HomeMy WebLinkAbout2010-120B 5 - 11 - 1CJ
SETTLEMENT AGREEMENT
This SETTLFMENT AGRFEMENT ( this " Agreement" ) is made and entered into as of the
1 1 th day of May , 2010 by and between INDIAN RIVER COUNTY , a political
subdivision of the State of Florida ( " IRC " ) , and DIVOSTA HOMES , L . P . , a Delaware limited
partnership ( " DiVosta " ) .
RECITALS .
A . On November 9 , 2004 , the Board of County Commissioners of IRC approved by
Resolution 2004 - 137 a Development Order for a 1596 unit Development of Regional Impact known
as Waterway Village ( as amended to date , the " Development Order") . On December 13 , 2005 , the
Board of County Commissioners approved a Developer ' s Agreement with DiVosta for Waterway
Village ( the " Developer ' s Agreement") , which Developer ' s Agreement provided for
implementation of various terms in the Development Order .
B . Concurrency Certificates were issued in March of 2006 for 733 units within
Waterway Village Phases I A , I B , 1 C and Phase IIA . A controversy arose with IRC when it took the
position that all "development orders" and " development permits , " as defined in Chapter 163 . 3164
( 7 ) and ( 8 ) , were subject to the concurrency requirements of Chapter 163 . 3180 of the Florida
Statutes , and therefore each new phase of Waterway Village must be tested for concurrency prior to
approval of such phase .
C . DiVosta takes the position that the entire Development of Regional Impact for
Waterway Village (the " DRI ") was vested for purposes of concurrency , among other reasons , by
virtue of language in Florida Statutes Section 163 . 3167 ( 8 ) and in Indian River County Land
Development Code Section 910 . 03 ( 5 ) , which are substantially similar .
D . On January 31 , 2007 , DiVosta filed a Complaint in the Circuit Court of Indian River
County , Florida under Case No . 20070109 CAI 9 ( the " Lawsuit") , seeking , among other things , a
declaration of its rights that the DRI was vested in its entirety for traffic concurrency , and DiVosta
has made a claim under the Bert . Harris Private Property Rights Protection Act ( the ` Bert Harris
Claim " ) .
E . IRC and DiVosta have worked in good faith to resolve these disputes and have agreed
to do so pursuant to the terms and conditions contained in this Settlement Agreement ,
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F . This Agreement is being entered into pursuant to authority under the County ' s Home
Rule Powers , County Codes , and State Statutes , specifically including Florida Statutes Chapter 70
(The Bert . Harris , Jr . , Private Property Rights Protection Act) .
G . The parties do not believe that the Settlement ( as defined below) will have the effect
of a modification , variance , or a special exception to the application of a rule , regulation , or
ordinance , as it would otherwise apply to the Waterway Village real property ( other than possibly the
timing of payment of certain impact fees and capacity charges) , or would have the effect of
contravening the application of a statute as it would otherwise apply to the Waterway Village real
property . However, in an abundance of caution and to facilitate settlement of the Bert Harris Claim,
IRC and DiVosta acknowledge and agree that the terms of this Agreement ( i ) shall protect the public
interest served by the regulations at issue and is the appropriate relief necessary to prevent the
regulatory effort from inordinately burdening the Waterway Village property , and ( ii ) shall protect
and benefit the public interest .
NOW , THEREFORE , in consideration of the foregoing mutual covenants and agreements
contained in this Settlement Agreement and for other good and valuable consideration , the receipt
and sufficiency of which are hereby acknowledged , DiVosta and IRC , intending to be legally bound ,
agree as follows :
1 . Recitals : The recitals set forth above are true and correct and are incorporated herein
by reference .
2 . Settlement Terms , DiVosta and IRC have agreed to the amendments to the
Development Order and to the Developer ' s Agreement as set forth in Exhibit " A " and Exhibit "B "
attached hereto and incorporated herein by this reference , which amendments set forth the settlement
between the parties (" Settlement" ) .
3 . ExchanjZe of Settlement Documentation : The parties agree to exchange the
following settlement documentation :
A . Stipulation of Dismissal with Prejudice of Lawsuit : Counsel for IRC within
five ( 5 ) days after the execution and delivery of this Settlement Agreement shall
execute a Stipulation for Approval of Settlement Agreement and Dismissal with
Prejudice of the Lawsuit against IRC in the form attached hereto as Exhibit " C . "
Thereafter , the signed Stipulation for Dismissal With Prejudice of the Lawsuit
against IRC shall be sent to counsel for DiVosta who will sign and hold the same
in escrow pending the final and non - appealable approval and adoption of ( i ) the
Amended and Restated Development Order described in 3 . 13 . below , and ( ii ) the
Amended Developer ' s Agreement described in 3 . C . below , whereupon the signed
Stipulation shall be filed with the Court along with an Agreed Final Order
Approving Settlement Agreement and Dismissing Case , With Prejudice in the
form attached hereto as Exhibit " D " , for signature by the Court . If for any reason
a final and non - appealable Agreed Final Order Approving Settlement Agreement
and Dismissing Case , With Prejudice does not become effective in the attached
form or in a form otherwise acceptable to DiVosta and IRC , then the terms of this
Settlement Agreement shall become void and ineffective and the parties hereto
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shall be returned to their respective legal positions prior to entering into this
Settlement Agreement ,
B . Amendments To Development Order : Attached hereto as Exhibit " A " is the
amendment of the Development Order (the " Amended Development Order" )
which has been approved by IRC . If for any reason a final and non - appealable
Amended Development Order does not become effective in the attached form or
in a form otherwise acceptable to DiVosta and IRC , then the terms of this
Settlement Agreement shall become void and ineffective and the parties hereto
shall be returned to their respective legal positions prior to entering into this
Settlement Agreement .
C . Amendments To Developer ' s A14reement : Attached hereto as Exhibit "B " is
the amendment of the Developer ' s Agreement (the " Amended Developer ' s
Agreement" ) which has been approved by IRC . If for any reason a final and
non - appealable Amended Developer ' s Agreement does not become effective in
the attached form or in a form otherwise acceptable to DiVosta and IRC , then the
terms of this Settlement Agreement shall become void and ineffective and the
parties hereto shall be returned to their respective legal positions prior to entering
into this Settlement Agreement .
D . NOPC : DiVosta has submitted a Notice of Proposed Change to the DRI to IRC ,
Treasure Coast Regional Planning Council and the Florida Department of
Community Affairs , consistent with this Settlement Agreement, and has paid the
filing fees associated with those Clings .
4 . Releases : Conditioned upon the final , non - appealable approval and delivery of the
Amended Development Order and the Amended Developer ' s Agreement in a form acceptable to IRC
and DiVosta, the parties shall hereby release each other from all claims , actions and damages arising
from the matters alleged in the Lawsuit and the Bert Harris Claim , as applicable . In the event the
Amended Development Order and the Amended Developer ' s Agreement are not approved in a final
and non -appealable form acceptable to IRC and DiVosta, then this release shall become void and
ineffective and the parties hereto shall be returned to their respective legal positions prior to entering
into this Settlement Agreement .
5 . Notices : All notices and communications required or pennitted to be given hereunder
shall be in writing and hand delivered or mailed by certified mail , return receipt requested ( postage
prepaid ) , or sent by Federal Express , or similar overnight delivery service , addressed as follows :
If to DiVosta Homes , L . P . : If to IRC :
DiVosta Homes , L . P . Office of County Attorney
9240 Estero Park Commons Blvd . Indian River County
Estero , FL 33928 1840 25 'x' Street
Attn : Ryan Marshall Vero Beach , FL 32960
Attn : Alan Polackwieh , County Attorney
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rT (:4
With a copy to : With a copy to :
Ruden McClosky P . A . Shubin & Bass , P . A .
222 Lakeview Avenue , Suite 800 46 S . W . I " Street , 3 `d Floor
West Palm Beach , FL 33401 Miami , FL 33130
Attn : Steven R . Parson , Esq . Attn : Juan J . Farach , Esq .
6 . Attorneys ' Fees and Costs : Except as provided for in Section 11 herein , each party
to this Settlement Agreement shall bear their own attorneys ' fees and costs in relation to this
Settlement Agreement , the Lawsuit and the Bert Harris Claim .
7 . Entire Agreement : Except as otherwise indicated herein , the parties agree that this
Settlement Agreement and the attached Exhibits constitute the entire agreement between the parties
executed by them for the purposes of settling and resolving all claims between them which were
asserted in the Lawsuit .
8 . Advice and Authority of Counsel : The parties acknowledge that each has had the
benefit of counsel and full and free access to counsel in connection with the negotiation and
execution of this Settlement Agreement , that each has consulted with counsel in connection with this
Settlement Agreement , and that each has had the opportunity , prior to execution , to read this
Settlement Agreement and fully understand all of its provisions . Should any provision in this
Settlement Agreement require judicial or quasi -judicial interpretation it is agreed that a Court or
other dispute resolution forum interpreting or enforcing the same shall not apply a presumption that
the terms hereof shall be more strictly construed against any party by reason of the rule construction
that a document is to be construed more strictly against the party who itself or through its agent has
prepared the same . The parties agree that this Settlement Agreement is the product and result of a
joint effort .
9 . Governin14 Law : This Settlement Agreement shall be construed in accordance with
and governed by the laws of the State of Florida . The Circuit Court in and for Indian River County ,
Florida , shall have sole jurisdiction over any dispute or in relation to any determination of the
respective right(s ) of the parties in accordance with this Settlement Agreement and enforcing this
Settlement Agreement .
