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Home My WebLink About2003-206i AGREEMENT for BEACH DUNE RESTORATION COST-SHARING THIS AGREEMENT for BEACH DUNE RESTORATION COST-SHARING ("Agreement") entered into this 19th day of August 2003 by and among INDIAN RIVER COUNTY, a political subdivision of the State of Florida ("County"); Marbrisa Homeowners Association, Inc., a not for profit corporation existing under the laws of the State of Florida ("Marbrisa"); and Baytree Condominium Association, Inc, a not for profit corporation existing under the laws of the State of Florida ("Baytree"). BACKGROUND RECITALS A. Indian River County maintains beach dune systems along the 22 miles of Indian River County Atlantic Ocean shoreline, including Indian River County Parks such as Seagrape Trail Park Beach Access Area, B. The beach dunes along the Baytree residential development, the Marbrisa residential development, and Seagrape Trail Park Beach Access Area have experienced severe erosion and are in need of sand restoration; C. The Florida Department of Environmental Protection has entered into DEP Agreement Number 031R1 (the "DEP Agreement"), attached hereto as Exhibit A and by this reference made a part hereof. The DEP Agreement is a grant agreement for the Wabasso Beach Restoration Project that has Indian River County as the local sponsor. As set forth in Task 2.0 of paragraph 6 of the DEP Agreement, the DEP has committed the sum of $50,000 ("DEP Funds") towards dune restoration along 2000 feet of shoreline that includes the Baytree and Marbrisa residential properties and the Indian River County Seagrape Trail beach access (for the purposes of this Agreement, the foregoing collectively is referenced as the "DEP Project"). D. Baytree, Marbrisa, and the County desire: i) to allocate the DEP Funds on a proportionate basis; ii) to fund DEP Project costs in excess of the DEP Funds on a proportionate basis; and iii) restore dunes along their respective Atlantic shoreline frontages, all on the terms and conditions set forth in this Agreement. E. Baytree and Marbrisa have retained a coastal engineering firm, and have caused the design and permitting of the DEP Project by such coastal engineering firm. NOW THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, and intending to be legally bound, the County, Marbrisa, and Baytree agree as follows: 1. The background recitals are true and correct and form a material part of this Agreement. 2. The County, in accordance with the DEP Agreement, shall competitively bid, award, and supervise the construction of the DEP Project, using the technical specifications provided by the referenced coastal engineering firm. 1 3. The estimated cost of the DEP Project is $204,000. Baytree, Marbrisa, and the County each acknowledge and agree that the DEP Funds will fund only a portion of the DEP Project. Baytree, Marbrisa, and the County each acknowledge and agree that the unfunded portion of the DEP Project includes: i) mobilization; ii) demobilization; iii) dune restoration; and iv) restoration of the Seagrape Trail beach access back to pre -construction conditions, including, but not limited to, the expenses associated with any restoration of vegetation and damages to the parking lot incurred in connection with the DEP Project that are not repaired by the contractor for the DEP Project. Baytree, Marbrisa, and the County shall fund their respective shares of the costs of the DEP Project that are in excess of the DEP Funds based on foot frontage as follows: Baytree's share is estimated to be $89,700; Marbrisa's share is estimated to be $48,900; and the County's share is estimated to be $15,400 based upon prorated foot frontage. If the actual costs of the DEP Project exceed the foregoing estimates, Baytree, Marbrisa, and the County agree that the prorated shares shall be adjusted based upon the following calculation of each entity's foot frontage: 1100 ft. for Baytree, 700 ft. for Marbrisa, and 200 ft. for the County. 4. Baytree and Marbrisa each acknowledge and agree that each entity shall pay its respective share of DEP Project costs that are in excess of the DEP Funds by one or more checks drawn on a local bank within 21 calendar days following receipt of an invoice from the County. 5. Baytree and Marbrisa each acknowledge and agree that they shall each grant to the County an access easement, in substantially the form set forth on Exhibit B to this Agreement attached hereto and by this reference made a part hereof for purposes of the DEP Project. 6. Baytree and Marbrisa acknowledge and agree that they will cause their coastal engineering firm to sign the completion certificate that is require for final acceptance of the DEP Project in a timely manner and further shall cause the coastal engineering firm promptly to transmit the completed certificate of final completion to the County's Project Manager. Further, Baytree and Marbrisa agree to require that the coastal engineering firm approve any and all contractor invoices as required in connection with the DEP Project, and to have such coastal engineering firm promptly transmit the approved contractor invoices to the County's Project Manager. 