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HomeMy WebLinkAbout2010-120A AMENDED DEVELOPER' S AGREEMENT BETWEEN INDIAN RIVER COUNTY, FLORIDA AND DIVOSTA HOMES , L .P. FOR WATERWAY VILLAGE THIS AMENDED AGREEMENT is made and entered into this 11 th day of May , 20101 by and between Indian River County, Florida, a political subdivision of the State of Florida, 1840 251'' Street, Vero Beach , Florida 32960 ("County") , and DiVosta Homes , L . P . , a Delaware Limited Partnership , 4500 PGA Blvd . , Suite 400 , Palm Beach Gardens , Florida 33418 ("Developer") . WITNESSETH WHEREAS , the Developer proposes to develop a residential community, located north of 49`h Street and east of 58 `" Avenue in Indian River County, to be known as Waterway Village, to include up to 1 , 596 residential dwelling units , community recreation improvements , and up to 20 , 000 square feet of neighborhood commercial uses , together constituting a Development of Regional Impact ("DRI") on real property legally described on Exhibit "A" attached hereto and made a part hereof, and WHEREAS , the County, pursuant to Chapter 380 , Florida Statutes , adopted Resolution 2004- 137 ("Development Order") approving Waterway Village as a DRI and Planned Development project on November 9 , 2004 ; and WHEREAS , the County and the Developer share mutual goals and determined that they could assist each other with respect to right-of- way acquisition , roadway and drainage improvements , intersection improvements, and other improvements described in the Development Order and required by the Planned Development ; and WHEREAS , the Development Order limited the number of building permits which would be issued for Waterway Village before provision was made to accomplish certain intersection improvements and other required improvements ; and WHEREAS , the Development Order specified that provision for the accomplishment of the intersection improvements and required improvements could be made by, among other methods , a local government developer' s agreement ; and WHEREAS , Indian River Farms Water Control District ("District") possesses rights - of-way which traverse Waterway Village , and which the District is willing to release for the benefit of the Develop ; and WHEREAS , the County is willing to assist the Developer in acquiring title to the rights-of-way to be released by the District, at no cost to the County; and RM :7031940 : 9 Page 1 of 14 WHEREAS , the County and the Developer entered into a Developer ' s Agreement on December 13 , 2005 ("Developer ' s Agreement") with respect to right-of-way acquisition, roadway and drainage improvements , intersection improvements , and other improvements described in the Development Order and required by the Planned Development ; and WHEREAS , a dispute arose between the parties as to whether Waterway Village is vested for traffic concurrency; and WHEREAS , the parties have worked in good faith to resolve their disputes and have agreed to certain terms and conditions which require that the Developer ' s Agreement and the Development Order be amended ; and WHEREAS , the County pursuant to Section 380 . 06 ( 19) , Florida Statutes , adopted Resolution 2010 - 037 approving an Amended and Restated Development Order for Waterway Village ("Amended and Restated Development Order") on May 11th 12010 . NOW , THEREFORE , in consideration of the mutual terms , conditions , promises , covenants and premises hereinafter stated, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged , the County and the Developer agree to enter into this Amended Agreement and to agree as follows : 1 . Recitals : The foregoing recitals are hereby incorporated as if fully restated herein . 2 . Entire Agreement : This Amended Agreement supersedes all previous agreements and representations , whether oral or written, between the Developer and the County and that certain Developer' s Agreement entered into on December 13 , 2005 between Indian River County and DiVosta Homes , L . P , and recorded in Official Records Book 1988 , Pages 765 - 777 of the Public Records of Indian River County, Florida. 3 , Building Permits and Vesting : A . Building permits for Waterway Village shall be issued in staged increments and vested for traffic concurrency as follows : (i ) 733 single family dwelling units in Phases I and II were previously vested for traffic concurrency and shall remain vested for traffic concurrency through December 31 , 2016 . Development of a recreational /clubhouse on 2 . 2 acres , the school site , and preservation areas may also commence at any time and under the County' s development regulations are not subject to concurrency and are therefore deemed vested . RM : 7031940 : 9 Page 2 of 14 Commencing in 2012 , 150 additional single family dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2019 . Development of a recreational/clubhouse on 2 . 