10 . Binding Effect ; Assignability : This Settlement Agreement is fully binding upon and
shall inure to the benefit of the successors , permitted assigns , transferees , agencies and
representatives of the parties hereto . Any reference to any of the parties hereto includes their
successors , permitted assigns , transferees , agencies and representatives . This Settlement Agreement
shall be freely assignable by DiVosta to an entity who becomes the successor developer under the
Development Order .
11 . Claims as to the Settlement Agreement : In the event a claim is brought or action is
commenced by any person seeking to invalidate any provision of this Settlement Agreement then , in
such event the parties hereto agree to cooperate fully with one another for the purpose of upholding
the terms of this Settlement Agreement . In the event there is any breach of this Settlement Agreement
or any litigation between the parties arising out of or connected with this Settlement Agreement, the
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prevailing party shall be entitled to all costs , including, but not limited to , reasonable attorneys ' fees
and costs at all trial and appellate levels .
12 . Authority to Enter Into Settlement Agreement : Each party hereto represents and
warrants that it has full and all necessary authority and power to execute and deliver this Settlement
Agreement and that the Settlement Agreement is and shall be legal , valid , binding and enforceable
against such party in accordance with its terms .
13 . Execution of Settlement A14reement : This Settlement Agreement may be executed in
any number of counterparts , each of which , once executed and delivered , shall be deemed an original
and it shall not be necessary to make proof of the Settlement Agreement or to produce or account for
any counterpart other than the ones signed by the parties against whom enforcement is sought . This
Settlement Agreement may also be executed and delivered via facsimile or electronic mail .
14 . Amendment and Waiver : This Settlement Agreement may not be amended ,
modified , superseded or cancelled , or its terms , representations , warranties , and conditions contained
herein waived unless such amendment, modification , cancellation or waiver is reduced to writing and
signed by the parties hereto .
15 . Further Actions : At any time following the execution hereof the parties shall
execute and deliver all such further instruments or documents and take all such further actions as
may be reasonably necessary or appropriate in order to carry out the terms , conditions and provisions
of this Settlement Agreement .
16 , Waiver of Jury Trial : The parties hereto expressly waive any right to trial by jury of
any claim , demand , action , cause of action , or proceeding arising under or with respect to this
Settlement Agreement , or in any way connected with , or related to , or incidental to , the dealings of
the parties hereto with respect to this Settlement Agreement or the transactions related hereto .
WHEREFORE , the parties have executed this Settlement Agreement on the dates set forth
below their respective signatures .
DIVOSTA HOMES , L . P . , BOARD OF COUNTY COMMISSIONERS
a Delaware limited partnership , INDIAN RIVER COUNTY , a political
subdivision of the State of Florida
By : DiVosta Homes Holdings , LLC ,
its general partner
By : By : .._-
t Peter D . O ' Drzj. ai . A?l _ Chair
It(,.a �cl � � nniciG 1� icc j/4S �ctC9� t la+�l - .
J . K . aX. �n � Cl
Date : S„ NE �7 2010 ATTEST : By
DV. fputy ., , Clerk
Date : May 1 .1 � i1 .10 e -
-_
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APPROVED AS TO LEGAL FORM AND
CORRECTNESS :
13y :
C', 2"1 (2 2,,
Alan Polackwich , County Attorney
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EXHIBIT A. TO SETTLEMENT AGREEMENT
RESOLUTION a. 0P-42010-
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN,
RIVER COUNTY, FLORIDA, MAKING FINDINGS OF FACT AND CONCLUSIONS
OF LAW PERTAINING TO WATERWAY VILLAGE , A DEVELOPMENT OF
REGIONAL IMPACT, AND CONSTITUTING THIS RESOLUTION AS AN
AMENDED AND RESTATED -A DEVELOPMENT ORDER BY INDIAN RIVER
COUNTY IN COMPLIANCE WITH LAW; PROVIDING FOR AN EFFECTIVE DATE
AND PROVIDING A TERMINATION DATE ,
FPQ-I�LGFMDINGS OF FACT
WHEREAS , DiVosta and Company ( "DiVosta" ) has filed a Development of Regional
Impact Application for Development Approval "ADA" in accordance
with Section 380 . 06 Florida Statutes ; and
WHEREAS , the applicant proposes to construct 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 on real property legally described in Exhibit "A" attached
hereto and located in Indian River County, Florida ; and
WHEREAS , on DiVosta filed a Notification of Proposed Change to an
Approved Development of Regional Impact ( "NOPC " ) reauestin >7
amendments to the Development Order for Waterway Villa e and
WHEREAS , the Board of County Commissioners as the governing body of Indian
River County having jurisdiction, pursuant to Chapter 380 , Florida
Statutes , is authorized and empowered to consider Applications for
Development Approval for Developments of Regional Impact; and
Notifications of Proposed Change to an Approved Development of
Regional Impact : and
WHEREAS , the Board of County Commissioners on the 9t" day of November. 2004
held a duly noticed public hearing on the Development of Regional Impact
Application for Development Approval and on the day of i
2010 held a duly noticed public hearing on the NOPC and heard and
considered the testimony taken at the hearings Wit : and
WHEREAS , it has been determined that the following findings of fact pertain to the
Waterway Village development of regional impact :
(a) The proposed development is not in an area of critical state
concern designation, pursuant to the provisions of Section 380 . 06 ,
Florida Statutes ;
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sExhibit 2
1
b
RESOLUTION G04) 2010 -
(b) The State of Florida has not adopted a Land Development Plan
applicable to the urea in which the proposed development is to
be located;
(c) The proposed development, subject to the conditions specified
herein and conditions spec-i-F+eecified in the planned development
approval granted by Indian River County, is consistent with the
Comprehensive Plan and Development Laws and Regulations of
Indian River County ...;
(d) The amendments to the Development Order_ requested by DiVosta
in the NOPC submitted on do not constitute a
substantial deviation .
CONCLUSIONS OF LAW
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, in a Public meeting,
duly constituted and assembled on the 3:' day of �`T^�ber,
2994, that the ADA Develepment ef Regional ; ,,,paet p neation for-
Development
Deyelopme t ^ r,.,reval and the NOPC submitted by DiVosta are and Gamy flY4 hereby
ordered APPROVED , subject to the following conditions , restrictions , and limitations :
Application for Development Approval
1 . The Waterway Village DRI ADA is incorporated herein by reference . It is relied ..
upon, but not to the exclusion of other available information, by the parties in
discharging their statute duties under Chapter 380 , Florida Statutes . Substantial
compliance with the representations contained in the ADA, as modified by
Development Order ( "DO " ) 139 conditions , is a condition for approval .
For the purpose of this condition, the ADA shall include the following items :
a) ADA dated October 29 , 2003 ; and
b) Supplemental infonnation dated February 4, 2004 and March 22 , 2004 ; and
c) Supplemental/Revised plans dated August 25 , 2004 ; and
d) Revised Conceptual PD (planned development) plan dated October 4 , 2004 .
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^`b
RESOLUTION 2. 00-92010 -
Commencement and Process of Development
2 . In the event the developer fails , within e- 1- eighteen months from the effective
date of the DO , to commence significant physical development beyond the
development in existence on the approval date of the DO , development approval shall
terminate, and the development shall be subject to further DRI review by the Council ,
Department of Community Affairs , and Indian River County pursuant to Section
380 . 06, Florida Statutes . For the purpose of this paragraph, construction shall be
deemed to have initiated after placement of permanent evidence of a structure (other
than a mobile home) on a site, such as the pouring of slabs or footings or any work
beyond the stage of excavation or a land clearing, or construction of a permanent
access road .
Phasing
3 . a . The phasing of the development is approved and building beimits shall be issued
and vested for traffic concurrency except as noted as follows :
Commencement Residential/ SingleMultiple Recreational/
Pha Date. Commercial Family Family Clubhouse Other
se Years Vested Dwelling Dwelling
Until muni-& Tiu' Units
is
1 2005-200 12/31 /2016 233 0 2 . 2 acre School site
and
Preservation
areas
2 2012 12/31 /2019 150 0 2 . 7 acre
2006 2097 -34-9
3 2 13 12/31 /2020 150 0 0
200720 5 2K
4 2014 12/31 /2021 52 98 1 . 5 acre 20, 000 sq . ft .
2008 20099 9 Neighborhood
Commercial *
5 2015 12/31 /2022 150 0 2 . 4 acre
20nzv09 20W 264
6 2016 12/31 /2023 2-6 124 4 . 2 acre
20102014
Z 2017 12/31 /2024 113Q 0
Totals 1 , 374 222 13 . 0 acre
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RESOLUTION MO-92010-
* 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 use. are
not paid by December 31 . 2015 .
3 . b . 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 .
3 . c . The Master Development Plan attached as Exhibit B reflects phase boundaries and
typical parcels : provided, however, the geographic phases of development reflected
on the Master Development Plan may be modified, subject to review and approval
pursuant to Section 915 . 26 (2 ) and Section 914 . 06 (5 ) (f) of the Code of Indian River
County, so that the number of residential units specified for a given phase in
Condition 3 . a . may be developed within the geographic boundaries of any phase .
The developer acknowledges that if it elects not to follow the geographic sequence
of development reflected on the Master Development Plan , the developer ' s election
to develop in a different geographic sequence may cause the acceleration of
transportation obligations specified in Conditions 18 through 27 , if necessitated by
local phasing requirements .
