HomeMy WebLinkAbout2005-185 rt y �
DEVELOPER' S AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
VERO ENTERPRISES, LLC FOR
ECHO LAKE PLANNED DEVELOPMENT
THIS AGREEMENT, entered this 24th day of Mary , 2005 , b and between
INDIAN RIVER COUNTY, FLORIDA a political subdivision of the State of Florida, 1840 25th
Street, Vero Beach, Florida, 32960 hereafter called COUNTY and Vero Enterprises, C, a Florida
Corporation, c/o Alan T. Armour, Nason, Yeager, Gerson, White, Lioce, P .A. , 1645 Palm Beach
Lakes Blvd. , Suite 1200, West Palm Beach, Florida 33401 , hereafter referred to as the
DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has applied to develop a residential development to be
known as Echo Lake on approximately 112 . 73 acres of land along the east side of 43rd Avenue north
of 21St Street SW in Indian River County, Project Number PD-04-0303, the legal description is
attached as Exhibit "A" and incorporated herein by reference, and;
WHEREAS , the COUNTY and DEVELOPER share mutual concerns with respect to
construction of a three-lane bridge across the Indian River Farms Water Control District 43rd Avenue
canal at 21St Street SW, a westbound left-tum lane along 21 " Street SW east of 43 rd Avenue, an
eastbound left turn lane along 21s` Street SW at 35th Avenue SW and at .the project ei itrance, and a
southbound left turn lane along 43rd Avenue at 21 " Street SW to accommodate roject traffic
volumes, and the general public, and;
WHEREAS , the DEVELOPER is planning to donate needed right-of--way to Pave portions
of 21 " Street SW from 35th Avenue to 43rd Avenue as a three-lane road with a center turn lane in the
near fixture along the Echo Lake frontage, and;
WHEREAS , both the COUNTY and DEVELOPER can mutually benefit each other through
a joint effort that will share the cost of the proposed bridge and turn lane improvements, and;
WHEREAS, the DEVELOPER plans to construct Echo Lake in four phases but plans for all
phases have not been submitted to COUNTY to date. Thus , the parties acknowledge they may need
to negotiate additional Developer Agreements in the future as future plans are subm' tt ed.
NOW, THEREFORE, inconsideration ofthe mutual terms, conditions, promises, covenants
and premises hereinafter, the COUNTY and DEVELOPER agree as follows :
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L The above recitals are affirmed as being true and correct and are thereby incorporated
herein.
2 . The parties agree that the following improvements shall be constructed pursuant to this
agreement (see Exhibit `B ") :
A. a three-lane pre-stressed concrete bridge over the Indian River Farms Water Control
District 43d Avenue Canal at 21 " Street SW, and
B . a westbound left-tum lane at 21 " Street SW east of 43rd Avenue SW, an
C . an eastbound left-turn lane along 21 " Street SW att the project entrance, and
D. an eastbound left-turn lane along 21st Street SW at 35th Avenue SW, and
E. a southbound left-tum lane along 43rd Avenue SW at 21St Street SW.
The attached Exhibit "C" is a preliminary cost estimate for County share of
improvements.
DEVELOPER shall design, obtain permits, and construct, as necessary, said
improvements listed above as A, B, C , D and E as shown on the approved Echo Lake
PUD, Phase I. The COUNTY Public Works Department shall review and approve the
designs prior to submitting permit applications. The DEVELOPER shall use the
County' s public competitive bid process for construction of these improvements and
Developer further agrees fully and timely to cooperate with the COUNTY in the public
competitive bidding of the construction. The DEVELOPER shall timely pro ' de the
Indian River County Purchasing Division with sufficient information, including the
nature of the project, where the plans maybe purchased, the purchase price of the plans in
an amount not to exceed One Hundred Dollars ($ 100. 00) , the proposed date of bid
opening, and all other required competitive bid details to ensure compliance with
§ 225 .20, Fla. Stat (2004), and to ensure sufficient public notice of the construction of
improvements described in this paragraph to enable the COUNTY to post a notice on
DemandStar. The DEVELOPER agrees that the Indian River County Purchasing
Division shall conduct the public competitive bid process for the construction of the
improvements in this paragraph to obtain bona fide bids from licensed and qualified
contractors, and that such bids are to be publicly opened and read aloud . The
DEVELOPER shall cause the DEVELOPER' S engineer to review the bids re eived by
the Indian River County Purchasing Division, and to make a written recommendation to
the County' s Public Works Director for award of the bid to a licensed and qu4silified
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contractor. The COUNTY' S reimbursement of a portion of the constructiox costs to the
DEVELOPER shall be conditioned upon the approval of all project costs by the County' s
Public Works Director. Bid proposals and engineering costs related to the ark
described herein shall be subject to prior approval by County ' s Public Works Director,
The DEVELOPER shall not commence work unless the County' s Public Works Director
provides written approval of the final construction cost and the final project cost. The
COUNTY may require redesign and/or re-bid if, in the COUNTY' S sole dis retion,
project casts significantly exceed reasonable costs. Bias shall include Perfo ance and
Payment Bonds with the COUNTY being named an additional party covered by the
Bonds. The bid price of the selected bid shall be deemed to be the "Fixed C ntract Price"
for the purpose of this Agreement.
