The URL can be used to link to this page

Home My WebLink About2001-023• 40 ® ii(7� 0/- 000 DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT is made this 23rd day of January , 2001, between ELM DEVELOPMENT SERVICES, LLC, a Massachusetts limited liability company, ("Developer") and Indian River County, Florida, a political subdivision of the State of Florida, 1340 25th Street, Vero Beach, Florida 32960 ("County"). RECITALS: A. The Developer is under contract to purchase and is planning to develop a planned residential golf course community tentatively called "The Colony", located in Indian River County and bordered on the east and west, respectively, by 27th Avenue and 43rd Avenue, and on the north and south, respectively, by 13th Street Southwest and 17th Street Southwest. The development is currently identified by Indian River County File Number PD -00-10-21/2000050121-24497. B. The Indian River County Comprehensive Land Use Plan designates 43rd Avenue at the location of The Colony as a rural major collector road on the Future Roadway Functional Classification Map, and designates 17th Street Southwest at this location as an urban collector road. C. County and Developer desire that certain improvements to 17th Street Southwest and to 43rd Avenue occur in conjunction with the development and construction of The Colony. D. County further desires that construction of a bridge at 17th Street Southwest across the 43rd Avenue Canal occur in conjunction with development and construction of The Colony. AGREEMENT: For and in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: (1) Recitals: The foregoing recitals are hereby incorporated as if fully restated herein. (2) General Provisions: In this Agreement, the following shall apply: (a) "Construction Costs" shall mean and refer to surveying, engineering, designing, permitting, constructing, inspecting, and related costs including materials, time, labor, supervision, inspection, machinery, equipment use and rental, but not including administrative, project management or similar fees. (b) Whenever the Developer engages the services ofa Contractor to perform work for which the County contributes all or part of the Construction Costs as contemplated in this Agreement, the Developer shall require that the Contractor performing the work provide a certificate 40 40 40 of insurance approved by the County, and that the Contractor shall also put up payment and performance bonds approved by the County. (c) In each instance in which the County contributes all or part of the Construction Costs of any project described in this Agreement, the Developer agrees to submit all engineering and related cost estimates to the County for approval, and to obtain such approval, prior to any work being authorized by the County, and the County agrees such approval shall not be unreasonably withheld or delayed. ® (3) Pavement of 17th Street Southwest: (a) The County agrees to acquire from Developer the minimum right-of-way necessary under the County's Code and Comprehensive Land Use Plan to pave 17th Street Southwest as a 2 -lane local road from 43rd Avenue to the proposed entrance to The Colony on 17th Street Southwest. The County shall acquire such right-of-way (30 feet by dedication and 40 feet by purchase) no later than March 1, 2001. In the event the County fails to acquire such right-of-way by March 1, 2001, the remainder of this paragraph 3, insofar as it sets forth requirements to be performed by the Developer, shall be continued and extended until a reasonable time after the County acquires such right-of-way. This shall not cause the County to withhold or delay issuance of any permits to the Developer. (b) Provided the County acquires the right-of-way by the date specified above, Developer shall construct a two-lane paved roadway according to County approved standards along 17th Street Southwest from 43rd Avenue to the Developer's entrance on 17th Street Southwest. Developer shall prepare design drawings and obtain necessary permits for such construction. Construction shall occur in conjunction with Developer's Phase 1 construction. (c) In conjunction with Developer's Phase 2 construction, Developer shall construct a two-lane paved roadway according to County approved standards along 17th Street Southwest from the Developer's entrance on 17th Street to the intersection of 17th Street Southwest and 27th Avenue. (4) Construction Costs: The Developer shall be responsible for and shall pay twenty- five percent (25%) of the Construction Costs for paving 17th Street Southwest as described above, and the County shall be responsible for and shall pay seventy-five percent (75%) of all such Construction Costs. The County shall reimburse the Developer for the County's portion of the Construction Costs within thirty (30) days of the County's inspection and approval of the work performed prior to each draw request during construction less ten percent (10%) retainage, with no retainage following completion and final inspection. Inspection shall be conducted within seven (7) days after