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2008-52AGREEMENT FOR CONSTRUCTION OF WATER MAIN, REUSE MAIN AND FORCE MAIN THIS AGREEMENT FOR CONSTRUCTION OF WATER MAIN, REUSE MAIN AND FORCE MAIN (the "Agreement") entered into and made as of the ~ day of ~ • -~ • 2008 (the "Effective Date"), by and between the CITY OF CLERMONT, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "CITY"), and BFG LAKESHORE, LTD., a Florida limited partnership (hereinafter referred to as the "BFG"). RECITALS: A. BFG is the owner and developer of the Terrace Grove and Terrace Pointe subdivisions, and more particularly described in Exhibit A (hereinafter referred to as the "Property"); and B. In connection with its approval of BFG's development of Terrace Grove and Terrace Pointe, the CITY desires for BFG to construct the improvements, including certain additional improvements necessary for the City's Master Infrastructure Plan, all as set forth on Exhibit B attached hereto (the "Improvements"); and C. The CITY and BFG will share responsibilities on the proportionate cost of the Improvements as outlined in Exhibit B; and D. The construction of the Improvements is of benefit to BFG and the CITY and the CITY is willing to allow BFG to construct the Improvements, provided BFG agrees to pay the expenses related to the construction as they are incurred and the CITY will reimburse BFG as hereinafter set forth. AGREEMENT NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, the CITY and BFG agree as follows: 1. RECITALS. The above recitals are true and correct and form a material part of the Agreement. -1- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main 2. OWNERSHIP AND LEGAL DESCRIPTION OF THE PROPERTY. BFG represents that it is the present owner of the Property set forth in Exhibit A attached hereto and by this reference made a part hereof. 3. TITLE TRANSFER. As part of the development of the Property, BFG has conveyed Hartle Road to Lake County, Florida, and construction of the road improvements to Hartle Road is in process. 4. CONSTRUCTION OF IMPROVEMENTS. CITY hereby agrees to permit BFG to construct the Improvements (defined below) on the following basis: A. Plans and Specifications. Griffey Engineering, Inc. ("Griffey") has prepared, on behalf of the BFG, Plans and Specifications for Terrace Grove and Terrace Pointe, which are more particularly described on Exhibit B attached hereto (the "Plans"). The Plans are expressly incorporated herein and made a part hereof by reference. BFG shall construct, or caused to be constructed, the Improvements set forth in the Plans in accordance with all terms and conditions of the Plans, including but not limited to, the construction timetable, testing, and insurance requirements related to the project and as more particularly described in the Plans. Except as specifically set forth on Exhibit C and as may otherwise be agreed by the parties in writing, BFG shall not be responsible for constructing, and the term "Improvements" shall not include, anything shown on the Plans as future or later improvement. BFG, at its sole expense, shall obtain all required regulatory and governmental approvals and permits which are necessary in order to construct the Improvements in accordance with the Plans. B. Construction Contract. BFG shall be responsible to negotiate, select and enter into a contract with a qualified contractor for the construction of the Improvements based on the Plans and Specifications. C. Construction. BFG shall begin construction of the Improvements within a reasonable time after it obtains issuance and delivery of all of the permits and approvals required for construction of the Improvements. Thereafter, BFG shall diligently pursue such construction until completion. BFG shall construct the Improvements and install all related facilities in a workmanlike manner in accordance with the Plans and applicable governmental codes and regulations. D. Reimbursements. BFG agrees to construct said Improvements described above, and agrees to pay for the Improvements, with reimbursement from the CITY of BFG' S actual cost, based on the cost allocation set forth in Exhibit C attached hereto, provided the cost is no greater than FIVE HUNDRED EIGHTY-THREE THOUSAND SIX HUNDRED EIGHTY-FIVE AND 80/100 DOLLARS ($583,685.80) ("Cost Limit"). The CITY hereby acknowledges and agrees that the Cost Limit has been determined based on the Plans described in Exhibit B. Upon receipt of invoices from its contractor, BFG shall submit to the CITY a copy of the invoice for review. BFG shall be entitled to cash reimbursements and/or non-cash reimbursements of the costs of the Improvements as set forth in Exhibit C and such -2- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main reimbursements shall be governed by the following: All payments made by the CITY hereunder shall be in cash. (i) Cash Reimbursements. With respect to cash reimbursements, BFG shall deliver an