3 . d. The developer acknowledges that the Project is vested only for traffic concurrency
and will not be vested for other facilities pursuant to this Development Order or the
Amended Developer ' s Agreement. The Project 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 paving all other imu_act fees .
Buildout Date
4 . This Project shall have a buildout date of December 31 , 2024 291-2, unless otherwise
amended pursuant to the conditions of this DO and Section 380 . 06 , Florida Statutes ,
Termination Date
5 . This DO shall expire on Decembers�0 4-"2Q24 .
24 .
Transfer of Approval
6 . Notice of Transfer of all or a portion of the subject property shall be filed with the
Indian River County Board of County Commissioners . Prior to transfer, the
transferee shall assume in - writing, on a form acceptable to the County Attorney, any
and all applicable commitments , responsibilities , and obligations pursuant to the DO .
The intent of this Provision is to ensure that subsequent property transfers do not
jeopardize the unified control , responsibilities , and obligations required of the project
as a whole .
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RESOLUTION 20N2010 -
and encumbrances to Indian River County as necessary and consistent with the Indian
River County Comprehensive Plan.
14 . The north/south street identified as 51 St Court shall be dedicated to the 7:.= -ffi _v Coun
and remain open sem- as a public street.
External Roadway Improvements
15 . As a minimum, the developer shall pay a fair share contribution consistent with the
road impact fee ordinance of Indian River County in effect at the time of issuance of
building permits . Chapter 380, Florida Statutes , requires that
any DRI DO exaction or fee required shall be credited toward an impact fee or
exaction imposed by local ordinances for the same need. The applicant, through the
PD process , has agreed to dedicate all rights- of-way without compensation, including
traffic impact fee credit . T-4e hese dedications are specified in the PD analysis . Any
exaction receiving credit for impact fees must be in accordance with agreements
between the developer and Indian River County. Certain areas of the site are subject
to Murphy Act Easements . The erazux4yCotm shall release its interest in those
easements in conjunction with the previously described dedication of the necessary
road rights - of-way.
16 . No C . 0 ' s (certificates of occupancy) for Waterway Village DRI shall be issued until
the following roadways have been built in compliance with Indian River County
design standards and regulations :
53rd Street from 58th Avenue to the western most protect entrance with a
westbound left turn lane on 53rd Street at 58th Avenue .
58th Avenue temporary construction entrance , located between 49th Street and 53rd
Street, and provide northbound right turn lanes , southbound left turn lanes , and
flasher convertible signal
17 . Prior to the issuance of a Land Development Permit for Phase 1 , the developer shall
obtain exp-t-yCo� and Indian River Farms Water Control District release of
#z.+ -• their interests in the H- 1 canal and adjacent 53 `d Street existing right-of way .
18 . Prior to the issuance of a certificate of completion for f�+a�@-5;Phase 5 or Phase 7 . the
southern leg of the 43rd Avenue extension, from the northern project entrance on 43rd
Avenue to 49th Street, shall be completed as identified on the master development
plan.
Intersection Improvements
19 . No building permits for Waterway4l �wt-Vill=a e DRI shall be issued t'i) f—
-aii+L1= after January
1 . 2011 until either: 1 ) contracts have been let for the intersection improvements
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4 > q
RESOLUTION ?04-92010-
identified below; or 2 ) a local government developer ' s agreement has been executed
and attached as an exhibit to the DO . Surety shall be provided to the satisfaction of
Indian River County or the Florida Department of Transportation that sufficient funds
will be available to complete the following intersection improvements , including
signalization modifications as warranted by County or State criteria.
® 53r6 Street and 58th Avenue : Signalize intersection and add left
turn lanes on the north, south, and east -a44 approaches .
• 53rd Street/Project entrance (51St Court) : Install flasher
convertible signal- and provide a generator for testing if power
is not available by January 1 . 2011_.
0 5R .� Stfee /GAJ Aye Install flu�uL vle .�iiyeFtible ., t
ll
® 491h Street/Project Entrance (51St Court) : Install flasher
convertible signal .
20 . No building permits for Waterway Village DRI shall be issued for more than 337
dwelling units or after December 31 , 2005 , whichever occurs later, until either: 1 ) a
contract has ee tfaet" h e been let for the intersection improvement �emer�ts
identified below; or 2 ) they ! improvement
identified below has lie been included within the first two years of either the Indian
River County adopted Road Building Program, or the Florida Department of
Transportation adopted Five Year Work Program; or 3 ) a local government
developer ' s agreement has been executed and attached as an exhibit to the D0 .
Surety shall be provided to the satisfaction of Indian River County or the Florida
Department of Transportation that sufficient funds will be available to complete the
following roadway and intersection improvement ^ including
signalization modifications as warranted by County or State criteria.
®gym Ctfeet and C4 "'Ayea ie • Cip ^ lize inter-seetien and
add 1 �{
tam
o lanes
f\ ll /� l'� all apprz/1aehes
`l -m lvu u ,
®gym Strout and
59'h eat e • . Signalize irete •n ti rl add
l �+
0 11tiL Signalize 111LV1 JVl/
tuff lanes aiift all
appr-eaehes V
LLTlZl lolly L� ,_
53rd Street ai+dfrom 58th Avenue to the project entrance (51St
Court) as a two lane roadway,
20a . No later than six 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 53r Street exceed the adopted level of service or
by JanuaLy 1 , 2015 , whichever occurs firstthe forir- lapin _of 58th Avenue
between 491h Street and 53 " - Street shall be commenced and shall be completed
within twelve months after commencement . In the event the develo >jer fails to
commence construction within six months of the date the traffic modeling
submitted or by January 1 . 2015 , whichever occurs first or fails to complete
construction within twelve months after- commencement, the County shall cease
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RESOLUTION 20 ;q 10 -
issuing building permits unless and until the developer commence construction
or cons letes construction. respectively . The following intersection im rovement
shall be completed as part of the four-laning of that Segment :
a 49th Street and 58t11 Avenue : Signalize intersection and add left
turn lanes on all approaches
20b . The County shall notify the developer after the County arrn , i , Pc till nese sa,
V
rights - of-way and completes the design for the following project Within six ( 6)
months from the date of the County ' s notice to continence construction the
developer shall commence constriction of the following intersection
improvements . The developer shall havetwelve months to complete the
constriction from the date of the County ' s notice to commence construction In
the event the developer fails to commence constriction within six months of the
developer ' s receipt of the County ' s notice or fails to complete construction within
twelve months of receipt of the notice the County shall cease i suing building
permits unless and until the developer commences con tniction or completes
construction . respectively .
45 "' Street and 58th Avenue : Signalize intersection and add left
turn lanes on all approaches
21 . No building permits for Waterway Village DRI shall be issued for more than 635
dwelling units or after December 31 , 2006 , whichever occurs later, until either: 1 )
contracts have been let for the intersection improvements identified below; or 2) the
improvements identified below have been included within the first two years of either
the Indian River County adopted Road Building Program, or the Florida Department
of Transportation adopted Five Year Work Program; or 3 ) a local government
developer ' s agreement has been executed and attached as an exhibit to the DO .
Surety shall be provided to the satisfaction of Indian River County or the Florida
Department of Transportation that sufficient funds will be available to complete the
following intersection improvements, including signalization modifications as
warranted by County or State criteria.
• 26th Street and 43rd Avenue : Add northbound, southbound,
eastbound, and westbound right-turn lanes .
22 . No . building permits for Waterway Village DRI shall be issued for more than 731
dwelling units or after December 31 , 2006 , whichever occurs later, until either: 1 )
contracts have been let for the intersection improvements identified below; or 2) the
improvements identified below have been included . within the first two years of either
the Indian River County adopted Road Building Program, or the Florida Department
of Transportation adopted Five Year. Work Program; or 3 ) a local go��ernment
developer ' s agreement has . been executed and attached as an exhibit to the DO .
Surety shall be provided to the satisfaction of Indian River County or the Florida
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RESOLUTION ?01-92010 -
Department of Transportation that sufficient funds will be available to complete the
following improvements , including signalization modifications as warranted by
County or State criteria .
• 43rd Avenue to 53rd Street : The north leg of 43rd Avenue
extension, from the northern project entrance on 43rd
Avenue to 53rd Street, shall be completed prior to issuance
of a certificate of completion for !319-rrstPhase 3 ;-a-s
• 43rd Avenue and 53rd Street : Add northbound right turn and
left turn lanes and westbound left turn lane and install
flasher convertible si �ial .
23 . No building permits for Waterway Village DRI shall be issued for more than 859
dwelling units or after December 31 , 2- 9 ,ZQ=0=7, whichever occurs later, until either:
1 ) contracts have been let for the intersection improvements identified below; or 2 )
the improvements identified below have been included within the first two years of
either the Indian River County adopted Road Building Program, or the Florida
Department of Transportation adopted Five Year Work Program; or 3 ) a local
government developer ' s agreement has been executed and attached as an exhibit to
the DO . Surety shall be provided to the satisfaction of Indian River County or the
Florida Department of Transportation that sufficient funds will be available to
complete the following intersection improvements, including signalization
modifications as warranted by County or State criteria .
• 26th Street and 58th Avenue : Add westbound right turn lane .
• 53rd Street and US - 1 : Add eastbound right and left turn
lanes .
