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HomeMy WebLinkAbout2006-211 DEVELOPER' S AGREEMENT BETWEEN INDIAN RIVER COUNTY, FLORIDA, AND VERO VILLAGE , LLC FOR 37TH STREET IMPROVEMENTS THIS AGREEMENT, entered into this 13th day of June 2006, by 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 VILLAGE, LLC, 1945 20`h Street, Vero Beach, Florida, 32960 hereafter called DEVELOPER; WHEREAS, the DEVELOPER has applied to construct a residential subdivision in Indian River County, Florida, to be known as Vero Village Subdivision (the "Subdivision"), Project Number 2001010025 , located south of 37`h Street, between 58th Avenue and 66`h Avenue. The legal description of the subdivision is attached as Exhibit "A" and incorporated herein by reference; and WHEREAS, both the COUNTY and DEVELOPER can mutually benefit through a joint effort that will provide for right-of way acquisition, engineering design, permitting, and construction of two-lane paving, drainage, and related improvements to 37`h Street between 58`h Avenue and 66`h Avenue, or a portion thereof (the "Road Project"); NOW, THEREFORE , in consideration of the mutual terms, conditions, promises, covenants and premises hereafter, the COUNTY and DEVELOPER agree as follows : 1 . RECITALS. The above recitals are affirmed as being true and correct and are thereby incorporated herein. 2 . RIGHT-OF-WAY ACQUISITION, FUNDING, AND CONSTRUCTION OF 37TH STREET IMPROVEMENTS . In connection with the Road Project, it is the COUNTY' s and DEVELOPER' s preference to acquire needed right-of way, to design, to permit, and to construct two-lane paving, drainage, and related improvements to 37`h St. from 66`h Ave. to 58`h Ave. as one continuous project, approximately one ( 1 ) mile long. Currently, the 37`h Street right-of-way between 66`h Avenue and 58`h Avenue is approximately 30 feet wide. The property owners adjacent to and north of 37`h Street, west of the east line of the Subdivision' s internal roadway connection to 37`h Street 1 (extended northward), have agreed to donate additional needed right-of-way adjacent to 37th St. for the Road Project. These donations are in consideration of the paving improvements being constructed in the 37th Street right-of-way between 66th Avenue and the Subdivision' s internal roadway connection to 37th Street (approx . 2,080 LF) . In order to accomplish the aforesaid preference of constructing the Road Project as one continuous project approximately one ( 1 ) mile long, the COUNTY must acquire additional needed right-of-way from property owners adjacent to the north side of 37th St. , from the east line of the Subdivision' s internal roadway connection to 37th Street (extended northward) east to 58th Avenue (approx . 3,200 LF) by December 31 , 2006 . After execution of this Agreement, DEVELOPER shall have fully engineered construction plans designed to Indian River County standards for the Road Project (the "Construction Plans"). The DEVELOPER shall select and contract with the surveyor, engineering firm, and other professionals necessary to prepare the Construction Plans. DEVELOPER will provide the Construction Plans to COUNTY and to any necessary regulatory agencies for their review and approval, prior to construction. The DEVELOPER shall be responsible for obtaining all permits for construction of the Road Project in cooperation with the COUNTY. If the roadway is constructed prior to the installation of any water or sewer lines, the Construction Plans shall be designed in such a way that the paved roadway not be above any currently planned or anticipated water or sewer lines within the 37th Street right-of-way. If water or sewer lines are constructed south of 37th Street pavement, service connections under 37th Street will be provided so that the 37th Street pavement does not have to be open cut. It is anticipated that commencement of the construction of the Road Project will occur before February 2007, which is the date that the Right-of-Way Deeds and Easements for the western section of 37th Street revert back to the landowners (pursuant to separate agreements), with an anticipated completion date of six (6) months from the date of commencement of construction. This target completion period is an estimate, and neither the COUNTY nor the DEVELOPER shall be bound to any time frame, but each shall use good faith to complete the Road Project within a reasonable period. If the County acquires the additional needed right-of-way to design, to permit, and to construct the Road Project improvements to 37th Street from 66th Avenue to 58th 2 Avenue [approx . 1 mile] as one continuous project) : (a) DEVELOPER will provide the Construction Plans to the COUNTY for review and approval prior to construction on 37`h Street from the east line of the Subdivision' s internal roadway connection to 37`h Street (extended northward) east to 58`h Avenue; (b) the Construction Plans will include, or will be revised to include, the portion of the Road Project from the east line of the Subdivision' s internal roadway connection to 37`h Street (extended northward) east to 581h Avenue; (c) the COUNTY will pay DEVELOPER for all funds to plan, to design, and to construct the Road Project (including all engineering and other soft costs) for the portion of the Road Project from the east line of the Subdivision ' s internal roadway connection to 37`h Street (extended northward) east to 58`h Avenue (such payment shall be in the form of check or wire transfer); and (d) the COUNTY must approve any changes to the permitted Construction Plans in writing (such approval shall not be unreasonably withheld, conditioned, or delayed) . If the COUNTY does not acquire this needed right-of-way by December 31 , 2006, then the DEVELOPER shall only be required to acquire needed right-of-way, to permit, to design and to construct 37`h Street paving, drainage, and related improvements from 66`h Avenue, east to the Subdivision ' s internal roadway connection to 37`h Street (approx. 