HomeMy WebLinkAbout2003-008 7 o
AGREEMENT 03 - o o
BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
IR MALL ASSOCIATES, LTD., a Florida limited partnership
FOR THE CONSTRUCTION OF ON-SITE UTILITIES
THIS AGREEMENT by and between INDIAN RIVER COUNTY, a political subdivision of
the State of Florida, the address of which is 1840 25th Street, Vero Beach, Florida 32960
(hereinafter the "COUNTY") and IR MALL ASSOCIATES, LTD., the address of which is P.O.
Box 7033, Indianapolis. IN 46207 (hereinafter the DEVELOPER) is effective upon execution
by the second of the two parties.
WHEREAS, the DEVELOPER, in conjunction with the construction of a loading dock at
the Bed, Bath and Beyond store at Indian River Commons, Indian River County, Florida, is
relocating combined fire and domestic water piping; and
WHEREAS, the Indian River County Department of Utility Services has granted a
Utility Construction Permit, dated November 12, 2002, being permit number UCP # CDS
2220 (the "Permit") in conjunction with the relocation of those water facilities; and
WHEREAS, the DEVELOPER wishes to secure a temporary certificate of occupancy
from Indian River County for the use of the loading dock prior to the relocation of the water
facilities; and
WHEREAS, Indian River County is willing to grant such temporary certificate of
occupancy to DEVELOPER upon the conditions hereinafter set out.
NOW, THEREFORE, for and in consideration of the mutual promises set forth herein
and other good and valuable consideration, the COUNTY and DEVELOPER agree as follows:
1. OFF-SITE UTILITIES:
A. DEVELOPER shall: (1) Complete construction of the on-site facilities permitted under
permit number UCP #CDS 2220 on or befgre January 31, 2003. (2) Convey to Indian River
County, Florida by Bill of Sale, in the form attached hereto, the new water main facilities
installed pursuant to the Permit. (3) Grant to Indian River County a 10-foot public utility
easement in the form attached hereto, along the route of the newly installed water facilities.
(4) Simultaneous with the execution of this Agreement by both parties, furnish to the
COUNTY, DEVELOPER's funds equal to 125% of the estimated cost of relocating the water
facilities as security for the faithful performance of all of the DEVELOPER's obligations
under the Contract documents. Once the COUNTY has inspected the work and determined
that DEVELOPER has fulfilled all of its contract requirements, the funds shall be returned to
DEVELOPER.
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B. TEMPORARY CERTIFICATE OF OCCUPANCY:
Provided all other requirements for a certificate of occupancy are, in the COUNTY's
Building Official's sole opinion, fulfilled, the COUNTY agrees to issue a temporary certificate of
occupancy for the use of the loading dock at the Bed, Bath and Beyond store at Indian River
Commons, 6150 20"'Street,Vero Beach, Florida 32966 in Indian River County, Florida, prior to
the completion of the relocation of the water main, on the following conditions:
(i.) DEVELOPER hereby agrees to assume all responsibility, and to hold Indian River
County harmless, from and against any loss, cost, liability- and expense arising out of leakage of
the waterline presently existing under the loading dock improvement. Prior to the issuance of a
temporary certificate of occupancy, DEVELOPER shall install an in-line valve on either side of
the first fitting for the relocated portion of the water main.
(2.) DEVELOPER hereby agrees that the temporary certificate of occupancy shall be void and
of no further force or effect in the event that this Development Agreement is not approved by the
Board of County Commissioners of Indian River County, Florida.
(3.) The DEVELOPER's obligations set forth in this Agreement are promises that the
DEVELOPER shall fulfill and by which the DEVELOPER shall be contractually bound in
consideration of the COUNTY's Building Division's issuance of a temporary certificate of
occupancy for the subject loading dock in advance of the COUNTY's execution of this Agreement
and regardless of whether the COUNTY executes this Agreement.
2. Amendment:
This Agreement may be modified only by a written instrument executed by all parties to the
Agreement.
3. Assignability:
Either party may assign this Agreement. However, the rights granted herein shall run with the
land and are not the personal property of the DEVELOPER. Therefore, while the DEVELOPER
has the right under this Agreement to freely transfer the rights and obligations granted by this
Agreement, the assignee shall not have the right to transfer these rights to another property
unless this Agreement is amended in writing by the assignee and the COUNTY.