24 . No building permits for Waterway Village DRI shall be issued for more than 899
dwelling units or after December 31 , 2VX{,2008 : whichever occurs later, until either:
1 ) contracts have been let for the intersection improvements identified below; or 2 )
the improvements identified below have been included within the first two years of
either the Indian River County adopted Road Building Program, or the Florida
Department of Transportation adopted Five Year Work Program; or _ 3 ) a local
government developer ' s agreement has been executed and attached as an exhibit to
the DO . Surety shall be provided to the satisfaction of Indian River County or the
Florida Department of Transportation Ghat sufficient funds will be available to
complete the following intersection improvements , including signalization
modifications as warranted by County or State criteria.
• SR 60 and 43rd Avenue : Add a northbound left turn lane
and a southbound right turn lane .
• 43rd" Avenue and 49th Street : Add left lanes on all
approaches and install flasher convertible signal .
RM : 7375429: L
Q C
RESOLUTION 22W-92 10-
25 . No building pen-nits for Waterway Village DRI shall be issued for more than 1 , 150
dwelling units or after December 31 , 2-0 } , 2Q0 whichever occurs later, until either :
1 ) contracts have been let for the intersection improvements identified below; or 2 )
the improvements identified below have been included within the first two years of
either the Indian River County adopted Road Building Program, or the Florida
Department of Transportation adopted Five Year Work Program; or 3 ) a local
govenunent developer ' s agreement has been executed and attached as an exhibit to
the DO . Surety shall be provided to the satisfaction of Indian River County or the
Florida Department of Transportation that sufficient funds will be available to
complete the following intersection improvements , including signalization
modifications as warranted by County or State criteria.
SR60 and 58t" Avenue : Add northbotmd and southbound
through (three lanes each ) and right turn lanes Add
eastbound and westbound left turn lanes (two lanes each)
26 . No building pennits for Waterway Village DRI shall be issued for more than 1 554
dwelling units or after December 31 . _2011 , whichever occurs later, until either 11
contracts have been let for the intersection improvements identified below ; or 2 ) the
have been included within the first two years of either
the Indian River County adopted Road Building_ Program, or the Florida Department
of Transportation adopted Five Year Work Program : or 3 ) a local government
developer ' s agreement has been executed and attached as an exhibit to the DO
Surety shall be provided to the satisfaction of _Indian River County or the Florida
Department of Transportation that sufficient funds_ will be available to complete the
following intersection improvements , including signalization aiodifi cations as
warranted by County or State criteria.
® 49t'' Street and US 1 : Add 4-eastbound left turn
lanes and signalize .
Internal Roadway Improvements
27 . As a minimum, the following turn lanes shall be provided at the intersection of 53rd
Street and the project entrance (51St Court) :
Westbound left- turn lane
Eastbound right-tuna lane
Northbound left and right-turn lanes
28 . As a minimum, the following turning lanes shall be provided_ at the intersection of
49t" Street and the project entrance (51St Court) :
Westbound right-turf lane
RM: 7375429 : 1
10
a • e
v
RESOLUTION a. 00-920 10
Eastbound
. 00-92010Eastbound left turn lane
Southbound left-turn lane and right turn lanes
RM : 7375429: 1
11
D , �
D
RESOLUTION2 - ` 2010 -
Other Issues
29 . Once the County has commenced construction on the segment of 53rd Street between
the Lateral H Canal bridge and the FEC railroad crossing, the County shall notify the
developer to commence constriction on the portion of 53rd Street from the Lateral H
Canal bridge to the existing 53rd Street terminus Within six months from the date of
he County ' s notice to commence constriction , the developer shall commence the
construction of that se = ent and shall complete construction of that segLi ent within
eighteen months after commencement. . In the event that the developer fails to
commence construction within six months of the developer ' s receipt of the County ' s
notice or fails to complete construction within eiZhteen months after commencement,
the County shall cease issuing_building peimits unless and until the developer
commences construction
or completes 100
construction , respectivelly. ? " g
Pef Mits shall He issued
Y' r than 110 welling l • 4 til • 4N Stfee4 has
t,-�pzyr� rr�T�o_� {�. �. ^�.� ,fig. � ., Q. }�B /�� �R�yr�e�v� � (��vc]r-�'dwelling
be'e�.tbetiiNre � 8th A-venue'L[V'iA"it 01d Dixie li girrntr and
n rni r&n ra
er-e n ' s been eens�pdeed at th F GT4iri 4 interG1JGetSewith the FEG railroad ;
1 ) eentfaets have been let fer- the inter-seetion ifflpr-eveffients identified below; or- 2)
Department"'e Tr-anspeft 4_ en adepted Five 2'GUf Ater-k Program; -or- 3 ) a leeal
mo ifinn4ions as txrnrranterl by Geunt z or- C4n4e nrf4erin
T7 � tfeet and USAdd '�iT. Cn7i_'l.en n4l� � ii �� a le ft i,
! a- a and sip line
— SR60 ainLL 59'h Z' ye�n , ,GZ2'de : Add neAhbetmd and
westbound
"GC'Lhbe G1i d
right tum lanes . Add e'C sthound–and west oLCndI4TLtum
lames (twe lames ennh )
30 . Commencing in 2005 and continuing every year thereafter, the developer shall submit
an Annual Status Report indicating the status (schedule) guaranteed improvements ,
monitoring and study . This Annual Status Report shall be submitted to Indian River
County, Florida Department of Transportation, Council and the Department of
Community Affairs as part of the DRI Annual Report ,
The Annual Status Report shall list all roadway improvements needed to be
constricted, the guaranteed date of completion , for the construction of each needed
improvement, the party responsible for the guaranteed construction of - each
improvement, ,bland the form of the binding commitment that guarantees
construction of each improvement. Additionally, this report shall include a trip
RM: 7375429: 1
12
4.
RESOLUTION 2499 010 -
generation study determining new external traffic during both the AM and PM peak
hours due to existing development.
No further building permits for Waterway Village DRI shall be issued at the time the
Annual Status Report reveals that any needed transportation . improvement included in
the. DO is no longer scheduled or guaranteed, or has been delayed in schedule such
that it is not guaranteed. to be in place and operational, or under actual construction
consistent with the timing criteria established in this DO .
ENVIRONMENTAL AND NATURAL RESOURCES
Upland Preservation
31 . The developer shall preserve a minimum of 66 acres of forested pine flatwoods , sand
pine, pine/mesic oak,, and sand live oak natural communities on the project site as
described on Map F , and shown on Map H of the DRI ADA and PD plan for
Waterway Village . The intent of this development condition is to provide protection
of upland natural communities , to provide habitat .for wildlife.. and to assist in
improving water quality by buffering wetlands and water bodies . The continued
viability and maintenance of the preserve area shall be assured through a
Conservation Easement with Indian River County and the St Johns River Water
Management District as part of the Development Plan . Said easement shall be
properly executed and recorded prior to issuance of a certificate of occupancy for any
portion of the project.
32 . Temporary fencing of all preserve areas shall be installed by the developer and
inspected and approved by Indian River County prior to commencement of site
clearing adjacent to the preserve area. The fencing shall be of a type that clearly
identifies and designates the boundaries of the preserve areas and minimizes the
potential disturbance of these features during land clearing and construction . The
temporary fencing shall be established at least 30 feet outside the actual boundary of
the rt-ser-vreseive areas . Temporary fencing shall stay in place until it is necessary
to remove it for finish grading, required buffers, or required permanent fencing.
These provisions shall be addressed in any land clearing permit(s) issued by-. Indian
. River County for the project . .
33 . The developer shall incorporate provisions into the road design to enable wildlife,
including amphibians , reptiles , and small ,marnmals , to safely cross between the
wetland and upland preserve areas . Wildlife underpasses are necessary to connect the
upland preserves north and south of the proposed 53rd Street Extension . The design
of the wildlife crossings shall_ be approved by the FFWCC prior to the construction of
these roads and issuance of a land development permit or right- of-way permit for 53rd
Street construction.
RM: 7375429 : 1
13
F ' +
RESOLUTION ?00-2010 -
34 . The developer shall prepare a Preserve Area Management Plan for the conservation
areas , upland buffers , and retained wetlands identified on - the -Waterway Village
Master Development Plan. The plan shall 1 ) identify management procedures and
provide a schedule 4.1 for their implementation ; 2) include procedures for maintaining
suitable habitat for state and federally listed species ; 3 )- include methods to remove
nuisance and exotic vegetation and any other species that are determined to threaten
the natural communities ; and 4) include plans to permanently mark the conservation
areas and allow only limited access for passive , recreation, education, -or scientific
study. The management plan shall be approved by Indian River County, USFWS ,
and FFWCC and St. Johns River Water Management District prior to the initiation of
site clearing activities and issuance of. -a land clearing permit(s) by Indian .River
County for the project .
Listed Species
35 . In order to pmt r tec a nesting . pair of Bald Eagles on the project site, the
developer shall preserve and manage the area identified as Eagle Preserve/Habitat
Enhancement on the Master Development Plan and PD plan . The developer shall
comply with all management procedures and development restrictions detailed in the
U. S . Fish and Wildlife - Service Habitat Management Guidelines for the Bald Eagle in
the Southeastern Region, provided in the appendix of Council' s Assessment Report
e=for the Waterway Village . The plan shall be approved by the USFWS prior to the
initiation of site clearing on the project site and issuance of a I ,+ +&': land clearing
pernlit(s) by Indian River County for the project. Details of- the Bald Eagle protection
measures shall be provided in the Preserve Area Management Plan :
36 . In order to provide mitigation for impacts to the Florida Scrub-Jay-- on the project site,
the developer shall coordinate with the USFWS and the Florida Park Service - to
develop an off-site mitigation plan . *'a,, ltipc+The , developer shall pursue all
options for -scrub jay mitigation within Indian River County: Prior to the approval of
a plan that provides mitigation_ - for the Florida Scrub -Jay- on landss - outsideof Indian
River County, the developer shall provide -documentation to . Indian River County
demonstrating Why mitigation . could riot be provided in the eeu .i+t<ggi=ityl _ The
habitat mitigation plan shall- be approved by Iridian River County, the USFWS , and
the Florida Park Service prior to the initiation of -site clearing on the project r:} Ftsite
and issuance of a land clearing permit(s) by Indian River- County for the project, and
incorporated in the Preserve Area. Management plan.
