HomeMy WebLinkAbout2005-118 DEVELOPER' S AGREEMENT BETWEEN
SUNLAND DEVELOPMENT, INC . ,
SERENOA, LLC , AND 0 `
INDIAN RIVER COUNTY, FLORIDA FOR
5TH STREET SW ROAD CONSTRUCTION
THIS AGREEMENT (the "Agreement") is entered into by and between SUNLAND
DEVELOPMENT , INC . , a Florida corporation (" SUNLAND'") , SERENOA, LLC , a Florida
limited liability company, formerly known as AW , LLC , a Florida limited liability company
(" SERENOA") , each individually a "DEVELOPER" and collectively the "DEVELOPERS ", and
INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida (the
" COUNTY) , each individually a "Party" and collectively the "Parties " .
RECITALS
WHEREAS , SUNLAND is the fee simple owner of certain real property consisting of
approximately 79 . 26 acres of land along the north side of 5th Street SW in Indian River County
Florida, more particularly described in the legal description attached hereto as Exhibit "A" and
incorporated herein by this reference (the " Sunland Property") ; and
WHEREAS , SERENOA is the fee simple owner of certain real property consisting of
approximately 97 . 33 acres of land along the north side of 5th Street SW in Indian River County
Florida, more particularly described in the legal description attached hereto as Exhibit "B " and
incorporated herein by this reference (the " Serenoa Property") ; and
WHEREAS , SUNLAND , SERENOA, and COUNTY share mutual concerns with
respect to paving and other improvements to 5th Street SW to accommodate project traffic
volumes and the general development plans for their individual properties ; and
WHEREAS , the COUNTY owns and maintains a portion of 5th Street SW adjacent to
the Sunland Property and the Serenoa Property and possesses a right of way across various other
portions of 5th Street SW adjacent to the Sunland Property and the Serenoa Property , all which
the DEVELOPERS desire to improve ; and
WHEREAS , the COUNTY is willing to grant DEVELOPERS the authority to enter on
and improve 5th Street SW provided that the DEVELOPERS convey the right-of-way to the
COUNTY in fee simple after completion of the improvements and provide a bill of sale for any
improvements , all which the COUNTY agrees to accept and maintain ; and
WHEREAS , SUNLAND , SERENOA , and COUNTY can mutually benefit each other
through a joint effort to pave 5th Street SW and share in the costs of the proposed 5th Street SW
improvements .
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AGREEMENT
NOW THEREFORE , in consideration of the sum of Ten and 00/ 100 Dollars ($ 10 . 00)
and other good and valuable consideration , the sufficiency of which is hereby acknowledged, as
well as the covenants and promises of each Party hereinafter set forth , the Parties do hereby
agree and covenant with each other as follows :
1 . RECITALS . The foregoing Recitals are true and correct and are incorporated
herein by this reference .
2 . ROAD PROJECT. For the purposes of this Agreement, the general area of 5th
Street SW to be improved or constructed is as follows :
From a point beginning at the end of the existing paved portion of 5th Street SW
proceeding east approximately 1883 feet to the centerline of 12th Avenue , proceeding east
approximately 720 feet to the proposed entrance to the Serenoa Property as more
particularly described on Exhibit "C " , which is attached hereto and hereby incorporated
by this reference . (the "Road Project")
SUNLAND and SERENOA agree to each allow the construction of the Road Project on
their properties as set forth in the Construction Plans .
3 . CONSTRUCTION PLANS . SERENOA and SUNLAND agree to equally share
the cost in having fully engineered construction plans designed to Florida Department of
Transportation "Green Book" standards for the Road Project (the "Construction Plans ") and
other projects undertaken pursuant to this Agreement prepared, and will provide these plans to
the COUNTY, regulatory agencies connected with the State of Florida, and regulatory agencies
connected with the federal government, prior to construction for their review and approval . The
DEVELOPERS agree that SUNLAND shall select the architect, surveyor, engineering firm ,
environmental consultants , and other professionals necessary to prepare the Construction Plans .
