ROAD MAINTENANCE AGREEMENT

Transcription

1 After Recording Return to: Warren Graham, City Clerk City of DeBary 16 Colomba Road DeBary, FL ROAD MAINTENANCE AGREEMENT This ROAD MAINTENANCE AGREEMENT (hereinafter, the "Agreement") is made and entered into this day of, 2017, by and between the CITY OF DEBARY (the "City"), a Florida municipal corporation whose address is 16 Columba Road, DeBary, Florida 32713; TRADERSCOVE CORPORATION ( Traderscove ), a Florida corporation whose address is 2300 Lee Road, Winter Park, FL 32789; and HENIN SPRINGVIEW, LLC ( Springview ), a Florida Limited Liability Company whose address is 2300 Lee Road, Winter Park, Florida (collectively the "Developer ). WITNESSETH: WHEREAS, Springview is the fee simple owner of that certain /- acres real property (the "Springview Unit 8 Property") located in DeBary, Volusia County, Florida, having Volusia County Tax Parcel Identification Number and legally described as: W 1/2 OF NE 1/4 W OF SHELL RD EXC IRREG PARCEL MEAS FT ON SHELL RD FT ON NIL & FT ON S/L & NW 1/4 EXC PART IN SW OF RR & EXC IRREG PARCEL PER OR 1989PGS 1809 & 1811 MEAS FTONE/L &MEAS FTONRRR/W & MEAS FT ON S/L & EXC SPRINGVIEW UNITS 2 3 & 4 & 5MB 47 PGS 62-68INC & MB 47 PGS INC PER OR 2156 PG 1209 & EXC SPRINGVIEW UNIT 6 & UNIT 7 PER OR 4755 PG 2085 & EXC SPRINGVIEW INDUSTRIAL PARJ( UNITS I & 2MB 49 PGS INC SEE & PER OR 5729 PG 1655 PER OR 5767 PG 0107; (the Springview Property ); and WHEREAS, Traderscove is the fee simple owner of that certain /- acres of real property (the "Riviera Bella Units 8-9 Property") located in DeBary, Volusia County, Florida, consisting of parcels having the Volusia County Tax Parcel Identification Numbers identified in the attached Exhibit A, and further legally described as: LOT(S) I THROUGH 14, INCLUSIVE, OF BLOCK 35 AND LOT I THROUGH 32, INCLUSIVE, OF BLOCK 36 AND THAT PORTION OF THIRTEENTH AVENUE LYING SOUTHERLY OF SIXTH STREET, ALL AS SHOWN ON THE PLAT OF ST. JOHNS RIVER ESTATES- UNIT TWO, AS RECORDED IN MAP BOOK 27, PAGE 20 I, PUBLIC RECORDS OF VOLUSIA COUNTY, FLORIDA; TOGETHER WITH LOTS 29 THROUGH 3 I, INCLUSIVE, OF BLOCK 35 AND LOTS 33 THROUGH 38, INCLUSIVE, OF BLOCK 36 AND LOTS I THROUGH 42, INCLUSIVE, OF BLOCK 1

2 43 AND LOTS I THROUGH 21, INCLUSIVE, OF BLOCK 44 AND THAT PORTION OF THIRTEENTH AVENUE LYING NORTHERLY OF FIFTEENTH STREET AND THAT PORTION OF TENTH STREET LYING EASTERLY OF FOURTEENTH AVENUE, ALL AS SHOWN ON THE PLAT OF ST. JOHNS RIVER ESTATES- UNIT THREE, AS RECORDED IN MAP BOOK 27, PAGE 22, OF THE PUBLIC RECORDS OF VOLUSIA COUNTY, FLORIDA. TOGETHER WITH: LOTS 6 AND 7, BLOCK 29 AND LOT 7, BLOCK 30 AND THE RJGHTS-OF-WA Y OF SIXTH STREET AND THIRTEENTH AVENUE LYING ADJACENT TO SAID LOTS ALL LYING WITH THE PLAT OF ST. JOHNS RIVER ESTATES- UNIT TWO AS RECORDED MAP BOOK 27, PAGE 201, PUBLIC RECORDS OF VOLUSIA COUNTY, FLORJDA AND CONTAINING; (the Traderscove Property ); and WHEREAS, Developer intends to develop the Springview Property and the Traderscove Property (collectively the Property ) as a residential subdivision as described in certain development plans on file with the City (the "Project"), and such Project will require the use of heavy equipment and trucks for hauling and excavation activities (the Hauling Activities ); and WHEREAS, ingress and egress to and from the Property for the Hauling Activities will be over and through a portion of the public right-of-way known as Fort Florida Road and Spring Vista Drive (the "Road") using the route depicted in the attached Exhibit B (the Haul Route ); and WHEREAS, there is a concern that the Hauling Activities may cause distress and/or damage to the Road, and such Hauling Activities may present safety or hazardous concerns to children and other pedestrians and motor vehicles, and this Agreement is meant to address such concerns and Developer's responsibilities regarding same; and WHEREAS, the City requires and Traderscove desires execution of this Agreement as a condition of preliminary plat approval and/or other approvals. NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer agree as follows: 1. Recitals. The foregoing recitals are true and correct, are incorporated herein by this reference, and form a material part of this Agreement. 2. Road Maintenance and Other Requirements. a. Prior to commencing the Hauling Activities, the Developer, at its expense, shall cause the detailed videotaping and photographing in the manner required by the City's engineering consultant of the then current condition of the Road and at least the first 200 feet of each public road intersecting with the 2

