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HomeMy WebLinkAbout2003-029 1/10/03wg(PWD)jwd DEVELOPER'S AGREEMENT BETWEEN INDIAN RIVER COUNTY,FLORIDA AND THE OAKS OF VERO PLANNED DEVELOPMENT THIS AGREEMENT, entered this 4th day February , 2003, 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 SDG KINGS, INC. 298 SW PANTHER TRACE,PORT ST.LUCIE,FL.34953, ATTN:BRET SOVEREL,PRESIDENT, PHONE 772-879-1080, hereafter referred to as the DEVELOPER. WITNESSETH WHEREAS,the DEVELOPER proposes to develop aresidential community to be known as The Oaks of Vero.Planned Development on 65.0+/- acre parcel of land along the east side of 58th Avenue, north of 12th Street, (Indian River County Project Number PDO1-02-06 AA02-09- 124/200100085-31369),which is legally described on Exhibit"A"attached hereto and incorporated herein by reference, and; WHEREAS, the COUNTY and DEVELOPER share mutual concerns with respect to roadway improvements and Florida Power& Light (FPL) utility pole relocation for 12th Street in conjunction with the development of The Oaks of Vero,Planned Development. Large FPL utility poles are in close proximity to 12th Street edge of pavement and conflict with the desired construction of a left-turn lane along 12th Street to serve The Oaks of Vero, and; WHEREAS, both the COUNTY and DEVELOPER can assist each other through a joint effort that will facilitate relocation of FPL poles and provide a left-turn lane to improve safety along 12th Street. NOW,THEREFORE,in consideration of the mutual terms,conditions,promises,covenants and premises hereinafter, the COUNTY and DEVELOPER agree as follows: 1. The above recitals are affirmed as being true and correct and are thereby incorporated herein. FAPubhe Works\Rebecca\SIFE PLAWDevelopert AgreementsMeOaks-dev.doc 1/10/03vmg(PWD�wd Within 90 days after execution of this Agreement, the County shall meet with FPL to accomplish the relocation of four 138 KV power poles along 12th Street,which are conflicting with turn lane construction. 2. If the Poles are not relocated within two years, the left-turn lane shall not be constructed, neither DEVELOPER nor COUNTY shall have any responsibility to fund or construct the turn-lane or relocate power poles and the DEVELOPER will reduce the number of units of the development to result in less than 30 peak hour left-turn trips entering the subdivision. If FPL agrees to move the poles within two years of the effective date of this agreement, the Developer agrees to fund$137,000 of the $ 250,000 cost to relocate FPL poles and construct a left-tura lane along the Oaks of Vero frontage. If FPL does not pay the remainder of approximately$ 113,000,the County and Developer shall have no financial obligation and this agreement is terminated. The Developer shall manage the relocation and perform all necessary coordinating work. 3. Time is of the essence as to all matters pertaining to this Agreement. The relocation shall occur within two years of the date of this agreement. 4. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to reimbursement of the costs and expenses thereof from the non-prevailing party or parties, including reasonable attorneys fees and including such costs, expenses, and fees incurred on appeals of such litigation. 5. 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. 6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, and assigns. 7. 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. 8. 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. 9. This Agreement shall be deemed prepared jointly by each of the parties hereto and shall be construed on a 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. FAPubhc Works\Rebecca\SITE PLANS\Developer's AgreementsMe Oaks-dev.doc ,. 1/10/03Nwg(PWD�wd 10. 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. 11. COUNTY and DEVELOPER shall grant such further assurances and provide such additional documents as may be required by one another from time to time, and cooperate fully with one another in order to carry out the terms and conditions hereof and comply with the express intention of this Agreement. 