37 . To further offset impacts to the_ Florida Scrub -Jay, the developer shall manage . the
scrub communities , including the sand . pine, and sand live oak, and any scrubby pine
flatwoods in the upland preserve areas in away that . is suitablefor the Florida Scrub
Jay: The developer shall comply with _ all USFWS , and FFWCC recoininendations
regarding the management . of habitat - for this - State and federally threatened species:
t4i-eThe plan shall be approved _ by Indian River .County, _ the USFWS , and FFWCC
prior to the initiation of site clearing . on the project site- and issuance of a land clearing
.RM: 7375429: 1
14
K
a
RESOLUTION a. 9�4:Q l 0 .
permit(s) by Indian River County for . the project. Details of the scrub habitat
management procedures shall be provided in the Preserve Area Management Plan ,
38 . In order to protect gopher tortoise population on the project site, the developer shall
develop a detailed management plan that provides for - the protection
and- relocation of
gopher tortoises into the conservation area identified on the Master_ Development
Plan. The developer shall comply with . the FFWCC gopher tortoise protection
guidelines . The plan shall be �eanuroved by Indian - River County and the
e
FFWCC prior to the initiation of site clearing on the project site and issuance of a
land clearing permit(s) by Indian River County for the project . -Details of the gopher
tortoise protection measures shall be provided in the Preserve Area Management
Plan .
39 . In order to protect Florida Sandhill Crane on the project site, -the developer shall
maintain foraging habitat around wetlands . preserved and created on the project site .
The developer shall comply with all FFWCC recommendations regarding the creation
of the foraging habitat for this State listed - threatened species . - The Preserve
Management Area plan shall be appr-o �4ea n� by Indian River County and the
FFWCC prior - to the initiation of site clearing on the project site and issuance of a
land clearing permit(s) by Indian River County for the project . Details of how the
Florida Sandhill Crane foraging habitat will be maintained shall be provided in the
Preserve Area Management Plan ,
40 . In order to - protect the - eastern indigo snake - on the project site, the - developer shall
prepare an eastern indigo snake protection/education -plan consistent with the USFWS
guidelines . _ The plan shall consist of providing educational_ materials and
informational signs ; - The plan shall. be . approved by Indian -River County and the
USFWS prior- to the . initiation of site clearing on the project site and issuance of a
land clearing permit( s) by Indian River County for the project. _ L ta-4Details of the
eastern indigo snake protection/education plan shall be provided in the Preserve Area
Management Plan .
41 . The developer shall maintain. Wood Stock -foraging habitat on site by ensuring no
additional net loss of wetland function and value, and - b - designing wetland
mitigation areas to have suitable foraging habitat for the Wood Stork. ' The developer
shall . comply with -all USFWS recommendations regarding- the' creation of foraging
habitat for this federally ° 'endangered " species . The Preserve Area - Management plan
shall be approved by Indian River County and the USFWS -prior -to the initiation of
site clearing on the project site and issuance of a land clearing permit(s) by Indian
River -County for the project . ' . Details of the 'wetland creation design, procedures, and
management schedule shall -be provided in the Preserve Area• Management Plan ,
42 . In the event that it is determined that any additional - representative of a state or
- federally. listed .plant- or animal. species - resident _ on, or otherwise significantly ,
dependant upon, the project - site , the developer shall cease all activities . which might
RM : 7375429 : 1-
15
RESOLUTION 42042010 -
negatively affect that individual population - and immediately notify Indian River
County and Council . Proper protection, to the satisfaction of the Indian River County
and Council, in consultation with the- USFWS and- the Florida Game and Fresh Water
Fish Commission, shall be provided by - the developer. These provisions shall be
addressed in any land clearing permit(s) ..issued- by Indian River County for the
project .
Wetlands
43 . The developer shall preserve and enhance minimum of 5 . 0 acres of wetlands
identified as wetlands A, F , G, and M on Map F1 , Wetlands Map , in the ADA for the
Waterway Village DRI and as shown on the PD plan . The preserved and enhanced
wetlands shall be protected within a Conservation Easement established with Indian
River County and . the St. Johns River Water - Management District. Said easement
shall - be properly executed and recorded prior to issuance of a certificate of occupancy
for any portion of the project.
44 . The developer shall . coordinate with the St_ Johns - River -Water Management District,
U S . Army Corps of Engineers , and Indian River County to determine the exact
acreage and type of wetland mitigation required to offset wetland impacts on the
project site . Wetland mitigationrequirements shall be determined following the
Unified Mitigation Assessment Method provided in Chapter 62 -345 , FAC . Methods
for the creation and management of wetland mitigation areas on the project site shall
be described in the Preserve Area Management Plan to be approved by Indian River
County, and take place in Indian River County. This determination shall be mad_ e
prior the issuance of wetland resource permit by Indian River County ,
45 . All wetlands mitigation-on shall be completed prior to or simultaneous with the
elimination of existing wetlands on the - site . The detailed plans for mitigation shall be
approved by the St. Johns River Water Manag ement District and Indian River County
in consultation with Council prior to - the initiation of the mitigation plan and prior to
the release of any site plan or land clearing permit for- or a portion of the project .
Reasonable assurance of -financial . ability to _ carry out the commitments in the
approved mitigation plan shall - be provided in a method agreed to and approved by
Indian River- County . . Said : assurances and commitments shall . be approved ,by Indian
River County planning staff prior 46 release, of any - site plan or issuance of any land
developmentpermit o4orr all or portion of the project.
46 . The developer shall preserve or create _a . buffer zone - of native upland edge vegetation
around all wetlands preserved, restored, or created on site : The buffer = Izone . shall- -
include canopy, understory, and ground : cover of native upland _ species . The _ upland
buffers shall - be restored= to a natural ` condition if invaded by exotic vegetation or,
impacted ` by agricultural activities . The -upland buffers shall be -Aminimum width- of
15 feet and r --shall average 25 feet - around the . entire _wetland . The buffer 'shall be
shown on all appropriate project site plans and shall be designed to -be consistent with
RM: 7375429: 1
- 16
RESOLUTION 2-9092010-
the buffer requirements of St. - Johns River. Water Management District and Indian
River County . During construction, . the upland buffers adjacent to preserved or
created wetlands shall be elealclearly marked prior to the commencement of
construction activities to ensure those areas are protected . These provisions shall be
addressed in any land clearing .-pennit(s) issued by Indian River County for the
project . The upland buffers shall be maintained according to the .details provided in a
Preserve Area Management Plan to be approved by Indian River County .
Exotic Species
47 . Prior to obtaining a certificate of occupancy for any future _ structure located on any
development parcel , the devel )per- developer shall remove from that parcel all
Melaleuca, Brazilian pepper, Old World- climbing fern, Australian pine , and any other
nuisance and invasive exotic vegetation listed by the Florida Exotic Pest Plant
Council . Removal shall be in a manner that avoids seed dispersal by any of these
species . These provisions shall be addressed in any land_ clearing permit(s) issued_ by
Indian River County for the project. There shall be no planting - of these species on
site . Methods for removal of exotic and nuisance species should be described in the
Preserve Area Management Plan. The . entire site , including conservation area, shall
be maintained free of these species in perpetuity . .
Stormwater Management
48 . The developer shall design and construct a stormwater management system to retain
the maximum volumes of water - consistent . with St_ Johns River Water Management
District criteria and local code requirements for flood control . Post- development
runoff volumes and rates shall not- exceed predevelopment runoff volumes and rates
consistent . with Water Management District and Indian River - Farms Water Control
District criteria. The system shall be designed - and constructed consistent with the
criteria and requirements of St_ Johns _River Water _ Management -District and Indian
River County . . Required retention; volumes may be accommodated in a combination. - -
of -vegetated swales , dry retention areas, lakes with vegetated littoral zones , or other
suitable detention/retention structures . All discharges from the surface water
management system shall meet the water - quality standards of FAC Rule 17- 3 . These
provisions shall be addressed in project i=rovementreliminary PD
plans submitted to Indian River County for .review and nerinittin � . - -
49 . The developer shall design and construct the surface water management system so
that maintenance of ' normal hydrope 's within preserved wetlands - - can be
guaranteed against - the negative. . impacts of activities within the project boundaries ,
and so that the functions and values provided by these preserve areas - - will be
-
.maintained . Via the -site plan , and preliminary PD plan review and permitting process ,
the developer-shall submit .. a7 plan establishing wetland control elevations and post-
-development drainage " sub- areas for each - wetland- to - m St. Johns. . River Water -
Management . District and Indian River - County - for approval . This plan may be
RM : 7375429: 1
e .
l
RESOLUTION 24W2010 -
included in the Preserve Area Management, Plan . ti+The - plan shall demonstrate how
sufficient quantities of surface runoff frons portions of the developed areas will be
conveyed to wetland- areas in order -to maintain -or improve their existing bydroperiod.
