party has been represented by counsel of its choice.
Section 23. Attorneys' Fees. In the event of any dispute hereunder or of any action to
interpret or enforce this Agreement, any provision hereof or any matter arising here from, the
prevailing party shall be entitled to recover its reasonable costs, fees and expenses, including, but
not limited to, witness fees, expert fees, consultant fees, attorney (in -house and outside counsel),
paralegal and legal assistant fees, costs and expenses and other professional fees, costs and
expenses whether suit be brought or not, and whether in settlement, in any declaratory action, in
any bankruptcy case or proceeding, at trial or on appeal.
Section 24. Construction. Each party hereto hereby acknowledges that all parties
hereto participated equally in the drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stringently against one party than the other.
Section 25. Execution and Counterparts. To facilitate execution, the parties hereto
agree that this Agreement may be executed and telecopied to the other party and that the
executed telecopy shall be binding and enforceable as an original. This Agreement may be
executed in as many counterparts as may be required and it shall not be necessary that the
signature of, or on behalf of, each party, or that the signatures of all persons required to bind any
party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of, each
party, or that the signatures of the persons required to bind any party, appear on one or more of
such counterparts. All counterparts shall collectively constitute a single agreement.
Section 26. Governing Law/Venue. This Agreement shall be governed by and
construed under the laws of the State of Florida. Venue for any action arising out of this
Agreement shall be Lake County, Florida.
Section 27. Notices. Any notices which may be permitted or required hereunder shall
be in writing and shall be deemed to have been duly given as of the date and time the same are
received at the addressee's address whether same are personally delivered, transmitted
electronically (i.e., telecopier device), mailed by United States Postal Service, postage prepaid by
registered or certified mail, return receipt requested, delivered by Federal Express or other
overnight delivery service from which a receipt may be obtained, and addressed as follows: .
{08559748,3 } 1 1
OR BOOK 02209 RAGE 0878
To RHI: Rock Hancock, Inc.
1600 North Orange Avenue
Orlando, Florida 32804
Attention: Gregg I. Zuckerman
Telephone: (407) 898- 0691(for verification of telecopy only)
Telecopy: (407) 898 -7755
with a copy to: Swann & Hadley, P.A.
1031 W. Morse Boulevard
Winter Park, Florida 32789
Attention: Ralph V. Hadley, III, Esq.
Telephone: (407) 647 -2777 (for verification of telecopy only)
Telecopy: (407) 647 -2157
To Hancock: Hancock Village, LLC
300 International Parkway, Suite 184
Heathrow, Florida 32746
Attention: Spencer Phelps
Telephone: (407) 804 -8949 (for verification of telecopy transmission only)
Telecopy: (407) 804 -8963
with a copy to: Akerman Senterfitt
255 South Orange Avenue, 17 Floor
Orlando, Florida 32801
Attention: Robert M. Poppell, Esquire
Telephone: (407) 419 -8475 (for verification of telecopy transmission only)
Telecopy: (407) 843 -6610
or to such other address as either party hereto shall from time to time designate to the other party
by notice in writing as herein provided.
Section 28. Paragraph Headings. The paragraph and sub - paragraph headings as
herein used are for convenience or reference only and shall not be deemed to vary the content of
this Agreement or the covenants, agreements, representations and warranties herein set forth or
limit the provisions or scope of any section herein.
Section 29. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations.
If any provision of this Agreement or the application thereof to any person or circumstance shall,
for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
Section 30. Successors and Assigns. This Agreement runs with the land and shall be
binding upon and shall inure to the benefit of the parties hereto, and their respective successors
and assigns.
{0R559748,3) 12
OR BOOK 02209 PAGE 0879
IN WITNESS WHEREOF, the parties hereto have subscribed their names and have
caused this Agreement to be executed as of the day and year first above written.
Signed, sealed and delivered RHI:
in the presence of
ROCK HANCOCK, INC., a Florida
corporation
Qui
h.
Print Name: CHRISTINA M LEE
By: .Lsc ,_
p Name: Lo (° e•r
,6 Title: / /•s
Print Name: Name: Stia 4 . "Otter
-
-
STATE OF FLO' I A )
COUNTY OF - A 1, ' )
4
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State aforesaid and in the County aforesaid, to take acknowledgments, personally appeared
6 eel Za c ctce ✓Acc , as PrtS ( ce of Rock
Hancock, Inc., a Florida corporation, and who is [ ] personally known to me, or [j produced
f kw1 i . 1) Y\ 1' V' `5 j-1 c fr as identification, and who acknowledged that
he /she executed the foregoing instrument freely and voluntarily for the uses and purposes
expressed therein.
WITNESS my hand and official seal in the County and State last aforesaid this l
of W04.0 In AL. ,r, 2002.