12. Failure to insist upon strict 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. 13. 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. 14. 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. 15. 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. 16. INSURANCE AND INDEMNIFICATION During the performance of the left-turn lane construction covered by this Agreement, the DEVELOPER shall provide the COUNTY with evidence that the DEVELOPER's Contractor has obtained and maintains the insurance listed in the Agreement. A. 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. B. Minimum Scope of Insurance 1. Worker's Compensation as required by the State of Florida. Employers Liability of $100,000 each accident, $500,000 disease policy limit, and F:\Pubhc Works\Rebecca\SIrE PLAWDeveloper's AgreementATheOaks-dev.doc 1/10/03%cg(PWDbwd $100,000 disease each employee. 2. General Liability$3,000,000 combined single limit per accident for bodily injury and property damage. County shall be an additional insured. Auto Liability$3,000,000 combined single limit per accident for bodily injury and property damage for owned and non-owned vehicles. County shall be an additional insured. 3. 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 the DEVELOPER provides a Certified Copy of a financial report which has been approved by the County Risk Manager. This insurance shall extend coverage to loss of interest, earning, profit, use and business interruption, cost of replacement power, and other special, indirect and consequential damages. C. 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. D. DEVELOPER'S insurance coverage shall be primary. E. All above insurance policies shall be placed with insurers with a Best's rating of no less that A+VII. The insurer chosen shall also be licensed to do business in Florida. F. The insurance policies procured shall be per occurrence policies or as generally available on the open insurance market. G. The Insurance Carriers shall supply Certificates of Insurance evidencing such coverage to the Indian River County Risk Management Department prior to the execution of this Contract. H. 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 ofRisk Management of its intent to cancel or terminate said policies of insurance. I. A written safety inspection plan must be submitted to the Indian River County Risk Management Department for approval prior to the signing of the contract. J. DEVELOPER shall include in all sub-contracts for sub-contractors the above insurance requirement or show them as insured under its policies or shall fumish separate certificates and endorsements for each sub-contractor. All coverages for sub-contractors shall be subject to all of the requirements stated herein. F:\Public Works\Rebecca\SITE PLAWDeveloper's Agreements\The Oaks-dev.doc 1/10/03w&WD)jwd K. DEVELOPER hereby agrees to indemnify Indian River County and Representatives thereof from all claims arising 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. IN WITNESS WHEREOF the COUNTY and DEVELOPER has caused these presents to be executed in their names,the day and year first above written. BOARD OF COUNTY COMMISSIONERS SDG INDIAN RIVER COUNTY, FLORIDA BY: BY: -0 If,/"I A V// Bret Soverel, resident Kenneth R. Macht, Chairman BCC Approved: Februar�4, 003 WITNESS: el, By Jame . C dler, County A nistrator WITNESS: a12&24- ) (Corporate seal is acceptable in place of witnesses) Att i 17 Jeffrey K. Barton ,yG�2.