7 acres may also commence in 2012 or any time thereafter and under the County ' s development regulations is not subject to concurrency and is therefore deemed vested . (iii) Commencing in 2013 , 150 additional single family dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2020 . (iv) Commencing in 2014 , 52 additional single family dwelling units and 98 multifamily dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2021 . Development of a recreational/clubhouse on 1 . 5 acres may commence in 2014 or any time thereafter and under the County' s development regulations is not subject to concurrency and is therefore deemed vested . Development of 20 , 000 square feet of Neighborhood Commercial uses may also commence in 2014 or any time thereafter and shall remain vested for traffic concurrency through December 31 , 2021 , subject to Paragraph 7 . B . of the Amended Developer ' s Agreement . (v) Commencing in 2015 , 150 additional single family dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2022 . Development of a recreational/clubhouse on 2 . 4 acres may also commence in 2015 or any time thereafter and under the County ' s development regulations is not subject to concurrency and is therefore deemed vested . (vi) Commencing in 2016 , 26 additional single family dwelling units and 124 multifamily dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2023 . Development of a recreational/clubhouse on 4 . 2 acres may also commence in 2016 or any time thereafter and under the County' s development regulations is not subject to concurrency and is therefore deemed vested . (vii) Commencing in 2017 , 113 additional single family dwelling units may pull building permits and shall remain vested for traffic concurrency through December 31 , 2024 . B . The two dates specified in paragraphs 3 . A . (ii ) — (vii ) are the dates between which building permits for the development specified in each provision RM : 7031940 :9 Page 3 of 14 must be pulled in order to maintain the vesting of the applicable dwelling units or nonresidential development . The vesting provided for in paragraphs 3 . A . (i) — (vii) shall lapse for dwelling units or nonresidential development for which a. building permit has not been pulled before the expiration of the applicable vested period . C . An approved use may be exchanged for any other approved use so long as the exchange of uses does not generate additional net external p . m . peak hour trips . D . The County acknowledges that it has loaded all of the trips from the 1 , 596 dwelling units , the recreational/clubhouse use, and the school site in Waterway Village onto its road system for concurrency modeling, and those respective uses shall remain vested and reserved for the Waterway Village DRI until the timeframes to pull building permits as set forth in Subsection 3 . A . above have expired . E . The Developer acknowledges that Waterway Village is vested only for traffic concurrency and will not be vested for other facilities pursuant to this Agreement or the DRI Development Order. Waterway Village may become vested for all other facilities at any time by the Developer applying for a concurrency certificate under the County' s concurrency management system, obtaining approval for such certificate based upon availability of capacity, and paying all other impact fees . 4 . Intersection Improvements : The County and the Developer desire to address the conditions of the Amended and Restated Development Order relating to intersection improvements as follows : A . The Developer agrees to plan, survey, design, permit, and construct the intersection improvements identified in Exhibit "B " on or before the date or event specified in the Amended and Restated Development Order. Prior to construction, the Developer shall relocate all conflicting utilities . The Developer also agrees to identify needed right-of- way, prepare legal descriptions and parcel sketches , prepare appraisals , negotiate and obtain county approval of purchase prices , and acquire the needed right-of-way. The Developer shall invoice the County for costs of appraisals and for closing costs , including purchase price, and the County shall reimburse the Developer pursuant to paragraph 8 , below . If the Developer is unable to acquire the needed right- of-way or if the County disapproves a reimbursable cost, the County agrees to initiate the eminent domain process within thirty (30) days notice by the Developer that the right-of- way could not be acquired through negotiation . The County, through its Public Works Director or his designee , shall have thirty ( 30) days to review and approve reimbursable costs . Failure to reply to the Developer within thirty ( 30 ) days shall constitute approval . RM : 7031940 : 9 Page 4 of 14 B . The Developer shall contribute to the County the following sums of money toward the Intersection Improvements specified below ("Contribution Amount") . The Developer shall not receive compensation or impact fee credits for these Contribution Amounts . See Exhibit "C" attached hereto and made a part hereof. C . The Developer agrees to plan , survey, design, permit, and construct the Intersection Improvements at 45th Street and 58th Avenue on or before the date or event specified in the Amended and Restated Development Order, provided, however, that the County shall be responsible for and shall pay 81 . 93 % of such costs . The County shall be responsible for 100% of the costs for appraisals , closing costs , and the purchase price if additional right- of- way is acquired by the Developer. If additional right- of-way is required to make the Intersection Improvements , the Developer agrees to identify the required right-of- way, prepare legal descriptions and parcel sketches , prepare appraisals , negotiate and obtain County approval of purchase prices, and acquire the needed right-of- way. The County shall be responsible for 100 % of appraisal costs and closing costs , including purchase price, for such additional right-of- way, and the County shall reimburse the Developer pursuant to paragraph 8 below . If the Developer is unable to acquire the needed right-of- way or if the County disapproves a reimbursable cost, the County agrees to initiate the eminent domain process within thirty (30) days notice by the Developer that the right-of-way could not be acquired through negotiation . The County, through its Public Works Director or his designee, shall have thirty (30) days to review and approve reimbursable costs . Failure to reply to the Developer within thirty ( 30) days shall constitute approval . D . The Developer' s obligation with respect to the Intersection Improvements identified in the Amended and Restated Development Order, paragraphs 16 , 19 through 29 , shall be deemed satisfied so long as the Developer is in compliance with this Amended Agreement . The County shall not withhold any approval or permit because of the condition of any intersection so long as the Developer is in compliance with this Amended Agreement . 5 , 53rd Street : The Developer will plan ; provide right-of-way (without compensation) ; design ; permit ; and construct 53rd Street as a four- lane divided roadway from 58th Avenue east to the Developer ' s eastern boundary according to the timetable and/or event schedule approved by the County in the Amended and Restated Development Order. The Developer shall : (a) work with the County ' s Engineer to coordinate the roadway design with the design of the bridge across the Lateral H and North Relief canals ; and (b) submit engineering plans to the County for its review and approval prior to the commencement of construction of 53rd Street . Utility relocation shall be included . A . The County shall have the right to approve the scope of work and compensation for the design and engineering phase of this project . The County RM : 7031940 :9 Page 5 of 14 shall not unreasonably withhold or delay such approval . Failure to reply to the Developer within thirty ( 30) days shall constitute approval . B . The Developer and the County shall share equally the cost of construction, design , and engineering of 53rd Street from 58 `h Avenue to the east property line of Waterway Village ; provided, however, that the County ' s obligation for the cost of landscaping shall be limited to one-half of $ 100 , 000 . 00 per mile . The Developer shall fund and install all border landscaping. C . The Developer shall have no responsibility for the design, engineering, or construction costs of 53rd Street east of the Developer ' s east property boundary, or for the bridges across Lateral H and North Relief canals . D . The Developer' s obligation with respect to 53rd Street, identified in the Amended and Restated Development Order and otherwise, shall be deemed satisfied so long as the Developer is in compliance with this Amended Agreement, and the County shall not withhold any approval or permit because of the condition of 53rd Street as long as the Developer is in compliance with this Amended Agreement . E . At the time the County accepts title or dedication from the Developer for the 53rd Street right-of-way, the County shall execute a release of any interest the County has in Murphy Act right-of-way for the existing 53rd Street located in Sections 21 and 22 , Township 32 , South, Range 39 East, Indian River