The DEVELOPERS or their principals shall be solely responsible for obtaining all permits for
construction of the Road Project . If the roadway is constructed prior to the installation of any
water or sewer lines , the Construction Plans shall be designed in such way that the roadway not
be above any currently planned or anticipated water or sewer lines .
4 . MANAGING DEVELOPER. The DEVELOPERS agree that SUNLAND shall
oversee the day-to - day construction of the Road Project and other projects undertaken pursuant
to this Agreement in conformance with the Construction Plans . SUNLAND and SERENOA
agree to equally share all reasonable third-party out-of-pocket costs incurred by either Party in
connection with the construction of the Road Project in accordance with the Construction Plans .
The DEVELOPERS agree that SUNLAND shall be allowed to exercise reasonable professional
judgment in the execution of the Construction Plans . Any changes to the permitted Construction
Plans shall be approved by the COUNTY in writing . It is understood and agreed that
SUNLAND shall cause the commencement of the construction of the Road Project to occur
within six (6) months from the date of this Agreement, with an anticipated completion date of six
(6) months from the date of the commencement of construction , and that a default thereof shall
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give SERENOA the right to assume the management duties of SUNLAND under this section and
any other management duties or rights accruing to SUNLAND under this Agreement, and upon
such assumption SUNLAND will have been deemed to have given SERENOA such equivalent
authorities as those originally granted by SERENOA to SUNLAND under this Agreement.
5 . COST OF CONSTRUCTION OF THE ROAD PROJECT. On behalf of both
DEVELOPERS , SUNLAND shall seek bids from road construction contractors authorized to do
business in Indian River County, Florida for the construction of the Road Project according to
the Construction Plans . SUNLAND shall solicit a minimum of three (3 ) bids . The
DEVELOPERS shall mutually agree upon the road contractor who is to be awarded the contract
for the construction of the Road Project . SERENOA and SUNLAND agree to each pay fifty
percent (50%) of the total construction cost of the Road Project . SUNLAND will invoice
SERENOA at the end of every month which will be due on the 15th of the following month .
6 . HABITAT MITIGATION AND RESTORATION COSTS , The
DEVELOPERS agree to undertake such habitat mitigation and restoration projects necessary to
obtain development permits for the Road Project as set forth in the Construction Plans and other
documents generated by regulatory agencies . On behalf of both DEVELOPERS , SUNLAND
shall seek bids from contractors authorized to perform habitat mitigation and restoration in
Indian River County, Florida for the construction of such habitat mitigation and restoration
projects . SUNLAND shall solicit a minimum of three (3 ) bids . The DEVELOPERS shall
mutually agree upon the contractor who is to be awarded the contract for the construction of such
habitat mitigation and restoration projects . SUNLAND and SERENOA agree to each pay fifty
percent ( 50%) of the total construction cost of these habitat mitigation and restoration projects ,
including, but not limited to , compliance costs, permitting costs , design costs , and construction
costs . SUNLAND and SERENOA agree to each allow such habitat mitigation and restoration
projects to be constructed on their individual properties , in such way as to incur the least overall
cost to the DEVELOPERS , as set forth in the Construction Plans and other documents generated
by regulatory agencies . Each Party may increase the amount of habitat mitigation and
restoration on their individual property provided such Party pays for the increase in cost as a
result of such increased habitat mitigation and restoration . Should the DEVELOPERS be
required by any state or federal agencies to monitor, track, or maintain any of the habitat
mitigation and restoration projects created in conjunction with this Agreement, SUNLAND and
SERENOA agree to each pay fifty percent (50 %) of such costs for a period of five (5 ) years,
after which each DEVELOPER agrees to pay one hundred percent ( 100%) of the costs of
monitoring and maintenance of any habitat mitigation or restoration projects constructed on their
individual properties .
7. STORMWATER AND DRAINAGE . SUNLAND and SERENOA agree that
all stormwater from the Road Project will be diverted into individual storm water facilities as
approved by the COUNTY on their respective individual properties .
8 . FINANCIAL ABILITY TO PERFORM OBLIGATIONS . Each
DEVELOPER individually warrants that they are financially able to perform their obligations
under this Agreement . Each DEVELOPER agrees to post a performance bond equal to 55 % of
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the Road Project . The COUNTY shall be named as payee on the any such performance bond .