The COUNTY shall reimburse Developer for 33 1 /3 % of the Fixed Contract price
for the bridge (A).
The COUNTY shall reimburse DEVELOPER for 100% of the cost of the
eastbound left-turn lane along 21St Street SW at 35 b Avenue SW (D) and the westbound
left-turn lane along 21St Street SW at 43rd Avenue SW (B).
The DEVELOPER shall pay 100% of the costs of the eastbound leftwturn lane
along 21 " Street SW at, the project entrance (C) and the southbound left-turn lane along
43rd Avenue at 21 " Street SW (E) .
If the actual construction costs exceed the Fixed Contract Price, DEV ELOPER
and COUNTY agree that COUNTY shall not be obligated to reimburse DEvELOPER
any amounts corresponding to the excess costs over the Fixed Contract Price COUNTY
agrees to reimburse the County' s share of the Fixed Contract Price to DEVELOPER in
monthly installments as follows : DEVELOPER presents COUNTY with an invoice,
approved by DEVELOPER, from the Engineer, contractor or other third party performing
the design and construction work. All requests for payment under this agreement shall be
governed by the Florida Prompt Payment Act, FS 218 . 70 et. seq. Upon completion and
acceptance of the road improvements, DEVELOPER shall provide a bill of sale to
COUNTY for the improvements in this paragraph together with a one-year warranty
covering said improvements .
3 . The County' s Thoroughfare Plan classifies 21St Street SW as a rural major c llector
roadway requiring 80 feet of ultimate right-of--way. The existing right-of-way width for
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21St Street SW is 30 feet. In order to achieve the ultimate right-of-way goal
DEVELOPER shall dedicate to COUNTY, without compensation, 50 feet of property to
be used as right-of-way along the site' s entire 21 " Street SW frontage as sh wn on
Exhibit A attached and incorporated by reference herein. Said dedication sh all occur by
the final plat recordation of Phase I of Echo Lake.
4. Prior to issuance of a certificate of completion for phase two of Echo Lake, he north-
south local roadway segment (35th Avenue SW) between 21St Street SW and 17th Street
SW will need to be constructed and dedicated to the county. Construction o F the segment
located south of 21St Street SW will be tied to the Madera Isles project and tl ie Millstone
Landing project .
5 . Findings from the traffic impact analysis show that traffic from this project ll cause
2. 19 % of the impact to the SR 60/43rd Avenue intersection. Currently, the SR 60/43'
Avenue intersection is over capacity and being programmed for improverner its . County
staff estimates that the needed improvements will cost approximately S7 ,000,000 (seven
million dollars). Given the 2. 19% impact on the intersection by this project, the applicant
will be required to contribute $ 153,300 (one hundred fifty three thousand three hundred
dollars) representing its fair share for the cost of the future improvements. ]DEVELOPER
shall pay one half of this amount upon execution of this agreement and one h alf prior to
issuance of the land development permit.
6. Insurance and Indemnification: During the performance of any construction covered by
Us Agreement, the DEVELOPER shall provide the COUNTY with evidence that the
DEVELOPER' S Contractor has obtained the insurance listed in the Agreement ,
A. DEVELOPER' S Contractor shall procure and maintain for the duration of all
construction contracts, insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with the performance of the work
hereunder by the DEVELOPER, his agents, representatives, employees o sub-
contractors.
B . Minimum Scope of Insurance :
i. Worker' s Compensation as required by the State of Florida. Employers
Liability of $ 100,000 each accident, $ 500,000 disease policy limit, and
$ 100,000 disease each employee.
ii . General Liability $ 1 , 000,000 combined single limit per accident for bodily
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injury and property damage. County shall be an additional insured. Auto
Liability $ 1 , 000, 000 combined single limit per accident for odily injury
and property damage for owned and non-owned vehicles . County shall be
an additional insured.
iii . Professional Liability Insurance providing coverage for intentional,
reckless or negligent acts, errors, or omissions committed or alleged to
have been committed by DEVELOPER' S Engineer with a Iii nit of
$ 500,000 per claim/almual aggregate. There shall be no more than $5 , 000
deductible per claim amount unless approved by the County Risk
Manager.