7. Baytree acknowledges and agrees that, in connection with the DEP Project, Baytree desires additional fencing to be constructed and Baytree agrees that it shall be solely responsible for any and all costs and expenses associated with the provision of such additional fencing. 8. Any notice, request, demand, consent, approval or other communication required or permitted by this Agreement shall be given or made in writing and shall be served, as elected by the party giving such notice, by any of the following methods: (1) Hand delivery to the other party; or (2) Delivery by commercial overnight courier service; or (3) Mailed by registered or certified mail (postage prepaid), return receipt requested at the addresses of the parties shown below: 2 t Indian River County: Indian River County Public Works Department Attn: Mr. James Gray, Jr. 1840 25th Street Vero Beach, Florida 32960 Baytree Condominium Association Inc Attn: Mrs. Gayle LeGore 8384 Calamandren Way Vero Beach, Florida 32963 Marbrisa Homeowners Association Inc., Attn: Mr. Lee Cockey 540 North Monterey Drive Vero Beach, Florida 32963 9. The validity, interpretation, construction, and effect of this Agreement shall be in accordance with and governed by the laws of the State of Florida, only. The location for settlement of any and all claims, controversies, or disputes, arising out of or relating to any part of this Agreement, or any breach hereof, as well as any litigation between the parties, shall be Indian River County, Florida for claims brought in state court, and the Southern District of Florida for those claims justiciable in federal court. 10. This Agreement incorporates and includes all prior and contemporaneous negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms and conditions contained herein shall be effective unless contained in a written document signed by all parties. 11. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable for the remainder of this Agreement, then the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. 12. Captions in this Agreement are included for convenience only and are not to be considered in any construction or interpretation of this Agreement or any of its provisions. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa. Words of any gender include the correlative words of the other genders, unless the sense indicates otherwise. 13. The parties acknowledge and agree that the DEP Grant is limited to five (5) years from December 10, 2002 (" DEP Grant Period"), with certain reimbursables beginning on or after February 22, 2001. Baytree and Marbrisa each acknowledge and agree that the obligations of the County under this Agreement are subject to the availability of funds lawfully 3 appropriated for its purpose by the Board of County Commissioners of Indian River County and to receipt of the DEP Funds under the DEP Agreement. 14. Each of Baytree and Marbrisa shall indemnify and save harmless the County, its agents, officials, and employees from and against any and all claims, liabilities, losses, damage, or causes of action which may arise from any misconduct, negligent act, or omissions of either Baytree, Marbrisa, or any of their respective agents, officers, or employees in connection with the performance of this Agreement. 15. Baytree and Marbrisa each agree to comply with the provisions of Chapter 1197 Florida Statutes (Public Records Law) in connection with this Agreement. 16. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Attest: IDE Secretary (corp. seal) Attest K. Barton, ByLz (Seal) Deputy Clerk ROVE[ 's E. Chro County Administrator rdian River County Approved Date Administration 6 Budget Co. Attorney Risk Management Department �7_p Division baytree/ondominium ssociation, Inc. t, By—e Title: 6L , r✓a� Marbrisa Homeowners Association, Inc. By: _ Title: INDIAN RIVER COUNTY BOARD OF C.9UNTY COMMISSIONERS Date BCC approved: 08-19-2003 APPROVED AS TO FORM AND LEGAL SUFFICIENC. i am G. Collins II, f County Attorney E appropriated for its purpose by the Board of County Commissioners of Indian River County and to receipt of the DEP Funds under the DEP Agreement, 14. Each of Baytree and Marbrisa shall indemnify and save harmless the County, its agents, officials, and employees from and against any and all claims, liabilities, losses, damage, or causes of action which may arise from any misconduct, negligent act, or omissions of either Baytree, Marbrisa, or any of their respective agents, officers, or employees in connection with the performance of this Agreement. 15. Baytree and Marbrisa. each agree to comply with the provisions of Chapter 119, Florida Statutes (Public Records Law) in connection with this Agreement. 16. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Attest: Secretary (corp. seal) Att t: trete y (corp. seal) Atte K. Barton, C By (Seal) Deputy Clerk ROVED games E. Char,�r, County Administrator Indian River Cour Administration Budget Co. Attorney Risk Management Department Division Approved Baytree Condominium Association, Inc. By: _ Title: Marbri By: _ Title: omeowners Asso tion, Inc. INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS G Date BCC approved: 08-19-2003 APPROVED AS TO FORM AND LEGAL SUFFICIENCY 3�i/Y//. M 0 j Wirricl'tm G. Colri'frs Il, County Attorney M