County, Florida, including, but not limited to , the reservation of road right- of-way described in Deed Book 66 Page 35 , Deed Book 67 Page 267 and Deed Book 60 Page 86 , Public Records of Indian River County, Florida. F . The construction of 53rd Street as described above will require the excavation of a lake to receive the drainage from 53rd Street ("the Lake") . The Developer agrees to dig the Lake, to install the required drainage pipes from 53rd Street , and to allow 53rd Street to drain into the Lake and thereafter to furnish appropriate easements to the County for the use, maintenance and replacement of such piping. The County agrees that the mining activities associated with extracting and transporting of this fill will not be charged against the limited duration of the incidental to construction mining permits issued to the Developer for the development . G . The Developer agrees to furnish the County fill (not to exceed 100 , 000 cubic yards) for use by the County in the construction of 53rd Street east of the Lateral H . Canal . The fill will be at no cost to the County but the County will be responsible for arranging and paying for the costs of loading and transporting the fill . The County agrees that the mining activities associated with extracting and transporting of this fill will not be charged against the limited duration of the incidental to construction mining permits issued to the Developer for the development . RM : 7031940 : 9 Page 6 of 14 6 . 58th Avenue : The Developer agrees to construct 58th Avenue as a four- lane roadway between 49 ' Street and 53r Street, at its own expense . Said construction shall commence no later than six (6) months after such time as the traffic modeling done in conjunction with the Annual Report determines that the traffic volumes on 58th Avenue between 49th Street and 53rd Street exceed the adopted level of service or by January 1 , 2015 , whichever occurs first, and shall be completed within twelve ( 12 ) months after commencement . The Developer and the County shall in good faith agree upon the methodology of any such traffic modeling. 7 . Impact Fees : The following impact fee provisions shall be applicable to the development : A . The Developer shall receive traffic impact fee credits for all design, engineering, permitting, and construction costs associated with 58th Avenue and 53rd Street paid or contributed by the Developer, except for those costs associated with site-related turn lanes , site-related traffic control measures , and any landscaping in excess of the landscaping required by County Ordinance or Regulations ("non- reimbursable costs") . Such impact fee credits and costs will include the design configuration of 53rd Street , recognizing that the eagle located within the Development precludes running the roadway in a straight line from Old Dixie Highway to 58th Avenue . The Developer shall construct 43rd Avenue, 51 " Court, and 49th Street improvements within the project or along the project frontage at the Developer ' s sole cost with no impact fee credits allowed . The Developer shall construct sidewalks required by the Amended and Restated Development Order and the approved Planned Development Plan at the Developer' s sole cost and expense with no impact fee credits allowed . B . The Developer agrees to prepay all traffic impact fees ( subject to available impact fee credits) for 1 , 596 dwelling units in Waterway Village no later than December 31 , 2015 , unless those impact fees are paid earlier at the time of the issuance of building permits . The Developer shall have the option to prepay the traffic impact fees for the 20 , 000 square feet of Neighborhood Commercial uses by December 31 , 2015 , or at such time as the Developer elects ; provided however, the 20 , 000 square feet of Neighborhood Commercial uses will not be vested for traffic concurrency if the traffic impact fees for the Neighborhood Commercial uses are not paid by December 31 , 2015 . The Developer acknowledges that any impact fees paid to the County are non- refundable under the County' s Code of Ordinances . 8 . Invoices : Any invoices submitted by the Developer to the County for the County' s payment shall be reimbursed by the County according to the Prompt Payment Act . ( Sections 218 . 70- 218 . 80 , Fla, Stat . 2004) . 9 , Project Bids : The Developer shall not be required to publicly bid the work described herein, but all work performed by the Developer shall be subject to the RM : 7031940 :9 Page 7of14 reasonable determination by the County that the costs incurred for such work were normal and customary. 