The performance bonds shall be rated by Best ' s at no less than A+ 15 .
9. CONTRIBUTION BY THIRD PARTIES . SUNLAND and SERENOA agree
that any monies contributed to the Parties for the construction of the Road Project and any other
projects undertaken pursuant to this Agreement by the COUNTY or any other entity not a Party
to this Agreement, including the State of Florida, shall be applied on a pro -rata basis towards the
construction of such project .
10. ADMINISTRATION OF CONSTRUCTION CONTRACTS . SUNLAND
shall administer the DEVELOPERS ' obligations under any contract entered into with a
contractor for the construction of the Road Project or other projects undertaken pursuant to this
Agreement. Both SERENOA and SUNLAND will be required to execute the contracts with the
various firms retained to prepare the Construction Plans , the contractors, all change orders, and
modifications . In addition, SERENOA hereby irrevocably gives SUNLAND the authority to
approve all job requests , including the required documentation to be submitted in connection
with such job requests , back charges, and other documents required by the contractors or
COUNTY to be executed by the DEVELOPERS in connection with the construction of the Road
Project or other projects undertaken pursuant to this Agreement .
11 . LITIGATION INVOLVING THE ROAD PROJECT OR PROJECTS . In the
event of any litigation involving the Road Project or other projects undertaken pursuant to this
Agreement, and including litigation with the contractors , any subcontractor, sub-subcontractor,
or material men , the DEVELOPERS shall jointly select an attorney to represent them and shall
equally share in the costs of prosecuting or defending any such litigation .
12 . INSURANCE . The DEVELOPERS agree to each obtain general liability
insurance in an amount not less than One Million Dollars ($ 1 , 000 , 000 . 00) per occurrence , with a
deductible not greater than Ten Thousand Dollars ($ 10 , 000 . 00) or such other amount of coverage
and deductible as may be agreed by both parties . Each OWNER will be named as an additional
insured on the other OWNERS ' general liability policy of insurance until the Road Project are
accepted by the COUNTY . In addition, SUNLAND shall require the contractors selected to
construct the Road Project and any projects undertaken pursuant to this Agreement to obtain,
maintain , and furnish to DEVELOPERS and COUNTY such insurance as deemed necessary by
SUNLAND . COUNTY shall be listed as an additional insured on all such insurance policies ,
except workers ' compensation insurance . Such insurance policy shall be primary and non-
contributory with any insurance of COUNTY .
13 . ACCESS AND ACCEPTANCE BY COUNTY. COUNTY hereby grants
DEVELOPERS the right to enter on any land owned or on any right of way owned or controlled
by the COUNTY within the Road Project as depicted on Exhibit "C " . Prior to the issuance of a
certificate of occupancy to SUNLAND or SERENOA for their respective properties , the Road
Project shall be completed in a form acceptable to the COUNTY . Upon completion of
construction of the Road Project as outlined in the Construction Plans , the DEVELOPERS agree
to convey, and COUNTY hereby agrees to accept and maintain , the Road Project and any right
of way created in conjunction therewith as specified in the Construction Plans together with any
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landscaping required by the COUNTY as specified in the Construction Plans . The
DEVELOPERS shall be responsible for any right-of-way permits necessary under this
paragraph . The DEVELOPERS agree to warranty the physical improvements constituting the
Road Project and any landscaping conveyed to COUNTY for a period of one ( 1 ) year from the
date of conveyance .
14 . INDEMNITY . Each DEVELOPER shall defend , indemnify, and hold the other
DEVELOPER and the COUNTY harmless of and from any and all liens , claims , actions, loss ,
cause , damages , and/or expenses ( including reasonable attorneys ' , paralegal fees , and costs ,
whether at trial or on appeal) arising out of or in any way related to the performance or non-
performance by an DEVELOPER or such DEVELOPER ' S agents , employees , contractors ,
subcontractors , or licensees under this Agreement . In respect to the Road Project, this indemnity
shall survive the completion of the construction of the Road Project, but shall terminate upon
acceptance of the Road Project by COUNTY .