C . The Risk Manager for Indian River County must approve any deductibles or self.
insured retentions greater than $ 5 , 000 with the ultimate responsibility fo same going
to the DEVELOPER.
D . DEVELOPER' S insurance coverage shall be primary.
E . All above insurance policies shall be placed with insurers with a Best' s rating of no
less and A + VII. The insurer chosen shall also be licensed to do business in Florida.
F. The insurance policies procured shall be per occurrence policies or as generally
available on the open insurance market.
O . The Insimunce Carriers - shall supply Certificates of Insurance evidencing uch
coverage to the Indian River County Risk Management Department prior to the
execution of this Contract.
H. The insurance companies selected shall send written verification to the It than River
County Risk Management Department that they will provide 30 days wri ften notice to
the Indian River County Department of Risk management of its intent to cancel or
terminate said policies of insurance.
I. A written safety inspection plan must be submitted to the Indian River County Risk
management Department for approval prior to the signing of the contract
J. DEVELOPER shall include in all subcontracts for subcontractors the above insurance
requirement or show them as insured under its policies or shall furnish separate
certificates and endorsements for each sub-contractor. All coverages for
subcontractors shall be subject to all of the requirements stated herein.
K. Up to $ 1 million, DEVELOPER hereby agrees to indemnify Indian Rivex County and
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Representatives thereof from all claims arising solely from intentional, zeckless or
negligent acts, error or omissions of the DEVELOPER or DEVELOPER' S
REPRESENTATIVE IN THE PERFORMANCE OF Services under this agreement
and for which DEVELOPER is legally liable.
L. Notwithstanding anything in this Agreement to the contrary, or at law or otherwise,
whether in tort, indemnity, or other theory or liability, neither party shat be, in any
way, liable for an consequential, indirect, punitive or special losses, injury or damages
of any character, including but not limited to, claims for loss of profit, revenue or
capital, loss of use of utilities, equipment or facilities, down-time cost, or service
interruption.
7 . The COUNTY Public Works Director shall work with the DEVELOPER in all
construction coordination including advertisement for bids , contractor selection and
construction inspection.
8 . In the event of any litigation arising out of this Agreement, each party shall I icar its own
attorney fees and costs.
9 . No amendment, modification, change, or alteration of this Agreement shall tie valid or
binding unless accomplished in writing and executed by all of the parties hereto,
10. This Agreement shall be binding upon and inure to the benefit of the parties ereto and
their successors, and assigns.
11 . This Agreement contains the entire agreement and understanding between th m. parties . No
representation, statement, recital, undertaking, or promise not specifically set forth herein
shall be binding on any parry hereto.
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 . This Agreement shall be deemed prepared jointly by each of the parties heret and shall
be construed on parity as between the parties . There shall be no canon of constriction for
or against any party by reason of the physical preparation of this Agreement.
14 . 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 .
15 . COUNTY and DEVELOPER shall grant such further assurances and provide such
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additional documents as may be 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.
16 . Failure to insist upon strict compliance with any of the terms, covenants, or ft.onditions
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 tunes be
deemed a waiver or relinquishment of such right or power at any other time or times.
107. 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 . The words herein and hereof and words of similar import, without reference to any
particular section or subdivision of this Agreement, refer to this Agreement gots a whole
rather than to any particular section or subdivision hereof.