4. Authority:
Each party hereto represents and warrants to the other that the execution of this Agreement and
any other documents required or necessary to be executed pursuant to the provisions hereof are
valid,binding obligations and are enforceable in accordance Nrith their terms.
5. Captions:
Captions, if included, 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.
6. Construction Plans Technical Specifications and Contract Documents:
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The DEVELOPER has completed a final set of construction drawings and has made submission
for and secured a Utilities Construction Permit from the Indian River County Utilities
Department and Florida Department of Environmental Protection (FDEP). The DEVELOPER
shall not commence construction until all permits are approved and obtained.
7. Definition:
All pronouns shall be deemed to refer to the masculine, feminine, or neuter, singular or plural,
as the identity of the party or parties may require.
8. DEVELOPER'S Obligations:
The design, permitting, construction, operation and maintenance of all on-site water and
wastewater utilities which is on or solely dedicated to the DEVELOPER's property(including but
not limited to water meter, transmission lines, pumps, valves, storage facilities, etc.) shall be the
DEVELOPER's responsibility and expense. Construction of on-site water and wastewater
utilities shall be subject to COUNTY review and approval.
9. Entire Agreement:
This Agreement embodies the entire agreement between the parties relative to the subject
matter hereof, and there is no oral or written agreements between the parties, nor any
representations made by either party relative to the subject matter hereof, which are not
expressly set forth herein.
io. Governing Law&Jurisdiction:
This Agreement shall be governed by the laws of the State of Florida and the laws of the United
States pertaining to transactions in such state, and all actions arising out of this Agreement shall
be brought in Indian River County, Florida, or, in the event of federal jurisdiction, the United
States District Court for the Southern District of Florida. All of the parties to this Agreement
have participated freely in the negotiation and preparation hereof. Accordingly, this Agreement
shall not be more strictly construed against anyone of the parties hereto.
ii. Insurance and Indemnification:
The DEVELOPER shall ensure that, at least ten (io) days prior to the commencement of any
work, the selected contractor and any subcontractor provides to the COUNTY a certificate of
commercial general liability insurance with a reputable insurance company subject to approval
by the COUNTY's risk manager in an amount not less than $1,000,000 combined single limit
for bodily injury and property damage in accordance with the COUNTY's Administrative Policy
Manual. The DEVELOPER shall ensure that, at least ten (1o) days prior to the commencement
of any work the selected contractor and any subcontractor provides to the COUNTY a certificate
of business auto liability insurance with a reputable insurance company subject to approval by
the COUNTY's risk manager in an amount not less than $i,000,000 per occurrence combined
single limit for bodily injury and property damage in accordance with the COUNTY's
Administrative Policy Manual. The commercial general liability and auto liability insurance
policies shall name Indian River County, a political subdivision of the State of Florida, as an
additional insured. In addition,the DEVELOPER shall ensure that,at least ten(1o) days prior to
the commencement of any work the selected contractor and any subcontractor provides to the
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COUNTY a certificate of worker's compensation insurance with a limit of $1oo,000 for each
accident, $500,000 disease (policy limit) and $1oo,000 disease (each employee) in accordance
with the COUN'TY"s Administrative Policy Manual. The DEVELOPER shall provide to the
COUNTY at least thirty (3o) days' written notice by registered mail, return receipt requested,
addressed to the COUNTY"s risk manager, prior to cancellation or modification of any required
insurance.
The DEVELOPER shall indemnify and hold harmless the COUNTY, and the COUNTY's officers
and employees, from damages, losses and costs, including, but not limited to, reasonable
attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful
misconduct of the DEVELOPER and persons employed or utilized by the DEVELOPER in the
performance of this Agreement.
12. Multiple Counterparts:
This Agreement may be executed in a number of identical counterparts which, taken together,
shall constitute collectively one (i) Agreement; but in making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart executed by the
party to be charged.
13. Permits:
The DEVELOPER shall be responsible for obtaining all construction and operating permits
required for the construction, delivery, use and monitoring of the water distributed to and
wastewater collected from the subject property .If, through no fault of the parties involved, any
federal, state or local government or agency (excluding the COUNTY) fails to issue necessary
permits, or fails to grant necessary approvals, or requires a material change in the system, then
to the extent necessary and if possible, the parties agree to negotiate an amendment to the
Agreement to reflect the change in condition. If the COUNTY determines that it is impossible or
impracticable to perform under the terms of this Agreement because of the above, then this
Agreement shall terminate and the parties shall have no further obligations to each other.
