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HomeMy WebLinkAboutR-24-46 Sebastian Overlook SubdivisionRESOLUTION NO. R-2446 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING THE DEVELOPMENT AGREEMENT FOR A SUBDIVISION KNOWN AS SEBASTIAN OVERLOOK SUBDIVISION (A PORTION OF SEBASTIAN HIGHLANDS UNIT 17); PROVIDING FOR CONFLICTS; PROVIDING FOR SCRIVENER'S ERRORS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Hawkins Project 1, LLC, has made application for a development agreement for the Sebastian Overlook (a portion of Sebastian Highlands Unit 17); and WHEREAS, said development agreement establishes the parameters of constructing said subdivision which are mutually beneficial to both the City and Property owner; and NOW, THEREFORE, be it resolved by the City Council of Sebastian, Florida, as follows: SECTION 1. DEVELOPMENT AGREEMENT APPROVAL. The City Council of the City of Sebastian does hereby approve the developer's agreement for Sebastian Overlook (A portion of Sebastian Highlands Unit 17), attached hereto as Exhibit A. SECTION 2. CONFLICTS. All Resolutions or parts thereof in conflict herewith are, to the extent of such conflict, superseded and repealed. SECTION 3. SCRIVENER'S ERRORS. Sections of this Resolution may be renumbered or re - lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, or the City Manager's designee, without need of public hearing, by filing a corrected copy of same with the City Clerk. SECTION 4. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. The foregoing Resolution was moved for adoption by Council Member Mcpartlan . The motion was seconded by Council Member Dodd and, upon being put to a vote, the vote was as follows: Mayor Ed Dodd aye Vice Mayor Kelly Dixon aye Council Member Christopher Nunn ray Council Member Fred Jones nay Council Member Bob McPartlan aye The Mayor thereupon declared this Resolution duly passed and adopted this 281h day of August 2024. ATTEST: �� wj"'w fYanette Williams, MMC City Clerk CITY OF SEBASTIAN, FLORIDA By. 115 0O Ed Dodd, Mayor = Approved as to Form and Content for Reliance by the City of1Sebastian Only: e 'fer Cockcroft, Esq., BCS y Attorney Prepared By: Scott A. Glass, Esq. Shutts & Bowen LLP 300 S. Orange Ave., Ste. 1600 Orlando, FL 32801 After recording return to: City Clerk City of Sebastian 1225 Main Street Sebastian, FL 32958 3120240043154 RECORDED IN THE PUBLIC RECORDS OF RYAN L. BUTLER, CLERK OF COURT INDIAN RIVER COUNTY FL BK: 3722 PG: 2383 Page 1 of 36 9/6/2024 9:54 AM DEVELOPER'S AGREEMENT This Developer's Agreement ("Agreement") is made and entered into by and between Hawkins Project 1, LLC, a Florida limited liability company with a mailing address of c/o Eubel Brady & Suttman Asset Mgmt., Inc., 10100 Innovation Drive, Ste. 410, Miamisburg, Ohio 45342 ("Developer"), and the City of Sebastian, Florida, a Florida municipal corporation with a principal address of 1225 Main Street, Sebastian, FL 32958 ("City") and shall become effective on the date it has been finally executed by both Parties hereto (the "Effective Date"). WHEREAS, Developer is the fee simple owner of approximately 33.23 acres of real property as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); and; WHEREAS, the Property is located with City limits and carries a designation of Low Density Residential on the City's Future Land Use Map and a designation of RS-10 on the City's Official Zoning Map; and WHEREAS, the Property comprises 109 lots as depicted on the Plat of Sebastian Highlands Unit 17, Blocks 594 to 598, as recorded in Plat Book 8, Page 46M, of the Official Records of Indian River County, Florida (the "Plat"); and WHEREAS, Owner has applied to the City for development approval to develop the Property with a residential community to be marketed as, and commonly referred to as, Sebastian Overlook also known as a portion of "Sebastian Highlands Unit 17," and which shall consist of ninety-nine (99) single-family homes to be constructed on ninety-nine (99) of the existing platted lots, and a stormwater detention pond to be constructed on ten (10) of the existing platted lots (the 99 single-family homes and stormwater detention pond being hereafter collectively referred to as the "Project"); and WHEREAS, on March 5, 1997, City passed Ordinance No. 0-97-42 as recorded in Book 143, Page 2052, of the Public Records of Indian River County, Florida (the "Ordinance"), which Ordinance purported to vacate certain dedicated roadways with the Plat, as more particularly set forth in the Ordinance; Page 1 of 15 WHEREAS, Developer has requested that City rescind the Ordinance, so that development of street rights -of -way within the Project can proceed based on the depictions contained in the Plat; and WHEREAS, City has agreed to rescind the Ordinance, subject to the terms and conditions contained in this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. Recitals and Exhibits. The above recitals are true and correct, are incorporated herein by reference, and form a material part of this Agreement. All exhibits to this Agreement are incorporated herein by reference and form a material part of this Agreement. 