15 . COMPLIANCE WITH LAWS AND REGULATIONS . In performing
pursuant to this Agreement, each DEVELOPER shall abide by the respective statutes ,
ordinances, rules and regulations pertaining to the acts of such DEVELOPER and each and every
agreement entered into by such DEVELOPER with the other DEVELOPER or the COUNTY in
connection with 5th Street SW .
16 . PRIVATE UNDERTAKING. The DEVELOPERS acknowledge the
DEVELOPERS ' respective properties are private developments , and nothing herein contained is
intended or shall be deemed to create any interests therein in the general public or to create any
partnership, joint venture or other like relationship between the DEVELOPERS , except as
otherwise specified herein . Neither the Sunland Property nor the Serenoa Property shall be
subject to any mechanic ' s lien arising out of the contract with the road contractor.
17. RECORDATION OF AGREEMENT . The Parties hereto agree that the
original of this Agreement shall not be recorded in the Public Records of Indian River County ,
Florida nor any other place . However, the Parties may record a Memorandum of the Agreement
if deemed necessary by all Parties .
18 . EFFECTIVE DATE . The effective date of this Agreement shall be the date
when the last Party has properly executed this Agreement as determined by the date set forth
immediately below the respective signature of the Parties .
19 . EQUAL OPPORTUNITY EMPLOYMENT . The DEVELOPERS agree that
they will not discriminate and will provide in all contracts that its contractors will not
discriminate against any employee or applicant for employment under this Agreement because of
race , color, religion , sex, age , or national origin , and will take affirmative steps to ensure that the
applicants are employed and employees are treated during employment without regard to race ,
color, religion , sex, age , or national origin .
20 . MISCELLANEOUS PROVISIONS .
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a. Additional Necessary Instruments . At any time, and from time to time ,
each Party will execute such additional instruments and take such action as may be reasonably
requested by the other Party to confirm or otherwise to carry out the intent and purposes of this
Agreement .
b . Entire Agreement, This Agreement constitutes the entire agreement
between the Parties hereto with respect to the subject matter hereof. It supersedes all prior
negotiations , letters , and understandings relating to the subject matter hereof.
C , Amendment Only by Signed_ Writing. This Agreement may not be
amended, supplemented, or modified in whole or in part except by an instrument in writing
signed by the Party or Parties against whom enforcement of any such amendment, supplement or
mediation is sought .
d . Governing Law . This Agreement will be interpreted , construed , and
enforced in accordance with the laws of the State of Florida.
e . Language Taken in Context. All pronouns and any variations thereof shall
be deemed to refer to the masculine , feminine , neuter, singular or plural as the context may
require . Words used in this Agreement, regardless of the number and gender specifically used ,
shall be deemed and construed to include any other number, singular or plural , and any other
gender, masculine , feminine or neuter, as the context indicates is appropriate .
f. Agreement is Voluntary . The Parties hereto and their respective legal
counsel participated, or the Parties hereto were given the opportunity to have their legal counsel
participate, in the preparation of this Agreement; therefore , this Agreement shall be construed
neither against nor in favor of any of the Parties hereto , but rather in accordance with the fair
meaning thereof.
g . Waiver of Rights . The failure of any Party at any time or times to require
performance of any provision of this Agreement will in no manner affect the right to enforce the
same . The waiver by any Party of any breach of any provision of this Agreement will not be
construed to be a waiver by any such Party of any succeeding breach of that provision or a
waiver by such Party of any breach of any other provision .
h . Invalid Provisions . The invalidity, illegality, or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of this Agreement,
which will remain in full force and effect, nor will the invalidity, illegality or unenforceability of
a portion of any provision of this Agreement affect the balance of such provision . In the event
that any one or more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect, this Agreement shall
be reformed, construed and enforced as if such invalid , illegal , or unenforceable provision had
never been contained herein .
L Attorney ' s Fees and Costs . In the event of any litigation arising out of this
Agreement, each Party shall bear its own attorney ' s fees and costs .
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j • Jurisdiction and Venue . Any suit, action, or proceeding with respect to
this Agreement shall be brought in the courts of Indian River County, Florida, or in the United
States District Court for the Southern District of Florida . The Parties hereto hereby accept the
exclusive jurisdiction of those courts for the purpose of any such suit, action or proceeding.