notification by the Developer of each draw or final payment. -2- • 40 (5) 17th Street Southwest Bridge: (a) In conjunction with Phase 1 of its construction plans, Developer shall design and construct a three -lane bridge for vehicular traffic on 17th Street Southwest across the Lateral Canal at Ord Avenue in accordance with design drawings and specifications approved by the County, which approval shall not be unreasonably withheld or delayed. (b) The Developer shall contribute $200,000.00 toward the Construction Costs, including utility relocation (if any), of the bridge at 17th Street Southwest, in exchange for traffic impact fee credits for the same amount. The County shall reimburse the Developer for all Construction Costs over $200,000.00. The County shall reimburse the Developer for Construction Costs over $200,000.00, by payment by County check within thirty (30) days of the County's inspection and approval of the work represented by each draw or final payment made by the Developer. The County shall make such inspections within seven (7) days after notification by the Developer of each draw or final payment. The Developer shall use the impact fee credits described herein at the rate of not more than thirty single-family units (or the multi -family unit equivalency) each year. (c) If additional right-of-way is required for the proper design and construction of the bridge at 17th Street Southwest, the County shall acquire the right-of-way necessary. If the County is unable to acquire the right-of-way necessary for the proper design and construction of the bridge in time for Developer to reasonably cause its construction during Phase 1 of the Developer's project, then the Developer's obligation to construct the bridge shall be extended and continued until Phase II of the project. If the County is unable to acquire the necessary right-of-way for construction during Phase 2, then the Developer's obligation to construct the bridge shall terminate, and the Developer shall put up a bond or other security in the amount of $200,000.00, payable to the County, for a period of seven years from the commencement of Phase II construction, to be used for the construction of the subject bridge, failure of which shall result in termination of the bond or other security, in which case the Developer's obligation under this paragraph 5 shall be deemed satisfied. (6) 43rd Avenue Turn Lane: Developer shall design and construct a southbound left turn lane along 43rd Avenue to serve 17th Street Southwest in accordance with design, drawings, and specifications approved by the County, which approval shall not be unreasonably withheld or delayed. The County shall be responsible for and shall pay one hundred percent (100%) of the Construction Costs for the subject turn lane. (7) Dedication of Right-of-way by Developer: Developer agrees to dedicate to the County 30 feet of additional right-of-way along 17th Street Southwest without compensation. The dedication shall be made by deed or on the plat of The Colony. The County desires to acquire an additional 40 feet over and above the 30 feet described above and the County shall pay the Developer for such right-of-way at the price of $11,240.89 per acre, (4.782 acres), for a total of $53,753.95. SM a (8) 17th Street Southwest Stormwater Management: Developer agrees to accommodate stormwater management for pavement and improvements along Developer's 17th Street Southwest frontage. (9) Miscellaneous: Time is of the essence of this Agreement. This Agreement is made in the State of Florida and shall be governed by Florida law. This is the entire Agreement between the parties and may not be modified or amended except by a written document signed by the party against whom enforcement is sought. This Agreement may be signed in more than one counterpart; in which case each counterpart shall constitute an original of this Agreement. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine, or neuter as the context requires. The prevailing party in any litigation, arbitration, mediation, or appeal relating to this Agreement shall be entitled to recover its reasonable attorneys' fees from the other party for all matters. Indian River County, Florida, shall be the proper venue for any litigation involving this Agreement. This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns. Developer may assign Developer's rights and obligations under this Agreement to a lender and to an affiliated or associated legal entity in conjunction with development of the project contemplated herein. The obligations of both parties to this Agreement are expressly conditioned upon the Developer's decision, at Developer's sole discretion, to proceed with development of The Colony. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. Signed, sealed and delivered ELM DEVELOPMEN ERVICES, LLC in the presence of: By E vel SQ vices, Inc., Its Manager By: Name: I I Title: President JAAgAdeve1oper-e1m-irc4.wpd 1/18/01 - 4 - INDIAN RIVER COUNTY By: - ,-u , Name: Caroline D. Gi Title: Charman BCC Approved: January 23, 2001