10 . Stormwater Management : The Developer agrees to incorporate, at no cost to the County, sufficient capacity in Waterway Village to accommodate stormwater storage and other St . Johns River Water Management District mandated permit conditions , effective on the date of permit issuance, for the impervious area for the following roadway sections and associated intersections : 53rd Street from King ' s Highway (58 `h Avenue) to the eastern boundary of Waterway Village ; 43rd Avenue from 49 ` Street to 53rd Street ; 491h Street project related turn lanes ; and King ' s Highway ( 58 `h Avenue) four- lane widening along the project frontage . The County agrees that the mining activities associated with extracting and transporting of this fill will not be charged against the limited duration of the incidental to construction mining pen-nits issued to the Developer for the development . The capacity shall be such as to accommodate the drainage for the described section of 53rd Street if and when it is widened to six lanes . As part of its design and construction of 53rd Street described herein, the Developer shall design, permit, and install drainage improvements to direct the drainage from the future widening of 53rd Street to six (6) lanes . The County shall reimburse the Developer for all incremental costs incurred to accommodate the increased drainage from a four-lane road to a six- lane road, such as , but not limited to , any increase on price for larger pipes . Further, the Developer ' s obligation shall be deemed satisfied when the County issues a Certificate of Completion for 53rd Street as a four- lane road . 11 . Insurance and Indemnification : During the Developer' s performance of any construction in County right-of-way covered by this Amended Agreement , the Developer shall provide the County with evidence that the Developer or the Developer' s Contractor has obtained and maintains the insurance listed below . A . The Developer or the Developer ' s Contractor shall procure and maintain for the duration of all construction contracts , insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Developer, his agents , representatives , employees or sub- contractors . B . Minimum Scope of Insurance ( 1 ) Worker' s Compensation as required by the State of Florida. Employers Liability of $ 100 , 000 each accident , $ 500 , 000 disease policy limit, and $ 100 , 000 disease each employee . (2 ) Commercial General Liability $ 1 , 000 , 000 combined single limit per accident for bodily injury and property damage . The County shall be an additional insured. Auto Liability $ 1 , 000 , 000 combined single limit per accident for bodily injury and property damage for owned and non- owned vehicles . The County shall be additional insured . RM : 7031940 : 9 Page 8of14 (3 ) Professional Liability Insurance providing coverage for intentional , reckless or negligent acts , errors , or omission committed or alleged to have been committed by the Developer ' s Engineer with a limit of $ 500 , 000 per claim/annual aggregate . There shall be no more than $ 5 , 000 deductible per claim amount unless approved by the County Risk Manager. Any deductibles or self-insured retentions greater than $ 5 , 000 must be approved by the Risk Manager for Indian River County with the ultimate responsibility for same going to the Developer. C . The Developer' s insurance coverage shall be primary. D . All above insurance policies shall be placed with insurers with a Best ' s rating of no less than AV . The insurer chosen shall also be licensed to do business in Florida. E . The insurance policies procured shall be per occurrence policies or as generally available on the open insurance market . F . The Insurance Carriers shall supply Certificates of Insurance evidencing such coverage to the Indian River County Risk Management Department prior to the commencement of any work in a County right-of-way. G . The insurance companies selected shall send written verification to the Indian River County Risk Management Department that they will provide thirty ( 30) days written notice to the Indian River County Risk Management of its intent to cancel or terminate said policies of insurance . H . A written safety inspection plan must be submitted to the Indian River County Risk Management Department for approval prior to the commencement of any work in a County right-of-way. 1 . The Developer shall include in all sub - contracts for sub - contractors the above insurance requirement or show them as insured under its policies or shall furnish separate certificates and endorsements for each sub - contractor. All coverages for sub- contractors shall be subject to all of the requirements stated herein . J . Up to $ 1 million, the Developer hereby agrees to indemnify Indian River County and Representatives thereof from all claims arising solely from intentional , reckless