0 -
Signature of Notary q te.6 Chnstlna M Lee
• My Commission DD140422
Name of Notary (Typed, Printe oftcetienveMptember 21, 2006
Commission Number:
My Commission Expires:
{0R559748,3) 13
OR BOOK 02209 RAGE 0880
Signed, sealed and delivered HANCOCK:
in the presence of:
HANCOCK VILLAGE, L.L.C., a Florida
��� A4 � limited liability company
h
Print Name: CHRISTINA M. LEE
(� a (A,L Ny e: V - l - -
Print Name: C\- r; -\-,4-x A nc e xrs(g Title: -h ' exectthve - 0{#►ce
STATE OF FLORIDA )
COUNTY OF 0,h_az )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State aforesaid and in the County aforesaid, to take acknoOedgments, personally appeared
T L1.ChirtiSV , as Chief- &x ea c ,in ve 0ricelof HANCOCK VILLAGE,
L.L.C., a Florida limited liability company, on behalf of the limited liability company, and who
is [ ersonally known to me, or [ ] p duced N as
iden fication, and who acknowledged that e/ he executed the f oregoing instrument freely and
voluntarily for the uses and purposes expressed therein.
WITNESS my hand and official seal in the County and State last aforesaid this I da
Y
of Iv O vim{„ .t v , 2002.
N t741/Y0 114 . 4,-e__
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number:
My Commission Expires:
S yr ln M
:� My Commiss
L DD140422 io
a a° Expires September 21, 2006
{0R559748,3 } 14
OR BOOK 02209 PAGE 0881
EXHIBIT "A"
HANCOCK VILLAGE
Tract 16, according to the Plat of Property of Lake Highlands Company, Plat Book 2, Page 28,
Section 28, Township 22 South, Range 26 East, less right of way for State Road 50 and Less that
part of Tract 16 lying within the East 25 feet of the Southeast 1/4 of the Northeast 1/4 of the
Northeast 1/4, Section 28, Township 22 South, Range 26 East, Lake County, Florida. LESS
AND EXCEPT that part conveyed to Lake County, Florida, by deed recorded in Official Records
Book 1663, Page 2297, Public Records of Lake County, Florida.
{0R567143,1 }
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II PRELINPIARY Silt ffi r.
NANCOCK
AMERICAN CIVIL ®n
VILLAGE ENGINEERING CO. mad BOND ,
r.11 e••e...m�
a•d GEE°- LEEILOb1 '03 '0143 1IAIO WEOIZI3Wd dTb =ZO 20 61 AoW
` • OR BOOK 02209 PAGE 0883
EXHIBIT "C"
RHI PROPERTY
A PORTION OF TRACT 16, LAKE HIGHLANDS COMPANY, AS RECORDED IN
PLAT BOOK 2, PAGE 28, PUBLIC RECORDS OF LAKE COUNTY, FLORIDA,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF SECTION 28, TOWNSHIP 22
SOUTH, RANGE 26 EAST; THENCE S01 °06'36 "W, ALONG THE EAST LINE
OF SAID SECTION 28, A DISTANCE OF 664.22 FEET; THENCE S89 °47'22 "W
A DISTANCE OF 45.00 FEET TO THE WEST RIGHT -OF -WAY LINE OF
HANCOCK ROAD; THENCE S01 °06'21 "W, ALONG SAID WEST RIGHT -OF-
WAY LINE, A DISTANCE OF 177.56 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUE S01 °06'21 "W, ALONG SAID WEST RIGHT -OF -WAY, A
DISTANCE OF 324.00 FEET TO THE NORTH RIGHT -OF -WAY LINE OF
STATE ROAD NUMBER 50; THENCE N89 °11'40 "W, ALONG SAID NORTH
RIGHT -OF -WAY LINE, A DISTANCE OF 258.78 FEET; THENCE N00 °48'20 "E A
DISTANCE OF 324.00 FEET; THENCE S89 °11'40 "E A DISTANCE OF 260.48
FEET TO THE POINT OF BEGINNING.
