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COMBINED , AMENDED , AND RESTATED
DEVELOPER ' S AGREEMENT
THIS COMBINED , AMENDED , AND RESTATED DEVLOPER' S AGREEMENT
combines , amends , and restates the following agreements :
1 , Developer ' s Agreement between INDIAN RIVER COUNTY , FLORIDA and
NAP INDIAN RIVER, LLC , a Florida limited liability company, dated May 20 ,
2008 ("NAP Agreement") ; and
2 . Developer ' s Agreement between INDIAN RIVER COUNTY , FLORIDA and
NAP INDIAN RIVER 1I , LLC , a Florida limited liability company, dated May
20 , 2008 ("NAP II Agreement") .
RECITALS
A . NAP INDIAN RIVER, LLC ("NAP ") is developing a commercial shopping
center located on the East side of US 1 , South of 53rd Street, in Indian River
County , Florida , known as Harbor Point . In conjunction with the development of
Harbor Point, NAP entered into the NAP Agreement with Indian River County,
Florida (" County" ) .
B , NAP II INDIAN RIVER COUNTY , LLC ("NAP II") has developed Phase I and
is developing a commercial shopping center located on the East side of US 1 ,
North of 53 ' Street, in h-idian River County, Florida known as The Landings . In
conjunction with development of The Landings , NAP II entered into the NAP II
Agreement with Indian River County , Florida (" County") -
C . County, NAP , and NAP II desire to combine, amend , and restate the above-
referenced Agreements in accordance with the terms and conditions stated herein
in order to reflect the lapse of time and the changed circumstances which have
occurred since the dates of the original Agreements .
NOW , THEREFORE , in consideration of the mutual covenants and promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by County, NAP , and NAP II (the "Parties") , the Parties hereby agree as
follows :
Terms
1 , Recitals . The foregoing recitals are true and correct and are incorporated as if
fully restated herein .
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2 . Agreements rescinded : The NAP Agreement and the NAP II Agreement are
hereby rescinded and replaced with this Combined, Amended and Restated
Developer ' s Agreement .
3 . NAP obligations :
a. Concurrently with the County ' s commencement of construction of 53 `d
Street improvements from Indian River Boulevard to Old Dixie Highway,
NAP will grant at no charge to County a non-exclusive, perpetual drainage
and outfall easement over the Harbor Point stormwater storage and
conveyance facilities . This easement shall be limited to the capacity
(volume) required for improvements to 53 `d Street from Indian River
Boulevard to Old Dixie Highway and for that portion of US 1 which is
adjacent to Harbor Point, from the centerline of US 1 , east to the edge of
the right-of-way .
b . NAP will process a letter modification to NAP ' s current St . Johns River
Water Management District stormwater permit to allow the County ' s
drainage from 53 `d Street to be conveyed by a swale system to the Harbor
Point stormwater pond, as depicted on the approved site plan .
C , Concurrently with the County ' s commencement of construction of 53 `d
Street improvements from Indian River Boulevard to Old Dixie Highway,
NAP will commence and construct the swale system and the retention
pond at Harbor Point . The fill material will remain on the Harbor Point
property for NAP ' s use . During construction of the Harbor Point anchor
tenant site NAP will install permanent conveyance facilities .
d . NAP shall deliver to County at no charge a sidewalk easement South of
the 53 `d Street right-of-way in the vicinity of the right turn lane, to
accommodate the future widening of 53 `d Street . Concurrently with
construction of 53 `d Street improvements the County shall construct a
sidewalk in the current County-owned right-of-way. The County shall not
move the sidewalk to the easement until and unless 53 `d Street is widened
by the County in the future . This obligation by NAP is expressly
conditioned upon the County ' s binding representation that granting this
easement would have no adverse impact on NAP ' s existing site plan with
respect to landscaping, buffers , building setbacks , open space calculations ,
building area or size calculations, or any other adverse or negative impact
upon the site plan .
e . NAP will pay the cost associated with the site-required turn lanes from
53 `d Street into the Harbor Point project within thirty (30) days of the
issuance by the County of a Notice to Proceed to the County contractor .
The NAP site required turn lanes , shall be included in the County ' s
bidding process for the 53 `d Street improvements from Indian River
Boulevard to Old Dixie Highway.
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f. NAP shall install and pay all costs associated with the traffic signal at the
intersection of 53 `d Street and the entrances to The Landings and Harbor
Point . The signal shall be installed prior to the first certificate of
occupancy in Harbor Point .
4 , NAP II obligations :
a. NAP II will pay the cost associated with the site- required turn lanes from
53 `d Street into The Landings project within thirty (30) days of issuance by
the County of a Notice to Proceed to the County contractor. The NAP Il
site required turn lanes shall be included by the County in its bidding
process .