50 . All elements of the stormwater management -system shall be designed to prevent
impacts to adjacent areas and - to the receiving bodies of water, including the North
Relief Canal and the -Indian River Lagoon . The lakes within Waterway Village DRI
shall be designed to treat the stormwater from developed parcels as well . as the
stormwater from adjacent roadways, including 49th Street, 53rd Street, 43rd Avenue,
58th Avenue , 51St Court and any other roads identified as appropriate by Indian River
County. The developer shall prepare plans that reasonably- demonstrate that these
waterbodies and adjacent properties will not be negatively impacted by water quantity
or timing of delivery . These plans shall be approved by St . Johns Water
Management District and Indian- River County prior to the construction of the surface
water management system.
5 .1 . The developer shall . coordinate with - the IRFWCD ° -and SJRWMD to - identify the
preferred l4e#- ei locations to discharge storm water from the project site . The
developer shall not relocate the existing control structure located just east of 58th
Avenue in the North Relief Canal:
52 . During the site plan and preliminary PD plan review process , the ct_ �+� � develoner
and Indian River County shall work together to minimize the amount of impervious
surface .constructed for the purposes of automobile . parking on the Waterway
Tr11cVilla �e site . The developer and the County shall consider the use of pervious
parking lot materials where feasible .
53 . Landscape management shall be addressed within the Preserve Area Management
Plan prior to applying for an Environmental Resources Permit and installing
landscape material on the project site . The Preserve Area Management Plan shall
provide detail. concerning the application . of fertilizers , herbicides and - pesticides - in
landscaped areas . 4ieThe .plan shall include methods for minimizing theimpact of
chemical runoff associated with - lawn and ' ` landscape maintenance . The
Pevc)-&pei:developer shall coordinate with = the St. Johns River Water Management
District to formulate - - and implement BMPs to reduce the use of pesticides . and
fertilizers throughout the project."
54 . : A vegetated littoral zone shall be established in the lakes constructed on site . _ The _
littoral zone shall be constructed to provide a minimum of 40 SF of littoral area for
every linear foot . of lakeshore not- adjacent to- residential- units . Prior to - the expansion
of the existing lake . -system, the developer shall prepare a design and management
plan for the wetland/littoral zone -that will- be developed ,as part of that system . The
plan may be incorporated into the - Preserve Areca- Management Plan . arid. .. shall be
subject to approval by the - .St. jtJohns River Water Management_ District; " and
Indian Riverprior to beginning any excavation activity . Littoral zones
RM : 7375429 : 1
RESOLUTION ' -0-92010 -
shall be constructed concurrent with lake excavation and final grading, and shall
contain wetland trees (Cypress , Maple, Sweetgum, etc . ) . A minimum of 1 tree per
10 ' of shoreline is required. *tThe trees tree may be grouped and must be a
minimum of 5 ' tall with a 1 " caliper. Operational permits for the surface water
management system shall not be issued nor shall a certificate of occupancy for any
portion of the project be issued until such time as . littoral zones have been found to be
constructed in conformance with approved plans . Littoral zones must be approved
prior to the issuance. of a site plan or land development permit for each phase .
55 . Maintenance and management efforts required to a-s-&��i:& assure the continued
viability of preserved wetland habitats and the proper operation of all components of
the surface water management system shall be the financial and physical ,
responsibility of the developer. Any entities subsequently approved by Indian River
County to. replace the -developer shall be required, at a minimum, to assume the
responsibilities outlined above .
56 . A minimum of 50% of the landscape material shall be native drought-tolerant
species . This requirement shall be reflected in all landscape plans submitted for
review and approval .
Water Supply
57 . No building permits shall be issued, site plans released, or land development permits
issued for any phase of the Waterway Jv;+' P-E�eVilldevelopment until the developer
has provided written confirmation €t Ffrom the St . Johns River Water Management
District that they have coordinated the abandonment of free-flowing Floridian aquifer
wells on site and completed the abandonment process .
58 . No building permits shall be issued, site plans released, or land development permits
issued for any phase -of the. Waterway vi-llageVi=Ha e development until the developer
has provided written confirmation =€e}from the St. Johns River Water Management
District and Indian - River County Department of Utility Services that adequate
capacity of treated potable water and service/distribution infrastructure will exist by
development of. the phase . The developer shall enter into . an agreement with Indian
River County - to construct- a 12 " diameter master planned water main and 12 "
diameter master planned force main along 53rd Street . from 58t" Avenue to the eastern
property line of the project site .
59 . The preferred source of irrigation water shall be treated wastewater effluent at such
- tinge as this - source is . made available at the site . Should treated wastewater be
unavailable or a . supplemental source of irrigation .. be needed, existing or created
surface water (i . e . lakes or- canals) shall be used to the maximum extent available .
Project site plans , , preliminary - PD plans , and land development permit plans shall
Show that the project 's irrigation systems.. will be designed and installed in a manner
that will allow. utilization of reuse water. Irrigation systems shall be connected to
RM: 7375429: 1
i
o
RESOLUTION 42492010 -
reuse water when +Sit becomes available , t4eThe developer shall enter into a reuse
agreement with Indian River County to accept st. ormwater/brine/wastewater effluent
for augmenting lake supply to be used for irrigation and maintaining pond levels .
4- eThe developer shall coordinate with the St. Johns River Water Management
District to establish a suitable irrigation water use rate that may allow use of excess
storm water to divert iciit away from other water resources , such as the Indian River
Lagoon .
60 . In order to reduce irrigation water demand, - xeriscape landscaping shall be
implemented throughout the project. - At a minimum, 50 percent of all areas requiring
landscaping material shall be landscaped with native drought-tolerant adapted to soil
and climatic conditions existing on site . Project site plans and preliminary PD plans
shall show compliance with this provision .
61 . The project shall use water- saving plumbing fixtures and other water conserving
devices as specified in the Water Conservation Act, Section 553 . 14, Florida Statutes ,
to reduce water use for future project development.
62 . Prior to issuance of a land development permit or site plan release, the developer shall
obtain a developer ' s agreement from Indian River County to provide for the provision
of utility improvements , acceptance of reuse water and possibly brine water .
Wastewater Management
63 . No building permits shall be issued, site plans released, or land development permits
issued for the Waterway Village development until the developer: provides evidence
from the Indian River County Department of Utility Services to Indian River County
Planning Department that adequate capacity,., service infrastructure , and adequate
provision for the effluent disposal will, be available to collect and treat and dispose of
the wastewater generated by the portion of the developmentfor - which permits are
required. This provision shall be addressed . via Indian River County ' s concurrency
management system
64 . Prior to or via the final plat, the developer shall grant a . 20 ' -wide drainage and utility
easement to Indian River County along the site ' s: east property line .
Solid Waste and Hazardous Materials
65 . Development shall occur concurrently with the provision of adequate solid waste
disposal services and facilities . . Prior to issuance of any site plan approval or issuance
of a . _ _ land
development permit for 'any. phase of developments the developer - shall provide to
Indian River County planning staff written evidence from the Indian River County
Waste Management
Disposal District that adequate facilities will be available when needed.
RM : 7375429 : ]
20
RESOLUTION 4^. (4)241 -
Air Quality
66 . During land clearing and site preparation, soil treatment techniques appropriate for
controlling unconfined particulate emissions shall be undertaken . If construction on a
parcel will not begin within thirty days of clearing, the soil shall be stabilized until
-construction of the parcel begins . Cleared areas may be sodded, seeded, landscaped
or mulched to stabilize the soil.. Minimal clearing for access roads , survey . lines ,
fence installation, or construction trailers and equipment staging areas is allowed
without the need for soil stabilization . The purpose of this condition is : to minimize
_dust and dirt production during land clearing and to prevent soil from becoming
airborne between the time of clearing and construction . . These provisions shall be
addressed in any land clearing permit(s) issued by Indian River County for the
project .
HUMAN P ��MRESOURCE ISSUES
Schools
67 . Prior to the issuance of building permits for any phase of development, the developer
must obtain a letter from the School District of Indian River County stating that the
district has sufficient space and capacity at schools serving the project to adequately
meet the educational needs of _students expected to be generated by the project,
concurrent with need and with any levels of service standards that may apply.
68 . Prior to the issuance of a land development permit- or release of a site plan for the first
phase , the developer shall ate-convey by warranty deed to. Indian River County,
free and clear of any liens and encumbrances, the 18 acre site depicted on the master
development plan . The - ded. j eat-on-conveyance shall be without compensation and
shall not be creditable against any- future school impact fee . The site shall be cleared,
brought up to grade , seeded, and provided with water and sewer connections by the
developer prior to -the d&d4e-a4-ien--issuance of a certificate of completion for
1_ k- Phase 1 . The ep�4-yCgpilty will transfer title to . = the Indian River County
School Board . In addition, the Waterway . Village. stormwater management system
shall be designed to accommodate -run- off from . the school site . Any reverter clause
in the school site
de�icatien—conveyance shall extend a minimum of 20 years from the date of _
f' 4C-iR-its conveyance . Any reverter clause used " shall be approved by the County
Attorney and shall have the property -revert. to India_ n River County -for use as public
open space or public park area .
Police .and Fire Protection
RM : 7375429 : ]
21
RESOLUTION 1 2010 -
69 .
1 -69 . Prior to the issuance of any building permits , release of any site plan or
issuance of
any land development permits for the Waterway Village project, the developer shall
provide Indian River County and the Council with written confirmation from the
Indian River County Sheriff that law enforcement is adequate to serve the project at
buildout . The developer shall provide a solution acceptable to the Indian River
County Sheriff Department prior to obtaining a certificate of occupancy for any
structure in each phase of the development.