Venue for any such action will be in Indian River County, Florida . The Parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any objection that any of them may
now or hereafter have to the laying of venue of any suit, action of proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect thereof brought in
Indian River County, Florida, and hereby further irrevocably waive any claim that any suit,
action or proceeding brought in Indian River County, Florida, has been brought in an
inconvenient forum .
k. Delay of Performance . In the event that the performance by either Party
of any of its obligations or undertakings hereunder shall be interrupted or delayed by any
occurrence and not occasioned by the conduct of the Party claiming the benefits of this clause ,
whether such occurrence be an act of God or the common enemy or the result of war, riot, strikes
or labor unrest, civil commotion , sovereign conduct, or the act or conduct of any person or
persons not Party or privy hereto , then such Party shall be excused from such performance for
such period of time as is reasonably necessary after such occurrence to remedy the effects
thereof.
1 . Binding Effect. This Agreement will be binding upon and will inure to the
benefit of any successor or successors of the Parties hereto .
M . Assignability . The obligations , duties , and rights of a Party under this
Agreement are assignable only with the consent of the other Parties .
n . Counterparts . This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together will constitute
one and the same instrument .
21 . NOTICES . Any notice to be given hereunder by either Party to the other, shall
be in writing and may be effected by personal delivery, overnight delivery service such as
Federal Express , or by certified mail , return receipt requested, with postage prepaid . Notice shall
be sent to the following addresses :
" SUNLAND : Mr. Ryan Davis
c/o Sunland Development, Inc .
250 S . Central Blvd . , Suite 207
Jupiter, FL 33458
With a copy to :
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" SERENOA" : Mr. James R. Adams
c/o Ameritrend Homes, Inc . , Manager
Serenoa, LLC
126 43 `d Avenue SW
Vero Beach, FL 32968
Ms . Tricia Ward
C/o Ward Holder Real Estate Services , LLC
Serenoa, LLC
217 Peruvian Avenue, Suite 2
Palm Beach , FL 33480
With a copy to : Ira C . Hatch , Esq .
Hatch & Doty, P .A .
1701 Highway AIA, Suite 220
Vero Beach , FL 32963
"COUNTY" : Board of County Commissioners
Indian River County
1840 25 " Street
Vero Beach , FL 32960
With a copy to : William G . Collins , Il, Esq .
County Attorney
Indian River County
184025 th Street
Vero Beach , FL 32960
22 . SECTION EXHIBIT9 AND SCHEDULE HE DINGS AND REFERENCES .
The section, exhibit, and schedule headings contained in this Agreement are for convenience of
reference only and shall not affect the meaning or interpretation of this Agreement . Unless
otherwise specified, all section, exhibit, and schedule references contained herein shall be to
sections, exhibits , and schedules , respectively, of this Agreement .
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
by their respective duly authorized representatives on the dates as set forth below .
(SIGNATURE PAGE AND EXHIBITS FOLLOW)
(THIS SPACE INTENTIONALLY LEFT BLANK)
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WITNESSES : " SUNLAND"
SUNLAND DEVELOPMENT, INC . ,
a Florida corpora ' on
1
- /0 By :
Na e : . r� Cd P � r Name : Sclne %A+ Date
Its : v L. i ar.
Name :
WITNESSES : " SERENOA"
SERENOA, LLC ,
a Florida mited ' il ' company
Name : (Zli rUS T ( clC. � � w !� S S ame ames R. Adams, Vice President Date
Ameritrend Domes, Inc .
Its: Manager
Name :
" COUNTY"
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
By : C 'T `^ ' S ` E, 4/ 5 / 0
Name : Thomas S owthPr Date
Its : Chairman
BCC Approved : Apri 1 5 , 2005
Approved : Approved :
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BY /ALL BY :
Name: I Name •: = T� ' I
Title : rounty Attorney Title : Administrto '
(Approvf d q to form and legal sufficiency)
Attes .
By : of Court
PATRFONM 41, CLERK
E
Date
Budget
Risk Management
Public Works
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