invoice to the CITY on the tenth (10th) day of each calendar month for reimbursement of the CITY's proportionate and unpaid share of the costs incurred through the end of the preceding month. Such invoice shall provide reasonable detail as to the work performed and materials provided and shall be due and payable by the CITY within fourteen (14) days of its receipt. Reimbursement by CITY for the costs of any improvements beyond those defined herein, or costs in excess of the Cost Limit shall require a written change order approved by the City Council of CITY prior to the improvements requested in the change order being made or costs being incurred with respect to the subject matter of the change order. The CITY hereby agrees to reimburse BFG for any additional costs incurred above the Cost Limit due to mistakes by, or actions on the part of, the CITY, its engineers or any of its agents or consultants. CITY will cause its engineers to certify the Plans to BFG prior to the commencement of construction of the Improvements. (ii) Non-Cash Reimbursements. With respect to non-cash reimbursements, if any, that may be agreed to by BFG, BFG's right to such reimbursement in the form of impact fee credits or otherwise shall vest upon BFG completing the Improvements to which the non-cash reimbursement applies in accordance with the Plans and providing evidence to the CITY that all costs associated with such Improvements have been paid in full. The CITY hereby agrees (i) that BFG may use the sewer, water or reuse impact fees credits granted by this Agreement in any other project within the CITY's service area, and (ii) that the sewer, water or reuse impact fee credits granted by this Agreement may be fully assigned or transferred by BFG to third parties. In consideration of the obligations undertaken by BFG in this Agreement, the impact fee credits earned herein shall be applied toward the CITY's water, sewer, and/or reuse fees according to the rates charged in its current impact fee schedule as of the Effective Date. 5. CURATIVE PERIODS. No default as to any provision of this Agreement on the part of either the CITY or BFG shall be claimed or charged by either party against the other until notice thereof has been given to the defaulting party in writing, and such default remains uncured for a period of thirty (30) days after such notice, or if the default cannot be reasonably cured within thirty days, the party has not begun the process to cure the default within thirty (30) days after such notice. Each party hereto shall have the right to seek specific performance in circuit court for any uncured defaults as to any provision of this Agreement. In addition thereto, CITY shall, in the event of BFG's uncured default hereunder, CITY may act to complete the construction of the Improvements hereunder, including contracting directly with BFG's contractor, performing the work itself or contracting with a third party. In such event, BFG shall not be relieved of any liability it may have with regard to its default hereunder. 6. HOLD HARMLESS AGREEMENT. BFG hereby agrees to and shall hold the CITY, its elected and appointed boards, commissions, officers, agents and employees harmless from any liability for damage or claims for damages for personal injury, including death, as well as claims for property damage which may arise solely in connection with the construction -3- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main activities of BFG or its respective contractors, agents or employees in installing the Improvements. BFG shall have no obligation to indemnify CITY with respect to design defects or any failure of the Improvements to operate properly, provided the Improvements are constructed in accordance with the Plans. Nothing herein shall be interpreted, construed as or deemed a waiver of any sovereign immunity that CITY may enjoy. 7. DURATION OF AGREEMENT. The duration of this Agreement shall commence upon the execution hereof and shall end on such date as BFG receives reimbursement for all the costs it has incurred in connection with the construction of the Improvements. 8. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provisions of this Agreement, the parties hereby agree to cooperate in defending such action. 9. NOTICES. Where notice is herein required to be given, it shall be by certified mail return receipt requested, addressee only, hand delivery or courier. Said notice shall be sent to the following as applicable: BFG'S REPRESENTATIVES: BFG LAKESHORE, LTD. 401 Ferguson Drive Orlando, Florida 32805 Phone: 407-293-6562 Fax No.: 407-293-9361 Attn: James H. Fant With Required Copies to: Donald J. Curotto, Esquire Shutts & Bowen LLP 300 S. Orange Avenue -Suite 1000 Orlando, Florida 32801 Phone: 407-423-3200 Fax No.: 407-849-7270 CITY'S REPRESENTATIVES: City of Clermont, Florida 685 W. Montrose Street - 3rd Floor Clermont, Florida 34711 Attn: Wayne Saunders Phone: 352-241-7355 Fax No.: 352-394-4087 -4- ORLDOCS i 1043798 4 (21 l 19.0001) Agreement for Construction of Water Main Should any party identified above change, it shall be said party's obligation to notify the remaining parties of the change in a fashion as is required for notices herein. 