HomeMy WebLinkAbout2006-416-2of2 h
DEVELOPER' S AGREEMENT BETWEEN �1
INDIAN RIVER COUNTY, FLORIDA
AND
OSLO 27, LLC
FOR 27th AVENUE BETWEEN 13th STREET S.W. AND 17`h STREET S.W.
THIS AGREEMENT, entered this _12th_ day of December , 2006, by and between INDIAN
RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida, whose post office address
is 1840 25 ` ' Street, Vero Beach, Florida, 32960 , (hereafter referred to as "COUNTY"), and OSLO 27,
LLC, a Florida limited liability company, whose post office address is c/o P&S Properties of Indian
River, Inc ., 3001 Ocean Drive, Suite 202, Vero Beach, Florida 32963 , telephone number (772) 234-
2899, (hereafter referred to as "DEVELOPER");
WITNESSETH :
WHEREAS, DEVELOPER has applied to build a commercial development to be known as
SOUTHERN OAKS CENTER, which consists of two phases, on approximately 12 .5 acres of land on the
south side of Oslo Road, west of 27th Avenue, in Indian River County, Florida, Project No. SP-MA-06-
10-56/2005120295 , the legal description of which is attached as Exhibit "A" and incorporated herein by
reference; and
WHEREAS, COUNTY and DEVELOPER share mutual concerns with respect to improvements
to the section of 27t" Avenue from 13th Street S .W. to 17th Street S .W.; and
WHEREAS, the section of 27'" Avenue from 13`h Street S .W. to 17`h Street S .W. is a roadway
segment not included in the COUNTY 5 -year Capital Improvements Program ; and
WHEREAS, both COUNTY and DEVELOPER can mutually benefit from roadway
improvements to expand the section of 27°i Avenue from 13 `h Street S .W. to 17th Street S .W. to four
lanes, and also permit DEVELOPER to vest its project with regard to concurrency requirements so its
development may proceed.
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and
premises hereinafter, COUNTY and DEVELOPER agree as follows:
1 . Inte¢ration : The above recitals are affirmed as true and correct and are thereby
incorporated herein .
2. Roadwav Improvements Project:
A. To accommodate increased traffic generated by the project, SOUTHERN OAKS
CENTER, DEVELOPER covenants and agrees to construct and pay all costs and
expenses associated with the following roadway improvements: Expand from 2 lanes to
4 lanes, 27h Avenue from 13th Street S .W. to W Street S .W., including all necessary
turn lanes, signalization, signage, pavement markings, drainage improvements,
sidewalks, transit facilities, and any off-site stormwater facilities necessitated by the
roadway improvements.
B . DEVELOPER agrees to provide the engineering, design, survey and permitting
of said improvements, as approved by the Indian River County Public Works Director,
and DEVELOPER agrees to construct and pay for said improvements , in accordance with
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the approved design and engineering plans. DEVELOPER has engaged Kimley-Horn
and Associates, Inc . as consulting engineer to perform professional civil engineering,
geotechnical engineering and related services associated with the roadway project. These
services shall include preparation of design surveys, roadway improvement plans,
drainage plans, signing and pavement plans, signalization plans, utilities coordination,
erosion control, and obtaining the requisite permitting, all as provided in that certain
engagement agreement dated August 31 , 2006, attached hereto as Exhibit `B" and by this
reference incorporated herein. All plans and specifications shall be submitted to
COUNTY and no construction shall commence until COUNTY has approved such plans
and specifications in writing. After approval, DEVELOPER shall cause to be
constructed, at DEVELOPER' S expense, the roadway improvements project as shown on
all plans and specifications.
C. DEVELOPER shall have the duty to coordinate the roadway improvements
project to 27"h Avenue from 13th Street S .W. to 17`h Street S .W. As defined in this
Agreement, the term "coordination" shall include project management and oversight. It
is understood that DEVELOPER will undertake the day to day tasks of construction
observation, which shall include without limitation: (i) DEVELOPER representatives on
site during construction responsible to perform construction observation; and (ii)
conducting weekly progress meetings; and (iii) working with the project contractor to
develop and process monthly pay requests.
COUNTY shall be permitted to monitor the progress of the roadway improvements
project. If requested by COUNTY, DEVELOPER agrees to provide photocopies of
project materials and data, which may include without limitation periodic project reports
and other materials generated by parties associated with the project. Provided, however,
except as specifically set forth herein, or to the extent voluntarily undertaken over the
course of the project, COUNTY shall have no duty or responsibility to design, supervise,
inspect, or construct the roadway improvements project described herein .
D. Prior to commencement of the roadway improvements project, COUNTY must
demonstrate fee simple title and ownership to all real property within the roadway
improvements project. DEVELOPER agrees to provide right-of-way maps for 27'h
Avenue from 13 `h Street S .W. to 17" Street S.W. and parcel sketches and legal
descriptions for any necessary right-of-way acquisition. Any real property which is
determined to be required for project right-of-way shall be acquired by DEVELOPER.
Warranty Deeds associated with right-of-way acquisitions shall vest fee simple title with
COUNTY, but all funds associated with such purchases shall be paid by DEVELOPER.
In the event DEVELOPER, despite diligent effort, is unable to consummate any right-of-
way purchases by voluntary action of the affected owner(s), COUNTY shall and hereby
agrees to institute eminent domain proceedings to acquire said right(s)-of-way by legal
process. DEVELOPER shall fund all right-of-way acquisitions engendered by eminent
domain proceedings (including attorneys ' fees, appraisal and expert witness fees),
whether said acquisitions shall be consummated by pre-trial settlement or final judgment
decree. All DEVELOPER contributions toward right-of-way acquisitions shall be
included in the final roadway improvement project costs, as referred to in Exhibit "C"
below.
E . The roadway segment shall be designed, engineered and constructed as a 4 lane
divided road with landscaping and irrigation.
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F. DEVELOPER shall use the competitive bidding process for all work performed
under this agreement. Any bids are subject to the prior approval of the COUNTY Public
Works Director. The Public Works Director reserves final approval of the winning
bidder.
G. DEVELOPER agrees to diligently prosecute the design and construction of the
roadway improvement project described herein. The engineering and design functions
described in Section B. above will be completed within 12 months of the Effective Date
of this Agreement. At such time as all right-of-way acquisitions are completed, the
competitive bidding process is performed, the project is awarded to the roadway
contractor and approved by the Public Works Director, construction activities shall
commence within 60 days thereafter. Subject to the qualifications contained in Section 19
of this Agreement, the roadway improvement project shall be completed within 12
months of commencement of work.
H. COUNTY hereby agrees to grant and convey unto DEVELOPER, by execution
of a separate instrument, a temporary non-exclusive easement, right and privilege to
construct and perform the roadway improvements project in, under, over and across the
present and future roads, easements, reserved utility sites and public areas as provided
and dedicated to public use in the record plats, deeds, agreements, dedications or grants
which collectively aggregate the roadway project area. COUNTY acknowledges that the
DEVELOPER will possess the right of ingress and egress to carry out these functions
through completion and acceptance of the project. The foregoing grants shall be in effect
throughout the term of the roadway improvements project, and shall thereafter be deemed
automatically terminated and of no further force or effect. DEVELOPER further agrees
to apply for and procure an appropriate permit to construct improvements within the
COUNTY right-of-way, which application and permit shall include a plan of traffic
maintenance for the term of the project.
I. Upon final approval and acceptance by COUNTY of the completed roadway
improvements, DEVELOPER shall transfer to COUNTY by the appropriate legal means
title, ownership and control of all roadway project improvements. To evidence said
transfer, DEVELOPER agrees to execute and deliver to COUNTY a bill of sale,
assignment, or other appropriate documentation, in a form satisfactory to COUNTY
attorneys, for recording among the Indian River County public records . COUNTY agrees
that acceptance of the roadway improvements constructed by DEVELOPER, and the bill
of sale, assignment, or other documentation referred to above, shall constitute the
assumption of responsibility by the COUNTY for the continuous operation and
maintenance of such improvements from that date forward.
J. The roadway improvements project shall be warranted by the roadway project
contractor against defects in materials and workmanship for a period of three years from
the date of acceptance by the COUNTY. DEVELOPER shall and hereby agrees to
transfer and assign the roadway project contractor' s warranty to COUNTY concurrently
with execution of the transfers set forth in Section I above .
3 . Project Performance Security :
A. To secure the performance of DEVELOPER and payment of all expenses
associated with the roadway improvement project, DEVELOPER agrees to establish and
maintain a performance security instrument during the term of the project. The
performance security instrument may take the form of a cash deposit or irrevocable letter
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of credit. If the cash option is elected, required sums shall be posted with the COUNTY
as Escrow Agent. In the event that an irrevocable letter of credit is utilized, the form and
content thereof shall be approved in advance by COUNTY, in its reasonable discretion.
B . The amount of the performance security instrument to be pledged by
DEVELOPER to secure its performance hereunder shall be One Hundred Fifteen (115%)
Percent of the roadway improvement project costs as provided in the preliminary estimate
of project costs referred to in Exhibit "C". The funds or irrevocable letter of credit (as
selected by DEVELOPER) shall be posted by DEVELOPER no later than 14 days
following the Effective Date of this Agreement, and shall be maintained throughout the
term of the project, subject to reduction, as provided below.
C. The amount of the performance security instrument shall be increased or reduced,
as applicable, at such time as the final roadway improvement project costs are determined
and established.
D. COUNTY and DEVELOPER agree that the performance security instrument
shall be incrementally reduced over the course of the roadway improvement project as
provided herein. At such time as COUNTY is notified by DEVELOPER that a
Reduction Event (as defined below) has occurred, COUNTY agrees to cooperate in the
initiation and implementation of all activities necessary to reduce the surety instrument,
which shall involve the reduction of the cash deposit, , or letter of credit, as applicable .
