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HomeMy WebLinkAbout2012-016 IN IN mtt AGREEMENT BETWEEN _ INDIAN RIVER COUNTY FLORIDA I AND LAWRENCE A. AND REBECCA N . BARKETTQ � � FOR REPAIR OF CULVERT AND ROADWAY AT VERO SOUTH SUBDIVISION AT OSLO ROAD THIS AGREEMENT , entered this day of , 20123 by and between Indian River CountyIN , Florida, a political subdivision of the State of Florida, 1801271h Street, Vero NL Beach , Florida, 32960 hereafter referred to as " County" , and Lawrence A . and Rebecca N . Barkett , 21752 ()Ih Street, Vero Beach, FL 32960 , hereafter referred to as "the Barketts . " NY WITNESSETH WHEREAS , the Barketts are owners of a five unit commercial building located at the I ON Ne southwest corner of Oslo Road and 20th Street, more particularly described as 2015 Oslo Road Vero IN Beach, Florida (herein after referred to as the "Barkett Property") ; and WHEREAS , Vero South Subdivision is a 16 unit townhouse development which abuts the south and west boundaries of the Barkett Property ; and NY WHEREAS , access to the Vero South Subdivision is obtained via two one lane driveways IN located on the south side of Oslo Road . The driveways cross over an Indian River Farms Water Control District owned canal where a culvert was installed to provide for the control of water and stormwater runoff. Vero South granted the Barketts an easement over these driveways for access to the Barkett Property ; and WHEREAS , the Vero South Property Owners Association, Inc . a Florida non-profit corporation, (herein after "Vero South") whose address is 3109 Grand Avenue #261 , Coconut Grove, Fl 33133 is the owner and is responsible for maintenance of the two one lane driveways . The aerial photograph attached as Exhibit "A" and incorporated herein by reference depicts the following : the Barkett Property is Tract 1 , the Vero South Subdivision is labeled as Tract 2 , and the driveways are labeled as Tract 3 ; and WHEREAS , the culvert under the driveways has collapsed and has caused the driveway ' s NY pavement to sink rendering the egress driveway a danger to motorists . The County has placed barricades closing off the egress lane of the driveway . Currently, all visitors to the Barkett Property NY and the Vero South townhouses must use a single lane, which is not wide enough to allow two cars to pass at the same time ; and FAAttomey\Bill\Developers AgreementsTarkett South Vero Culvert Repair Agreement. doc 77 _71Y I 177 IN IN yNo d , $� ' ININY'7 NY Ile 41 aka ay Mtel s z� r xd„ jL 'F 9 o- ?IInI, . 4 v 't r ,x t, 3 ,�>.;N,s .. j r r r,It 41 �*�s ee WHEREAS , the County has initiated code enforcement action against Vero South for failing to effectuate repair of the culvert in Indian River Code Enforcement Case #2011 - 110012 which is currently pending before the Indian River County Code Enforcement Board ; and WHEREAS , Vero South has notified the County that all of the Board of Directors of the Vero South Property Owner ' s Association have resigned and no current owners have volunteered to serve on the Board . Further, the current President of the Board has informed the County that she is going to turn the Property Owner ' s Association over to a receiver and also resign from the Board ; and WHEREAS , the tenants of the Barkett Property are experiencing a reduction in income due to the reduced access to their businesses ; and WHEREAS , in order to prevent substantial losses to the businesses in the Barkett Property and to provide safe access to the Vero South residents, the culvert needs to be removed and replaced . (the Project) . The County has the equipment and experience needed to complete the Project in an expedient timeframe to the benefit of the tenants of the commercial and residents of the townhomes ; WHEREAS , the approximate cost of Project is $ 22 , 000 . 00 ; and WHEREAS , the Barketts have agreed to fund 50% of the construction of the Project up to $ 11 , 000 . 00 and assist in collection of the total cost of the Project ; and WHEREAS , both the County and the Barketts can mutually benefit each other through a joint effort that will provide for an efficient, prompt repair of the culvert and driveway . THEREFORE , in consideration of the mutual terms, conditions, promises, covenants and premises hereinafter, the County and the Barketts agree as follows : 1 . The above recitals are affirmed as being true and correct and are thereby incorporated herein . 2 . The County agrees to plan , design, permit and construct the Project located at 2015 Oslo Road . The County shall construct the Project in accordance with all applicable codes , permit requirements and good construction practices . The County shall be responsible for all maintenance of traffic and construction inspection . 