2. Authority. This Agreement is entered into pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida and Chapter 166, Florida Statutes. 3. City Comprehensive Plan. Code and Development Reeulations. In accordance with § 163.3167(5), Fla. Stat., development of the Project is vested, i.e., grandfathered, against application of the City of Sebastian Comprehensive Plan 2040 ("Comp Plan"). Furthermore, notwithstanding any provision of the City Land Development Code ("LDC") to the contrary, development of the Project shall be in accordance with the provisions of this Agreement. In the event this Agreement does not address a particular development standard or criterion, the applicable standard or criterion shall be the standard or criterion set forth in the LDC on the Effective Date unless otherwise agreed in writing by the Parties. 4. Creation of Mandatory Homeowners' Association. Prior to issuance of the first permit for vertical construction of a dwelling unit within the Project, Developer shall create a mandatory homeowners' association for the purpose of owning, operating and maintaining common areas within the Project, and for such other tasks a mandatory homeowners' association may undertake in accordance with Florida law (the "HOA"). Prior to legally creating the HOA Developer shall submit the HOA's proposed Articles of Incorporation and By -Laws to the City for review and approval, such approval not to be unreasonably withheld so long as the HOA documents include the requirements shown within this agreement. 5. Declaration of Covenants. Conditions and Restrictions. Prior to issuance of the first permit for vertical construction of a dwelling unit within the Project, Developer shall subject the Property to a recorded Declaration of Covenants, Conditions and Restrictions (the "Declaration"). The Declaration shall be submitted to City for review and approval prior to recording it among the Official Records of Indian River County, Florida, such approval not to be unreasonably withheld. In addition to the customary provisions found in such documents and any provisions required by applicable law, including the LDC, the Declaration shall include the following provisions, or language to similar effect: Page 2 of 15 (i) By accepting a deed to a residential lot within the Sebastian Overlook community (said community being sometimes referred to as a portion of Sebastian Highlands Unit-17 subdivision) each Grantee under such deed shall automatically become a member of Sebastian Overlook Homeowners' Association, Inc. (the "HOA"). The HOA shall own, operate and maintain the Common Area and any non-public infrastructure within the subdivision including, but not necessarily limited to, the subdivision's stormwater management system (the "SWMS") and sidewalks. In the event the HOA fails to maintain the SWMS at the level required for it to function as designed, the City of Sebastian (the "City") shall have the right, but not the obligation, to perform such maintenance and invoice the HOA for all costs and expenses incurred by the City in performing such maintenance or, at City's sole option, may invoice the owner(s) of each residential lot directly for 1/991h of all such costs and expenses. If an owner fails to pay his, her or their invoiced amount within thirty (30) days after receipt of such invoice the City shall have the right to record a lien against such owner's lot to secure payment of the same along with any costs incurred by the City in placing and enforcing such lien. An easement in favor of the City of Sebastian is hereby granted across each tract, parcel and lot within the subdivision for the limited purpose of providing the City reasonable access to any part of the SWMS which requires maintenance and which cannot otherwise be reasonably accessed from a public right-of-way or over a separate easement held by the City. (ii) The owners of Lot 1, Lot 2 and Lot 3, Block 595, Plat of Sebastian Highlands Unit 17, as recorded among the Official Records of Indian River County in Plat Book 8, Page 46, et seq., and the owners of Lot 1, Lot 2 and Lot 3, Block 598, Plat of Sebastian Highlands Unit 17, as recorded among the Official Records of Indian River County in Plat Book 8, Page 46, et seq., shall each be responsible for ordinary and customary maintenance of the aluminum headwall along Schumann Waterway adjacent to the respective owner's lot (the "Headwall"). In the event any or all of the Headwall is damaged or, despite such ordinary and customary maintenance, deteriorates to a point where extraordinary maintenance, repair or replacement is required, such extraordinary maintenance, repair or replacement shall be the responsibility of the HOA. A limited easement across each of the referenced lots is hereby granted to the HOA for the purposes set forth in this section. 