The amount of any such reduction shall be equal to the sums paid by DEVELOPER or
COUNTY since the preceding Reduction Event, or as posted by a third party as indicated
in the Reduction Event. Provided, however, in no event may any reduction of the
performance security instrument result in a final performance security amount balance
which is less than 115 % of the funds necessary to complete the roadway improvements
project. Further, reductions to the performance security instrument shall occur no more
frequently than quarterly during the term hereof. Reduction requests shall be aggregated
during each quarter, and implemented by the parties one time during each three-month
period.
E. For purposes of this Agreement the term "Reduction Event" shall be defined as:
(i) Payment of any installment or draw to a contractor or professional in connection with
prosecution of the roadway improvements project; or (ii) Payment of any proportionate
share contribution of roadway improvement project costs by a participating party as
provided below:
F. The requirement of a performance security instrument shall terminate upon the
earlier of ( 1 ) Payments pursuant to Subsection (E) (ii) above equal 115% of roadway
improvement project costs; or (2) DEVELOPER completes performance of the roadway
improvement project, pays all applicable parties in full, and the roadway improvements
are accepted for maintenance by COUNTY.
4. Model Traffic Concurrencv Analvsis/Pr000rtionate Share Requirements:
A. Attached to this Agreement as Exhibit "C" is a Model Oslo 27 Traffic
Concurrency Analysis, which has been prepared by DEVELOPER as a preliminary
measure to assess and identify: (a)approximate roadway project cost data; and (b) number
of additional trips created by roadway project and cost per additional trip; and (c)
additional trips attributable to DEVELOPER ' S project, SOUTHERN OAKS CENTER;
and (d) DEVELOPER ' S proportionate share of roadway project costs and related
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transportation impact fee credits.
As provided in Exhibit "C", based upon current costs estimates, the anticipated total cost of the
roadway improvements project is $4,356,000.00 . COUNTY and DEVELOPER agree that the roadway
improvements project shall add an additional 198 trips to the capacity of the indicated segment of 27`h
Avenue . Therefore each trip created by the roadway improvement project has a cost of $21 , 190 .08 . The
number of additional trips associated with DEVELOPER' S SOUTHERN OAKS CENTER project is ten
( 10) trips. Thus DEVELOPER' S proportionate share of the roadway improvements project is
$211 ,900 . 88 .
B . Exhibit "C" is incorporated into this Agreement and by this reference is made a
part hereof. DEVELOPER and COUNTY acknowledge and agree that the budgetary
data contained in the Exhibit are only preliminary, approximate estimates of project costs.
Actual costs and expenses associated with the roadway project cannot be ascertained until
design, planning, right of way acquisition and competitive bidding elements are
performed. As such, actual project costs may vary, perhaps significantly, from the
estimated figures and actual project costs may be higher or lower than the indicated
amounts. Notwithstanding the limitations expressed herein, the parties agree to adopt
Exhibit "C" as an interim measure and governing basis for the calculation of
proportionate share payment requirements associated with DEVELOPER' S SOUTHERN
OAKS CENTER project, and also proportionate share payments required of other
participating developers, as provided below.
C. COUNTY and DEVELOPER agree that the measure of additional trips generated
by the 27`h Avenue roadway improvement project described herein, the portion of said
additional trips attributable to DEVELOPER' S project, DEVELOPER ' S proportionate
share, and related impact fee credits shall be as provided in Exhibit "C", subject only to
adjustment consistent with finalized actual project costs, as subsequently determined by
the parties.
D. Other parties seeking to implement proposed developments which impact the
indicated roadway segment shall be permitted to pay their respective proportionate share
of the roadway improvement project costs . Proportionate share(s) applicable to other
participants shall be calculated and determined in the same fashion as provided in Exhibit
"C". In each such instance, the number of additional trips which shall be assigned to a
participant' s project shall be established by the COUNTY.
E. All sums paid by participants shall be posted with and held by Escrow Agent,
subject to release and disbursement to discharge roadway improvement project costs as
provided below. Participants must actually post appropriate payments with Escrow
Agent, and execute Proportionate Share Agreements in a form acceptable to COUNTY
and DEVELOPER, as provided below, as a condition to project traffic concurrency
vesting.
F . At such time as actual roadway improvement project costs are fully determined,
and in the event said project costs exceed those contained in Exhibit "C", participating
parties shall be required to post additional sums with Escrow Agent consistent with actual
final calculations of proportionate share payments . In the event actual project costs are
determined to be less than those contained in Exhibit "C", excess Escrow Funds shall be
returned to participants, apportioned consistent with participant responsibilities.
G. DEVELOPER shall be primarily responsible to pay all roadway improvement
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project costs. All proportionate share payments by participating parties shall be applied
toward project costs as set forth in this Agreement. DEVELOPER, however, shall
remain responsible to pay any deficiency or difference between proportionate share
payments made by participating parties to Escrow Agent and total project costs.
5 . Vesting Upon Effective Date: COUNTY and DEVELOPER agree that effective
immediately upon DEVELOPER posting the required performance security instrument
referred to in Section 3 above with Escrow Agent, DEVELOPER' S execution of its own
Proportionate Share Agreement attached hereto as Exhibit "D", payment of all applicable
non-traffic impact fees and capacity charges, and full execution of this Agreement by the
parties DEVELOPER' S project, as described above, shall be issued a CCI-5
Concurrency Certificate and shall be considered to be fully vested with regard to
concurrency.
6 . Impact Fee Credits:
A. COUNTY agrees that DEVELOPER ' S proportionate share of the cost of the
roadway improvements as provided in the Model Oslo 27 Traffic Concurrency Analysis
referred to in Exhibit "C" above shall be credited against, and shall reduce the
transportation impact fees otherwise payable in connection with DEVELOPER' S project.
Further, COUNTY agrees to recognize and extend impact fee credits to other parties
seeking to implement proposed developments which impact the indicated segment of the
COUNTY roadways referred to herein, as provided below.
B . To and until July 1 . 2007, unless further extended by Board of County
Commissioners, COUNTY agrees to extend impact fee credits associated with
proportionate share payments from other participating developers, provided that said
developers actually post appropriate payments in escrow, and execute Proportionate
Share Agreements as provided in Section 9 below. Impact fee credits to said
participating developers shall not exceed 45% of the total transportation impact fee
otherwise payable by the participating developer.
7. Escrow Agent:
A. COUNTY and DEVELOPER hereby select and appoint COUNTY to serve as
Escrow Agent with respect to the subject matter of this Agreement. Escrow Agent
hereby agrees to hold all deposited funds ("Escrow Funds") and to invest and disburse the
same as hereinafter provided.
B . All proportionate share contributions made by participating developers shall be
posted with Escrow Agent. Escrow Agent agrees to invest the Escrow Funds in an
interest bearing account . Such account shall be opened by and in the name of Escrow
Agent. All interest or other yield thereon for all periods in which the Escrow Funds shall be
so held and invested shall remain in said account and be paid out at the same time and to the
same party who shall receive the principal as hereinafter specified.
C. Following payments of applicable proportionate share contributions by other
participating developers as provided above, Escrow Funds shall be released by Escrow
Agent to pay for the roadway improvements referred to above, either in the form of
installments during the actual performance of the roadway project (subject to compliance
with applicable requirements contained in agreements governing the contracting parties
performing the work) or by reimbursement to DEVELOPER, as applicable .
Disbursements by Escrow Agent shall only be made upon the joint written instructions of
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COUNTY and DEVELOPER.
D. Escrow Agent shall and hereby agrees to render a written accounting of its handling
of the Escrow Funds to DEVELOPER during the term of this Agreement on a monthly
basis, which shall include the monthly account statement issued by the depository institution,
and all activity within the account applicable to the reporting period.
8. Intentionally Deleted
9. Reimbursements to Developer:
A. COUNTY acknowledges that DEVELOPER' S execution of this Agreement and
performance of the roadway improvement project shall result in expenditures of funds by
DEVELOPER exponentially higher and in excess of its otherwise applicable
proportionate share of project costs. As such, COUNTY agrees to cooperate with
DEVELOPER in the future to permit DEVELOPER to procure reimbursement of said
expenditures from future proportionate share payments, as said proportionate share
payments are paid by other prospective developers of projects which impact the indicated
roadway segment. For a period of 10 years from the Effective Date of this Agreement,
proportionate share payments paid by developers relating to projects impacting the
indicated roadway segment shall be paid and released to DEVELOPER by COUNTY to
reimburse DEVELOPER for its expenditures . Said payments shall be paid to
DEVELOPER and applied against DEVELOPER' S final project expenses, to and until
DEVELOPER is fully reimbursed for all project costs, less and excepting its own project
transportation impact fees as referred to in Exhibit "C" .
B. Reimbursement payments to DEVELOPER shall derive from Proportionate
Share Agreements from each future project that will impact 27 ° Avenue S .W. from 13'"
Street S .W . to 17`h Street S .W. Each prospective developer shall be required to submit a
traffic study pursuant to Indian River Code § 952, and execute a Proportionate Share
Agreement if his traffic study shows the proposed project will impact the roadway link on
27'h Avenue S .W . from 13 " Street S .W. to 17`h Street S .W. Attached to this Agreement
as Exhibit "E" is an approved form of Proportionate Share Agreement, identified by this
reference as a "Proportionate Share Agreement Between Indian River County, Florida
and 27h Avenue Developer." Participating developers will be required to pay their
proportionate share (based on the formula in Exhibit "E") for each trip associated with
the proposed project, as adjusted to final project costs.
C . Proportionate share contributions shall be collected by the COUNTY upon Board
of County Commission approval of each Proportionate Share Agreement. The amounts
shall be refunded to DEVELOPER either: (a) in the form of installments during the actual
performance of the roadway improvements project at the time DEVELOPER has
submitted pay requests for work completed and approved; or (b) after the roadway
improvements are completed and accepted by the COUNTY, within ten (10) days of
receipt by COUNTY.
