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Home My WebLink About2008-236r, DEVELOPER'S AGREEMENT BETWEEN GRAND HARBOR NORTH LLC AND INDIAN RIVER COUNTY, FLORIDA FOR PLACEMENT OF FILL FROM SPOONBILL MARSH SITE 7-t5-08 IQ T 5 AOO g _ A3 6 This Developer's Agreement entered into this 10 day XALY , 2008 by Grand Harbor North LLC, a Delaware corporation whose mailing address is 3755 7th Terrace, Suite 301, Vero Beach, FL 32960, hereinafter called Grand Harbor and Indian River County, a political subdivision of the state of Florida, whose mailing address is 1801 27th Street, Vero Beach, FL 32960, hereinafter County. WITNESSETH WHEREAS, Grand Harbor and the County entered into a Grant of Restoration, Access and Recreation Easement dated May 3, 2005 and later amended February 6, 2007, hereinafter referred to as the Agreements; and WHEREAS, the Agreements were entered into between the parties for construction of a system of lakes and runnels so that the brine discharge from the County's North County Reverse Osmosis Drinking Water Plant could be blended with the water from the Indian River Lagoon in a series of detention lakes that will permit flow of the treated water into the Indian River Lagoon while providing for estuarine habitat, passive recreation and nature trails. This project is now known as the Spoonbill Marsh; and WHEREAS, in order to construct the ponds and runnels the County will have to excavate approximately 90,000 cubic yards of material, consisting of sand, rock and organic matter; and WHEREAS, there currently is not a financially sound market available for the sale of the excavated material; and WHEREAS, without a market for sale of the excavated material, the County would have to have the material hauled off site to store it on County owned property or take it to the land fill; and WHEREAS, Grand Harbor has offered to accept the excavated material onto their property in near proximity to the Spoonbill Marsh; and WHEREAS, the excavated material will be suitable for building landscaping berms and possibly roadways but not as fill for foundations; and WHEREAS, the current plan for construction of Spoonbill Marsh will provide existing haul routes without additional impact to the environment; and WHEREAS, the County has awarded the contract to construct Spoonbill Marsh to Tim Rose Contracting, Inc. who will haul excavated material to a cleared parcel of Grand Harbor property; and 11 WHEREAS, Grand Harbor has a contract with Sawmill Ridge Trucking Company to clear a parcel of their property to accept the excavated material; and WHEREAS, Sawmill Ridge Trucking Company shall grade and compact the excavated material, in accordance with an approved grading plan provided by Grand Harbor that will not impede the drainage to Grand Harbor, or the Spoonbill Marsh Project in accordance with the specifications in Exhibit B; and THEREFORE, in consideration of the mutual terms, conditions, promises, and premises hereunder the County and Grand Harbor agree as follows: 1. The above recitals are affirmed as being true and correct and are hereby incorporated herein. 2. The County shall give to Grand Harbor at no cost and Grand Harbor agrees to take all soil and material required to be excavated in the construction of Spoonbill Marsh Project onto a parcel of their property as indicated in Exhibit A, which is attached and incorporated by reference herein. The parties estimate that there could be 90,000 cubic yards of material excavated in the course of constructing Spoonbill Marsh. 3, Grand Harbor shall grade and compact the excavated material in accordance with an approved grading plan provided by Grand Harbor that will not impede drainage into Grand Harbor or the Spoonbill Marsh Project in accordance with the specifications in Exhibit B, which is attached and incorporated by reference herein, and the County agrees to reimburse Grand Harbor for this work with an amount not to exceed $100,000.00. Grand Harbor shall submit invoices to County on a monthly basis stating the amount of the work that has been completed and payment shall be in accordance with the Local Government Prompt Payment Act, FS 218.70 et. seq. 4. Grand Harbor shall clear the areas specified for location of the fill, of all trees and other debris and have the location for placement of the fill clearly delineated. 5. Grand Harbor shall accept all material excavated from the Spoonbill Marsh Project. If either party discovers any of the excavated material contains contaminants as defined by federal or state regulations such that the excavated material requires special handling or disposal, Grand Harbor shall be excused from taking the contaminated excavated material. Should Sawmill Ridge Trucking Co. fail for any reason to complete the scope of work as contained herein, County shall, immediately upon notice of same from Grand Harbor, contract with its Contractor, or others, as it may elect, to complete the work at its sole expense. 2 6. Grand Harbor shall be responsible for obtaining all permits and permissions required from any governmental agency for placement of the fill on the Grand Harbor property. 7. Grand Harbor shall not charge the County for a temporary construction easement or storage of the fill on their property. The fill shall become the sole property of Grand Harbor. 8, Grand Harbor shall permit the County, its contractor and any other agents on to the property specified on Exhibit A for the limited purpose of complying with the terms of this agreement. 9. In the event of any litigation arising out of this Agreement, each party shall bear its own attorney fees and costs. 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. 11. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, and assigns. 12. 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. 13. 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. 14, 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. 15. 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. 16. 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. 17. All words, terms, and conditions contained herein are to be read in concert, each with the other, and a provision contained under one paragraph 3 may be considered to be equally applicable under another in the interpretation of this Agreement. 18. 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. 51 IN WITNESS THEREOF the COUNTY and DEVELOPER has caused these presents to be executed in their names, the day and year first above written. GRAND HARBOR H, LLC BY: Its: reSi cle / WITNESS:'T� P/111 ' WITNESS: kaljnzjtJ ' (Corporate seal is acceptable in place of witnesses) Approved as to form and BOARD OF COUNTY COMMISSIONERS INDIAN�RIVEjZCOUN�# F*bRIDA - J W1 [' 4. Sandra L. Bowden, Chai An a'•. P^ IT P P w ♦IPwnr.A�R� � Date BCC Approved:%5 Approved: By Josep . Baird ColKtv Administrator u� JJ"Ly v"uuLy ei�wau�y a .ttest:'r�� A effrey K. 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