70 . Prior to December 3 , 2004, the developer shall 44&r?rlc� convey by warranty deed a 4 .
acre site free and clear of all liens and encumbrances for Emergency Services , as
shown on the PD plan .
71 . Prior to obtaining a certificate of occupancy for any structure located on any
development parcel , the developer shall provide the County written confirmation
from Indian River ` County Department of Emergency Services Fire Rescue Division
that there is sufficient manpower, equipment and response time to adequately serve
the fire protection/emergency medical service needs of those portions of the project
that are ready for occupancy .
Hurricane Preparedness
72 . Prior to obtaining a building permit for any structure located on any development
parcel, the developer shall provide evidence that emergency shelter facilities have
been provided for residents of the Waterway Village . Emergency shelter
requirements shall be accomplished through providing a safe space (safe room)
within each home . The safe room shall be provided in accordance with the standards
as adopted by the Federal Emergency Management Agency ' s publication "Taking
Shelter from the Storm" . Each building permit application for each residential unit
shall include a safe room within each unit, and no certificate of occupancy (C . O . ) for
a residential unit shall be issued unless the safe room is completed.
Historic and Archaeological Sites
73 . Prior to commencement of any clearing activities on the project site or issuance of a
land clearing permit, the developer shall conduct a professional archaeological
investigation to determine if archaeological or historic resources are present within
the project area. The report shall conform to the specifications set forth in Chapter
IA-46, FAC , and be forwarded to the Florida Department of State , Division of
Historical Resources. If significant remains are located, the developer shall
implement measures to avoid, minimize , or mitigate adverse impacts to historic
properties to the satisfaction of the Division of Historical Resources .
74 . In the event of discovery of any archaeological artifacts during project construction ,
construction shall stop in the . area of discovery and immediate notification provided to
Indian River County and the 4i 4(�+i+al ivision of Historical Resources in the
RM : 7375429 : 1
22
s a
RESOLUTION -.4) 020 10 -
Florida Department of State . Proper protection shall be provided to the satisfaction of
the Division .
Energy
75 . The final site and building designs shall comply with the Florida Thermal Efficiency
Code Part VII, Chapter 553 , Florida Statutes . To the maximum extent feasible , the
developer shall also incorporate measures identified in Council ' s energy plan guide
entitled, Energy Planning in the Twenty-First Century: A Guide for Florida
Communities , updated January 2003 ; and the SRPP .
76 . The developer shall incorporate each of the 17 energy saving methods outlined in the
appendix of Council ' s Assessment Report for the Waterway Village unless it can be
demonstrated to the satisfaction of Indian River County that individually each method
is not cost effective .
Local Conditions
The following items shall be considered local development conditions and will not
require approval of the Treasure Coast Regional Planning Council to amend :
77 . The perimeter landscape benn shall have an aesthetic and well maintained appearance
with a berm and landscaping as the predominate features . No .walls or fences used
with the berm are to be visually exposed to public view . Perimeters shall be designed
so as not to have the appearance of a "walled " community . The width of the
perimeter buffer shall be a minimum of 40 feet.
78 . Streetlights must be provided along the site ' s 49t1i Street, 43rd Avenue, 58th Avenue ,
53rd Street and 51 " Court frontages . These streetlight improvements shall not be part
of the Gifford Street lighting District.
79 . In conjunction with the 43rd Avenue extension, the developer shall provide landscape
plans that blend landscape improvements along the project ' s 43rd Avenue and 49th
Street frontages with the area of 43rd Avenue located south of 49th Street and within
the Gifford Park. Prior to issuance of a land development permit for 733 dwellins7
units Phase 2 . the developer shall. submit and obtain planning staff approval of a
landscape plan for these off- site landscape improvements . These off- site landscape
improvements shall be completed prior to issuance of a certificate of ccunancv
^r"� for 828 dwelling units Phase
80 . The following external pedestrian improvements are required :
Roadwav From To Selected Facility
49t ' Street 43r Avenue East Property Line 8 ' sidewalk, north side
49 ` ' Street 58t ' Avenue 43r Avenue 8 ' sidewalk, north side
RM: 7375429 : 1
RESOLUTION 4-G92010 -
53r Street 43r Avenue East Property Line 5 ' sidewalk, both sides
53r Street 58t Avenue 43 " Avenue 5 ' sidewalk, both sides
58t Avenue 49t Street North Property Line 5 ' sidewalk, both sides
43r Avenue 49t Street 53r Street 5 ' sidewalk, both sides
81 . All internal streets shall have 5 ' wide sidewalks on both sides , with an 8 ' wide
pedestrian path connection stub- out to the school site . Along 51s' Court from 49th
Street to 53rd Street, 8 ' wide sidewalks shall be provided on both sides . Recreation
paths shall be provided within the preserve areas and limited public access allowed
(e . g . scheduled tours) in coordination with the Waterway Village Management. All
sidewalk and pedestrian path improvements shall be depicted on all land development
permit plans .
82 . The neighborhood commercial area shall be subject to architectural standards that are
consistent with the residential development and generally consistent with the SR60
corridor criteria, including the monument sign criteria. The developer shall obtain
planning staff approval of architectural plans 4- a4for all buildings and signs within
the neighborhood commercial area .
83 . A street tree planting plan shall be provided with each preliminary PD plan, and the
developer shall obtain staff approval of the street tree planting plan .
84 . The developer shall explore locations for transit/bus stops with each preliminary
design phase of the PD . Transit/bus stop improvements may be required .
85 . An annual report shall be filed November lst of every year after adoption of the DO
and shall contain the following:
a. A description of changes in the plan of development, or in the
phasing for the reporting year and for the next year.
b . A summary comparison of development activity proposed and
actually conducted for the year.
C , Identification of undeveloped tracts of land that has been sold,
transferred or leased to a successor developer.
d. Identification and intended , use of lands purchased, leased or
optioned by the developer adjacent to the original PD site . since the PD
rezoning was approved .
e . An assessment (listing) of the developer ' s compliance with each
condition of the -F)-Q—. DO , PD rezoning conceptual PD plan approval .
RM : 7375429 : ]
24
RESOLUTION ?00�}2010-
f. A description of any request, and the status of that request, for a
modification to the approved �e--conceptual plan that was filed in the
reporting year or is anticipated to be filed during the next year.
g . An indication of a change, if any, in local government jurisdiction
of any portion of the development since the conceptual PD was approved .
h . A list of significant local , state and federal permits which have
been obtained, or which are pending by agency, type of permit, permit
number and purpose of each .
i . A list specifically addressing the following items in regard to the
entire subject property :
1 . square footage of development approved for
construction by land use type ;
2 , square footage of structures and facilities under
construction by land use type ;
3 . square footage of structures and facilities completed
by land use type ;
4 . total number of residential certificates of
occupancies for the project;
5 , the number of residential certificates of occupancies
obtained during the one year reporting date ;
6 , status of the functioning and maintenance of the
surface/stormwater
management system;
7a status of water, wastewater, and irrigation services
and infrastructure;
8 , status and viability of cH41 ai planted littoral zone ,
upland edge vegetation, or required buffer}
9 , a report addressing all traffic monitoring conditions ;
10 , a list of traffic improvements completed, under
construction or design;
RM : 7375429: 1
25
RESOLUTION 2 2010 -
11 , the number of school age children living within the
project (every other report) ;
12 , dedications of sites , right-of--way, easements , and
improvements to public entities .
RM : 7375429 : 1
RESOLUTION =' ! 2010 -
Effective Date of Amendments
The amendments set forth in this Amended and Restated Development Order (as
coin red to the original Development Order Resolution 2004- 137) ( collectively
"Development Order Amendments " ) are part of a ' settlement ( " Settlement' of certain
claims asserted by DiVosta, including without limitation claims set forth in that Luul 41,1 Lrt
Qlll
complaint filed in the Circuit Court, Indian River County, Florida. styled DiVo to
Homes . L . P . . et al v_Indian River County Florida - case # 2007010 CA 19 ( 'Lawsuit " )
and claims presented under the Bert J. Han-is , Jr. . Private Property Rights Protection Act
(collectively . " Claims ") . The ten-ns--of the Settlement of the Claims are set forth in the
Development Order Amendments the Developer ' s A Oreement Amendments+ � defined
a
- - Developer- - - - - � � � >_1uv11uui411iD 1 4J LLG1111GU
in the Amended Developer ' s Agreement executed by the parties at or about the time of
adoption of this Amended and Restated Developmen Order) , and a Settlement
Agreement also executed by the parties at or about the time of adoption of this Amended
and Restated Development Order ( collectively " Settlement Documents "1 rn an
111 U11
abundance of caution, the parties have elected to seek Circuit Court approval in the
Lawsuit of the Settlement and Settlement Documents The Settleinot and Settlement
Documents shall be effective as of the date of Circuit - Cotu-t approval , and conclusion of
all appeals , if any. If. for any rea on. 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 : 7375429 : 1
27
RESOLUTION 2�4X92010 -
PASSED AND ADOPTED on this day of '44i -2010 .
# The foregoing resolution was offered by Commissioner
and the motion was seconded by Commissioner and upon being put
to a vote, the vote was as follows :
Chairman W =T . Peter D O ' Brvan
Vice- Chairman ,Itac ��}�- = e, 1-Bob Solari
Commissioner Gary C . Wheeler
Commissioner Peter— DWesley.S . (3 B+yiatQavis
Commissioner-Ro-b-S- ai4 Joseph E . Flescher
The Chairman thereupon declared the resolution duly passed and adopted this
day of , 2 49-2 10 .