10 . Insurance: DEVELOPER and DEVELOPER' S contractors and subcontractors will
maintain the following minimum limits of insurance during the term of this agreement
and shall provide evidence of said coverage being in effect by providing the County with
a Certificate of Insurance listing Indian River County as an additional insured:
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A. Commercial General Liability Coverage shall include contractual liability, products
and completed operations, independent contractors, broad form general liability
extensions, and per contract aggregate:
Each Occurrence: $3,000,000
Fire Damage (Any one fire) $50,000
Medical Expenses (Any one person) $5,000
Personal & Adv Injury $1,000,000
General Aggregate $2,000,000
B . Automobile Liability — Combined Single Limit $3 ,000,000.
C. Worker' s Compensation Statutory — as required by the State of Florida
Each Accident $100,000
Each Disease — Each Employee $ 100,000
Each Disease — Policy Limit $500,000
D . Professional Liability insurance on occurrence or claims made basis with limits of
liability not less than $ 1 ,000,000 per occurrence and $2,000,000 aggregate combined
single limit. This policy shall cover DEVELOPER, all employees, and/or volunteers
and all independent contractors, subcontractors and professional contractual persons
hired or retained by DEVELOPER.
E. There shall be no more than $5 ,000 deducible per claim amount unless approved by
the County Risk Manager. Any deductibles or self-insured retentions greater than
$5 ,000 must be approved by the Risk Manager for Indian River County with the
ultimate responsibility for same going to the DEVELOPER.
F. DEVELOPER insurance coverage shall be primary.
G. All above insurance policies shall be placed with insurers with a Best' s rating of no
less than A + (VII). The insurer chosen shall also be licensed to do business in
Florida.
H . The insurance companies selected shall send written verification to the Indian River
County Risk Management Department that they will provide 30 days written notice
to the Indian River County Department of Risk Management of its intent to cancel or
terminate said policies of insurance.
11 . Indemnity: DEVELOPER agrees to and does hereby indemnify and save COUNTY
harmless against any and all claims, demands, damages, costs and expenses, including
reasonable attorneys fees for the defense thereof, arising from any breach or default on
the part of DEVELOPER in the performance of any covenant or agreement on the part of
DEVELOPER to be performed under this Agreement, or from any intentional or grossly
negligent acts or omissions of DEVELOPER, its agents, contractors, or employees
arising from activities hereunder. In the event any action or proceeding is brought
against COUNTY by reason of any such claims, DEVELOPER covenants to defend such
action or proceeding by counsel reasonably satisfactory to COUNTY.
12. Litigation : In the event any legal proceedings are required to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney fees at both trial
8
and appellate levels, together with all costs of said proceedings.
13 . Amendment: 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.
14 . Binding Effect : This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their successors and assigns.
15 . Entire Agreement: 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.
16 . Governing Law: 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.
17 . Rules of Construction:
A. 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.
B . 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.
18 . Context : 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 .
19. Permitted Delays : Whenever performance is required of any party hereunder such party
shall use all due diligence to perform and take all necessary measures in good faith to
perform. Provided, however, that if completion of performance shall be suspended or
delayed at any time by reason of acts of God, acts of governmental authority, explosion,
accidents (including without limitation vehicular or aircraft), lightning, windstorm,
hurricane, or other weather-related disturbance , flooding, acts of armed forces or public
enemies, war, civil commotion, riots, strikes, picketing, or other labor disputes,
unavailability of labor, equipment or materials or damage to work in progress by reason of
fire or other casualty, title disputes or other litigation, or causes or conditions beyond the
reasonable control of a party (other than financial reasons), then the time for performance
as herein specified shall be appropriately extended by the time of the delay actually
caused. The provisions of this Section shall not operate to excuse any party from the
prompt payment of any monies required by this Agreement.
20 . Miscellaneous :
A. The parties deem each other to be independent contractors, and not agents of the
other.
B . This Agreement is solely for the benefit of and shall be binding upon the formal
parties hereto and their respective authorized successors and assigns, and no right or cause
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of action shall accrue upon or by reason hereof, to or for the benefit of any third party not
a party to this Agreement or an authorized successor or assignee thereof.
21 . Further Assurances : COUNTY and DEVELOPER shall grant such further assurances
and provide such additional documents as may be required by one another from time to
time, and cooperate fully with one another in order to cant' out the terms and conditions
hereof and comply with the express intention of this Agreement.
22 . No Waiver : Failure to insist upon strict compliance with any of the terns, covenants,
or conditions herein shall not be deemed a waiver of such terms, covenants, or conditions,
nor shall any waiver or relinquishment 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.
23 . Partial Invalidity: In the event any term, 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.
24. Rights of Escrow Agent: The parties acknowledge that the COUNTY shall have the
right to interplead with the Circuit Court in and for Indian River County, Florida, all or
any portion or balance of the Escrow Funds received by it pursuant to this Agreement in
the event of any dispute concerning such deposits.
25 . No Recording: Neither this Agreement nor any portion thereof nor memorandum
relating hereto shall be recorded among the public records of Indian River County,
Florida.
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IN WITNESS WHEREOF the COUNTY and DEVELOPER has caused these presents to be
executed in their names, the day and year first above written.
OSLO 27, LLC BOARD OF COUNTY COMMISSIONERS
INDI N RI
VER COUNTY, FLORIDA
ABy: By: r1/�
Its: GarVZ. Wheeler', Chairman..
BCC Approwdi December 1 ? , 2006
WITNESS :
Approved:
(Corporate seal is acceptably in place ofvyitnesses) BY:
WITNESS : 1
Joseph A. BairdXoun Admigistrator
Attest: y C
Jeffrey K. Barton, Clerk of Court
r
I�
guntytto ey
n (Approved as to form and legal sufficiency)
Indian River County A roved Date
Administration 1c7. 1 ®(p
Budget It
County Attorney WIC I L - 0 - ou
Ris
GMw�vr ,/y fltvcl.a
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V:\Real Estate\CHMT&S - OSLO 27 LLC\Developers Agreement 11 29 06 draft no 8-doe
II
EXHIBIT "A"
LEGAL DESCRIPTION
The West 10 acres of the East 20 acres of Tract 1 (less canal) in Section 27, Township 33
South, Range 39 East, according to the last general Plat of lands of Indian River Farms
Company filed in the office of the Clerk of the Circuit Court of St. Lucie County, Florida, in
Plat Book 2, Page 25 ; said lands now lying and being in Indian River County, Florida.
TOGETHER WITH:
North 5 acres of the East 10 acres of Tract 1, Section 27, Township 33 South, Range 39 East
according to the last general plat of lands of Indian River Farms Company filed in the office
of the Clerk of the Circuit Court of St. Lucie County, Florida, in Plat Book 2, Page 25 ; said
lands now lying and being in Indian River County, Florida.
Less And Except :
The canal right-of-way to the North, the right-of-way for Oslo Road, the right-of-way for 27'
Avenue, and that property as described in O.R. Book 1163 , Page 1105 , of the public records of
Indian River County, Florida
Further Less And Except:
The South 287 .50 feet of the above following described parcel of land.
And Further Less And Except The Following:
The South 348 .31 feet of the North 378 .31 feet of the West 15 . 00 feet of the East 60 .00 feet of
the North 5 acres of the East 10 acres of Tract 1 , Section 27, Township 33 South, Range 39 East,
according to the last general plat of lands of Indian River Farms Company recorded in Plat Book
2 , Page 25 of the public records of St. Lucie County, Florida; less the North 30.00 feet for canal
right-of-way, the East 45 . 00 feet, for right-of-way, now lying and being in Indian River County,
Florida; And : the South 287 .26 feet of the North 635 . 57 feet of the West 6.00 feet of the East
51 . 00 feet of the North 5 acres of the East 10 acres of Tract 1 , Section 27, Township 33 South,
Range 39 East, according to the last general plat of lands of Indian River Farms Company,
recorded in Plat Book 2 , Page 25 of the public records of St. Lucie County, Florida; less the
North 30 . 00 feet for canal right-of-way, the 45 .00 feet for road right-of-way now lying and being
in Indian River County, Florida.
VAReal Estate\CHM\P&S - OSLO 27 LLC\Legal Description EXHIBIT A.doc
EXHIBIT `B"
ENGAGEMENT AGREEMENT
KIMLEY-HORN AND ASSOCIATES, INC. AND OSLO 27, LLC
DATED AUGUST 315 20069 WITH ATTACHED
STANDARD PROVISIONS
❑ KmleyHorn
and Associates, Inc.
■
August 31 , 2006 sub &100
1201 tan rbM
Mr. Jerry Swanson Vero Beach, Fbdda
Oslo 27, LLC 3M6
3001 Ocean brive, Suite 202
Vern Beach, FL 32963
772-234-2899
772-234-2576 fax
Re: Oslo Road/ 271 Avenue Commercial Development
27th Avenue Off-Site Roadway Improvements —
SW 17`h Street to SW 13" Street
Indian River County
Dear Mr. Swanson:
Kimley-Horn and Associates, Inc . (hereinafter referred to as " Consultant") is
Pleased to submit this proposal for consulting services to perform professional civil
englncenng, geotechnical engineering, and related services to Oslo 27, LLC
(hereinafter referred to as "Client', Our proposed Scope of Services, Schedule and
Fee follow:
PROJECT UNDERSTANDING
Consultant services are required for the preparation of design survey, roadway
improvement plans and permit applications associated with roadway improvements
to 27h Avenue from 17'h Street SW to 13" Street SW in unincorporated Indian River
County, Florida. The roadway improvements consist of the following.
The Client desires to expand 27h Avenue from a two lane rural arterial
to a four lane divided urban arterial. The limit of this roadway widening
along 27 Avenue will be from 17'h Street SW intersection to 13i' Street
SW intersection. Roadway transitioning from the four lane divided
section to the two lane section shall be designed south of 17" Street SW/
27'h Avenue intersection.
In addition to improvements to 271h Avenue, Indian River County is
requiring that dedicated eastbound and westbound left turn auxiliary
lanes be added on 13'h Street SW and that a convertible flashing beacon
signal be designed and constructed at the intersection. The scope of this
work will require incorporation and modification of improvements to
271h Avenue currently under design by Indian River County and
Lockwood Lane Development Group, LLC.