10. TIME IS OF THE ESSENCE. Time is hereby declared of the essence as to the lawful performance of all duties and obligations set forth in this Agreement. 11. AGREEMENT TO BE BINDING. This Agreement shall be binding upon the CITY and BFG and their successors and assigns in title or interest. 12. ENTIRE AGREEMENT/CONTINUING EFFECT/EFFECT UPON OTHER AGREEMENTS. A. This Agreement constitutes the entire agreement between the parties as to the matters set forth herein and supersedes all previous understandings, discussions and agreements to the contrary as to all matters set forth herein whether oral, expressed or implied. B. No variations, modifications, amendments or changes shall be binding upon the parties unless set forth in a written agreement executed by all parties of equal dignity herewith. 13. NON-WAIVER. No consent or waiver, expressed or implied, by either party, to or of any breach or default of the other party, with regard to the performance by said other party of its obligations under this Agreement shall be deemed or construed to constitute consent or waiver, to or of, any other breach or default in the performance of that party, of the same or of any other objection of performance incumbent upon that party. Failure on the part of any party to complain of any act or failure to act on the part of the other party in default, irrespective of how long the failure continues, shall not constitute a waiver by that party of its rights and any remedies that exist under this Agreement, at law, or in equity. 14. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The Venue for purpose of litigation shall be the Fifth Judicial Circuit in Lake County, Florida. 15. CITY'S OBLIGATIONS. This Agreement shall not be deemed to pledge the credit of the CITY nor to make the CITY a co-venturer or partner of BFG. 16. CONSTRUCTION. This Agreement shall not be construed against any party on the basis of it being the drafter of the Agreement. The parties agree that the parties herein played an equal part in reciprocity in drafting this Agreement A. Capitalized terms contained herein shall have no more force nor effect than uncapitalized terms. B. Captions and section headings in this Agreement are provided for convenience only and shall not be deemed to explain, modify, amplify or aid in the interpretation, construction or meaning of this Developer's Agreement. -5- ORLDOCS 110437984 (21119.0001) Agreement tior Construction of Water Main C. There are no third party beneficiaries to this Agreement. This Agreement is entered into exclusively for the benefit of the parties herein. 17. FURTHER ASSURANCES. Each party hereto agrees to sign any other and further instruments and documents, consistent herewith, as may be necessary and proper in order to give complete effect to the benefits deriving from the terms and conditions of this Agreement. 18. SEVERABILITY. If any part of this Agreement is found invalid or unenforceable in any court, such invalidity or unenforceability shall not affect the other parts of that Agreement, if the rights and obligations of the parties contained herein are not materially prejudiced and if the intentions of the parties can be affected. To that end, this Agreement is declared severable. 19. EFFECTIVE DATE. This Agreement shall not be effective and binding until this Agreement is approved by and signed by all parties hereto. IN WITNESS WHEREOF, BFG and the CITY have executed this Agreement as of the day and year first above written. Signed, sealed and delivered in the presence of: t: P 'nt: dG/ BFG LAKESHORE, LTD., A Florida Limited Partnership By: BFG LAKESHORE, LLC, A Florida Limited Liability Company Ge ral Partner B Y~ Print: '^r` ~ ~ A ~~ Title: N ~ ~ C ~-- MAILING ADDRESS: 401 Ferguson Drive Orlando, FL 32805 STATE OF FLORIDA COUNTY OF ORANGE (~ The foregoing instrument was aclmowledged before me this / ~~day of r l ~•- % 2008 by ., /'} YYI~S ~- ~fI~UT ,the 1Ytq~U~~ R. of BFG AKESHORE, LLC, a Florida limited liability company, the general partner of BFG LAKESHORE, LTD., a Florida limited partnership, on behalf of the limited partnership. He is ersonall lrnown to me or has produced as idenh ication. My Commission Expires: NOTARY PUBLIC-SPATE OF FLOR~pA: ""' ,Kathy 0. Moorehead' j :Commission # DD666012 %:~.•~~ Expires: APR. 22, 2011 HONAED THRU ATT,ANTIC BONDING CO., IlYC. -6- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main ~~~ ~ ~ D ~ ~-~-7~~T= ~ l1 f 1 ~-~ d Notary Public IN WITNESS WHEREOF, BFG and the CITY have executed this Agreement as of the day and year first above written. Approved as form and CITY OF CLERMONT, FLORIDA Legal' se and r~~ ance by the Cit gf Cle nt, Fl~~ ---'`'~ i:/~~rt_ ~- ~rV~' -~::~7-,:~~ Print: ~-~CLr cId S f u rvi 1~>e., Sr', ~~ .. +-a~ ~`~r?..~.~,_ , Title: (`c1C.r~~ C ~ ATTEST: ~, ~ By: ~.~.~. % ~, Print: ~r ~ ~ c Title: C ± ~ ~ r i~ MAILING ADDRESS: SOS ti Gl~. /~On~~yS `~.- Clermont, Florida 32711 STATE OF FLORIDA COUNTY OF LAKE ~ The foregoing instrument was ~cknowled~ed before e this {~-`~I ~ day of ~i ., ~ ~ ~ 200 by r ~~ ~ _ ~ ~t. ~~~ ~ Lr' • an ~ ~ o ~! . ,the ...- ` and ~. ? respectively, of the y of Cle ont, Florida, a Florid unicipal corporation, on behalf of the City. They are personally known to me and they acknowledged executing the same freely and voluntarily under authority vested in them and that the seal affixed thereto is the true and corporate seal of the City of Clermont, Florida ~t t ~s-i~P~a+.~ and who did (did not) take an oath. My Commission Expires: ,? s Print: Notary Public ,~;J„ JANE WARREN .'~,~~ MY COMMISSION # DD 609133 EXPIRES: October 26, 2010 Bonded Thru Notary Public UndenvrVare -7- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main EXHIBITS Exhibit A -Legal Description for Terrace Grove and Terrace Pointe Exhibit B -Description of the Plans and Specifications for the improvements to be installed Exhibit C -Cost Sharing and Reimbursement Schedule -8- ORLDOCS 1 1043798 4 (21 1 19.0001) Agreement for Construction of Water Main EXHIBIT "A" LEGAL DESCRIPTION EAST PARCEL That part of Section 26, Township 22 South, Range 26 East, Lake County, Florida, described as follows: Commence at an iron axle found at the center of said Section 26; thence run N00°30'29"E along the East line of the Northwest '/4 said Section 26 for a distance of 15.00 feet to the POINT OF BEGINNING; thence N89°33'31"W, 624.45 feet; thence NO1°48'40"E, 22.17 feet to the point of curvature of a curve concave Southeasterly having a radius of 380.00 feet and a chord bearing of N29°30'49"E; thence Northeasterly along the arc of said curve through a central angle of 55°24'18" for a distance of 367.46 feet to the point of tangency; thence N57°12'58"E, 342.29 feet to the point of curvature of a curve concave Northwesterly having a radius of 480.00 feet and a chord bearing of N28°51'44"E; thence Northeasterly along the arc of said curve through a central angle of 56°42'29" for a distance of 475.08 feet to the point of tangency; thence S89°29'31"E, 6.00 feet; thence N00°30'29"E, 33.07 feet; thence S89°06'32"E, 679.14 feet; thence N00°30'29"E, 306.83 feet to the South right-of--way line of State Road 50, according to Florida Department of Transportation Right-of--way Map, Section 11070-2505; thence S89°06'32"E along said South right-of--way line, 422.61 feet to a point hereinafter referred to as Reference Point "A" said point being on the shoreline of Hill Lake; thence run Southwesterly, Southeasterly and Easterly 998 feet more or less along said shoreline to a point on the East line of the West '/z of the Northeast '/4 of Section 26, said point being S 13°26' 15"E a distance of 694.94 feet from said Reference Point "A"; thence S00°35'22"W along said East line 575.56 feet; thence N89°34'53"W, 1324.41 feet to the POINT OF BEGINNING. AND WEST PARCEL That part of Section 26, Township 22 South, Range 26 East, Lake County, Florida, described as follows: Commence at an iron axle found at the center of said Section 26; thence run N89°33'31"W along the South line of the Northwest '/4 of said Section 26 for a distance of 724.84 feet to the POINT OF BEGINNING; thence continue N89°33'31"W along said South line, 605.80 feet to the East line of Tract 26, LAKE HIGHLANDS COMPANY, as recorded in Plat Book 3, Page 52, of the Public Records of Lake County, Florida; thence N00°26'07"E along said East line and the East line of Tract 23 of said Plat Book 3, Page 52, for a distance of 1285.28 feet to the South right-of- way line of State Road 50, according to Florida Department of Transportation Right of Way Map Section 11070-2505; thence S89°06'32"E along said South right-of--way line, 572.14 feet; thence leaving said South right-of--way line run S00°30'29"W, 270.00 feet; thence S89°06'32"E, 507.31 feet; thence S62°10'41"E, 99.09 feet; thence S89°06'32"E, 108.80 feet; thence S00°30'29"W, -9- ORLDOCS 11043798 4 (21119.0001) Agreement for Construction of Water Main 25.77 feet; thence S89°29'31"E, 6.00 feet to anon-tangent curve concave Northwesterly having a radius of 380.00 feet and a chord bearing of S28°51'44"W; thence Southwesterly along the arc of said curve through a central angle of 56°42'29" for a distance of 376.10 feet to the point of tangency; thence S57°12'58"W, 342.29 feet to the point of curvature of a curve concave Southeasterly having a radius of 480.00 feet and a chord bearing of S29°30'49"W; thence Southwesterly along the arc of said curve through a central angle of 55°24' 18" for a distance of 464.16 feet to the point of tangency; thence SO1°48'40"W, 39.57 feet to the POINT OF BEGINNING. 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