6. Imorovements. a. Construction of Imorovements. Page 3 of 15 I. As consideration for the rescission of Ordinance No.O-97-42, the Developer will, at Developer's sole cost and expense, construct the following infrastructure improvements to serve the Property: Sidewalk connection/extension from the development to Schumann Drive to the West, stormwater pond and all associated stormwater infrastructure including, but not limited to, all necessary pipes, manholes, culverts, catch basins, etcetera (collectively the "SWMS"); those roadways within the Project shown on the Plat as Ithaca Avenue, Empress Avenue, and Spring Valley Avenue, including all attendant sidewalks and attendant stormwater structures and associated roadways over the drainage right of way to the West of the Property and the drainage right of way to the South of the Property; extension of public water lines and wastewater lines necessary to serve the Project; and any public infrastructure inadvertently omitted from the foregoing list but shown on the "Construction Plans For A Portion of Sebastian Highlands Unit-17" prepared by Mills, Short & Associates (the "Construction Plans") a copy of which are attached hereto as Exhibit B and incorporated herein by reference (collectively, the "Improvements"). Developer will construct the Improvements in accordance with the Construction Plans and/or in accordance with such other plans as City may from time to time approve with regard to the Project (collectively, the "Plans"). Developer will commence construction of the Improvements within 12 months of the City's approval of the Plans, and will thereafter diligently pursue completion thereof. 2. Notwithstanding anything to the contrary herein, City and Developer hereby agree that, in the event one or both of the aforementioned crossing of existing drainage rights of way includes the installation of box culverts in lieu of drainage pipes, the City shall pay the difference between Developer's actual cost to acquire and install box culverts and the cost Developer would have incurred had Developer acquired and installed pipes as otherwise would be required under the LDC and/or other applicable provisions of the City Code (the "Differential"), provided however, the maximum amount City shall be required to pay towards the Differential shall be limited to One Hundred Thousand Dollars ($100,000). Thus, by way of illustration and not limitation, if the Differential proves to be $85,000 the City would be responsible for the full Differential (i.e., $85,000), but if the Differential ultimately proves to be an amount over $100,000.00, City would be responsible for $100,000 and Developer would be responsible for the amount by which the Differential exceeds such cap. Thus, and again by way of illustration and not limitation, if the Differential proves to be $120,000 the City would be responsible for $100,000 and Developer would be responsible for $20,000. 3. In light of City's potential obligation to pay up to $100,000 for crossing the aforementioned right(s)-of-way with box culverts as preferred by City staff, Developer shall, prior to installing either box culverts or drainage pipes, provide City with appropriate and customary documentation (e.g., contract bid alternates, Page 4 of 15 change orders, work orders, etcetera) from Developer's contractor or sub- contractor documenting the bona fide cost to cross the referenced right(s)-of-way with drainage pipes consistent with City Code requirements and the bona fide cost for crossing the same utilizing box culverts. City shall have three (3) business days to advise Developer via electronic mail whether Developer should proceed under the pipe option or the box culvert option. b. As -Built Survev. Once construction of the Improvements has been completed in accordance with the Plans, Developer shall cause an as -built survey to be prepared by a land surveyor, duly licensed by the State of Florida, which shall depict the final designs, specifications and location of the Improvements (the "Survey"). The Survey shall include a certification by the surveyor that the replacement and location of Permanent Reference Markers and Benchmarks are in accordance with the recorded Plat, and in compliance with all requirements of Part 1, Chapter 177, Florida Statutes. Developer shall promptly deliver the Survey to City upon its completion. Permits for dwelling units will not be issued until the Improvements (with the exception of Project -internal Sidewalks, which shall be completed as provided in this Agreement) have been completed and submittal of As -Built Survey has been received. Notwithstanding the foregoing, City agrees to issue building permits for up to five (5) model homes which may be constructed within the Project prior to completion of the Improvements and submittal of the As -Built Survey. In no event shall the City be obligated to issue any other building permit for a dwelling unit prior to such completion and submittal, nor shall the City be obligated to issue a final Certificate of Occupancy for any dwelling unit, including but not limited to the aforementioned model homes, until all Improvements (again excepting Project - internal Sidewalks) have been completed, inspected and accepted by the City in accordance with City Code requirements and standards. c. Bondine of Improvements. With regard to those Improvements required for roads, stormwater management and the Empress Avenue / Schumann Waterway crossing, Developer shall comply with the requirements of LDC §54-4.19-10 provided, however, a two-year maintenance bond shall be provided rather than the one-year bond ordinarily required by LDC §54-4.19-10(e). Generally, as used herein, the term "comply" shall refer to placing bonds or other securities generally and routinely acceptable in form, amount, and substance as required by the City and in the hands of and in favor of the City for completion, maintenance, payment for completion, and warranty of subdivision improvements. d. Convevance of Improvements. Once Developer has delivered the Survey and requisite surety bonds to the City, the City shall promptly review the same and inspect the Improvements to confirm they have been constructed in accordance with the Plans and all applicable laws, codes, rules and ordinances. Once City has confirmed such compliance it will issue a Certificate of Completion or similar Page 5 of 15 documentation of approval to the Developer. Thereafter, Developer shall promptly convey the following Improvements to the City, for the use and benefit of the general public: all road improvements, and all sidewalks (collectively, the "Conveyed Improvements"), along with any easements reasonably required by the City for operation and maintenance thereof, provided, however, that while City shall own all of the sidewalks responsibility for maintenance of sidewalks shall be as provided in subsection 61, below. Prior to conveyance, Developer shall be solely responsible for operation and maintenance of all Improvements at Developer's sole cost and expense. Upon and after such conveyance, City shall be solely responsible for operation and maintenance of the Dedicated Improvements at City's sole cost and expense except as provided herein with respect to sidewalk maintenance. e. Non-conveved Improvements. Those Improvements which are not Conveyed Improvements shall be owned, operated and maintained in perpetuity either by the Developer or by the HOA. f. Sidewalks. Sidewalks shall be constructed on a lot -by -lot basis and no lot shall receive a final certificate of occupancy unless and until its sidewalk has been completed. Notwithstanding the foregoing, all sidewalks shall be completed no later than five (5) years after the first permit for vertical construction of a dwelling within the Project has been issued by the City. All sidewalks within the Project, with the exceptions of that section of sidewalk extended to Schumann Drive and sidewalks located on Tract U or Tract W, as shown on the Plat and which Tracts are owned by the City, shall be maintained by the HOA. g. Stormwater Management System. Developer shall obtain all necessary permits for construction of the Project's stormwater management system (the "SWMS") in accordance with the Plans and shall thereafter diligently commence construction of the SWMS including, but not limited to, the stormwater pond to be constructed on Lots 6-10 and 23-27 (the "Pond Lots"). Upon completion, inspection and approval of the SWMS by the City, Developer shall promptly convey the Pond Lots by warranty deed (the "Stormwater Pond Deed") to the HOA as common area, but subject to a perpetual easement for stormwater purposes. In addition to reserving the aforementioned stormwater easement, the Stormwater Pond Deed shall contain language acceptable to the City Attorney which binds the Pond Lots together (i.e., creates a Unity of Title). 