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TEL m 562 MBI
FAX M 794 9368
❑ ❑ Kimley-Horn Mr. k=rr sxaason, Augwr 32, 20069 Page 2
and Associates, Inc.
The County requested improvements at 27'b Avenue/ 13'" Street SW is
proposed to be equally divided between Oslo 27, LLC and Lockwood
Lane Development Group, LLC.
The approximate collective length of roadway improvements on 2716
Avenue and 13ih Street SW is 0.7 miles and 0.3 miles, respectively.
Based on this understanding we provide the following scope, schedule and fee:
TASK — Scope of Services
The Consultant agrees to perform professional roadway design and related services
in connection with the project as required and set forth in the following:
A. General
1 . The Consultant will endeavor not to duplicate any previous work
done on the project. After issuance of written authorization to
proceed, the Consultant shall consult with Indian River County
(IRCO), Indian River Farms Water Control District (IRFWCD) and
St. Johns River Water Management District (SJRWMD) to clarify
and define requirements for the project and review available data,
2. In order to accomplish the work described under this Agreement in
the time frames and conditions set forth in this Agreement, the
Consultant will observe the following requirements:
a. The Consultant will complete his work on the project within
the time allowed by maintaining an adequate staff of
registered Consultants, draftsmen, and other employees on
the work.
b. The Consultant will design the project in such a manner as
to be in reasonable conformance with applicable federal,
state and local laws, and shall comply with the Florida
Department of Transportation's Manual on Uniform
Minimum Standards for the Design, Construction, and
Maintenance of Streets and Highways (Green Book), latest
edition.
C. The Consultant will prepare all necessary sketches and
completed application forms to accompany the Client's
applications for required federal, state, or local permits.
d. The Consultant will contact all known utility companies
having installations in the immediate vicinity of the
proposed work and consider relocation of utilities, if
necessary. All known identified utilities will be shown on
MnKimleyHorn W. JerySw nsmkAugnst31, 2006, Page 3
and Associates, Inc.
the final design plans.
Design modifications to existing utility lines, if necessary,
will be negotiated in a subsequent work order to this
AGREEMENT and are not apart of this agreement.
3 . The Consultant will furnish copies of the drawings, specifications
and contract documents as required by the Client for federal, state
and local agencies from whom approval of the project must be
obtained. Upon bidding of the construction contract, the Consultant
will furnish to the Client 11" x 17" originals of the drawings and
copies of the specifications for the Client to copy for prospective
bidders. Additional copies beyond those identified will be provided
at cost.
4. The drawings prepared by the Consultant will be of sufficient detail
to permit the actual location of the proposed improvements.
Negotiation for all land rights shall be accomplished by a party other
than the Consultant, unless the Client requests the Consultant to
perform these services in a subsequent work order to this
AGREEMENT.
5 . The Consultant acknowledges that preparation of applicable permits
for the Client's submittal through governmental regulatory agencies
is included within the scope of basic compensation for this
Agreement. Any additional work required by regulatory agencies
pursuant to regulations established after the date of this Agreement
shall be an additional service and the Client shall compensate the
Consultant in accordance with the fee schedule in this Agreement.
B. Design Suryey
We will obtain design survey information to support and facilitate
contemplated design and permitting activities associated with the proposed
roadway improvements. Collected survey within the project limits will
include existing Right-of-Way identification, establishment of Horizontal
and Vertical control, and the identification of all above ground
appurtenances, such as edge of pavement, striping, utilities, and other
topographic elements.
The project survey design limits, along 27 " Avenue, shall begin at a point
immediately south of the 2716 Avenue/ 13th Street SW intersection and extend
south along 27ih Avenue to a point approximately 2,000 feet south of the 27"'
Avenue/ 170' Street SW intersection.
The project survey design limits, along 13'h Street SW, shall begin at the 27 "
Avenue/ 13'b Street SW intersection and extend 2,000 linear feet west along
13" Street SW.
❑ � ❑ Kimley-Horn Mr- r
erty Swanson, August 31 , 2006, Page 4
and Associates, Inc.
Topographic and right-of-way data associated with the current 271i Avenue
improvements will be expanded to incorporate the above described limits.
C. Geotechnical investigation
An outline for the proposed geotechnical services provided by our sub .
Consultant in connection with the project's design is shown below.
1 . Conduct visual reconnaissance along the proposed roadway
corridors. Include photographic record of typical, key, or anomalous
site features noted during the reconnaissance. Review aerial
photographs, information form the Soil Survey of Indian River
County, Florida.
2. Perform mechanical auger borings at pavement coring locations to a
depth of six feet. Perform hand auger borings following ASTM D
1586 along the proposed roadway improvements to depths of six
feet. Coordinate with utilities prior to start of borings at 200 foot
centers will be located in non-paved areas and staggered from left
side of road to median, to right side of road. Additional borings will
be obtained in the vicinity of the proposed mast-arm foundations to
aid structural design.
3 . Measure and record depth to groundwater upon completion of each
boring and one hour thereafter and log the date and time of
measurements.
4. Note any rubbish, trash, debris or auger refusal, if encountered.
Also note any contamination with petrochemicals evident visually or
through odor or the soils encountered. If petrochemicals are
encountered, notify the COUNTY immediately. Appropriately
backfill all borings after recording ground water levels. Work shall
be done at times that will minimize traffic disruptions (avoid AM
and PM peak traffic hours). Provide appropriate lighting and safety
traffic control devices such as flashing messagelarrow boards during
the work. Coordinate with utilities prior to start of coring activities.
5. The typical Geotechnical Report will include:
• Discussion of site regional geologic or physiographic setting.
• Discussion of general and specific subsurface conditions
encountered by the exploration.
• Discussion of any adverse soil conditions (such as muck, high
plasticity clays, etc .) encountered during the exploration.
Include recommendations for remedial actions (removal,
stabilization, etc.) for any adverse conditions found.
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KimleyHom Mr. Jerry Swanson, August 31, 2006, Page 5
and Associates, Inc.
• Discussion of any petroleum or other hazardous contamination
encountered by the borings. Identify and map locations of
concern based on the reconnaissance.
• Recommended LBR for pavement design (subsoil and sub-
grade).
• Recommendations for mast-arm foundation designs.
• Recommendations for soil construction for roadway including
base material, sub-grade and embankment preparation and
compaction.
• Estimated hydraulic conductivity of soils encountered on left
and right side of roadway based on typical relations between
relative density, grain size, and soil type.
• Provide boring profile reports.
• Recommendations for additional study, if appropriate
Deliverables shall consist of six (6) copies of the Geotechnical Report with
soil boring records, test results, photographs and similar data, summary of
testing program and recommendations; soil boring plan for incorporation
into the roadway plan package.
D. Roadway Plans
Roadway plans shall be prepared to include: plotting of survey data;
establishment of profile grades; key map; plan and profile sheets (including
geometric calculations); typical section sheets; summary of earthwork
quantities; cross-section sheets at 100' intervals (including earthwork
computations); signing and pavement marking plans; and other detail sheets
necessary to convey the intent of the scope of services outlined herein. All
plans shall be prepared in the English units.
The following additional data shall be utilized for development of the plans.
1 . Typical Sections:
The design improvements will be based upon the County approved
27m Avenue typical section.
2. The Design Speeds utilized for the roadway segment will be 45 mph.
3 . Scale:
The roadway plan and profile sheets will be drawn at a scale of 1 " _
40' for each project location.
4. An urban roadway section will be utilized for roadway
improvements.
5. The Roadway plans will be submitted to the Client and Indian River
County for review at the 301/o, 60% and 100% stages of design.
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❑ J♦ l� KimleyHorn Mr. Jerry Swanson, August 31 , 2006, Page 6
and Associates, Inc.
Permit application submittals will be made subsequent to the 60%
plan set submittal approval by the Client and the COUNTY.
E. Drainage Plans
1 . Drainage Parameters:
Perform drainage investigations and analysis necessary to prepare a
design which will drain the project in accordance with the
COUNTY, St. Johns River Water Management District (SJRWMD)
and Indian River Farms Water Control District (IRFWCD) design
criteria.
2. Environmental Permits:
The Consultant shall prepare stormwater permit applications for the
SJRWMD, IltFWCD, and US Environmental Protection
requirements for submittal by the Client. This will consist of all
required evaluation, design, coordination, and follow-up work
necessary to support permit applications. The Client will review the
permit applications as necessary. The Consultant shall assemble and
be responsible for the final submittal.
The Consultant shall prepare permit sketches for submission by the
Client to the Florida Department of Environmental Protection
(FDEP), U.S. Army Corps of Engineers, and SJRWMD for Dredge
and Fill activities, if necessary. The Consultant shall submit all
permit sketches on 8" x 11 " sheets. Sketches shall be neatly scaled,
signed and sealed, and reproducible.
3 . Utilities:
Utility coordination with the various Utility Companies and/or
agencies shall be by the Consultant and potential conflicts identified
based upon as-built information provided by the various utility
franchises.
4. A Stormwater Pollution Prevention Plan (SWPPP) will be developed
in conjunction with this project. The site specific SWPPP is a
requirement of both the Environmental Protection Agency (EPA)
National Pollutant Discharge Elimination System (NPDES) General
Permit for Stormwater Discharges from Construction Activities and
the FDEP Generic Permit for Stormwater Discharges from
Construction Activities.
F. Signing and Pavement Marking Plans
Preparation of the pian layout; key map; quantities (including signing and
pavement marking quantity); tabulation of quantities; and detail of all major
signs. All plans are to be prepared in accordance with the latest design
standards and practices (MUTCD), Florida Department of Transportation
(FOOT) Standard Specifications, Indexes, and shall be accurate, legible,
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❑ = ❑ Kimley-Horn Mr. ie"Y Swanson, Aug= 31 , 2006, rags 7
and Associates, Inc.
complete in design and drawn at the same scale as the Roadway Plans,
furnished in reproducible form.
G. Signalization Plans
Indian River County is requiring that the 27ih Avenue/ 13'h Street SW
interesection be designed with a convertible flashing beacon mast arm traffic
signal. The effort associated with the signal design is being divided between
Oslo 27, LLC and Lockwood Lane Development Group, LLC.