•�' Clerk of Court County Attorney Indian River County Approved Date Administration Budget ! Z Co.Atty. Risk Management Public Works 5 F:\Pubhc Works\Rebecca\SNE PLANS\Developer's AgreementffheOaks-dev.doc ] - ]T "A' LEGAL DESCRIPTI®N TRACT 5, SECTION 9, TOWNSHIP 33 SOUTH, RANGE 39 EAST, INDIAN RIVER FARMS COMPANY SUBDIVISION, ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF ST. LUCIE COUNTY, FLORIDA IN PLAT BOOK 2, PAGE 25; SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA, LESS ROAD RIGHT OF WAY TO INDIAN RIVER COUNTY IN O.R. BOOK 114, PAGE 594 AND IN O.R. BOOK 1150, PAGE 2387, PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA. LESS AND EXCEPT: A PARCEL OF LAND LYING IN TRACT 5, SECTION 9, TOWNSHIP 33 SOUTH, RANGE 39 EAST, ACCORDING TO THE LAST GENERAL PLAT OF LANDS OF THE INDIAN RIVER FARMS COMPANY SUBDIVISION, AS RECORDED IN PLAT BOOK 2, PAGE 25, OF THE PUBLIC RECORDS OF ST. LUCIE COUNTY, FLORIDA, SAID LANDS NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, COMMENCING AT A POINT 100.00 FEET NORTH OF THE SOUTH LINE OF SAID TRACT 5 AND 80.00 FEET EAST OF THE WEST LINE OF SAID SECTION 9, SAID POINT BEING ON THE NORTH RIGHT OF WAY LINE OF 12th. STREET AND THE EAST RIGHT OF WAY LINE OF LATERAL "B" CANAL, THENCE RUN NOO'19'20"W ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF 16.00 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND, THENCE CONTINUE NOO'19'20"W ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF 340.00 FEET, THENCE RUN N90'00'00"E ALONG A LINE PARALLEL TO THE SOUTH LINE OF SAID TRACT 5 A DISTANCE OF 625.52 FEET, THENCE RUN SOO'19'20"E ALONG A LINE PARALLEL TO THE WEST LINE OF SAID SECTION 9 A DISTANCE OF 356.00 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF 12th. STREET, THENCE RUN S90'00'00"W ALONG SAID NORTH RIGHT OF WAY LINE OF 12th. STREET A DISTANCE OF 295.52 FEET, THENCE LEAVING SAID NORTH RIGHT OF WAY LINE OF 12th. STREET, RUN N72'13'36"W A DISTANCE OF 52.43 FEET, THENCE RUN S90'00'00"W ALONG A LINE PARALLEL TO THE SOUTH LINE OF SAID TRACT 5 A DISTANCE OF 280.18 FEET TO THE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINS 5.00 ACRES, MORE OF LESS, AND SUBJECT TO EASEMENTS, RESTRICTIONS AND RESERVATIONS OF RECORD. TOGETHER WITH TRACT 6, SECTION 9, TOWNSHIP 33 SOUTH, RANGE 39 EAST, INDIAN RIVER FARMS COMPANY SUBDIVISION, ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF ST. LUCIE COUNTY, FLORIDA IN PLAT BOOK 2, PAGE 25; SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA, LESS AND EXPECTING THEREFROM LAND TO TRIPSON AS DESCRIBED IN O.R. BOOK 134, PAGE 400, AND LESS LAND TO JO-BAR FARMS, INC. AS DESCRIBED IN O.R. BOOK 135, PAGE 318, PUBLIC RECORD OF INDIAN RIVER COUNTY, FLORIDA, AND ALSO EXPECTING THEREFROM HOMESTEAD PROPERTY COMPRISING THE SOUTH 298.3 FEET OF THE EAST 233 FEET OF SAID TRACT 6, AND LESS ROAD RIGHT OF WAY TO INDIAN RIVER COUNTY IN O.R. BOOK 114, PAGE 504 AND IN O.R. BOOK 1150, PAGE 2387, PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA. AND TOGETHER WITH THE FOLLOWING DESCRIBED PROPERTY: BEGIN AT THE SOUTHEAST CORNER OF TRACT 6, SECTION 9, TOWNSHIP 33 SOUTH, RANGE 39 EAST, INDIAN RIVER FARMS COMPANY SUBDIVISION, ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF ST, LUCIE COUNTY, FLORIDA, IN PLAT BOOK 2, PAGE 25; SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA; RUN WEST ALONG THE SOUTH LINE OF AFORESAID TRACT 6, A DISTANCE OF 591.00 FEET, THENCE RUN NORTH AND PARALLEL TO THE EAST LINE OF TRACT 6 A DISTANCE OF 50.00 FEET TO THE POINT OF BEGINNING, SAID POINT OF BEGINNING ALSO LYING ON THE NORTH RIGHT OF WAY OF 12TH STREET; FROM THE POINT OF BEGINNING CONTINUE NORTH AND PARALLEL TO THE EAST LINE OF TRACT 6, SECTION 9, TOWNSHIP 33 SOUTH, RANGE 39 EAST, A DISTANCE OF 248.30 FEET, THENCE RUN EAST AND PARALLEL TO THE EAST LINE OF TRACT 6 A DISTANCE OF 43.40 FEET; THENCE RUN WEST AND PARALLEL TO THE .A SOUTH LINE OF TRACT 6 A DISTANCE OF 85.00 FEET; THENCE RUN SOUTH AND PARALLEL TO THE EAST LINE OF TRACT 6 A DISTANCE OF 205.00 FEET AND TO THE NORTH RIGHT OF WAY OF 12TH STREET; SAID POINT LYING 50.00 FEET NORTH OF THE SOUTH LINE OF TRACT 6; THENCE RUN WEST ALONG THE NORTH RIGHT OF WAY OF 12TH STREET A DISTANCE OF 213.00 FEET TO THE POINT OF BEGINNING LESS ROAD RIGHT OF WAY TO INDIAN RIVER COUNTY IN O.R. BOOK 1150, PAGE 2387, PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA.