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DEVELOPER'S AGREEMENT
November
THIS AGREEMENT made this 29th day of Supt8~, 2005, by and between
CLARK DEVELOPMENT COMPANY, a Florida corporation ("Clark") and CITY OF
SEBASTIAN ("City")
RECIT ALS:
A. Clark is the developer of a single family residential community to be known as
Ashbury ("Asbury Subdivision") which is located in the northeast quadrant of the intersection of
County Road 512 and Powerline Road within the City of Sebastian, Florida; and
B. The City desires to enhance ingress and egress to Ashbury Subdivision by
improvements to be made to Powerline Road; and
C. The City and Clark desire to enter into this Agreement for the purpose of assuring
the completion of improvements to Powerline Road upon the terms and conditions herein set
forth.
NOW THEREFORE in consideration of the mutual covenants herein set forth, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.0 The City desires to extend Powerline Road along the westerly boundary of
Ashbury Subdivision a total length of three thousand six hundred eighty lineal feet (3,680'). The
total cost of construction of Powerline Road shall be equally shared by Clark and the City as set
forth herein .
2.0 Clark has or will construct five hundred eighty lineal feet (580') of Powerline
Road at a its own expense. To satisfy its commitment, Clark agrees to establish and fund an
escrow account for the remainder of its cost contribution for the construction of Powerline Road
in the amount of One Hundred Fifty-three Thousand Three Hundred Sixty-two and 3/100 Dollars
($153,362.02).
3.0 In furtherance thereof, Clark shall deliver to the law firm of Krasny and Dettmer,
as escrow agent ("Escrow Agent"), upon execution of this Agreement, the sum of One Hundred
Fifty-three Thousand Three Hundred Sixty-two and 3/100 Dollars ($153,362.02) which shall be
placed in an interest bearing money market account with all interest thereon accruing for the
benefit of City. The Escrow Agent shall disburse the escrow funds to the City upon: (1) notice
from City of execution of a construction contract for Powerline Road as herein contemplated;
and (2) written direction from Clark, delivered to the Escrow Agent. In the event that notice is
received from the City but Clark does not deliver direction for disbursement within ten days after
written request to do the same, Escrow Agent shall implead the funds into the Circuit Court for
Indian River County, Florida, and its duties shall be complete. Notwithstanding the forgoing, all
funds remaining in the hands of the Escrow Agent shall be disbursed to Clark if City does not
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'deliver' notice of a construction contract within seven years of the execution date of this
Agreement, and all parties hereto shall be relieved of any further obligations hereunder.
4.0 The City shall construct that portion of Powerline Road adjoining the Ashbury
Subdivision southerly of that completed by Clark as a part of the development of Ashbury
Subdivision. The City shall pay the construction costs from funds available to the City and the
escrow funds herein provided. In no event shall Clark have any responsibility for payment of
any sum beyond those amounts specified herein.
5.0 Escrow Agent undertakes to perform only such duties as are expressly set forth in
this Agreement and no implied duties or obligations shall be read into this Agreement against
Escrow Agent. Escrow Agent may act in reliance on any writing or instrument or signature that
it, in good faith, believes to be genuine; may assume the validity and accuracy of any statement
of assertion contained in such a writing or instrument; and may assume that any person
purporting to give any writing, notice, advice, or instructions in connection with the provisions
of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner, and execution, or validity of any
instrument deposited in escrow, or as to the identity, authority, or right of any person executing
the same; and its duties under this Agreement shall be limited to those provided in this
Agreement. Any compensation due Escrow Agent for the performance of duties hereunder shall
be the responsibility of Clark.
6.0 Any notices which may be permitted or required hereunder shall be in writing and
shall be deemed to have been duly given as of the date and time the same are personally del-
ivered, transmitted electronically (Le, facsimile) or within three (3) days after depositing with the
United States Postal Service, postage prepaid by registered or certified mail, return receipt
requested, or within one (1) day after depositing with Federal Express or other overnight delivery
service from which a receipt may be obtained, and addressed as follows:
To Clark at the following address:
Clark Development Company
575 S. Wickham Road, Suite E
West Melbourne, Florida 32904
Telephone: (321) 723-9888
Facsimile: (321) 768-2009
To Escrow Agent:
Krasny and Dettmer
304 S. Harbor City Boulevard, Suite 201
Melbourne, Florida 32901
Attn: Dale A. Dettmer, Esq.
Telephone: (321) 723-5646
Facsimile: (321) 768-1147
Email: ddettmer@krasnydettmer.com
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To City at the following address:
City of Sebastian
1225 Main Street
Sebastian Florida 32958
Telephone: (772) 589-5330
Facsimile: (772) 581-0149
7.0 To facilitate execution, the parties hereto agree that this Agreement may be
executed and faxed to the other party and that the executed facsimile shall be binding and
enforceable as an original. This Agreement may be executed in as many counterparts as may be
required and it shall not be necessary that the signature of, or on behalf of, each party appear on
each counterpart; it shall be sufficient that the signature of, or on behalf of, each party appear on
one or more of such counterparts. All counterparts shall collectively constitute a single
agreement.
8.0 This Agreement constitutes the entire agreement between the parties hereto with
respect to the transactions contemplated herein, and it supersedes all prior understandings or
agreements between the parties.
9.0 In the event of any dispute hereunder or of any action to interpret or enforce this
Agreement, any provision hereof or any matter arising herefrom, the prevailing party shall be
entitled to recover its reasonable costs, fees and expenses, including, but not limited to, witness
fees, expert fees, consultant fees, attorney (in-house and outside counsel), paralegal and legal
assistant fees, costs and expenses and other professional fees, costs and expenses whether suit be
brought or not, and whether in settlement, in any declaratory action, at trial or on appeal.
10.0 This Agreement is intended to be performed in accordance with, and only to the
extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of
this Agreement or the application thereof to any person or circumstance shall, for any reason and
to any extent, be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected thereby but rather shall
be enforced to the greatest extent permitted by law.
11.0 This Agreement shall be governed by and construed under the laws of the State of
Florida.
12.0 When used herein, the term "Effective Date" or the phrase "the date hereof' or
"the date of this Agreement" shall mean the last date that a party hereto executes this Agreement.
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Witnesses:
CLARK:
CLARK DEVELOPMENT COMPANY, a
Florida corporation
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By:
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Coy . lark, President
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Approved as to form and legality for
reliance by the City of Sebastian only:
kl
The Escrow Agent hereby acknowledges receipt of the Deposit this ~ day of
~~05.
KRASNY AND DETTMER
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