The Traffic Signal Design services will include the preparation of plans,
specifications, and an opinion of probable construction cost necessary for the
construction and implementation of the traffic signal improvements at the
intersection. The Consultant will coordinate with pertinent staff at Indian
River County Traffic Engineering Department to prepare the plans in
accordance with agency design criteria and requirements.
The signal design modifications will include improvements to the controller
and controller peripherals, phasing and initial timings, cabinet location,
electrical service, detector amplifiers, loops and lead-ins, conduit, cabling,
pulling boxes, vehicular signal displays, and pedestrian displays and detector
stations, if appropriate. The plans will also show the overhead signing,
ground signing, and pavement marking modifications associated with the
signal alteration. The plans will be furnished in reproducible form on half
size sheets drawn to a scale of 1 " = 40' , and will include topography, known
utilities (above and below ground), rights-of-way, design of proposed
improvements, general notes, pole schedule, and any special detail sheets
required. Construction Plans will be prepared in CADD format utilizing 11 "
x 17" plan sheets.
H. Certification
1 . The ENGINEER will provide certification to St. Johns River Water
Management District based on As-Built drawings provided by the
Contractor's licensed surveyor and information provided by the
Client.
2 . The ENGINEER will provide certification to Indian River Farms
Water Control District on As-Built drawings provided by the
Contractor's licensed surveyor and information provided by the
Client.
3. The ENGINEER will provide certification to the Indian River
County based on As-Built drawings provided by the Contractor's
licensed surveyor and information provided by the Client.
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❑ ❑ Kimley-Horn Mr. Jeny Swanson, August 31, 2006, Pagt 8
and Associates, Inc.
TIME FOR COMPLETION
The time for completion of the 90% design drawings, permit applications and
Engineer's Opinion of Probable Construction Cost for the project shall be eight (8)
months from notice to proceed. Once permits are received, 100% design drawings
shall be completed 30 days thereafter.
COMPENSATION
The Client agrees to pay and the Consultant agrees to accept for services rendered
pursuant to this Agreement fees in accordance with the following:
A. Professional Services Fee
1 . The basic compensation mutually agreed upon by the ENGINEER and
the Client follows:
Task 1 Descriptions Fee
Lump Surra Tasks
Roadway Design Survey $222150
Geotechnical Investigation $75250
Roadway Plans $67,465
Drainage Plans $ 122750
Erosion Control and SWPPP $53050
Utility Coordination $ 1 ,680
Permits $6,600
Signing and Pavement Marking Plans $87900
Signalization Plans $9,225
Hourly Not-to-Exceed Tasks
Task Description Fee
Stormwater Facility Topographic $ 5,500
Stormwater Facility Geotechnical Investigation $ 3 ,500
'Inclusive of expenses.
Task 2 - Additional Services
We will provide additional services as authorized by youbeyond those described in
Task 1 . These additional services may include, but are not limited to the following:
❑ ❑ IGmley-Horn Mr. rary s,wan a August 319 2006, Pap 9
and Associates, Inc.
• Lighting Plans
• Landscape lmprovement Plans
• Utility Relocation Plans
• Right-of-Way Acquisition Assistance
KHA will provide the services described in the Task 2 of the Scope of Services on a
labor fee plus expense basis. Labor fee will be billed on a time and material basis.
As to these tasks, direct reimbursable expenses such as express mail, fees, air travel,
out-of-town mileage, and other direct expenses will be billed at 1 . 15 times cost. An
amount will be added to each invoice to cover certain other expenses as to these
tasks such as in-house duplicating, local mileage, telephone calls, facsimiles,
postage, and word processing computer time. Technical use of computers for design,
analysis, and graphics, etc. will be billed at $25.00 per hour. All permitting,
application, and similar project fees will be paid directly by the Client.
Fees and expenses will be invoiced monthly based, as applicable, upon the
percentage of services completed or actual services performed and expenses incurred
as of the invoice date. Payment will be due within 25 days of the date of the invoice.
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❑ ❑ Kimley-Horn Mr. Jetty Swanson, August 31, 2006, Page 10
and Associates, Inc.
CLOSURE
In addition to the matters set forth herein, our Agreement will include, and will be
subject to the Standard Provisions attached hereto and hereby incorporated herein.
The term "the Client' as used in the attached Standard Provisions will refer to Oslo
27, LLC.
If you concur in the foregoing and wish to direct us to proceed with aforementioned
services, please execute the enclosed copy of this Letter Agreement in the space
provided and return the same to the undersigned Fees and times stated in the
Agreement are valid for sixty (30) days after the date of Agreement by the
Consultant.
We appreciate the opportunity to work with you on this project, and should you have
any questions please feel free to contact me at 772-794-4083 .
Very truly yours,
KUYMEY-HORN AND ASSOCIATES, INC.
Good, P.E.
Project
Attachment: Standard Provisions
Oslo 27, LLC.
Agreed to this day of C l 2006
10
By:
Title: Its ent President
Witness:
It Assistant Secretary
(Affix Corporate Sea])
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KVII.EY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
( 1 ) Consultant's Scope of Services and Additional Services. The Consultant's undertaking to perform professional
services extends only to the services specifically described in this Agreement However, if requested by the Client and
agreed to by the Consultant, the Consultant will perform additional services ("Additional Services'l, and such Additional
Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant
for the performance of any Additional Services an amount based upon the Consultant's then-carrent hourly rates plus an
amount to cover certain direct expenses including in-house duplicating, local mileage, telephone calls, postage, and word
processing. Other direct expenses will be billed at 1 .15 times cost Technical use of computers for design, analysis, GIS,
and graphics, etc., will be billed at $25.00 per hour.
(2) Client's Responsibilities. In addition to other responsibilities described herein or imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete-
authority to transmit instructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project including
all numerical criteria that are to be met and all standards of development, design, or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data
reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact
assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services.
(e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto
within a reasonable time so as not to delay the services of the Consultant.
(f) Furnish approvals and pem its from governmental authorities having jurisdiction over the project and approvals and
consents from other parties as may be necessary for completion of the Consultant's services.
(g) Cause tube provided such independent accounting, legal, insurance, cost estiamting and overall feasibility services as
the Client may require or the Consultant may reasonably request in furtherance of the project development
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the
scope and timing of the Consultant's services of any defect or noncompliance in any aspect of the project
(i) Bear all costs incident to the responsibilities of the Client
(3) Period of Services. Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed
copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of
conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be
extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or
suspension extends for more than six months (cumulatively), Consultant's compensation shall be renegotiated.
(4) Method of Payment. Compensation shall be paid to the Consultant in accordance with the following provisions:
(a) Invoices will be submitted periodically, via regular mail or email, for services performed and expenses incurred.
Payment of each mi voice will be due within 25 days of receipt The Client shall also pay to the Consultant all transaction
taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder, including but not limited to
sales tax. The Consultant shall be compensated in U.S. dollars. Interest will be added to accounts not paid within 25 days
at the maxiumr a rate allowed by law. If the Client fails to make any payment dux the Consultant under this or any other
agreement within 30 days after the Consultants transmittal of its invoice, the Consultant may, after giving notice to the
Client, suspend services under this Agreement until all amounts due are paid in full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of
the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.
(c) The Client agrees that the payment to the Consultant is not subject to any contingency or condition The Consultant
may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to
have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and
without prejudicing any right of the Consultant to collect additional amounts from the Client
(5) Use of Documents. All documents, including but not limited to drawings, specifications, reports, and data or programs
stored electronically, prepared by the Consultant are related exclusively to the services described in this Agreement, and
may be used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented
to be suitable for use, partial use or reuse by the Client or others on extensions of this project or on any other project. Any
modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents
without written authorization or adaptation by the Consultant will be at the Clienes sole risk and without liability to the
Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and
T" 0=6 1
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expenses, including but not limited to attorneys' fees, resulting therefrom Any authorization or adaptation will entitle the
Consultant to further compensation at rates to be agreed upon by the Client and the Consultant Any electronic files not
containing an electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk
In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents
prepared by the Consultant, the hardcopy shall govern. Only printed copies of documents conveyed by the Consultant may
be relied upon. Because data stored in electronic media format can deteriorate or be modified without the Consultant's
authorization, the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data.
(6) Opinions of CosL Because the Consultant does not control the cost of labor, materials, equipment or services
famished by others, methods of determining prices or competitive bidding or market conditions, airy opinions rendered as
to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its
experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The
Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinionscoIf
f st. the
Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator.oConsuilta he
services required to bring costs within any limitation established by the Client will be paid for as Additional Services.
(7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon
seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms
hereof through no fault of the terminating ply, or upon thirty days' written notice for the convenience of the terminating
party. If any material change occurs in the ownership of the Client, the Consultant shall have the right to immediately
terminate this Agreement. In the event of any termination, the Consultant shall be paid for all services rendered and
expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result
of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional
amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the
Consultant, to the total amount of services which were to have been performed.
(8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general
liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out
such additional insurance, if obtainable, at the Client's expense.
(9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill
ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the
services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its
performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client.
( 10) LIMITATION OF LL4J31UTY. In recognition of the relative risks and benefits of the Project to both the Client and
the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding
any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the
aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client or
to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out
of; resulting from or in any way related to the services under this Agreement from any cause or causes, including but not
limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or
implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed
twice the total compensation received by the Consultant under this Agreement or 350,000, whichever is greater. IIigher
limits of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable for lost profits
or consequential damages, for extra costs or other consequences due to changed conditions, or for costs related to the future
Of contractors to perform work in accordance with the plans and specifications. This Section 10 is intended solely to limit
the remedies available to the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant
(11) Certifications. The Consultant shall not be required to execute certifications or third-party reliance letters that are
inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would rause the Consultant
to violate applicable rules of professional responsibility.
(12) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to
mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a
condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual
of the cause of action asserted but in no event later than allowed by applicable statutes.
rev 08106 2
(13) Hazardous Substances and Conditions.
(a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are
lumted to those tasks expressly stated in the scope of services. In any event, Consultant shall not be a custodian,
transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant s
services will for
limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and
specifications for isolation, removal, or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services
of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected
Portions of its services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to
proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into farther
agreements as to the additional scope, fee, and terms for such services.
(14) Construction Phase Services.
(a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not
retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for
construction observation, and the Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor s
means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall
Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be
for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its
contractors will generally conform to the construction documents prepared by the Consultant Consultant neither guarantees
the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance
with the contract documents.
(c) The Consultant is not responsible for any duties assigned to the design professional in the construction contract thatare
not expressly provided for in this Agreement The Client agrees that each contract with any contractor shall state that
contractor shall be solely responsible for job site safety and for its means and methods; that the contractthe
the Client and the Consultant for all claims and liability arising out of job site accidents; and or shall indemnify
that the Client and the
Consultant shall be made additional insureds under the contractor's general liability insurance policy.
( 15) No Third-Party Beneficiaries; Assignment and Subcontracting, This Agreement gredment gives su rights or benefits to
anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement
will be for the sole benefit of the Client and the Consultant The Client shall not assign or transfer any rights under or
interest in this Agreement, or any claim arising out of the performance of services by Consultant, without the written consent
of the Consultant The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to
project logistics, schedules, or market conditions. If the Consultant exercises this right, theConsultant will he
maintain t
agreed-upon billing rates for services identified in the contact, regardless of whether the servic
employees, contract employees, or independent subconsultants. es are provided by in-house
(16) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and
to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services.and
however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant
shall use reasonable care to maintain the confidentiality of that material.
(17) Miscellaneous Provisions, This Agreement is to be governed by the law of the State of Florida. This Agreement
contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous
negotiations, representations, agreements or understandings whether written or oral. Except as provided in Section 1 , this
Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that
any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly
rejected by the Consultant Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such
unenforceability without invalidating the remaining provisions. The nen-enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this
Agreement
rev 08106 3
Traffic concurrency split - final
Exhibit "C'
Model Oslo 27, LLC - Traffic Concurrency Analysis
Budget:
Design (Kimley Horn) $ 174,000.00
Legal & Accounting $ 36,000.00
Overhead, Supervision and Inspections 24 months @ $15,000 per month $ 3605000.00
Construction 0.5 miles @ $72000,000 per mile $ 32500,000.00
Contingency $ 286,000.00
Right-of-way acquisition $ -
Total estimated project cost $ 41356,000.00
Number of additional trips available from a conversion of roadway from 2 to 4 lanes is 792 trips per 2 miles of roadway
Therefore the number of additional trips available for 0.5 mile of roadway (1/4 of 2 mile link) is 198
Pro rata share of total estimated project cost per additional trip based on county calculation is $ 21 ,997.80
Impact Fee Credit per Proportionate Share ordinance is $ (807.71 )
Pro rata share of total estimated project cost per additional trip net of impact fee credit is $ 21 , 190.09
Number of additional trips required of Osla 27, LLC by traffic engineer is 10
Pro rata share of costs allocatable to Oslo 27, LLC is 10 trips @ $ 21 , 190 per trip $ 211 ,900.88
Estimated Transportation Impact fees for Oslo 27, LLC with 44,400 sq. ft. $ 489,522.40
Balance of Transportation Impact fees due County $ 277,621 .52
Additional Non-transportation Impact Fees due County $ 139,442.02
Total Impact Fees due to County $ 4172063.54
Legend:
A. Pro rata share applicable to other participating developers:
Number of additional trips generated by proposed development x $21 , 190.09 = Required participation
B. Number of additional trips associated with proposed development: As determined by IRC Traffic Engineer.
C. County requires a bond of 115% of the Total estimated project cost.
D . Developer is also required to post a Letter of Credit in the amount of $5,000,000 to secure the completion of the project.
Traffic concurrency split - final
Transportation Impact Fee Total Impact fee
Sq. Ft. per 1 ,000 GFS Total per 1 ,000 GSF Total
Medical Off ice 53000 $ 15.553 $ 77 ,765.00 $ 18. 13502 $ 905675.10
Retail 50,000 GSF or less 15,000 $ 9.837 $ 147,555.00 $ 13. 18174 $ 197,726. 10
Office 50,000 GSF or less 20,000 $ 7.348 $ 146,960.00 $ 9.33464 $ 186,692.80
Restaurant 41400 $ 26.646 $ 1175242.40 $ 34.97055 $ 153, 870.42
Total 44,400 $ 489,522.40 $ 6283964.42
Impact fee credit for pro rata share of link 2410S to be paid to County escrow account $ (219,978.00)
Net transportation impact fees paid to county for 2410S $ 2695544.40
Additional Impact fees net of credits paid for: 2420S $ 333,957.61
2430S $ 78,757.67 $ 412,715.28
Total Additional transportation fees paid to County $ 682,259.68
Total Impact Fees and pro rata cost of road construction to be paid be developer:
Pro rata portion of costs to build 2410S $ 2195978.00 45%
Additional transportation fees paid to County $ 682,259.68
Total $ 9023237 .68
Transportation impact fees without proportionate share $ 489,522.40
Net additional costs to project for County transportation fees $ 412,715.28 $ 412,715 .28
Total check to County $ 1 ,041 ,679.70
Developer Transportation Impact Fees paid to County $ 682 ,259.68
Pro rata portion of costs to build 24105 $ 2192978.00
Total off site Transportation costs to developer $ 902,237.68
Additional Non-transportation Impact Fees $ 139,442.02
Total Impact and County Transportation costs to developer $ 1 ,041 ,679.70
Calculation from County:
Additional Impact fees net of credits paid for: 2420S $ 333,957.61
2430S $ 78,757 .67
2410S Total $ 2197978.00
Delete Impact Fee credit if County built road under Proportionate Share 3.67% $ (8,077.12) $ 211 ,900.88 $ 6245616. 16
Total Impact Fees $ 628,964.42
Total $ 17253,580.58
Credit for Impact Fees for building road segment $ (211 ,900.88)
Total check to County $ 1 ,041 ,679 .70
Additional fees for Water and Sewer Capacity:
ERU's for Water 15 ERU's @ $ 1 ,300.00 $ 193500.00
ERU's for Sewer 15 ERU's @ $ 27796.00 $ 41 ,940 .00
Water line 327.8 Ft. @ $ 11 .25 $ 31687.75
Sewer line 327.8 Ft. @ $ 15.77 $ 51169.41
Total check to County $ 70,297. 16
Total Paid to County for Impact fees and Capacity charges $ 1 , 111 ,976.86
Total size of project 44,400
Additional cost per Square Foot $ 25.04
In Addition : Developer is also required to post a Letter of Credit in the amount of $5 ,000 ,000 to secure the completion of the project .
EXHIBIT "D"
PROPORTIONATE SHARE AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
OSLO 27, LLC
THIS AGREEMENT, entered this 12th day of December 2006 by INDIAN RIVER
COUNTY, FLORIDA a political subdivision of the State of Florida, 1840 25th Street, Vero Beach, Florida,
32960 hereafter called COUNTY and OSLO 27, LLC c/o P&S Properties of Indian River, Inc., 3001 Ocean
Drive, Suite 202, Vero Beach, FL 32963 , hereafter referred to as the DEVELOPER.
WITNESSETH
WHEREAS , the DEVELOPER has applied to develop a commercial development to be known as
Southern Oaks Center on a 12 .5 acre parcel of land along the south side of Oslo Road, west of 27th Avenue,
(Indian River County Project Number SP-MA-06- 10-56/2005120295), which is legally described on Exhibit
"A" attached and incorporated herein by reference, and;
WHEREAS, OSLO 27, LLC is a Florida Limited Liability Corporation authorized to conduct
business in the State of Florida; and is currently the owner of this property, and
WHEREAS, John Swanson and Donald Proctorhave the authority to act on behalf of OSLO 27, LLC
and enter into this agreement binding the parties; and
WHEREAS, as part of the development process, DEVELOPER has submitted a traffic study signed
and sealed by a Florida licensed professional traffic engineer. Pursuant to Indian River Code §952, the traffic
study identifies the roads impacted by DEVELOPER' S proposed project; and
WHEREAS, the traffic study shows DEVELOPER' S proposed project will impact the roadway link
on 27th Avenue S .W. from 13th Street S .W. to 17th Street S .W. which is over the capacity as established by
the County' s Comprehensive Plan; and
WHEREAS, the traffic study shows DEVELOPER' S proposed project will impact the roadway link
on 27th Avenue S .W. from 4th Street to 8th Street which is over the capacity as established by the County' s
Comprehensive Plan ; and
WHEREAS, the traffic study shows DEVELOPER' S proposed project will impact the roadway link
on 27th Avenue S .W. from Oslo Road to 4th Street which is over the capacity as established by the County' s
Comprehensive Plan ; and
WHEREAS, the County is currently planning to make improvements to 27th Avenue S .W. from 13th
1
F:\Attomey\Bil]\Agreements\Proportionate Share\Exhibit D oslo proportionate share agree clean 12 7 06.dcc
Street S .W. to 17th Street S .W. , 27th Avenue S . W. from Oslo Road to 4th Street and 27th Avenue S .W. from
4th Street to 8th Street which will increase the capacity of the road; and
WHEREAS, the improvements to 27th Avenue S .W. from 13th Street S .W. to 17th Street S.W. do not
currently appear in the County' s Five Year Capital Improvements Program Component of the Capital
Improvements Element of the County' s Comprehensive Plan; and
WHEREAS, as part of this agreement, the improvements to 27th Avenue S .W. from 13th Street S .W.
to 17th Street S .W. are being added to the County' s Five Year Capital Improvements Program Component of
the Capital Improvements Element of the County' s Comprehensive Plan Capital Improvement Element to the
County' s Comprehensive Plan; and
WHEREAS, simultaneous to approval of this agreement by the Board, the COUNTY and
DEVELOPER will enter into a Developer Agreement that will set forth the parties responsibilities for
construction of 27th Avenue S .W. from 13th Street S .W. to 17th Street S .W. ; and
WHEREAS, the improvements to 27th Avenue S .W. from 4th Street to 8th Street and 27th Avenue
S .W. from Oslo Road to 4th Street are currently in the County' s Five Year Capital Improvements Program
Component of the Capital Improvements Element of the County ' s Comprehensive Plan; and
NVUEREAS, the County finds that all conditions contained in FS 163 . 3180( 16) and Indian River
County Code Chapter 910 have been met in order for DEVELOPER and County to enter into this
proportionate fair share agreement.
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and
premises hereinafter, the COUNTY and DEVELOPER agree as follows:
1 . The above recitals are affirmed as being true and correct and are incorporated herein .
2. The roadway improvements contemplated by this agreement are in the best interests of the citizens
of Indian River County. The improvements will provide a benefit to the health, safety and welfare of the
residents of the County by providing safe roads for the traveling public.
3 . In accordance with Exhibit B attached and incorporated by reference herein, the DEVELOPER shall
pay to the County the sum of $211 ,900 .88 as the DEVELOPER' S proportionate share of improvements to 27th
Avenue S .W. from 13th Street S.W. to 17th Street S .W. In accordance with Exhibit B attached and
incorporated by reference herein, the DEVELOPER shall pay to the County the sum of $333 , 957 . 61 as the
DEVELOPER' S proportionate share of improvements to 27th Avenue S .W. from Oslo Road to 4th Street. In
accordance with Exhibit B attached and incorporated by reference herein, the DEVELOPER shall pay to the
County the sum of $78, 757 . 67 as the DEVELOPER' S proportionate share of improvements to 27th Avenue
S .W. from 4th Street to 8th Street.
4 . DEVELOPER shall pay to the County, the proportionate share amounts in paragraph 3 above prior to
2
F:V+ttomey\BillWgreements\Proportionate ShareTxbbit D Oslo proportionate share agree clean 12 7 06.dm
approval of this agreement. Upon receipt of the funds, the funds shall be placed in the appropriate project
accounts for the funding of the County scheduled improvements in the County Capital Improvement element.
Should the County fail to approve this agreement, the funds shall be returned to Developer and this agreement
shall be considered null and void.
5 . In accordance with Exhibit B attached and incorporated by reference herein, the DEVELOPER shall
pay to the County the project' s impact fees assessed pursuant to Title X, Code of Indian River County, less the
$211 ,900. 88 proportionate share contribution amount for the segment of27a' Avenue S .W. between 13'l' Street
S .W. and 17b Street S .W. which shall be applied as a credit against the Project' s Title X fees as provided for in
the Developer' s Agreement between COUNTY and DEVELOPER, together with all water and sewer capacity
charges. DEVELOPER shall pay to the County the water and sewer capacity charges and impact fee amount
as stated above prior to the approval of this agreement. Should the County fail to approve this agreement, the
impact fees shall be returned to Developer and this agreement shall be considered null and void.
6 . DEVELOPER has paid the payments specified in paragraphs 3 and 5 , and upon posting of the letter of
credit required by the Developer' s Agreement between COUNTY and DEVELOPER and upon approval of
this agreement by the Board of County Commissioners; the COUNTY shall issue DEVELOPER a CCI-5
Concurrency Certificate, or its equivalent, for the project. The certificate shall expire five years from the date
of issuance. Should DEVELOPER fail to obtain a building permit within the timeframe covered by the
certificate, then the project vesting shall expire, and no refunds shall be given. All payments made, however,
shall run with the land.
7. Upon payment of the amounts specified in paragraphs 3 and 5 , and posting of the required letter of
credit and the County' s approval of this agreement and the Developer Agreement, DEVELOPER' S proposed
project shall be deemed vested for concurrency purposes as defined in FS 163 and Indian River County Code
Chapter 910 .
S . DEVELOPER hereby agrees to indemnify Indian River County and Representatives thereof from all
claims arising solely from intentional, reckless or negligent acts, errors or omissions of the DEVELOPER or
DEVELOPERS' representatives in the performance of professional services under this agreement and for
which DEVELOPER is legally liable.
9 . In the event any legal proceedings are required to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney fees at both trial and appellate levels, together with all costs of
said proceedings.
10 . 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 . This Agreement contains the entire
agreement and understanding between the parties .
3
F:W.ttomey\BillVAgreemenuTroportionate Shan\Exhbit D oslo proportionate shaze agree clean 12 7 06.dcc
11 . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their personal
representatives, heirs, successors, and assigns and may be recorded in the public records of Indian River
County.
12 . 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.
13 . COUNTY and DEVELOPER shall grant such further assurances and provide such additional
documents as maybe 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.
14 . In the event any term, 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.
4
F:\Attomey\BillWgreements\Proportionate Sbare\Exhibit D oslo proportionate share agree clean 12 7 06.dac
IN WITNESS WHEREOF the COUNTY and DEVELOPER has caused these presents to be
executed in their names, the day and year first above written.
BOARD OF COUNTY CONMSSIONERS
OSL LLC INDIAN RIVER COUNTY, FLORIDA
B BY: 6 Lt/
Its: 2 Gary C. heeler}, Chairrnan
WITNESS :
By 'l r
J eph A. aird, County Administrator
WITNESS : o� 1%' % ��/ �C
(Corporate sem acceptable in place of witnesses) Art st: / '(
Xl: Jeffrey K. Barton
Clerk of Court
Approved as to form and legal su iency
+ Jr
r
ACounty Attorney
Indian River County Approved Date
t7� //
1J11
Admfnistratloa
Budget
E
y}
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT `B"
PROPORTIONATE SHARE CALCULATION
5
F:\Attomey\Bill\Agreemencs%Pmportimate Share\Ezhtbit D oslo proportionate share agree clean 12 7 06.dcc
EXHIBIT "A"
LEGAL DESCRIPTION
The West 10 acres of the East 20 acres of Tract 1 (less canal) in Section 27, Township 33
South, Range 39 East, according to the last general Plat of lands of Indian River Farms
Company filed in the office of the Clerk of the Circuit Court of St. Lucie County, Florida, in
Plat Book 2, Page 25; said lands now lying and being in Indian River County, Florida.
TOGETHER WITH :
North 5 acres of the East 10 acres of Tract 1 , Section 27, Township 33 South, Range 39 East
according to the last general plat of lands of Indian River Farms Company filed in the office
of the Clerk of the Circuit Court of St. Lucie County, Florida, in Plat Book 2, Page 25; said
lands now lying and being in Indian River County, Florida.
Less And Except:
The canal right-of-way to the North, the right-of-way for Oslo Road, the right-of-way for 27a'
Avenue, and that property as described in O .R. Book 1163 , Page 1105 , of the public records of
Indian River County, Florida
Further Less And Except:
The South 287 .50 feet of the above following described parcel of land.
And Further Less And Except The Following:
The South 348 .31 feet of the North 378 . 31 feet of the West 15 . 00 feet of the East 60 .00 feet of
the North 5 acres of the East 10 acres of Tract 1 , Section 27, Township 33 South, Range 39 East,
according to the last general plat of lands of Indian River Farms Company recorded in Plat Book
2 , Page 25 of the public records of St. Lucie County, Florida; less the North 30.00 feet for canal
right-of-way, the East 45 .00 feet, for right-of-way, now lying and being in Indian River County,
Florida; And : the South 287 .26 feet of the North 635 .57 feet of the West 6.00 feet of the East
51 .00 feet of the North 5 acres of the East 10 acres of Tract 1 , Section 27, Township 33 South,
Range 39 East, according to the last general plat of lands of Indian River Farms Company,
recorded in Plat Book 2 , Page 25 of the public records of St. Lucie County, Florida; less the
North 30 .00 feet for canal right-of-way, the 45 .00 feet for road right-of-way now lying and being
in Indian River County, Florida.
V:\Real Estate\CHM\P&S - OSLO 27 LLC\Legal Descnpdon EXHIBIT A.doc
► Traffic concurrency split - final
Exhibit " B „
Model Oslo 27, LLC - Traffic Concurrency Analysis
Budget:
Design (Kimley Horn) $ 174,000.00
$ 36,000.00
Legal & Accounting
Overhead, Supervision and Inspections 24 months @ $15,000 per month $ 360,000.00
Construction 0.5 miles @ $7,0003000 per mile $ 31500,000.00
$ 286,000.00
Contingency $ -
Right-of-way acquisition
Total estimated project cost $ 4,356,000.00
Number of additional trips available from a conversion of roadway from 2 to 4lanes is 792 trips per 2 miles of roadway
Therefore the number of additional trips available for 0.5 mile of roadway (114 of 2 mile link) is 198
Pro rata share of total estimated project cost per additional trip based on county calculation is $ 21 ,997.80
Impact Fee Credit per Proportionate Share ordinance is $ (807.71 )
Pro rata share of total estimated project cost per additional trip net of impact fee credit is $ 21 ,190.09
Number of additional trips required of Oslo 27,LLC by traffic engineer is 10
Pro rata share of costs allocatable to Oslo 27, LLC is 10 trips @ $ 215190 per trip $ 211 ,900.88
Estimated Transportation Impact fees for Oslo 27, LLC with 44,400 sq. ft. $ 489,522.40
Balance of Transportation Impact fees due County $ 277,621 .52
Additional Non-transportation Impact Fees due County $ 139,442.02
Total Impact Fees due to County $ 4173063.54
Legend:
A. Pro rata share applicable to other participating developers:
Number of additional trips generated by proposed development x $21 ,190.09 = Required participation
B. Number of additional trips associated with proposed development: As determined by IRC Traffic Engineer.
C. County requires a bond of 115% of the Total estimated project cost.
D. Developer is also required to post a Letter of Credit in the amount of $5,000,000 to secure the completion of the project.
