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HomeMy WebLinkAbout2004-133This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 DEVELOPER'S AGREEMENT BETWEEN INDIAN RIVER COUNTY, FLORIDA AND NEWPORT NORTH HOLDINGS, LLC FOR NORTH LAKES SUBDIVISION SITE ACCESS AND STORMWATER MANAGEMENT IMPROVEMENTS BDB/bm THIS AGREEMENT, entered this 8th day June , 2004, by and between Indian River County, FLORIDA a political subdivision of the State of Florida, 1840 25th Street, Vero Beach, Florida, 32960 hereafter called County and Newport North Holdings, LLC, a foreign limited liability company, 1601 Dove Street, Suite 293, Newport Beach, CA 92660, Attn: Mark J. Kerslake, hereafter referred to as the Developer. WITNESSETH WHEREAS, the Developer proposes to develop a residential community to be known as North Lakes Subdivision on a 181 acre parcel of land along 58th Avenue, (Indian River County Project Number 96070055)(the `Project") which is legally described on Exhibit "A" attached hereto and incorporated herein by reference; and WHEREAS, the County and Developer share mutual goals and can assist each other with respect to right-of-way acquisition, roadway improvements, site access, and drainage improvements for 58th Avenue;and WHEREAS, the County anticipates that 53rd Street will be constructed to connect US 1 with 58th Avenue at a location proximate to the North Relief Canal; and WHEREAS, the Indian River County Planning and Zoning Commission gave their approval to the preliminary plat of 525 units known as North Lakes Subdivision on April 22, 2004; and WHEREAS, the Developer and County wish to provide for an altemative access across a new, two-lane public bridge with sidewalk over the North Relief Canal (the "Bridge") in the event that 53rd Street is constructed; and NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and premises hereinafter, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the County and Developer agree as follows: 1. Recitals• The foregoing recitals are hereby incorporated as if fully restated herein. 2. Site Access: Developer shall provide access to the Project, as follows: (M20752622} 1 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 BDB/bm A. The north entrance will be on 57th Street approximately 230 feet east of 58th Avenue. The Developer shall construct a two-lane road for a distance of approximately 230 feet from 58th Avenue to the entrance of the Project, as shown on the preliminary plat dated 4/22/04 and Exhibit "B" attached hereto. The Developer will also plan, design and construct a southbound left tum lane and a northbound right tum lane on 58th Avenue at the intersection of 57th Street. All road construction shall be in compliance with Florida Department of Transportation standards, and to the satisfaction of County. County finds that Developer shall not be required to pay or contribute to the acquisition or construction of 57th Street except for the 230 foot extension described above. B. The southem entrance shall be located 3,582 feet east of the 58th Avenue centerline as shown on Exhibit "C" attached. The parties agree that Developer's share of the cost of design and construction of the bridge and roadway is $445,400.00 (the 'Contribution Amount') representing $868 per lot in the proposed Project. Developer shall pay the sum of $445,400.00 to County as follows: at the time developer (or its assign or agent) applies for a building permit for a lot in the Project, Developer shall pay County the sum of $868.00 until the obligation of $445,400.00 to County is satisfied. Developer's failure to pay the $868.00 upon application for a building permit shall be adequate grounds for County to deny issuance of the building permit. C. The Bridge shall be designed and constructed by the County in conjunction with the construction of 53rd Street and shall be compatible with the Project's Southem Entrance. The Contribution Amount paid by Developer (together with interest eamed thereon) shall be deposited into an escrow account to be withdrawn by County for use in accordance with this agreement as follows: (1) for payment of the design of the Bridge at the time the design contract is let or due to be paid; (2) for the construction of the Bridge as construction occurs and payments become due, provided, however, no construction disbursements shall be made until construction of 53rd Street between the south entrance and 58th Avenue commences; or (3) If both the Bridge and the 53rd Street link between US 1 and 58th Avenue are not placed into service by February 15, 2014, then the County may withdraw the sum of $103,510.00 for the improvement of other transportation infrastructure within {M2075262.