7. Insurance. Throughout the duration of this Agreement, including the initial period and any extensions thereto, Developer shall obtain and possess: a. Commercial General Liability coverage, issued on the most recent version of the ISO form as filed for use in Florida or its equivalent, for all operations under this Agreement, including but not limited to Contractual, Products and Completed Page 6 of 15 Operations, and Personal Injury. The limits shall be not less than $1,000,000 Combined Single Limits (CSL) or its equivalent per occurrence. Such coverage shall not contain any endorsement(s) excluding or limiting Product/Completed Operations, Contractual Liability, or Severability of Interests. The general aggregate limit shall either apply separately to this contract or shall be at least twice the required occurrence limit; b. Workers' Compensation coverage for all employees with statutory workers' compensation limits, and no less than $100,000 foreach incident of bodily injury or disease for Employers' Liability; and c. Business automobile liability coverage for all owned, non -owned, and hired vehicles issued on the most recent version of the ISO form as filed for use in Florida, or its equivalent, with limits of not less than $500,000 per accident. In the event Developer does not own automobiles, Developer shall maintain coverage for hired and non -owned auto liability, which may be satisfied by way of endorsement to the commercial General Liability policy or separate business Auto Liability policy. Prior to commencing operations under this Agreement, Developer shall provide certificates of insurance to City verifying coverage. The name of the development, subdivision, or project in which the Improvements are to be installed and the type and amount of coverage provided, shall be clearly stated on the face of each certificate of insurance. The insurance coverage shall name City as an additional insured, and shall contain a provision which forbids any cancellation, changes or material alterations, or renewal of coverage without providing thirty (30) days prior written notice to City. Developer shall require and ensure that each of its contractors and subcontractors maintains insurance until the completion of their work under any contract associated with this Agreement. Failure of Developer to maintain insurance coverage for themselves or for any other person or entity for whom they are responsible, or to ensure that their contractors and subcontractors maintain coverage, shall not relieve Developer of any contractual responsibility, obligation, or liability arising under this Agreement. 8. Indemnification. To the fullest extent permitted by law, Developer shall defend, indemnify, and hold City harmless from and against all claims, damages, losses, and expenses, including reasonable attorney fees and costs, arising out of, or resulting from, Developer's construction of the Improvements pursuant to the terms of this Agreement. 9. Construction Liens. No right or privilege of any party to enter upon the property of another shall permit or empower such party to encumber the property of another with construction liens for unpaid work, labor, supplies or materials. No party shall suffer or permit any construction lien to be filed against any property of another and, in the event of any such construction lien attaching, such party shall have same removed. If any party causes or allows any construction liens to be filed against any property of another, and, Page 7 of 15 thereafter, fails to remove same within thirty (30) days of such party's actual notice that said lien has been filed, then the party that owns the property subjected to such lien, at its election, may pay and satisfy the same, or transfer same to other security, and in such event the party responsible for such lien arising shall reimburse to the party that owns such property any and all sums so paid, including interest at the highest rate allowed by Florida law accruing from the date of payment by the party that owns such property of the lien amount and including all reasonable costs and expenses incurred by the party that owns such property in connection therewith or in connection with enforcing this provision, including attorneys', paralegal's and other professional's fees incurred, whether before trial, at trial or upon any appeal. 10. Term. The easements, covenants, conditions and restrictions contained in this Agreement shall be effective commencing on the date of recordation of this Agreement in the office of the Indian River County Clerk of Court and shall remain in full force and effect thereafter in perpetuity, except as otherwise provided herein, unless this Agreement is modified, amended, canceled or terminated by the written consent of Developer and City and their respective assigns. The City shall be responsible for the recording this Agreement after it has been executed by both Parties. 11. Enforcement and Remedies. a. Except as and to the extent specifically limited below, 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, as well as any remedies or rights that may otherwise be available at law and/or in equity, including, but not limited to, specific performance, provided, however, that any action for damages shall be limited to actual damages, and the parties expressly waive any action for punitive damages. b. 