or negligent acts , errors or omissions of the Developer or the Developers ' Representatives in the performance of Services under this Amended Agreement and for which the Developer is legally liable . RM : 7031940 : 9 Page 9 of 14 12 . Indian River Farms Water Control District Ripaht-Of-Way : Indian River Farms Water Control District ("District") is in possession of right-of-way which traverses Waterway Village, and which is more particularly described on Composite Exhibit "D " attached hereto and made a part hereof ("District Right- of- Way") . The Developer and the District have entered into an agreement ("Agreement") which provides that the District shall convey title to the District Right- of- Way to the County, to be held in escrow , until the County can comply with the terms of this paragraph . The County hereby agrees to convey to the Developer, by County deed, if appropriate, or by abandonment to the Developer as the adjacent property owner, the District Right-of- Way, as part of the consideration of this Amended Agreement . The Developer shall be responsible for obtaining its own title insurance, and any costs associated with said conveyance, including surveys , documentary stamps, or recording fees . If the County is unable to convey title to the District Right-of- Way to the Developer by September 8 , 2006 , then the Developer shall have the option to direct the Escrow Agent under the Agreement, to return the deed for the District Right- of-Way back to the District and return to the Developer the Purchase Price held in escrow under the Agreement . The County ' s conveyance of the District Right-of-Way to the Developer shall be a release of any interest the County has in the District Right-of- Way. 13 . Attachment to Amended and Restated Development Order : Upon approval and execution by the Developer and the County, this Amended Agreement shall be attached as an exhibit to the Amended and Restated Development Order, in accordance with the terms of the Amended and Restated Development Order. 14 . Failure to Perform . If the Developer fails to perform its obligations as set forth in this Amended Agreement, the County shall give the Developer written notice of such failure and a sixty day opportunity to cure, provided that if such failure cannot reasonably be cured within such sixty day period and the Developer shall have commenced to cure such failure within such sixty day period and thereafter diligently and expeditiously proceeds to cure the same, such sixty day period shall be extended for so long as it shall reasonably require the Developer in the exercise of due diligence to cure such failure . Upon the failure of the Developer to timely cure its failure to perform its obligations in accordance herewith, then the County shall have the option of electing to seek specific performance of such obligations or to treat the vesting for traffic concurrency provided for in Subsection 3 . A . above as terminated . 15 . Miscellaneous : A . In the event of any litigation arising out of this Amended Agreement, the prevailing party shall recover attorneys ' fess and costs for the non-prevailing party. B . No amendment, modification, change, or alteration of this Amended Agreement shall be valid or binding unless accomplished in writing and executed by all of the parties hereto . RM : 7031940 :9 Page 10 of 14 C . This Amended Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors , and assigns . D . This Amended 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 parties hereto . This Amended Agreement shall not be effective unless signed by the Developer and the County. E . The obligations of the Developer to this Amended Agreement are expressly conditioned upon the Developer' s decision, at the Developer' s sole discretion , to proceed with the Project. F . No Building Permit , Certificate of Completion, or Certificate of Occupancy shall be withheld or delayed by the County for Waterway Village or any portion thereof, nor shall the County delay or withhold any other required permits , due to the County' s failure to perform any obligation described herein, provided that the Developer is in compliance with this Amended Agreement, all other elements of the Amended and Restated Development Order and applicable laws and regulations . G . Except as described herein and in the Amended and Restated Development Order, the County shall not require the Developer to construct, contribute to , or share in the costs of any off- site improvements other than the payment of or credits toward applicable impact fees . H . This Amended Agreement and all matter 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. Time shall be of the essence . I . This Amended 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 