}2 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 BDB/bm the County, at the County's discretion. The balance of the all -remaining funds, if any, shall to be refunded to Newport North Holdings, LLC upon their written request. D. The Developer's obligation with respect to the Contribution Amount, the Bridge, and access to the Project, shall be deemed satisfied so long as Developer is in compliance with this Agreement. The Developer shall have no further obligation with respect to the Bridge, the Contribution Amount, or access to this Project, whether the Contribution Amount is used to construct the Bridge or refunded. Developer must comply with all other elements of the approved plat and laws and regulations, not inconsistent with this Agreement. 3. Kings Highway Right -Of -Way Acquisition: Developer grants County the option to purchase property along the Project's frontage on 58th Avenue at a price of $18,000.00 per acre in an amount sufficient to meet the County's ultimate Comprehensive Plan Thoroughfare Plan Right -of -Way requirements of 130 feet. Any property purchased by the County shall be used as right-of-way for future expansion of 58th Avenue. The option to purchase this property shall expire on January 1, 2005. 4. Emergency Access Accepted: County and Developer agree that development of this Project will include an emergency access off of 58th Avenue, to be located near the southern corner of the site as shown on the preliminary plat dated 4/22/04 and Exhibit "D". County finds that this emergency access together with the 57th Street access is sufficient to allow the Project to proceed to full use and occupancy In the event the Bridge is constructed, and the segment of 53rd Street between the Southem Entrance and 58th Avenue is in service, the emergency access may be abandoned or it may become a pedestrian access only. 5. Stormwater Management The Developer agrees to incorporate sufficient capacity in its Project to provide stormwater storage for the impervious area of 58th Avenue, being 70 feet wide, lying north of the North Relief Canal and south of 57th Street. The capacity shall be such to accommodate the drainage from 58th Avenue when it is widened to four lanes. The Developer shall have no responsibility to design, install, or pay any costs toward any drainage improvements required to direct the drainage from the above described section of 58th Avenue into the stormwater management system provided by the Developer in the Project, except for the following construction: a drainage structure (inlet or manhole) for future connection by County, located south of 57th Street and east of 58th Avenue and the required drainage pipe to a lake located on the northwest comer of the Project site. {M2075262;2}3 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc This document prepared by and return to: Indian River County Public Works Department 1840 256 Street Vero Beach, Florida 32960 Miscellaneous: BDB/bm A. In the e.ent of any litigation arising out of this Agreement, the prevailing party shall recover attorneys' fees and costs from the non -prevailing party. B . No amendment, modification, change, or alteration of this Agreement shall be valid or binding unless accomplished in writing and executed by all of the parties hereto. C. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, and assigns. Notwithstanding the foregoing, the right of Newport North Holdings, LLC to a refund of the Contribution Amount pursuant to the conditions stated in Paragraph 2.C. shall remain with Newport North Holdings, LLC. D . This Agreement contains the entire agreement and understanding between the parties. No representation, statement, recital, undertaking, or promise not specifically set forth herein shall be binding on any party hereto. This Agreement shall not be effective unless signed by Developer and County E The obligations of the Developer to this Agreement are expressly conditioned upon the Developer's decision, at Developer's sole discretion, to proceed with the Project. F. No certificate of completion or occupancy shall be withheld or delayed by the County for the Project (or any portion thereof), nor shall the County delay or withhold the full use and occupancy of the Project or any required permit(s) or final plat(s), due to the Bridge or 53rd Street itself not being completed. G Except for the aforementioned 230' extension of 57th Street, 58th Avenue turn lanes, and the Contnbution Amount, the County shall not require Developer to construct, contnbute to or share in the costs of any off-site improvements other than the payment of applicable impact fees. H . This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Florida. Venue hereunder shall lie in Indian River County, Florida. I. This Agreement shall be deemed prepared jointly by each of the parties hereto and shall be construed on parity as between the parties. There shall be no canon of construction for or against any party by reason of the physical preparation of this Agreement. {M20752622}4 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 BDB/bm J. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine, feminine, and neuter genders shall each include the others. K. County and Developer shall grant such further assurances and provide such additional documents as may be reasonably required by one another from time to time, and cooperate fully with one another in order to cavy out the terms and conditions hereof and comply with the express intention of this Agreement. L. Failure to insist upon stnct compliance with any of the terms, covenants, or conditions herein shall not be deemed a waiver of such terms, covenants, or conditions, nor shall any waiver or relinquishment of any right or power hereunder at any one time or times be deemed a waiver or relinquishment of such right or power at any other time or times. M. All words, terms, and conditions contained herein are to be read in concert, each with the other, and a provision contained under one paragraph may be considered to be equally applicable under another in the interpretation of this Agreement. N. The words herein and hereof and words of similar import, without reference to any particular section or subdivision of this Agreement, refer to this Agreement as a whole rather than to any particular section or subdivision hereof. 0. In the event any term, condition, or clause of this Agreement is declared to be illegal or unenforceable by a court of competent jurisdiction, such declaration of illegality or unenforceability shall not affect or alter the legality or enforceability of any remaining term, condition, or clause hereof, provided of the parties, as set forth in this Agreement. P. Insurance And Indemnification: Dunng Developer's performance of any construction in County right-of-way covered by this Agreement, Developer shall provide the County with evidence that Developer or the Developer's Contractor has obtained and maintains the insurance listed below. 1. Developer or Developer's Contractor shall procure and maintain for the duration of all construction contracts, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Developer, his agents, representatives, employees or sub -contractors. 2. Minimum Scope of Insurance {M20752622}5 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc • This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 BDB/bm (a) Worker's Compensation as required by the State of Florida. Employers Liability of $100,000 each accident, $500,000 disease policy limit, and $100,000 disease each employee (b) General Liability $1,000,000 combined single limit per accident for bodily injury and property damage. County shall be an additional insured. Auto Liability $1,000,000 combined single limit per accident for bodily injury and property damage for owned and non -owned vehicles. County shall be an additional insured. (c) Professional Liability Insurance providing coverage for intentional, reckless or negligent acts, errors, or omissions committed or alleged to have been committed by Developer's Engineer with a limit of $500,000 per claim/annual aggregate. There shall be no more than $5,000 deductible per claim amount unless approved by the County Risk Manager. Any deductibles or self-insured retentions greater than $5,000 must be approved by the Risk Manager for Indian River County with the ultimate responsibility for same going to the Developer. 3. Developer's insurance coverage shall be primary. 4. All above insurance policies shall be placed with insurers with a Best's rating of no less than AV. The insurer chosen shall also be licensed to do business in Florida. 5. The insurance policies procured shall be per occurrence policies or as generally available on the open insurance market. 6. The Insurance Carriers shall supply Certificates of Insurance evidencing such coverage to the Indian River County Risk Management Department prior to the commencement of any work in a County right-of-way. 7. The insurance companies selected shall send written verification to the Indian River County Risk Management Department that they will provide 30 days written notice to the Indian River County Department of Risk Management of its intent to cancel or terminate said policies of insurance. 8. A written safety inspection plan must be submitted to the Indian River County Risk Management Department for approval prior to the commencement of any work in a County right-of-way. 9. Developer shall include in all sub -contracts for sub -contractors the above insurance requirement or show them as insured under its policies or shall furnish separate certificates and endorsements for each sub -contractor. All coverages for sub -contractors shall be subject to all of the requirements stated herein. 