1
r Traffic concurrency split - final
Transportation Impact Fee Total Impact fee
Sq. Ft. per 1 ,000 GFS Total per 1 ,000 GSF Total
Medical Office 51000 $ 15.553 $ 77 ,765.00 $ 18. 13502 S 90,675. 10
Retail 50,000 GSF or less 15,000 $ 9.837 $ 147,555.00 $ 13. 18174 $ 197,726. 10
Office 50,000 GSF or less 20,000 $ 7.348 $ 146,960.00 $ 9.33464 $ 1862692.80
Restaurant 41400 $ 26.646 $ 117,242.40 $ 34.97055 $ 153, 870.42
Total 44,400 $ 489,522.40 $ 628,964.42
Impact fee credit for pro rata share of link 24105 to be paid to County escrow account $ (219,978.00)
Net transportation impact fees paid to county for 2410S $ 269,544.40
Additional Impact fees net of credits paid for: 2420S $ 3335957.61
2430S $ 782757.67 $ 412,715.28
Total Additional transportation fees paid to County $ 6822259.68
Total Impact Fees and pro rata cost of road construction to be paid be developer:
Pro rata portion of costs to build 2410S $ 2193978.00 45%
Additional transportation fees paid to County $ 682,259.68
Total $ 902,237.68
Transportation impact fees without proportionate share $ 489,522.40
Net additional costs to project for County transportation fees $ 412,715.28 $ 412,715.28
Total check to County $ 1 ,041 ,679.70
Developer Transportation Impact Fees paid to County $ 682 ,259.68
Pro rata portion of costs to build 2410S $ 2193978.00
Total off site Transportation costs to developer $ 902,237.68
Additional Non-transportation Impact Fees $ 139,442.02
Total Impact and County Transportation costs to developer $ 1 ,041 ,679.70
Calculation from County:
Additional Impact fees net of credits paid for: 2420S $ 333,957.61
2430S $ 78,757.67
2410S Total $ 219,978.00
Delete Impact Fee credit if County built road under Proportionate Share 3.67% $ (81077. 12) $ 211 ,900.88 $ 624616. 16
628,964.42
Total Impact Fees
Total $ 13253,580.58
Credit for Impact Fees for building road segment $ (211 ,900.88)
Total check to County $ 1 ,041 ,679.70
Additional fees for Water and Sewer Capacity:
ERU's for Water 15 ERU's @ $ 1 ,300.00 $ 197500.00
ERU's for Sewer 15 ERU's @ $ 21796.00 $ 41 ,940.00
Water line 327.8 Ft. @ $ 11 .25 $ 3,687.75
Sewer line 327 .8 Ft. @ $ 15.77 $ 5,169.41
Total check to County $ 70,297.16
Total Paid to County for Impact fees and Capacity charges $ 1 , 111 ,976.86
Total size of project 44,400
Additional cost per Square Foot $ 25.04
In Addition: Developer is also required to post a Letter of Credit in the amount of $5,000,000 to secure the completion of the project.
EXHIBIT "E"
PROPORTIONATE SHARE AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
[27th AVENUE DEVELOPER]
THIS AGREEMENT, entered this day of 2006 by INDIAN RIVER
COUNTY, FLORIDA a political subdivision Of the State of Florida, 1840 25th Street, Vero Beach, Florida,
32960 hereafter called COUNTY and , [DEVELOPER] 123 Easy Street , Suite 200, Florida City, FL
hereafter referred to as the DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has [applied or submitted a site plan] to develop a [subdivision,
planned development, site plan] to be known as [name of development] on a [size] acre parcel of land along
the [location], (Indian River County Project Number [number]), which is legally described on Exhibit "A"
attached and incorporated herein by reference, and;
WHEREAS, [DEVELOPER] is a [Florida Corporation, Limited Liability Corporation, Partnership
etc .] authorized to conduct business in the State of Florida; and is currently the owner of this property; and
WHEREAS, [persons signing agreement] have the authority to act on behalf of [DEVELOPER] and
enter into this agreement binding the parties; and
WHEREAS, as part of the development process, DEVELOPER has submitted a traffic study signed
and sealed by a Florida licensed professional traffic engineer. Pursuant to IndianRiver Code §952, the traffic
study identifies the roads impacted by DEVELOPER' S proposed project; and
WHEREAS, the traffic study shows DEVELOPER' S proposed project will impact the roadway link
on 27th Avenue SW from 13th Street S .W. to 17th Street S .W. which is over the capacity as established by the
County' s Comprehensive Plan; and
WHEREAS, the County is currently planning to make improvements to 27th Avenue S.W. from 13th
Street S .W. to 17th Street S .W. which will increase the capacity of the road; and
WHEREAS , the improvements to 27th Avenue S .W. from 13th Street S .W. to 17th Street S .W.
appear on the County' s Five Year Capital Improvements Program component of the Capital Improvements
Element of the County ' s Comprehensive Plan; and
WHEREAS, the COUNTY has estimated the costs of the improvements to be $4,356,000. 00 and
F:4Attomey`.BillVagreemems`8roportionate SharelOslo 27 Reimbursemen1to Developer Exhibit E.doc
finds that the improvements are financially feasible. The improvements will add an additional 198 trips to the
segment. Thus, the cost per trip of the improvement is approximately S22,000.00 . Furthermore, the COUNTY
projects that future developments will contribute to the costs of the improvements; and
WHEREAS, DEVELOPER' S traffic study concludes that DEVELOPER ' S project needs _ trips
on 27th Avenue S .W. from 13th Street S .W. to 17th Street S .W.
WHEREAS, the County finds that all conditions contained in FS 163 . 3180( 16) and Indian River
County Code Chapter 910 have been met in order for DEVELOPER and County to enter into this
proportionate fair share agreement.
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and
premises hereinafter, the COUNTY and DEVELOPER agree as follows :
1 . The above recitals are affirmed as being true and correct and are incorporated herein.
2 . The roadway improvements contemplated by this agreement are in the best interests of the citizens
of Indian River County. The improvements will provide a benefit to the health, safety and welfare of the
residents of the County by providing safe roads for the traveling public.
3 . In accordance with Exhibit attached and incorporated by reference herein, the DEVELOPER shall
pay to the County the project' s proportionate fair share amount for the to 27th Avenue S .W., 13th Street S .W.
to 17th Street S .W. improvement project as determined through the formula in Section 910 . 12(7)(d) of the
County ' s Land Development Regulations. The proportionate share amount shall be credited against
DEVELOPER' S Traffic Impact Fee liability; however, no proportionate share shall exceed 45% of the total
Traffic Impact Fee liability.
4. DEVELOPER shall pay to the County, the proportionate share amount in paragraph 3 above prior to
approval of this agreement. Upon receipt of the funds, the funds shall be placed in the appropriate project
account for the funding of the scheduled 27th Avenue S .W. from 13th Street S .W. to 17th Street S .W.
Should the County fail to approve this agreement, the funds shall be returned to Developer and this agreement
shall be considered null and void.
5 . DEVELOPER shall satisfy all applicable concurrency requirements and pay to the County the
project' s impact fees assessed pursuant to Title X, Code of Indian River County, less the proportionate share
contribution amount referenced in Section 3 which shall be applied as a credit against the Project' s Title X
fees, together with all water and sewer capacity charges. DEVELOPER shall pay to the County the water and
sewer capacity charges and impact fee amount prior to the approval of this agreement. Should the County fail
to approve this agreement, the impact fees shall be returned to Developer, and this agreement shall be
considered null and void.
6 . Upon receipt of the payments specified in paragraph 3 and 5 , the County shall schedule this agreement
F:\Attorney\BillWgreements\Proportionate Share\Oslo 27 Reimbursemen2to Developer Exhibit E.dce
for approval by the Board of County Commissioners and, upon approval, issue DEVELOPER a CCI-5
Concurrency Certificate, or its equivalent, for the project. The certificate shall expire five years from the date
of issuance. Should DEVELOPER fail to obtain [building permit or certificate of completion] within the
timeframe covered by the certificate, then the project vesting shall expire and no refunds shall be given. All
payments made, however, shall run with the land.
7 . Upon payment of the amounts specified in paragraphs 3 and 5 , and the County' s approval of this
agreement, DEVELOPER' S proposed project shall be deemed vested for concurrency purposes as defined in
FS 163 and Indian River County Code Chapter 910.
8 . DEVELOPER hereby agrees to indemnify Indian River County and Representatives thereof from all
claims arising solely from intentional, reckless or negligent acts, errors or omissions of the DEVELOPER or
DEVELOPERS ' representatives in the performance of professional services under this agreement and for
which DEVELOPER is legally liable.
9 . In the event any legal proceedings are required to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney fees at both trial and appellate levels, together with all costs of
said proceedings.
10. 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. This Agreement contains the entire
agreement and understanding between the parties.
11 . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their personal
representatives, heirs, successors, and assigns and may be recorded in the public records of Indian River
County.
12 . 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.
13 . COUNTY and DEVELOPER shall grant such further assurances and provide such additional
documents as may be required by one another from time to time, and cooperate fully with one another in order
to cavy out the terms and conditions hereof and comply with the express intention of this Agreement.
14. In the event any term, 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.
F:'Wttomey\Bill\Agreemenu'' Proportionate Share\Oslo 27 Reimbursemen3to Developer Exhibit E.doc
IN WITNESS WHEREOF the COUNTY and DEVELOPER has caused these presents to be
executed in their names, the day and year first above written .
BOARD OF COUNTY COMMISSIONERS
DEVELOPER INDIAN RIVER .00ZF2 Ty1, FLORIDA
BY: BY: G G� cti
Its : Gary C . Wvner, Chairman '-
WITNESS : By
Jose A: Bat fl; County administrator
WITNESS : c
(Corporate seal is acceptable in place of witnesses) Attest:
Jeffrey K. Barton
Clerk of Court
Approved as to form and legal suffici
County Attorney
r .
t
Indian River Comty Approved Bate
Administration
Budget tt
Co. Atty. L—
Risk P
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT `B"
PROPORTIONATE SHARE CALCULATION
F:Wttomey1Bi11Wgreements\Proportionate Share\Osla 27 Reimbursemen4to Developer Exhibit E.doe