3 . It is estimated that the cost of the project will be twenty two thousand dollars ($22 , 000) . In order to expedite construction of the project, the Barketts agree to contribute the sum of eleven thousand dollars ($ 11 , 000) to the County, payable within ten days of the approval of this agreement by the Board of County commissioners . 4 . The County shall continue to diligently prosecute its existing code enforcement case against FAAttorney\Bill\Developers AgreementsTarkett South Vero Culvert Repair Agreement. doc t 7777777777 ,� z IV A 7r77 VIV VV IV 0 41 vvvv Vero South in order to have a code enforcement lien being placed on Vero South ' s common property. The County is not obligated to deviate from their normal practices or use foreclosure proceedings to attempt to satisfy its code enforcement lien . 5 . It is anticipated that Vero South will fail to make the necessary financial arrangements to satisfy the costs of the Project or satisfy the code enforcement lien whether by loan , special assessment or other means . Given that the code enforcement process may take an extended Vi period of time to result in an enforceable lien, the Barketts agree to begin and prosecute any reasonable available legal or equitable means to collect the cost of construction of the Project from Vero South and/or any of its landowners in order to pay for the costs of construction of the Project . 6 . The parties agree that if either of them collect any funds from Vero South or its property IV owners in payment of the costs of the Project, the parties shall share the funds equally. The party receiving the funds shall advise the other within three business days of receipt of the funds and after deposit of the funds and having the clear the depositor ' s bank, shall remit one IV I half of the amount of the funds received to the other within ten business days . 7 . Upon completion of the Project, Vero South shall continue to be responsible for maintenance of the Project and their property . 8 . The parties further agree that by completing the Project, the County is acting in the health, safety and welfare of its citizens . Repair of the culvert will insure the residents of the 16 unit South Vero townhomes will have safe ingress and egress , that police , fire and other emergency responders will be able to respond to a call in a timely manner and the business owners and their customers will be able to safely access the locations in order to maintain their livelihoods . 9 . In the event of any litigation arising out of this Agreement, each party shall bear its own attorney fees and costs . 10 . 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 . 11 . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors , and assigns . 12 . 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 . F :\Attorney\BiMDevelopers Agreements\Barkett South Vero Culvert Rep3r Agreement. doc Ik 13 f ^ { $ 4 > l i a . ,. 3✓ ,e . . . ,�' . . . .. . . . ,. r. . �. . , . . , .. . - _ .: ., , .... ., , . . . _ .. . . . tet, . . a . Y Z r % - __. ....±,. �, ,, ,,, WON In .$'. ,IV IN rx ' ie ' .+ ,„ ',` ' € ` .kvi, a y- 'L , uv VNIFF kms .. 4 .�. ... > .,n ., , .. a IV I 13 . 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 . IF IN 21 VrIN I IN 14 . 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 . 15 . COUNTY and OWNER 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 . 16 . Failure to insist upon strict compliance with any of the terms , covenants , or conditions IF INA herein shall not be deemed a waiver of such terms, covenants, or conditions, nor shall any Fee waiver or relinquishment of any right or power hereunder at any one time or times be IF deemed a waiver or relinquishment of such right or power at any other time or times . 17 . 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. THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY. IF F:Wttorney\Bill\Developers Agreements\Barkett South Vero Culvert Repair Agreement. doe IF V IFa � '� t n „eo- �' ':> + `+ IF Fee VIi ,r ,zy " r well fFee ,If OF, +r . . - . ._ ,� . �,,, __ . . , . . . . . . . .�;aI ttI I, it 71 le IN WITNESS WHEREOF the County and Owner have caused these presents to be executed in their names, the day and year first above written. BOARD OF COUNTY COMMISSIONERS LAWRENCE A . BARKETT INDIAN RIVER COUNTY, FLORIDA BY : � � Q� '•9�; Gary C . W eler, Chairman ! : •a i REBECCA N . BARKETT : s BCC Approved : February 7 , ,: z Clo Ou �'• �+ N•• .rrwrd WITNESS : WITNESS : Approved : (Corporate seal is acceptablein lace of witnesses By #ph A . Baird, Co my Administrator Approved as to form and legal sufficiency Attest : b Doc Fa r). ' Je rey K . Barton, Cler of Court William K . DeBraal Deputy County Attorney 5. FAAtto )evelopers Agreements\Barkett South Vero Culvert Repair Agreement. doc If I Fee "5%F0, Fee £ Y 145 1 m Fie N F- MS ntl H166 N FFKF . 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