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. c. 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. d. Notwithstanding the foregoing, except as may otherwise be provided by this Agreement, including no breach, failure to comply with any term or provision of this Agreement, or failure of a covenant, warranty, or representation contained herein, shall be considered a "default" until a non -breaching party has provided written notice of the breach to the breaching party and the breach has gone uncured for a period of thirty (30) days; provided, however, that if such breach is of a nature that it cannot reasonably be cured within thirty (30) days, then the breaching party shall have thirty (30) days from the receipt of written notice from the non -breaching party to commence said required cure, and the amount of time reasonably necessary to complete said required cure, which reasonable time shall in no event exceed sixty Page 8 of 15 (60) days from the receipt of written notice from the non -breaching party, unless otherwise extended by the non -breaching party in writing. 12. 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 set forth below, whether same are personally delivered, transmitted electronically (i.e., e-mail), 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: If to Developer: Hawkins Project I, LLC c/o Eubel Brady & Suttman Asset Mgmt., Inc. 10100 Innovation Drive, Ste. 410 Miamisburg, Ohio 45342 Attn: Mark E. Brady with copy to: Brian M. Jones, Esq. Shutts & Bowen LLP 300 South Orange Ave., Ste. 1600 Orlando, FL 32801 If to City: City Manager Cityy of Sebastian 1225 Main Street Sebastian, FL 32958 with copv to: City Attorney City of Sebastian 1225 Main Street Sebastian, FL 32958 13. Governing Law and Binding Effect; Waiver of Jury Trial: Fees. The interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The terms and provisions of this Agreement shall bind, and the benefits and advantages hereof shall inure to and be enforceable by, the parties hereto as well as their respective successors and permitted assigns. Whenever used herein, the singular name shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. Any causes of actions arising hereunder shall be tried in the court of competent jurisdiction in Indian River County, Florida. The Parties acknowledge that they participated in the negotiation and drafting of the terms of this Agreement and acknowledge that no provision shall be strictly construed against one party or the other based solely on draftsmanship. The Parties agree to waive any right to trial by jury in the event of any litigation arising under this Agreement. The Parties further agree Page 9 of 15 that in the event of litigation arising hereunder, the prevailing party shall be entitled to recovery of fees, including attorneys' fees, up to and including appeals. 14. Inteerated Agreement. Waiver and Modification. This Agreement (together with the documents specifically referred to herein) represents the complete and entire understanding and agreement between and among the parties hereto with regard to all matters involved in this Agreement and supersedes any and all prior or contemporaneous agreements, whether written or oral. This Agreement may not be modified or amended, nor may any provision contained herein be waived, except in writing signed by all parties, or if such modification, amendment or waiver is for the benefit of one or more of the parties hereto and to the detriment of the others, then the same must be in writing signed by all parties to whose detriment the modification, amendment or waiver inures. 15. Severability. If any sentence, phrase, paragraph, provision or part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction in Indian River County, Florida, such invalidity or unenforceability shall not affect the other parts of this Agreement if such court also determines that the rights and obligations of the Parties contained herein are not materially prejudiced by the severance of such invalid or unenforceable sentence, phrase, paragraph, provision or part of this Agreement and further determines that the intentions of the Parties can continue to be effectuated despite such severance. To that end, and to that extent, this Agreement is declared severable. 16. Further Assurances. Each party hereto shall each reasonably take all such additional actions and execute and deliver all such additional documents and instruments as may reasonably be required, if any, in order to fully effectuate all actions contemplated by this Agreement. 