Amended Agreement . J . Whenever the singular number is used in this Amended Agreement and when required by the context, the same shall include the plural ; and the masculine, feminine, and neuter genders shall each include the others . K . The County and the Developer shall grant such further assurances and provide such additional documents as may be reasonably 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 Amended Agreement . RM : 7031940 :9 Page 11 of 14 L . Failure to insist upon strict compliance with any of the tenns , covenants , or conditions herein shall not be deemed a waiver of such teens , 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 . M . All words , terms , and conditions contained herein are to be read in concert, each with the other, and a provision contained under one paragraph may be considered to be equally applicable under another in the interpretation of this Amended Agreement . N . The words herein and hereof and words of similar import, without reference to any particular section or subdivision of this Amended Agreement, refer to this Amended Agreement as a whole rather than to any particular section or subdivision hereof. O . In the event any teen, condition, or clause of this Amended 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 Amended Agreement. 16 . Effective Date of Amendments : The amendments set forth in this Amended Developer' s Agreement ( as compared to the original Developer' s Agreement, dated December 13 , 2005 ) (collectively "Developer ' s Agreement Amendments") are part of a settlement ("Settlement") of certain claims asserted by DiVosta, including, without limitation, claims set forth in that certain complaint filed in the Circuit Court , Indian River County, Florida, styled DiVosta Homes , L. P . , et al v . Indian River County, Florida, case # 20070109 CA 19 ("Lawsuit") and claims presented under the Bert J . Harris , Jr. , Private Property Rights Protection Act ( collectively " Claims ") . The terms of the Settlement of the Claims is set forth in the Developer' s Agreement Amendments , the Development Order Amendments (as defined in Resolution 2010- 037 , constituting an Amended and Restated Development Order pertaining to Waterway Village) , and a Settlement Agreement executed by the parties simultaneously with the execution of this Amended Developer' s Agreement ( collectively "Settlement Documents ") . In an abundance of caution, the parties have elected to seek Circuit Court approval in the Lawsuit of the Settlement and Settlement Documents . The Settlement and Settlement Documents shall be effective as of the date of Circuit Court approval , and conclusion of all appeals , if any. If, for any reason , a final Circuit Court approval of the Settlement and the Settlement Documents is not obtained, then the Settlement and the Settlement Documents shall be null and void . RM : 7031940 :9 Page 12 of 14 IN WITNESS WHEREOF the County and the Developer have caused these presents to be executed in their names , the day and year first above written . DIVOSTA HOMES , L . P . BOARD OF COUNTY COMMISSIONERS a Delaware limited partnership INDIAN RIVER COUNTY, FLORIDA By: DiVosta Homes Holdings , LLC , a Delaware limited liability company, its General Partner 01 By qo4ae4lor Zee -- ` pp°pppb °ptl° y . ° OO , . N . . . . a •� ° °O Print Name : / I dlwt4kL Print Name : Peter D . 411!ign:�?44 ,.� ' '' S ' °%° Its : lne i sed - Its : Chairman °� � •' � BCC Approved : May 11 2010too Q '. ��° • ° % 00 Fee 06 WITNESS : By: N / A °° Vd • . . ; e ° °° Name : N / A °°•��NER G��•°° ° ° tlY° Ytl Mb Ybb ° WITNESS : (Corporate seal is&Qceptable in place of witnesses) RM :7031940 :9 Page 13 of 14 Attest : Jeffrey K . Barton , Clerk of Court By • ro Deputy Clerk of Court ! /7 Name : 64 (Approved as to Form and Legal Sufficiency) STATE OF FLORIDA ) COUNTY OF ®� � ) ss : The foregoing instru ,pent was acknowledged before me this lc,,2e..0' of 2010 , byte sV1, ' ,6 of DiVosta Homes Moldings , LLC , a Florida limited liability company, in its capacity as the general partnerof DjVosta Homes , L . P . , a Delaware limited partnership . Personally known O or produced as identification . NOTARY PUBLIC Sign a Print 12/1'x.tic-.