2,080 LF), including a suitable transition to the existing unpaved road. DEVELOPER agrees to fund all costs for right-of-way acquisition, design, permitting, and construction of a two-lane paved road, drainage, and related improvements for 37`h Street from 66`h Ave. eastward to the internal roadway connection for the Subdivision (station 20+32 .00 to station 41 + 12 . 59 to be shown on engineering drawings to be prepared by MBV Engineering, Inc. for the DEVELOPER), a limerock stabilized road transition from station 41 + 12 . 59 to station 46+22 , any required site-related turn lanes along 37`h St., and necessary related improvements. Regardless of whether or not the COUNTY acquires the needed additional right- of-way for 37`h Street, the COUNTY shall make available for payment to DEVELOPER the amount of $ 17,750 (escrowed contribution by developer of Oak Chase Subdivision) permit, to design and to construct 37`h Street paving, drainage, and related improvements from 66`h Avenue, east to the Subdivision' s internal roadway connection to 37`h Street 3 (approx. 2,080 LF), if said paving and drainage improvements are complete by July 16, 2008 . 3 . PUBLIC BIDDING. If COUNTY funds are used to construct all or any portion of the Road Project, DEVELOPER shall publicly bid, using the County' s bidding procedure, for the construction of the Road Project according to the approved Construction Plans. 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 provide the Indian River County Purchasing Division with sufficient information, including the nature of the project, where the plans may be 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 for compliance with §225 .20, Fla. Stat (2004), and for 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 received 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 qualified contractor. Construction costs related to the Road Project shall be prorated and allocated among COUNTY and DEVELOPER on a linear foot basis, with COUNTY being responsible for the linear feet on 37`h Street from the east line of the Subdivision' s internal roadway connection to 37`h Street (extended northward) east to 58`h Avenue (approx . 3 ,200 LF), and DEVELOPER being responsible for the linear feet on 37`h Street from 66`h Avenue east to east line of the Subdivision' s internal roadway connection to 37`h Street (extended northward) (approx . 2,080 LF). The COUNTY ' S payment of a portion. of the construction costs to the DEVELOPER shall be conditioned upon the approval of such portion of such costs by the County' s Public Works Director prior to the commencement of construction. Bid proposals and engineering costs related to the work 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 4 cost and the final project cost. The COUNTY may require (at COUNTY ' s expense) redesign and/or re-bid if, in the COUNTY' S sole discretion, project costs significantly exceed reasonable costs. Bids shall include Performance 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 Contract Price" for the purpose of this Agreement. If the actual construction costs exceed the Fixed Contract Price, DEVELOPER and COUNTY agree that COUNTY shall not be obligated to reimburse DEVELOPER any amounts corresponding to the excess costs over the Fixed Contract Price, except for those improvements east of the Vero Village roadway connection at 37`h Street. COUNTY agrees to reimburse the County' s share of the Fixed Contract Price to DEVELOPER monthly after DEVELOPER presents COUNTY with an invoice, approved by DEVELOPER, 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 Project, DEVELOPER shall provide a bill of sale to COUNTY (using COUNTY ' s form existing on the date of this Agreement) for the improvements in this paragraph together with a one-year warranty covering said improvements. 4 . INSURANCE. DEVELOPER and DEVELOPER' S contractors and subcontractors will maintain the following minimum limits of insurance during the tern 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 : A. General Liability Coverage shall include contractual liability, products and completed operations, independent contractors, broad from general liability extensions, and per contract aggregate: Each Occurrence: $ 1 ,000,000 Fire Damage (Any on 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 $ 1 ,000,000 C . Worker' s Compensation Statutory — if and as required by the State of Florida Each Accident $ 100,000 Each Disease — Each Employee $ 100,000 Each Disease — Policy Limit $ 500,000 5 . 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 5 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. 6. 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. 7 . DEVELOPER insurance coverage shall be primary. 8 . All above insurance policies shall be placed with insurers with a Best' s rating of no less than AV . The insurer chosen shall also be licensed to do business in Florida. 9. 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. 10. DEVELOPER hereby agrees to indemnify COUNTY and COUNTY ' s representatives thereof from all claims arising solely from intentional, reckless or negligent acts, errors or omissions of the DEVELOPER or DEVELOPER' S representatives in the performance of professional services under this Agreement and for which DEVELOPER may be legally liable. 