3 Road (said 200 feet commencing from the applicable intersection with the Road) and provide a copy of said videotapes and photographs to the City (the "Pre-Existing Condition Documentation"). The Pre- Existing Condition Documentation activities shall be coordinated with the City prior to submittal. b. At all times during the Hauling Activities, the City may monitor, inspect, and perform any tests regarding the condition of the Road and/or any other public road, including without limitation road asphalt, base, road appurtenances, bridges and any other public road improvements (collectively the Road Improvements ), to determine whether the Road Improvements appear distressed or are being or have been damaged in any respect by the Hauling Activities in excess of normal wear and tear, and the Developer shall reimburse the City for all costs incurred by the City in testing for or measuring such damage or distress (the Testing Costs ). Upon notification by the City of any damage or distress to the Road Improvements caused by the Hauling Activities, Developer shall, as soon as is reasonably possible, repair the Road Improvements at Developer s expense to a condition of Minimum Repair, as described in the attached Exhibit C. Alternatively, or if the Developer fails to perform adequate repairs as determined by the City, the City may perform repairs and shall be entitled to reimbursement from the Developer for all costs associated with restoring the Road Improvements to a condition of Minimum Repair (the Repair Costs ). Any Repair Costs owed by the Developer to the City shall be reduced by an amount reasonably corresponding to the general upkeep expenses routinely expended by the City upon the Road Improvements, calculated based on the average monthly upkeep expenses for the Road Improvements for the six months preceding the issuance of the Notice of Commencement for the Project. c. After completion of the Hauling Activities, the Developer shall, as soon as is reasonably possible, restore the Road Improvements to a condition equivalent to or exceeding their condition before the commencement of the Hauling Activities, to the satisfaction of the City, as evidenced by the Pre- Existing Condition Documentation and/or any other relevant documentation or evidence. Alternatively, or if Developer fails to perform adequate restoration, the City may perform the restoration and shall be entitled to reimbursement from the Developer for all costs associated with restoring the Road Improvements to a condition equivalent to or exceeding their condition before the commencement of the Hauling Activities (the Restoration Costs ). d. Upon notification by the City of any debris or spillage caused by the Hauling Activities, the Developer shall immediately remove and/or clean up such debris or spillage at its expense, and if the Developer fails to do so in a timely or adequate fashion as determined by the City, the City may remove and/or clean up the debris or spillage and shall be entitled to reimbursement from the Developer for all costs related thereto. e. Haul Route, Signage, Project Coordination. The Developer shall adhere to the Haul Route for all Hauling Activities unless the City approves, in writing, in advance, any deviations therefrom. Signage for the Haul Route shall be placed in visible locations, as depicted in the attached Exhibit B.. The Developer, one (1) week and then again one (1) day prior to commencing the Hauling Activities, shall: (i) post at all Haul Route sign locations signage of the commencements, duration, and times that hauling will occur; and (ii) notify city staff, school officials, Fire & Police services, and affected HOAs of all relevant information regarding the Hauling Activities, including the nature of the activities, potential impact on traffic and use of public roads, time-frame, duration, and other relevant information. Proof of 3

4 notification shall be provided to the City. f. Developer shall be required to pay any Repair Costs, Testing Costs, Restoration Costs, or any other monies due under this Agreement within thirty (30) days of receipt of an invoice from the City. g. At all times, the City and/or Sheriff s Department may monitor, control, and regulate traffic, to the extent not prohibited by law, including but not limited to traffic caused by or in any way related to the Hauling Activities and/or Developer. The Developer and the City, or either of them, may determine at any time that speed timers, speed tables, speed humps, traffic control devices, mechanisms, the presence of sheriff s and/or other mechanisms or actions are needed or appropriate to control the Hauling Activities. In addition to other signage required by this Agreement, the Developer shall post signage required by the City at any location as required by the City in its discretion related to traffic and safety issues arising from or in any way related to the Hauling Activities. All of the foregoing matters in this subparagraph 2.h. is to be paid for by the Developer at Developer s sole cost. h. In addition to all remedies provided by law, City regulations, and this Agreement, the City may at any time issue a stop work order immediately requiring Developer to cease the Hauling Activities if the City determines that a hazard, threat, or risk exists to the public safety and/or welfare, arising from or related to the Hauling Activities. i. The failure of the City or Sheriff s Department to monitor, control or regulate the Hauling Activities or to enforce any provision of this Agreement does not relieve the Developer of Developer s obligations to ensure and carry out safe and responsible Hauling Activities, and the City shall have no liability for such failure. j. Developer shall take all actions described in, and shall otherwise comply with, that certain document entitled Implementation of Safety Plans Springview Heights Construction Vehicle Traffic (The Safety Plans ) attached hereto as Exhibit D, except where inconsistent with this Agreement. The Safety Plans are hereby incorporated as material terms of this Agreement except where inconsistent with this Agreement. 3. Notice. Except as otherwise provided, notice under this Agreement shall be in writing to: If to City: With a copy to: If to Developer: City of DeBary Attn: City Manager 16 Colomba Road DeBary, Florida Daniel W. Langley Fishback Dominick 1947 Lee Road Winter Park, Florida THE HENIN GROUP 4

5 2300 Lee Road Winter Park, Florida Either of the parties may change, by written notice as provided herein, the addresses or persons for receipt of notices. Each such notice shall be deemed delivered on the date delivered if by personal delivery or on the date upon which the return receipt is signed or delivery is refused or notice is designated by the postal authorities as not deliverable, as the case may be, if mailed or date of delivery by overnight delivery services as evidenced by a service receipt. 4. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and may not be modified or amended except by a written instrument equal in dignity herewith and executed by the parties to be bound thereby. 5. Authority/Binding Effect/Ownership. Traderscove and Springview each warrant that their respective ownership interests in the Property are as described in this Agreement, and that each has full authority and legal authorization to execute this Agreement and carry out its terms. This Agreement shall be binding upon and inure to the benefit of the parties and their successors in interest, transferees and assigns, and shall run with the Property. Upon request by the City, Developer shall provide to City copies of any requested documents evidencing ownership of the Property, including but not limited to certified surveys, title reports and other documents. 6. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the Developer and the City and their respective successors in interest and title. No right or cause of action shall accrue under or by reason of this Agreement to or for the benefit of any third party. Nothing contained in this Agreement, whether expressed or implied, is intended, nor shall be construed, to confer upon or give to any person or entity not a party hereto any right, remedy or claim under or by reason of this Agreement or any particular term, provision or condition of this Agreement other than Developer and the City and their respective successors in interest and title. 7. Applicable Law/Venue/Remedies. This Agreement shall be construed, controlled and interpreted according to the laws of the State of Florida. Venue for any proceeding arising under this Agreement shall be in Volusia County, Florida. Each party shall bear its own costs and fees. 8. 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. 9. Non-Waiver. Failure by any party to enforce any right under this Agreement shall not constitute waiver of such right. Failure by any party to complain of any breach or failure of another party to meet an obligation of this Agreement shall constitute consent to such breach or failure. No consent or waiver by either party with respect to any breach of this Agreement or failure to meet an obligation hereunder shall constitute consent to or waiver of any other breach or failure to meet an obligation under this Agreement. Nothing contained in this Agreement nor in any instruments executed pursuant to the terms of this Agreement shall be construed as a waiver or attempted waiver by the City of its sovereign immunity. 5

