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DEVELOPERS AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
WOODSIDE TUSCANY, LLC
FOR TUSCANY LAKES SUBDIVISION
THIS AGREEMENT, entered this 21 St day of February, 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 Woodside
Tuscany, LLC, a Florida Limited Liability Company, 2541 Metro Centre Boulevard,
Suite 1 , West Palm Beach, Florida 33407, telephone (561 ) 688-2020, hereafter referred to
as the DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has applied to develop a residential community
to be known as Tuscany Lakes Subdivision on approximately 59 acres of land on the
south side of 77th Street, west of 58th Avenue in Indian River County, Project Number
SD-04- 11 -52 (2004050472-43084), 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 improvements at the intersections of 77`h Street/58th Avenue and 45`h
Street/58th Avenue, and;
WHEREAS the COUNTY is planning to make improvements to the intersections
of 77th Street/58th Avenue and 45" Street/58th Avenue, and;
WHEREAS, both the COUNTY and DEVELOPER can mutually benefit each
other through a joint effort that will share the cost of the proposed 77`h Street/581h Avenue
and 45`h Street/58th Avenue intersection improvements.
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 thereby
incorporated herein.
2 . a. A northbound left turn lane on 58 h Avenue at 77th Street is a necessary
improvement to accommodate increased traffic generated by the Tuscany Lakes
Subdivision.
b. A southbound left turn lane on 58`h Avenue at 77`h Street, although not an
improvement necessary to accommodate increased traffic generated by the
Tuscany Lakes Subdivision, is necessary to accommodate increased traffic
generated by anticipated growth in Indian River County, and the construction is
cost effective when completed concurrent with the aforementioned northbound
left turn lane.
c. The estimated cost of the intersection improvements at 77`h Street/58`h Avenue
is $421 ,707. 18, of which the DEVELOPER' S share is 50%, or $210,853 . 59, and
the COUNTY' S share is 50%, or $210, 853 . 59 .
d. Prior to issuance of any project building permits, the DEVELOPER shall
design and construct the intersection improvements at 77`h Street/581h Avenue.
Upon completion and acceptance by the COUNTY, the COUNTY shall reimburse
the DEVELOPER the sum of $210, 853 . 59 or 50% of the actual cost, whichever is
less.
3 . To further accommodate increased traffic generated by the Tuscany Lakes
Subdivision, the COUNTY will be required to make improvements to the
intersection of 451h Street/581h Avenue in the amount of $747,921 .08, of which the
DEVELOPER' S share is 2. 85 % or $21 ,315 . 75 . The DEVELOPER shall pay to
the COUNTY the sum of $21 ,315 .75 prior to issuance of a land development
permit as a contribution for construction of the intersection improvements at 45`h
Street/58`h Avenue.
4 . With regard to intersection improvements at 77`h Street/58`h Avenue, the
DEVELOPER shall be responsible for all construction coordination including
construction inspection. The DEVELOPER shall provide the COUNTY with
plans and specifications for the 77`h Street/581h Avenue intersection improvements
for review and approval . Once the DEVELOPER has amended the plans in
conformance with COUNTY comments, the COUNTY shall approve all design
plans, permit applications, and contract documents prior to construction of 77`h
Street/581h Avenue.
The DEVELOPER shall use the County ' s public competitive bid process for
construction of the intersection improvements, and Developer further agrees fully
and timely to cooperate with the COUNTY in the public competitive bidding of
the construction. The DEVELOPER shall timely provide the Indian River County
Purchasing Division with sufficient information, including the nature of the
project, where the plans may be purchased, the purchase price of the plans in an
amount not to exceed One Hundred Dollars ($ 100 . 00), the proposed date of bid
opening, and all other required competitive bid details to ensure compliance with
§255 .20 Fla. Stat. (2003) 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 such bids 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. The term "qualified" shall be as
determined by the County. The COUNTY' S reimbursement of construction 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 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 cost and the final project cost. The COUNTY may require redesign
and/or re-bid if, in the COUNTY ' S sole discretion, project costs significantly
exceed those contained in Section 2c of this agreement.
Bids shall include Performance and Payment Bonds with the COUNTY being
named an additional party covered by the Bonds. The cost of planning, design,
permitting and construction of 77`h Street/581h Avenue shall be shared 50% by
DEVELOPER and 50% by COUNTY, with the maximum COUNTY contribution
to be $210,853 . 59. Upon completion and acceptance of the intersection
improvements, COUNTY shall pay DEVELOPER its 50% share of the cost of the
improvement. DEVELOPER shall provide a bill of sale to COUNTY for the
improvements in this paragraph together with a one year warranty covering said
improvements.
5 . With regard to intersection improvements at 45`h Street/58`h Avenue, the
COUNTY shall be responsible for all construction coordination including
advertisement for bids, contractor selection and construction inspection .
6. In the event of any litigation arising out of this Agreement, each party shall bear
its own attorney fees and costs.
7. 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 .
8 . This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors, and assigns.
9. 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 .
10. 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.
11 . 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
on construction for or against any party by reason of the physical preparation of
this Agreement.
12 . 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.
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 carry out the terms and conditions
hereof and comply with the express intention of this Agreement.
14. Failure to insist upon strict conditions 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 time or times be deemed a waiver or relinquishment of such
right or power at any other time or times.
15 . 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.
16 . The words herein and hereof and words of similar import, without reference to
any particular section of subdivision of this Agreement, refer to this Agreement as
a whole rather than to any particular section or subdivision hereof.
17. 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.
18 . 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 it is not entitled to any vesting
of traffic concurrency rights for the Tuscany Lakes project by entering into this
agreement. DEVELOPER is fully aware of the changes the COUNTY is making
to its concurrency ordinance and recognizes the risks of proceeding with this
project.
19. 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 :
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 - as required by the State of Florida
Each Accident $ 100,000
Each Disease - Each Employee $ 100,000
Each Disease - Policy Limit $500,000
20 . 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.
21 . 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.
22 . DEVELOPER insurance coverage shall be primary.
23 . 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.
24. 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.
25 . DEVELOPER hereby agrees to indemnify 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 .
IN WITNESS WHEREOF the COUNTY and DEVELOPER has caused these
presents to be executed in their names, the day and year first above written.
WOODSIDE T CANY, LLC BOARD OF COUNTY COMMISIONERS
A FLORIDA LI ED LIABILITY INDIAN RIVER COUNTY, FLORIDA
COMPANY
BY: taccepble
B
Willig Member Arthur R . Neub g 'r , Chairma
WITNESCC Approved :
WITNESApproved:
(Corporate of witnesses)
By: A _ �?o ,vti
oseph . Bair ;;,Cg ' ' 'ty. A ministrator
Attest
JeffreyC BartoneClerk';d ourt
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County Attorney ( 1 �; , X11 n
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Indian River County '' , roved Date
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County Attorneyob
Public Works
Traffic Engineering