The DEVELOPER shall comply with reasonable request by the COUNTY concerning on-site
operations and maintenance including but not limited to all FDEP regulations relating to
bacteriological and hydrostatic testing, cross connection control, monitoring, color-coding of
water and wastewater equipment.
14. Recording of Agreement:
This Agreement may be recorded in the official records of Indian River County by the COUNTY.
If recorded, the obligations defined in this Agreement shall run with the land and shall bind
subsequent owners of the property for the term of this Agreement. The DEVELOPER shall pay
for all recording cost.
15. Severability/Invalid Provision:
If any provision of the Agreement is held to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full force and effect
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and shall not be affected by such illegal, invalid, or unenforceable provision or by its severance
from this Agreement.
16. Term:
The term of this Agreement is three (3) months. Unless otherwise agreed to by the parties in
writing, this Agreement shall not be renewed automatically for successive terms.
Notwithstanding the foregoing, this Agreement shall be coterminous with FDEP Permit for
construction and with the County's Utility Construction Permit, whichever provides a shorter
time period, but shall be not more than three (3) months from the date of issuance. The Countv
may terminate this Agreement early in its sole discretion if it determines that the development
project intended to be served by the improvements is suspended or discontinued.
17. Time of Essence:
Time is of the essence of this Agreement; however, if the final date of any period which is set out
in any provision of this Agreement falls on a Saturday, Sunday-or legal holiday under the laws of
the State of Florida, then, in such event, the time of such period shall be extended to the next
day which is not a Saturday, Sunday or legal holiday.
[SPACE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the COUNTY and the DEVELOPER have accepted, made, and
executed this Agreement as follows:
DEVELOPER:
IR MALL ASSOCIATES, LTD., a
Florida limited partnership
Witness Signature By: IR Mall Company, L.C., a Florida
limited liability company, General
Partner
Witness nted Name By: Simon Property Group, L.P., a
Delaware limited
Witn s Signature partnership, Managing
Member
/►'��cKG.CaAM l By• inion Property Group,
Witness Printed Name Inc., a Delaware
corporation, General
Partner
By:
Printed Name: David Simon
Title: CEO
Date: December 12, 2002
STATE OF Indiana
COUNTY OF Marion
The foregoing instrument was acknowledged before me this 12th day of December, 2002, by
David Simon, as CEO of Simon Property Group, Inc. who is personally known to me.
pp J- Notary Public
Name: _i"]h Q A
Commission #
Expiration Date
RMFA L ALBRIoGHT
MTARV PUN1CSPATE OFVMM
MARION COUNTY
- Mi COMMt9MON EXP.=.142OW
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BOARD OF COUNTY
COMMISSIONERS
Attest: INDIAN RIVER COUNTY, FLORIDA
/ J. K. Barton, Clerk of the Circuit Court
By:
Deputy Clerk ,CA-1
K nneth I . Idacht, C airman
Approved as to Form and Legal Sufficiency BCC Approved: 01-07-2003
Approved by:
County Orney
J es E. Chandler, ounty Administrator
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
Before me personally appeared Kenneth R. Macht, as Chairman of the Board of County
Commissioners, and , as Deputy Clerk, for J. K. Barton, to
me well known to be the persons who executed this instrument and they acknowledged before
me they executed same on behalf of said Board.
2003
Witness my hand and official seal this 7th day of Janaury � (
25�
Kimberly E. Mass ng
Notary Public
Name:
Commission # Kimberly E.Massung
•n
Expiration Date -*: :_ MY COMMISSION#CC855436 EXPIRES
a; July 15,2003
'• of F BONDED THRU TROY FAIN INSURANCE,INC
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EXHIBIT-A
LEGAL DESCRIPTION AND PLAT
Indian River Mall — the East peripheral subdivision, Plat Book 14, Page 16, public
records of Indian River County, Florida.
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EXHIBIT-B
ESTIMATED COST OF IMPROVEMENTS
Total improvement cost: $77,000.00
Estimated County's Share: $o
Developer's Share: $77,000.00
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EXHIBIT-C
PROJECT SKETCH OF IMPROVEMENTS
As per permit.
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