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5 .DEVELOPER and COUNTY shall each have rights to 50% of the excavated material if said material is suitable for fill. COUNTY shall submit copies of any soil sample evaluations or tests performed, to DEVELOPER If found suitable, COUNTY shall stockpile DEVELOPER'S portion at a location on DEVELOPER' S property to be designated by DEVELOPER. DEVELOPER shall provide a temporary access easement for this purpose. COUNTY shall dispose of unsuitable material at COUNTY' S sole expense. 6. Should DEVELOPER decide to develop the Remainder parcel and wishes to join to and expand said pond for stormwater capacity, DEVELOPER shall be responsible for constructing DEVELOPER' S portion of the retention pond, based upon DEVELOPER' S runoff needs. 7. Time is of the essence as to all matters pertaining to this Agreement. 8 .In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to reimbursement of the costs and expenses thereof from the non- prevailing party or parties, including reasonable attorneys' fees and including such costs, expenses, and fees incurred on appeals of such litigation. 9 .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. 10.This Agreement shall be binding upon and inure to the benefit of the parties hereto and their personal representatives, heirs, successors, and assigns and shall survive the issuance of deeds pursuant to paragraphs two and seven hereof. I I .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. 12.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. 13 .This Agreement shall be deemed prepared jointly by each of the parties hereto and shall be construed on a parity as between the parties. There shall be no canon of construction for or against any parry by reason of the physical preparation of this Agreement. 14.Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and masculine, feminine, and neuter genders shall each include the others. 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 within one paragraph may be considered to be equally applicable within another in the interpretation of this Agreement. CADocuments and 8ettings\1 P_AdminisftMr\My Documents\PioneerBaptistChumhrevisedlo-04-07.doc