6 10. Severability. If any term, provision, requirement, paragraph, sentence, or word of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit of this Agreement by either party hereto or substantially increase the burden of this Agreement upon either party hereto, is held to be invalid or unenforceable by a court of competent jurisdiction, such shall not affect the validity or enforceability of any other part of this Agreement. 11. Construction. This Agreement shall not be construed against either party based upon who drafted the Agreement. The parties agree that each contributed substantially and materially to the preparation of this Agreement, or had the opportunity to do so, and each has had the opportunity to fully review the Agreement with the assistance of legal counsel. Captions and section headings in this Agreement are provided for convenience only and shall not be deemed to explain, modify, amplify, limit, or aid in the interpretation, construction or meaning of this Agreement. 12. Local Development Approvals and Permits. All development of the Property shall be in compliance with all applicable federal, state, county and municipal laws and ordinances, rules and regulations, including but not limited to the City's land development regulations, zoning requirements and comprehensive plan. Nothing in this Agreement shall constitute or be deemed to constitute or require the City to issue any approval by the City of any rezoning, Comprehensive Plan amendment, variance, special exception, final site plan, preliminary subdivision plan, final subdivision plan, plat, building permit, grading, stormwater drainage, engineering, or any other approval, permit, or land use of any kind. 13. Indemnity. Developer hereby indemnifies and holds City and its elected and appointed officials, employees, and agents harmless from and against any and all claims, disputes, lawsuits, injuries, damages, attorneys' fees (including trial and appellate fees), costs and experts' fees, interest and all adverse matters in any way arising out of or relating to the Developer's and its officers', employees', contractors, subcontractors, and agents' acts, omissions, negligence, misrepresentations or defaults related to this Agreement or the Hauling Activities. 14. Remedies. In the event of a breach of this Agreement or failure to meet any obligation hereunder, the violating party shall be given one (1) day to cure such violation upon receipt of written notice of such. In the event that the violating party does not cure the violation within the one-day period, or does not make good faith efforts toward curing the violation if the violation cannot reasonably be cured within such period, the complaining party shall have the right to pursue any and all legal and equitable remedies available under the law, and/or any remedy provided under this Agreement. In addition, upon a violation and failure to cure by Developer, the City may immediately and without notice withhold the issuance of certificates of occupancy, site development permits, building permits, or any other approval or permit associated with the Property, and/or issue a stop-work order requiring Developer to cease all development activities on the Property and to cease all use of City right of way for hauling activities until all obligations are met under this Agreement. In addition, if Developer fails to timely pay the City any monies due pursuant to this Agreement, the City may record Notice of Lien against the Property in the amount owed to the City plus interest to accrue at the highest lawful interest rate. Developer shall be liable for, and any Notice of Lien shall secure, all costs associated with the collection of monies that Developer fails to pay under this Agreement, including but not limited to attorneys fees. A copy of any 6

7 Notice of Lien that the City files shall also be delivered to Developer in the same manner as required under this Agreement for delivery of written notices. The lien may be foreclosed upon by the City any time after ten (10) days after the Notice of Lien has been recorded in the public records, using any applicable and lawful means or procedure. The Developer may obtain a release from the lien by paying the amount stated in the lien, along with any accrued interest and collection costs including but not limited to attorneys fees incurred by the City in filing and collecting monies secured by the lien. 15. Additional Reimbursement. On or before thirty (30) days after the date of invoicing, Developer shall reimburse the City for the City's engineer and attorney fees for negotiations, inspections, conferences, title issues, meetings, reviews, drafting of this Agreement, and any other costs relating to this Agreement and other development reviews concerning the Property. This Agreement and reimbursements made hereunder do not waive, supersede, excuse, or replace any additional reimbursements that may be required under the City s ordinances, the Florida Statutes, or other laws. 16. Recordation of Agreement. An executed original of this Agreement may be recorded by City, at Developer's expense, in the Public Records of Volusia County, Florida. 17. Developer Jointly and Severally Liable. Traderscove and Springview shall be jointly and severally liable for any and all obligations arising under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed, effective as of the date last executed by the parties. CITY COUNCIL CITY OF DEBARY, FL By: Bob Garcia, Mayor Attest: Date: By: Warren Graham, City Clerk Date: TRADERSCOVE CORPORATION By: 7

8 Signature Print Name Title/Position Date: HENIN SPRINGVIEW, LLC By: Signature Print Name Title/Position Date: 8