A. 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 tws Agreement.
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 COMMONERS VERO ENTERPRISES, LLC
NDIAN RIVER COUNTY, FLORIDA
(Szgnature} (Sign e)
t7homas'.`5ie ,
(Printed ttgmrra* dVle} , (Printed name and title)
Approveab BCC 0;524 /205
ATTEST:
Jeffrey K.eB�ii44� leei� Uit Court Witnessed by,
-- re;i e f kadkc
Deputy Clerk (Printed name)
Appr ved a FoJ g Sufficiency:
tlliam G . toll1risM, County Attorney
septi A. ai d, County Administrator
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EXHIBIT—A
LEGAL DESCRIPTION AND FLAT
ECHO LAKE
THE WEST 20 ACRES OF TRACT 3 , SECTION 34, TOWNSHIP 33 SOUTH, RAN E 39
EAST, INDIAN RIVER FARMS COMPANY SUBDIVISION, ACCORDING TO TH 2 PLAT
THEREOF RECORDED IN PLAT BOOK 2, PAGE 25, PUBLIC RECORDS OF ST, I allCIIE
COUNTY, FLORIDA, SAID LAND NOW LYING AND BEING IN INDIAN RIVER
COUNTY, FLORIDA, LESS AND EXCEPT THAT PART LYING WITHIN THE RT HTS-
OF—WAY OF 21ST STREET SW AND INDIAN RIVER FARMS WATER CONTRO
DISTRICT'S B-9 CANAL,
SAID PARCEL CONTAINING 19 . 55 ACRES, MORE OR LESS ,
TRACT 4, SECTION 34, TOWNSHIP 33 SOUTH, RANGE 39 EAST, INDIAN RIVER
FARMS COMPANY SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED
IN PLAT BOOK 2, PAGE 25 , PUBLIC RECORDS OF ST. LUCIE COUNTY, FLORIDA,
SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA, LESS
AND EXCEPT THE WEST 100 FEET THEREOF AND LESS THAT PART LYING WITHIN
THE RIGHTS—OF—WAY OF 17TH STREET SW AND INDIAN RIVER FARMS WA R
CONTROL DISTRICT'S 13-9 CANAL,
SAID PARCEL CONTAINING 36. 83 ACRES, MORE OR LESS .
TRACT 5 , SECTION 34, TOWNSHIP 33 SOUTH, RANGE 39 EAST, INDIAN RIVE
FARMS COMPANY SUBDIVISION, ACCORDING TO THE PLAT THEREOF RE RDED
IN i PLAT BOOK 2,PAGE 25 , PUBLIC RECORD 00 OF ST, LUCIE COUNTY, FLO A,
SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA, ESS
AND EXCEPT THE WEST 100 FEET THEREOF AND LESS THAT PART LYING HIN
THE RIGHTS —OF-WAY OF 21 ST STREET SW AND INDIAN RIVER FARMS WAITR
CONTROL DISTRICT'S B- 10 CANAL ,
SAID PARCEL CONTAINING 36 .79 ACRES, MORE OR LESS ,
THE WEST 20 ACRES OF TRACT 6, SECTION 34, TOWNSHIP 33 SOUTH, RANGE 39
EAST, INDIAN RIVER FARMS COMPANY SUBDIVISION, ACCORDING TO THEPLAT
THEREOF RECORDED IN PLAT BOOK 2, PAGE 25 , PUBLIC RECORDS OF ST. LUCIE
COUNTY, FLORIDA, SAID LAND NOW LYING AND BEING IN INDIAN RIVER
COUNTY, FLORIDA, LESS AND EXCEPT THAT PART LYING WITHIN THE RIGHTS—
OF—WAY OF 21ST STREET SW AND INDIAN RIVER FARMS WATER CONTROL
DISTRICT'S B- 10 CANAL.
SAID PARCEL CONTAINING 19 . 55 ACRES, MORE OR LESS .
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EXHIBIT-C
Developers Agreement Between
Indian River County
And
Vero Enterprises, LLC for Echo Lake P.D.
COST ESTIl"TE
A. Three Lane Bridge over 43`d Avenue Canal
Construction $600,000. 00
Survey @ 2% $ 129000 . 00
Design @ 5 % $309000 . 00
Permitting @ I % + Fees $ 6, 000. 00
Bidding & Award @ 2% $ 51000 .00
Construction Services @ 3 % $ 18 , 000. 00
Total Cost $ 6715000 . 00
County Share ( 1 /3 ) $2235666 . 67
Developer ' s Share (2/3) $447,333 . 33
B. Westbound Left Turn Lane at 21st Street SW East of 43 `d Avenue SW
Construction $22, 667 . 00
Survey @ 2% $453 . 00
Design @ 5 % $ 19133 . 00
Permitting @ I % + Fees $226 . 00
Bidding & Award @ 2 % $453 . 00
Construction Services @ 3 % $680 . 00
Total Cost $25,612 .00
100% County Share
C. Eastbound Left Turn Lane at 21st Street SW East of 43 `d Avenue SIN
County Share $0
D. Eastbound Left Turn Lane along 21 " Street SW
County Share is 800 ' (length from midpoint to our taper to 35d' Avenue S
intersection) of one lane ( 12 ' ) or equivalent 1 /3 of roadway.
Construction $ 53 , 333 . 00
Survey @ 2% $ 1 ,067. 00
Design @ 5% $2, 667 . 00
Permitting @ I % + Fees $533 . 00
Bidding & Award @ 2 % $ 1 ,067 . 00
Construction Services @ 3 % $ 1 ,600 . 00
Total Cost $ 60,267.00
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