5 . Joint NAP and NAP II obligations :
a. Proportionate Share Contribution : NAP and NAP II shall pay to the
County their proportionate share for the US 1 and 53 `d Street intersection
improvements within thirty (30) days of the County' s issuance of a Notice
to Proceed to the County contractor for such improvements . The total
combined proportionate share for both projects is $ 27 , 070 . 24 .
b . Maintenance of signal : After the new traffic signal has been installed,
County shall be responsible for performing all signal relating engineering,
operation, and maintenance activities . NAP and NAP II shall be
responsible for funding all signal related engineering, operation,
maintenance, and electricity costs , in perpetuity, including the electric
account start-up fees . Each month after signal activation, the County shall
prepare invoices for payment, one-half ( l12) to NAP and one-half ( 1 /2) to
NAP II . All decisions regarding signal design, engineering, activation,
timing, operation and maintenance shall be made by the County .
6 . County obligations :
a. County will plan, survey, design , obtain all necessary permits , and
construct improvements to 53 `d Street, including widening the road to four
(4) lanes, and including all tuns lanes , between Indian River Boulevard
and the existing bridge over the Lateral H canal , in one ( 1 ) phase,
commencing construction no later than November 1 , 2010 and completing
construction no later than November 1 , 2011 .
b . County shall design the traffic signal to be installed at the intersection of
53 `d Street and the entrances to The Landings and Harbor Point, and
County shall install the conduits necessary for the installation of the traffic
signal .
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c . The County ' s obligations hereunder are contingent upon the County ' s
timely receipt of 130 , 000 +/- cubic yards of fill material from the
developer of Waterway Village, pursuant to a separate Developer ' s
Agreement . In the event of any delay in finalizing that separate
Developer ' s Agreement or in the delivery of the fill material , then the
County ' s obligation to proceed under this Agreement shall be extended at
the discretion of the County. In the event the separate Waterway Village
Developer ' s Agreement is not finalized within nine months of the
effective date of this Agreement, either party shall have the option to
terminate this Agreement, in which case no party shall have any further
obligation to the other party under this Agreement .
7 . Miscellaneous :
a. In the event of any litigation or appeal arising out of this Agreement, the
prevailing party shall be entitled to recover attorney ' s fees and costs fiom
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 .
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 NAP , NAP II and
County.
C , No Building Permit, Certificate of Completion, or Certificate of
Occupancy shall be withheld or delayed by the County for Harbor Point,
or The Landings , or any portion thereof, nor shall the County delay or
withhold any other required permits , due to the County ' s failure to
perform any obligation described herein, provided that NAP and NAP II
are in compliance with this Agreement and all other elements of the site
plan approvals .
g. Except as described herein and in the site plan approvals for Harbor Point
and The Landings , the County shall not require NAP or NAP II to
constrict, contribute to , or share in the costs of any additional off- site
improvements , other than the payment of or credits toward applicable
impact fees .
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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 . Time is of the
essence .
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 .
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 .
lc . County, NAP and NAP II shall grant such further assurances and provide
such additional documents as may be reasonable 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 .
1 . 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 relinquislunent 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 .
in . 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.
o . In the event any tern, 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 , Time is of the essence as to all matters in this Agreement .
q . In the event state or federal laws are enacted after the execution of this
Agreement, which laws are applicable to arid preclude in whole or in part
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the parties ' compliance with the terms of this Agreement, then in such
event this Agreement shall be modified or revoked as is necessary to
comply with such laws , in a manner which best reflects the intent of this
Agreement . This Agreement shall not be construed or characterized as a
development agreement under the Florida Local Government
Development Agreement Act ,
BOARD OF COUNTY \COMMIS UIQNERS
INDIAN RIVER COUNTY, FLORIDA
NAP INDIAN RIVER LLC ,
Al
a Florida limited liability company _
By : NAP INVESTMENTS By:
24&:
, .
MANAGEMENT COMPANY, Peter D . O ' Bryari, ClYairm a1W ` . `
INC . , a Georgia corporation
authorized to do bu ' ess in Date : Apri 1 6 , 210
the State f Fl
By: By : ILL
seph A . Baird, County Administrator
ogee s o shltu}�s�
� PNAOEM Date . �` 5 � fo
����QP �Itsq z ctL •? <.L( (k �C eri S� l: ( SX.. od'f
z : • a Attest,
N S Ste : 1� �2 t r✓ fv� : /Jeffrey K . Barton, Cleric of Court
LU
i,7���'' O �� rPp'ootc4eal is acceptable in place of witnesses) Date :
&`1111 ' NO�IINDIAN RIVER II, LLC , Approved as to form and 1 t uffi en y
a Florida limited liability company
By : NAP INVESTMENTS
MANAGEMENT COMPANY, County Attorney
INC . , a Georgia corporation
authorized to do b ' ness in Date :
the Sta of Flo
By :
Naine : C(-�(
Its : /e-e- �jvt
Date : / 7rap
(Corporate
(Corporate seal is acceptable in place of witnes� 5 Mp.NA�' � �`'i,
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= LU, • 9999 ' a d
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