} A s State of Florida at Large My commission expires : ( SEAL) Serial Number, if any : J iAlsY Pjb1.t1 - S'1'AI'E OF FLORIDA ,,elu rl ,,es Kathryn A. Bowes Commission # DD581103 °•.,, ,,, ' Expires: SEP 13, 2010 BONDED THRU ATIA,N11C BONDING CO., INC. RM : 7031940 :9 Page 14 of 14 EXREBIT A n4�AsT PART OF rrM SW 1 /4 OF SECTION 15 , TOWNSIGM 32 Spur', RANGE 39 IL4ST, LYING SOUTH OF THE NORTH BELIEF .CANAL; THAT FART OF TI. SW 1/4 qETF�E SF 1/4 OF SEC76TON 15 , TOWNSF1' 32 SOM, RANGE 349 EAST, LYING SOi.,TIZi OF lu4S NORTE RELLIEF CANAL AND WM OF LATMLAI "H" CANAL; TIM SO[vrM 1 /2 OF THE SOL7H 1:2 OF - SECITON 16 , TOWNSHIP 32 SOUTH, RANGE 39 PAST , LYING .9OLT.I OF rM NORTH RELIC CANAL; TIM MW 1/4 OF SEC TION 23, TOWNSHIP 32 , SMTM, RANGE 39 EAST, A24D TI3.4T PART OF 'ITIS NW 114 OF THE NE LI4 OF SEC710N 22 , TOWNS;M" 32 SOL7Rq RANGE 39 EAST, LYING WEST OF LATERAL "H" CA,NqI", ,ka YING AM BETNG TN lYMMN RIvSR COtINTY, FLOI MA, AND TRACTS 1 TlrMoLi3H S, NCLUSIVE SECi70N 21 . TOWNSHIP 32 SOtP L RANGE 39 EAST, ACCORDING To Tom. LAST GENERAL PLAT OF LAND OF THE INDIAN RIVER FAMAS CDMPAW7, NrDS , AS P.507ROED IN Pl.kT BOOK 2, PAGE 25 OF TTM PL MUC .RECORDS OF ST, LUCIF. COLTN7Y, r'LORMA; SAID I-A 2N ] NOW LYING A.ND SENO NAT L2'sM LA.N RIVE,r, FLORIDA . LESS AND EXCEPT: TKE SOL)T"H 60. 00 FEET OF TRACTS 5 rHIROUGH 81 INCLUSIVE OF SEMON 21 , TOWNSHIP 32 SOUTH, RANGE 39 EAST, ACCORDING TO I LA T GENERAL. PLAT OF - LANDS OF THR INDIAN -RIVER FARMS CON 2 4222 -y :.ANDS RECORDED IN PLkT BOOK 21 PAGE 2S, ST, LUCM CCLNT TY; FLORM. A,, PuBLjC RECORDS, NOW LYING AND BEING LN NDLkNI RrvrBKR COUINI^', FLORIDA. Tl OCrEI W17H THE SOL"ITi 60 .00 FEET OF THE NORTHWEST QUARTER OM) OF S$CT-IOX ??, TOWNSHT 32 SO=) RANGE 39 EAST, INDIAN RIVER COUNTY, FLORIDA, AND LESS AND EXCEPT ; THE NORTH 12 FEET OF THE SOME 72 FEM OF 'IIE E.kST 115x .9 F Fr OF TRACT 7, AND THE NORTH 12 FEET OF TIM SOLrrH 72 OF TF-'�, FEST 641 . 1 FEET OF TRACT 8 , IN SECTION 21, TOWNSHM 32 SOUIH, RANGE 29 Z,ST, ACCORDING TO TINE LAST GM4MU . FLAT OF LANDS OF TRE INDIAN' R VPR F'ATLm COMPANYs .RECORDED LN PLAT BOOK 2, PAGE 25 , OF THE PUBLIC RECORDS OF ST . L1 ! CIE COUN 7Y, FLOR. DA; SAID LAND NOW L t ING AND BEING IN IND;AX R1VEt COt NTY, =4 = A_ CONTADZING 696 . 642 ACRES , MORE OR iESS EXHIBIT B WATEIiWAV VILLAGE DEVELOPER FUNDED INTERSECTION IMPROVEMENTS r NTERSECTION IMPROVEWNTS CONDrr1ON . ue tens �orary entrance includin flasher conn. signal 16 t & 58th Avenue, including fiill traffic si al 19 & 5lst Court, includin flasher convertible signal 19, 27 t & 4.ird Avenue, including flasher convertible sic=nal 19 do 43rd Avenue. includiqghasher convertible si anal 14 &. 51st Court, including flasher convertible signal 19. ? 8 L45thStrect ,A& 58th .Avenue, including full traffic signal 20 k 58th Avenue. including full trallic si nal 20 . 43rd Avenue. including full traffic signal 2? u :rr+planl[1tR i{YJ7Cr11'n�'Ricvcl. peragreement c0ubusffl E rr C WATERWAY VVIL.i.,AGE DEVELOPER CONTUIBL'TION Shy FOR > T MRSEC ION U�WROVEMENTS TOTAL COST MCENTAGE DEVELOP;~ IIKTERMMON IMMOVENMVTS CON DMON # Off' 94MOVL14EM ()F II1l3'AGT cONTItiBU7 th Sheet 43rd Avenue 21 11141 5300 044 5.70°r6 $7, ? . ] 0D 6th Streef & 5ft Avenue 23 584.404 144% $ 5 .952 53rd Sweet & US 1 23 51Q0,000 9.42°Jo SR 64 & 43rd Avem a 24 57,000.000 2. 19'% S 153. 34E SR 64 & 58th Avenue 25t29176% M IM 2.76° $ t 10,1300 9th Street & CS 1 26 $120.040 5.49% 56,588 Old Dixie Fri w � 49th St�,ct° 29 $544,000 5 .49% S2',4Sfl $ 12; 100,000 X330,210 Indian kivcr ca°aty d[d Aa cegiero a, .�ulyeEa aruias tvsr.ectlen ibere�oo m waft dam u ewaawc IU prnwnlgge tmpm to bbd! tpon Ula 49mm US 1 imp = aspfplatminglwWmvayldev�l, n ''P e5=eemcnt c. #D S LM Lawson , � bl® & ebb Inc. sual #{ aRRe • �LA % bE % a • BU' 91l�eYowa 4766 Cr4lfio!!a L►, Mft 110P W&M PAM 6mbek K == Imt1) ead4mm k im (m!k ) "do4a4Z • W* tet Week Pdm Beeoh . Part 8L Loch► a orhr& . Vero 8a.eh g SAM I LE 0874 PA.C, kvURAMa� swims m as OrVOL •A- II83a0402' 1TS7"W 30.00 Q Ad ' CANAL RAW + 589"4C12i•£ # Ssa 2 7.63 ACRE!,, 4 / { 4 1 . C �� - • � � N09•g0'26•W 0. 11'37•[ ttul —selnkxwv or , , FE ! 1 l0.oa MALT I NaCTRAcr o- 1 Zl T►yP -: :. RM. YJ E SCCrw 2L Tw 1t r, FM 2D Esotrt U TTWP . : � irx %4,j G I I s PIAT of Loos Ain ruw0= w L" ftuJAW AND Wde R7brvATCtbt I CANAL R/W MOM mxarla: um mcumtl N00.14'46'[ g 7.6 ACRES +/- 30AC T r+ G=m LAE $ ��_ _ • IO�G•£ CtOTAiJ ezcnmits aim 634821 a ra 413P"E C1 AL) 2mG7' I te9"40 26"W 634U S, zs tA» .� N679•q 1'3?•W a 1'titLT : aaunisamorTrc (TOTAL) , saw f70TQ[.) z9BL41' e ~ .'s 5U':rida Z : d'OAiC MAD I Ty7Y.F� . 1. 1�1 n&l ZG TVA'• SL .. RCL CA. r.4 G 1 N.W. tea CJI'' 4I �` MOM A?Wll fAPM. �KLt%T ICIYalI�C KAY or uw M AM PLAN PM Luo AAmlca 04, Almod "t0m- m 5B9°4 S'32 "EE Trm H CANA1. 2854 .2 i ' _ IIS' RAM of f r GECTXN tt Set aTAL 504.42n2'E �, gyp, 599.4'3 . I70TW ) 3P6 - tTOTALt 410 ' lo CANAL R/W S"womp t 7.63 ACRES +/- 1 KW. Y4 of m�it>k P2. TNT. 92 L• RISE T9 G ^88'40'26'L 1 40,00' 00'• I T'577W tW45!4m? l4)ZNZ n : 'c 30.Q0r31 N8•4b'2kTT .B. a NOT TO SCALE. P. Q.B . P.Ob. a POINT OF BEGi O&MP.O.C. - POINT OF CO,VB�Ir7�ICEAdFJ,1T'P"T DOMCPAGERGE • RANGER/W . AMT• OF-WAYTi a ran •a- u:s TWP • TOWNSHIP DATE 06-1$-06 e`:: DDH CKX- 0L5 n %w A774=W JM NO.; A774minljftmftSHEET Z Gr Z EAHI )IL . "b "