11 . In the event of any litigation arising out of this Agreement, each party shall bear its own attorney fees and costs. 12 . ACCESS AND ACCEPTANCE BY COUNTY. COUNTY hereby grants DEVELOPER the right to enter on any land owned or on any right-of-way owned or controlled by the COUNTY within the 37'h St. Road Project. Prior to the issuance of a certificate of occupancy to DEVELOPER for its property, the Road Project shall be completed in substantial compliance with the Construction Plans, and shall otherwise be in a form reasonably acceptable to the COUNTY . Upon completion of construction of the Road Project in substantial compliance with the Construction Plans, the DEVELOPER agrees to convey, and COUNTY hereby agrees to accept and to maintain the Road Project as specified in the Construction Plans, together with any landscaping required by the COUNTY as specified in the Construction Plans . The DEVELOPER 6 shall be responsible for any right-of-way permits necessary under this paragraph, and COUNTY shall cooperate reasonably with DEVELOPER in DEVELOPER' s efforts to obtain same. The DEVELOPER agrees to warranty the physical improvements constituting the Road Project and any landscaping within the Road Project to COUNTY for a period of one ( 1 ) year from the date of conveyance. 13 . INDEMNITY. DEVELOPER shall defend, indemnify, and hold the COUNTY harmless of and from any and all liens, claims, actions, loss, cause, damages, and/or expenses (including reasonable attorneys fees, and costs) arising out of or in any way related to the performance or nonperformance by the DEVELOPER or such DEVELOPER' S agents, employees, contractors, subcontractors, or licensees under this Agreement. This indemnity shall survive the completion of the construction of the Road Project, but shall terminate upon acceptance of the Road Project by COUNTY (as evidenced by conveyance of the Road Project to COUNTY). 14. The DEVELOPER shall be responsible for all construction coordination including advertisement for bids, contractor selection and construction inspections . 15 . No amendment, modification, change or alteration of this Agreement shall be valid or biding unless accomplished in writing and executed by all of the parties hereto. 16. This Agreement shall be binding upon the parties and shall inure to the benefit of the parties hereto and their successors, and assigns. 17. 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. 18 . This Agreement and all matters arising hereunder shall be governed by the construed in accordance with the laws of the State of Florida. Venue hereunder shall lie in Indian River County, Florida. 19. 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 part by reason of the physical preparation of this Agreement. 20. Whenever this singular number is used in the 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. 7 21 . 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 without one another in order to carry out the terms and conditions hereof and comply with the express intention of the Agreement. 22 . Failure to insist upon strict compliance with any of the terms, 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 . 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. 24. 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 as a whole rather than to any particular section or subdivision hereof. 25 . 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. 26 . DEVELOPER understands and acknowledges that it is building in an area of the County that is growing rapidly and sufficient traffic capacity may not be available for its project even though it is entering into this agreement to make certain roadway improvements. DEVELOPER agrees that neither the act of executing of this Agreement, nor any term, obligation, or covenant of this Agreement, entitles DEVELOPER to any vesting of traffic concurrency rights for the Vero Village project. DEVELOPER is fully aware that the COUNTY is making changes to its concurrency ordinance and recognizes the risks of proceeding with this project. Nothing in this Agreement shall affect any rights, benefits, or remedies DEVELOPER may have with respect to any concurrency certificates issued before the date of this Agreement or any impact fees paid before the date of this Agreement. This paragraph is not, and should not be implied to be, an admission or waiver by DEVELOPER with respect to traffic concurrency rights with respect to the Subdivision. 8 IN WITNESS WHEREOF the COUNTY, OWNER and DEVELOPER have caused these presents to be executed in their names, the day and year first above written. BOARD OF COUNTY VERO VILLAGE, LLC COMMONERS INDIAN RIVER COUNTY, FLORIDA (Siina tre) - 5 gnature) — ------ — - — Gary_c, Wheeler , Vice Chairman I /�� v / (Printed name and title) (Printed name) Approved by ��w t BCC June 13 , 2006 As its : (Title) a * ' +'ATTEST- Jeffrey K'i$Barton, Clerk of Circuit Witnessed-by: ;4Court ` Z�. 5 awlw yy$$ F� V l4 } .j • , n , " t w • ' ` Deputy Clerk (Printed name) f 44wV �r , :Approved as to Form and S i ' Cy: William G. Collini ll , County Attorney A . oseph A . Baird , county Administrator 9 Exhibit A Legal Description : TRACT 3 , SECTION 32, TOWNSHIP 32 SOUTH, RANGE 39 EAST; LESS AND EXCEPT THE NORTH 30.00 FEET THEREOF FOR CANAL RIGHT OF WAY, ACCORDING TO THE LAST GENERAL PLAT OF THE INDIAN RIVER FARMS COMPANY SUBDIVISION, AS RECORDED IN PLAT BOOK 2 , PAGE 25 , OF THE PUBLIC RECORDS OF ST. LUCIE COUNTY, FLORIDA : SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA. 10