Accuright Surveys of Orlando, Inc
Frank A Raymond
File No Lake Highlands Company
Dated 10/18/02
{0R564289,2}
• OR BOOK 02209 PAGE 0884
EXHIBIT "D"
HANCOCK PROPERTY
A PORTION OF TRACT 16, LAKE HIGHLANDS COMPANY, AS RECORDED IN
PLAT BOOK 2, PAGE 28, PUBLIC RECORDS OF LAKE COUNTY, FLORIDA,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF SECTION 28, TOWNSHIP 22
SOUTH, RANGE 26 EAST; THENCE S01 °06'36 "W, ALONG THE EAST LINE OF
SAID SECTION 28, A DISTANCE OF 664.22 FEET; THENCE S89 °47'22 "W A
DISTANCE OF 45.00 FEET TO THE WEST RIGHT -OF -WAY LINE OF HANCOCK
ROAD AND THE POINT OF BEGINNING; THENCE S01°0621 "W, ALONG SAID
WEST RIGHT -OF -WAY LINE, A DISTANCE OF 177.56 FEET; THENCE
N89° 11'40 "W A DISTANCE OF 260.48 FEET; THENCE S00 °48'20 "W A DISTANCE
OF 324.00 FEET TO THE NORTH RIGHT -OF -WAY LINE OF STATE ROAD 50;
THENCE N89 °11'40 "W, ALONG SAID NORTH RIGHT -OF -WAY LINE, A
DISTANCE OF 357.69 FEET; THENCE N00 °58'49 "E A DISTANCE OF 490.60 FEET;
THENCE N89 °47'22 "E A DISTANCE OF 617.70 FEET TO THE POINT OF
BEGINNING.
Accuright Surveys of Orlando, Inc.
Job No Lake Highlands Plat
(0R566925,2}
•
OR BOOK 02209 PAGE 0885
EXHIBIT "E"
(Escrow Provisions)
Page 1 of 2
A. Duties. It is agreed that the duties of Akerman Senterfitt, as "Escrow Agent" with
respect to the Deposit are only such as are specifically provided herein or in the Agreement to
which this Exhibit is attached, being purely ministerial in nature, and that Escrow Agent shall
incur no liability whatsoever, and RHI and Hancock hereby release Escrow Agent from all
liability of any nature arising from any act done or omitted to be done by Escrow Agent in the
performance of its duties hereunder, except for acts or omissions ultimately determined to
constitute willful misconduct or gross negligence, and so long as Escrow Agent has acted in
good faith.
B. Responsibilities. Escrow Agent shall be under no responsibility in respect to the
Construction Deposit other than faithfully to follow the instructions herein contained. Escrow
Agent may advise with counsel and shall be fully protected in any actions taken in good faith, in
accordance with such advice. Escrow Agent shall not be required to defend any legal
proceedings which may be instituted against the Escrow Agent in connection with the subject
matter of these instructions unless requested to do so by RHI and Hancock and is indemnified to
the satisfaction of the Escrow Agent against the cost and expense of such defense. In the event
(i) of any suit between RHI and Hancock wherein Escrow Agent is made a party by virtue of
acting as such Escrow Agent hereunder, or (ii) of any suit wherein Escrow Agent interpleads the
Construction Deposit other than a suit in which Escrow Agent is ultimately determined to have
committed willful misconduct or gross negligence or to have breached its obligation to act in
good faith, Escrow Agent shall be entitled to recover reasonable attorney's fees and costs
incurred, said fees and costs to be assessed as court costs and paid by the party against which the
judgment is rendered or as otherwise set forth in such judgment. The status of Akerman
Senterfitt as also Hancock's counsel in this transaction shall not disqualify such law firm from
acting as Escrow Agent, or from representing Hancock in connection with this transaction, the
matters contemplated herein, or any disputes between RHI and Hancock that may arise out of
this transaction, including without limitation any dispute with respect to the Construction
Deposit. Escrow Agent shall not be required to institute legal proceedings of any kind. Escrow
Agent shall have no responsibility for the genuineness or validity of any document or other item
deposited with Escrow Agent, and shall be fully protected in acting in accordance with any
written instructions given to Escrow Agent hereunder and believed by Escrow Agent to have
been signed by the proper parties.
C. Sole Liability. Escrow Agent assumes no liability under this Agreement except
that of a stake holder. If there is any dispute as to whether Escrow Agent is obligated to deliver
the Construction Deposit, or as to whom the Construction Deposit is to be delivered, Escrow
Agent will not be obligated to make any delivery thereof, but in such event may hold the
Construction Deposit until receipt by Escrow Agent of any authorization in writing signed by all
of the persons having any interest in such dispute, directing the disposition thereof, or in the
absence of such authorization, Escrow Agent may hold the Construction Deposit until the final
determination of the rights of the parties in an appropriate proceeding. If such written
authorization is not given, or proceedings for such determination are not begun and diligently
{08559748,3 }
•
OR BOOK 02209 RAGE 0886
EXHIBIT "E"
(Escrow Provisions)
Page 2 of 2
continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding
for leave to deposit the Construction Deposit into the Registry of Court for Lake County pending
such determination. In making delivery of the Construction Deposit in the manner provided for
in this Agreement, Escrow Agent shall have no further liability in the matter. Escrow Agent
shall not be liable for loss of the Construction Deposit due to the failure of any financial
institution in which the Construction Deposit is placed so long as Escrow Agent places the
Construction Deposit in SunTrust or other federally insured financial institution acceptable to
Hancock and RHI in their sole discretion.
{0R559748,3)