17. Assienment. Owner's rights and obligations under this Agreement will run with the land and may be assigned to and assumed by any successor developer or by the HOA or other such entity approved by the City, such approval not to be unreasonably withheld. The purpose, terms, and conditions contained herein shall be binding upon the Developer or any such successor and/or assignee. Notwithstanding the foregoing, no end -user of a platted Lot shall succeed to the Developer's rights or bear the Developer's obligations set forth herein by virtue of ownership of such platted Lot. 18. No Third -Party Beneficiaries. This Agreement is solely for the benefit of the parties signed hereto and no right, nor any cause of action, shall accrue to or for the benefit of any third party. 19. Force Maieure. Developer shall not be deemed to be in breach of this Agreement for failure to perform by any specified date due to acts of God, fire, flood, hurricane, epidemic, labor strike, act of terrorism, act of government, or any other cause or event beyond the reasonable control of and without fault of Developer. Under such circumstance, the dates so specified shall be extended for a period equal to the length Page 10 of 15 of the delay caused by the force majeure, unless a different date or extension period is mutually agreed to by City and Developer. 20. Relationship. This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between City and Developer. Developer has no authority to act on behalf of, or otherwise obligate or bind, City in any manner. Each party hereby acknowledges that it is sophisticated and prudent in business transactions and is acting for its own account. Each party has made its own independent decisions to enter into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. Each party hereby acknowledges that it is proceeding at its own risk and that the other party is not acting as a fiduciary for or an adviser to it with respect to this Agreement or any responsibility or obligation contemplated herein. 21. Personal Liabilitv. No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), director, employee or agent of City in an individual capacity and neither shall any such individuals be subject to personal liability by reason of any covenant or obligation of City hereunder. BALANCE OF PAGE INTENTIONALLY LEFT BLANK WITH SIGNATURE PAGES IMMEDIATELY FOLLOWING Page 11 of 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first set forth above. HAWKINS PROJECT I, LLC, An Ohio limited liability company By: EBS Residential Development Fund IV, LLC, an Ohio limited liability company, its Sole Member By: Eubel Brady & Sunman Asset Management, Inc., a Delaware corporation, its Manager By: Mark E. Brady Co -Chief Investment Officer STATE OF OHIO ) ) SS COUNTY OF MONTGOMERY ) I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to make acknowledgments, the foregoing instrument was acknowledged before me by Mark E. Brady, the Co -Chief Investment Officer of Eubel Brady & Suttman Asset Management, Inc., a Delaware corporation on behalf of the corporation as Manager of EBS Residential Development Fund IV, LLC, an Ohio limited liability company, as Sole Member on behalf of Hawkins Project I, LLC, an Ohio limited liability company, freely and voluntarily under authority duly vested in him. He is personally known to me or has produced as identification. l -WITNESS my hand and official seal in the County and State last aforesaid this ZO l day of I.0 S-T 2024. Notary I'c tateNpf FlMda _w, Typed`,, Printed or Stamped Name of Notary Public My Commission Expires: Page 12 of 15 TYNA R BROWN NOTARY PUBLIC - OHIO MY COMMISSION EXPIRES 07-07.28 ATTEST: bit C-&rL" J nette Williams, MMC 1ty Clerk APPROVED AS TO FORM AND LEGALITY for use and reliance by the City of Sebastian, Florida, only. en ifer Cockcroft, it Attorney STATE OF FLORIDA COUNTY OF INDIAN RIVER CITY OF SEBASTIAN, FLORIDA Z Z Print name: Ed Dodd Print title: Mayor The foregoing instrument was acknowledged before me by means of L'physical presence or ❑ online notarization, this -� � day of A uS r , 2024 by 0D as MAY02 of the City of Sebastian, a 0rF,e-y on behalf of said city. He/She 0 is personally known to me OR ❑ has produced a valid Driver's License or as identification ....jL CATHERINEE.TESTA '�• Commission SHH054261 <= Expires February 16, 2025 •�•? P Balled Tlw Tray Fain Inuit eBOMW7019 Not Public, ftati/of Florida Type or print name of Notary Commission Expiration Date Page 23 of 15 EXHIBIT "A" (Legal Description) LOTS 1 THROUGH 18, BLOCK 594; LOTS I THROUGH 9, BLOCK 595; LOTS 1 THROUGH 32, BLOCK 596; LOTS 1 THROUGH 32, BLOCK 597 AND LOTS I THROUGH 18, BLOCK 598, SEBASTIAN HIGHLANDS UNIT 17, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 8, PAGE 46, OF THE PUBLIC RECORDS OF INDIAN REIVER COUNTY CONTAINING 32.73 ACRES, MORE OR LESS. Page 14 of 15 OBLDOCS 21544864 1 EXHIBIT "B" (Copy of Final Approved Plans to be Attached) Page 15 of 15