10. Up to $1 million Developer hereby agrees to indemnify Indian River County and Representatives thereof from all claims ansing solely from intentional, reckless or negligent acts, errors or omissions of the Developer or Developers' Representatives in the performance of Services under this agreement and for which Developer is legally liable. {M20752622}6 C:\Documents and Settings\TRamm\My Documents\wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc • This document prepared by and return to: Indian River County Public Works Department 1840 25th Street Vero Beach, Florida 32960 BDB/bm IN WITNESS WHEREOF the County and Developer has caused these presents to be executed in their names, the day and year first above written. NEWPORT NORTH HOLDINGS, LLC By: NN Management LLC, Manager BY: Its WITNESS: BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY FLORIDA BY: -Z .cs. Caroline D. Ginni:;Chai BCC Approved: e 8 . 2004 By Joset A. >g *kitty WITNESS. 1 ' (Corporate seal is acceptable in place of witnesses) + Attest: illiam G Co fins, II, CountyAttomey (Approved as to Form and Legal Sufficiency) Jeffrey K. Barton Clerk of Court {M20752622}7 C:\Documents and Settings\TRamm\My Documents \wordfiles\Florida\Bayer\North Lake SD -Developer's Agr-final.doc • • Ey.Lse k A PARCEL A: The North One-half of the South one-half, Tying North of the North Relief Canal, in Section 16, Township 32 South Range 39 East, Indian River County, Florida; LESS and EXCEPT the North 30 feet for Canal right-of-way and the West 25 feet therefrom for Road nght-of-way. AND All that part of the Northwest one-quarter of the Southwest one-quarter, Tying North of the North Relief Canal, in Section 15 Township 32 South, Range 39 East, Indian River County, Florida; LESS and EXCEPT the North 30 feet therefrom for Canal right-of-way. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: Commencing at the West one-quarter corner of Section 16, Township 32 South, Range 39 East, run N 89° 59' 52" E along the East-West quarter section line, also being the North line of the the North one-half of the South one-half of said Section 16, a distance of 25 feet, thence run S 00° 05' 24' E a distance of 30 feet to the intersection of the South right-of-way line of Indian River Farms Drainage District (also known as Indian River Farms Water Control District) Sub -Lateral G-1 Canal and the East nght-of-way line of Kings Highway (State Road 505A)(County Road 613) as per Indian River Farms Company Subdivision, Plat Book 2 Page 25, recorded in the Public Records of St. Lucie County, Florida, and POINT OF BEGINNING. From said POINT OF BEGINNING, run N 89° 59' 52" E along said South right-of-way line of Sub -Lateral G-1 Canal, a distance of 5365 86 feet to the East line of said Section 16; from said East line continue N 89° 59' 52" E along said South right-of-way line of Sub -Lateral G-! Canal a distance of 1319.75 feet to the East line of the Northwest one-quarter of the the Southwest one-quarter of Section 15, Township 32 South, Range 39 East; thence run S 02° 04' 02" W along said East line a distance of 1275 20 feet to the North right-of-way line of Indian River Farms Water Control District North Relief Canal 250 foot right-of- way thence run N 85° 35' 52" W along said North right-of-way line a distance of 1282.27 feet to the aforementioned East line of Section 16, thence run N 89° 58' 26' W along the aforementioned North right-of-way line of the North Relief Canal, a distance of 5359.28 feet to the aforementioned East right- of-way line of Kings Highway (State Road 505A)(County Road 613); thence run N 00° 05' 24' W along said East right-of-way line a distance of 1173.23 feet to the POINT OF BEGINNING. PARCEL B: That part of the SW 1/4 of the SW 1/4, Tying North of the North Relief Canal, in Section 15, Township 32 South, Range 39 East, Indian River County, Florida. PARCEL C: That part of the NW 1/4 of the SW 1/4 in Section 15, Township 32 South, Range 39 East, Indian River County, Florida, Tying South of the North line of the North Relief Canal. N CAI. GATE OPERATORS AND HALL BE SET BACK A IAN .Oi THE FACE OF CURB. RB SWLL BE TYPE O' (6' CURB) D CURBING SHALL BE TYPE 'F' GUTTER (6' HIGH CURB) MD AREA SWILL BE 20' WIDE iSION ON AIM) S SWITCH / 80X (KNOX) D AT THE GATED ENTRANCE 7TERY BACKUP. IADP SHALL BE 35 FT. IAN. 6' YELLOW SKIP STRIPEING TRACT 'A STORMWATER/REC NATIVE CONSERVA 3.05 AC CONST R1-1 30' STOP SIGN STREET SIGNS 24' WHT STOP BAR 334' NOTE: CONSTRUCT TURN LANES PER I.R C ENGINEERING DEPT SPECIFICATIONS (TTUURN LANES AS REQUIRED BY TRAFFIC \\ \ \\ 20 \\ 1a O 10288.61 S.F. dos, \\ Lia' WIDE STABIUZED a; `\\ SEED/MULCHED EMERGE CY A6c UPON COMPLETION OF S1`, CONNECTION THIS ACCESS ABANDONED OR WILL RECO PEDESTRIAN ACCESS ONLY ) PURSUANT TO THE DEWLO ER'S AGREEMENT, '/i 105.58