BOARD OF COUNTY COMISSIONERS
OF INDIAN RIVER COUNTY
BY
Chairman
Board of County Commissioners
ATTEST :
Clerk
RM: 7375429: 1
RESOLUTION ' 8ts ) 2010 -
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State and County to take acknowledgements, personally appeared
and as DEPUTY CLERK
TO , as Chairman of the Board of County
Commissioners and Clerk, respectively, to me known to be the person described in and
who executed the foregoing instrument and they acknowledged before me that they
executed the same .
WITNESS my hand and official seal in the County and State as aforesaid this
day of , A. D . , 2-GO4:2010 •
Notary Public
APPROVED AS TO PLANNING MATTERS
Community Development Director
APPROVED AS TO LEGAL SUFFICIENCY
County Attorney
RM: 7375429 : ]
29
V '
EXHIBIT B TO SETTLEMENT AGREEMENT
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 day of
2-9--,2010 by and between Indian River County, Florida, a political
subdivision of the State of Florida, 1840 25 ' 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'J' Street and east of 58th 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 Chapter30 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 �--�ddetermined
that they could assist each other with respect to right-of-way acquisition, roadway and
drainage improvements , intersection improvements . and other improvements .- lxi- ethei-
described in the Development Order and required by the Planned
n „ WHEREAS . t�3EF- l6jl3�t--rl •]'_'
Development�-� c � rt5-trl:� :t e -ia ; ldrrl
r 1, r ill 1, ssi-t d �'„• Wn + , a , ria of 1 � ¢
�7�.aC'I'}�i"�3Y"tl. S7—'FFZ7T�0 L=iTJ'CLL�-'I' f771"�'�d-C�T�`�F�ITT—P'T7]i L�`�L�1"�'1' i37: 1' 1 lin—�',_r--t�'•}�'1� '�LC/
s
"ie- eigg lish eei4iain iiqt�SeGti8i!rr„ and
WHEREAS , the Development Order ;opce�-�Jlimited the number of buildin
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
be made by, among other methods , a local government developer ' s agreement; and
WHEREAS , Indian River Farris 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
RM : 7375391 : 1
Page 1 of -1-6 16
I L
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
WHEREAS the County and the Developer entered into a Developer ' sAgreement
on December 13 op
2005 ("Developer ' s Agreement") with respect to right of way
acquisition, roadway and drainage improvements intersectLon and +,
J uiiu V Llll,l
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 , ecnlvP their dis,,, , tec
uLVJ GL11LL
have agreed to certain terms and - conditions Ahich require that the Deve_ 1_ n_ n_ P_ _r ' c
.Agreement and the Development Order be amended and
WHEREAS . the County pursuant to Section 380 . 06 ( 191 _ Flnr; da stat„ +P � a ,n ,,,,+A ,a
v Lvu
Resolution 2010 - approving an Amended and Restated Development Order for
Waterway Village _("Amended and Restated Development Order1 on
2010
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 writtenbetween the Developer and the
County and that certain Developer ' s Agreement entered into on December 13 2005
between Indian River County and DiVosta Homes . T . 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 PLias
�&s I and I1 were previou lv
vested for traffic concurrency and shall remain vested for traffic
con cunrencv through Decembei 31 2016 , rDeyelnnmP„ t of a
recreati_obal/clubhouse on ' 2 . 2 ! acres , the schoQl site and
preservation areas may also commence at any time and under the
RM : 7375391 : 1
4.2
Page 2 of -1-616
County ' s development regulations are not subiect to concurrency
and are therefore deemed ve ted
Commencing in 2012 150 additional single family dwelling unit
may null building permit and steal remain vested for traffic
concurrency tl rough December 31 2019 evelopment Lof a
recreational/clubhouse on 2 . 7 acres may also commence in 2012 or
any time thereafter and under the CVt� , ' c devel Q.�....., ent
-- -- uy v V l V 0111 Gll
regulations is not Subject to concurrency and i therefore deemed
vested .
(iii ) Commencing in 2013 . 150 additional sIngle family dwelling units
may ull building pennits 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 null h, , ; ld ;ng TIPY,r1 , +s anr,
hall remain vested for traffic concurrency through December 31
2021 . Development of a recreational /clubbat e on 1 . 5 anrPc
V 1114 V
commence in 2014 oany time thereafter and under the rnuity '
development regulations is not subject to nnnmuTena
- - Vcy v 4nd1111 is
therefore deemed vested Development of 20 000 sauarp feet of
Neighborhood Conunercial uses may also r Mnmenre 2014 n;n 7n , /I r
1yr
any time thereafter and shall remain vested for traffic concLuTencv
through December 31 2021 suh ; est to Paraorapb 7 . B f the
Amended Devdoperls Agreement.
(v ) Commencing in 2015 . 150 additional single family dwellin unit
may pull building pen-nits and shall remain vested for traffic
concurrency- through December 31 2022 evelo ment of a
recreational/clubhouse on 2 . 4 acres may also commence in 2015 or
any time thereafter and under theCounty ' s development
regulations is not subject to concurrency and is therefore !Teemed
- concurrency--- - - -- V deemed
liU
vested
(vi ) Commencing in 2016 . 26 additional singLe family dwelling units
and 124 multifamily dwelling units may null hnilding nennits and
shall remain vested for traffic conctrreney tbrough December 31
2023 . Development of a recreational/clubhrn , .se n„ 4 . 2 acres mac
also commence in 2016 or any time thereafter and under the
County ' s development regulations i not subject to c ncun-encv
and is therefore deemed vested,
(vii ) Commencing in 2017 11 � additional single family dwelling unit
may pull building vennits and shall` remain vested for traffic
concurrency through_December 31 . 2024 _
RM: 7375391 : 1
a-2
Page 3 of 4-6 J6
The two dates specified in n ragr=hs 3 , A,.(ii ) ( vii ) are the date
between which building permits for the development cpec ; fierl , each
1 V Y lO1 Vll
must be nulled in order to maintain the vesting of the applicable dwelling -nits or
nonresidential development The vesting provided for in paragraphs. 33 A (i ) —
(vii ) shall lapse for dwelling units or nonresidential development for which a
b_ u • lding permit has not been pulled before the expiration of the applicable vested
ergo
C An approved use may be exchanged for any other approved u e o
long as the exchange of uses does not generate additional net external r m , eek
generate u lu yarn
hour trips .
D The Counjy acknowledges that it has loaded all of the tj;ps from
the 1 . 596 dwelling units , the recreational/clubhrnlce use and the in
site srhnnl � ; +o
; ,,
vl
Waterway Village onto its road system for cons irrency modeling and those
spective uses shall remain vested and reserved for the Waterway Village DRI
until the timeframes to pull building pernnits as set forth in Subsection 3 . A-. .a hove
have expired .
E . The Developer acknowledges that Waterway Village is vested on ]
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, anra
dying 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 . T e
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 t i County for costs of appraisals and for closing costs , including
purchase price, and the County shall reimburse the Developer pursuant to
paragraph below . If c'' " 3cthe 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 he
Developer that the right- of--way could not be acquired through negotiation . The
County, through its Public Works Director or his designee, shall have
RM: 73 7539 1 : 1
+2
Page 4 of - -() 1
' o
fenthi> (4-4/ LQ) days to review and approve reimbursable costs . Failure to
reply to the Developer within &.n h
ri -ty (; a days shall constitute approval .
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.
Co 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 7�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 eoiCoun =y, through its Public Works
Director or his designee, shall. . have : eeRthi> (4-4 =0) days to review and
approve reimbursable costs . Failure to reply to the Developer within
fx rthi (4 RO) 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 sh -11 not withhold
any approval or permit because of the condition of any intersection iso long as
the Developer is in compliance with . this ended Agreement.
3-1 5 , 53rd Street : The Developer _ . will plan; provide right- of-way (without
compensation) ; design; penzl>.t; - and construct 53 ' _Street as 9 - four-lane divided roadway
from 58 `h 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 Tdesign _of the bridge across the Lateral H and
North Relief canals ; and (b) ' submit engineering plans to the County for its : review and
RM: 7375391 : 1
.�4
Page 5 of -(-�� l 6
4
s
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
shall not unreasonably withhold or delay such approval . Failure to reply to the
Developer within thirty (30) days shall constitute approval .
B . The D-eveloper _ and the County shall share equally the cost of
construction, design, and engineering of 53rd Street from 58th 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 daye1 &j_4e-QQye o er ' 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, butnot limited to, the reservation of road right-
of-way described in Deed Book 66 Page35 , Deed Book 67 Page 267 and Deed
Book 60 Page 86,. Public Records of,Indian River County, Florida_
11 F . The construction of 53rd Street as described above will require the
excavation of- a lake to receive the iainae from 53 " Street ("the Lake " 1 ie
Developer agrees to dig the Lake . to install the required drainaue nines from 53rd
Street, and - to - allow 53rd Street to draiir "into the Lake nereafter to fumi h
appropriate easements to the County for the use, maintenance and replacement of
such piping . The County agreesthat the mining activities associated With
extracting and transporting of tliis fill. -. will_ not be charged- against the iinai ed
diaration of the incidental to construction mining permits issued to the Develooer
for the development.-_ -
G . The Developer agrees . to . furnish the County fill (not to e cceed
100 . 000 cubic yards l for use: by the County in the construction of 53rd treet east
of the Lateral H Canal . The fill _will beat no cot to the County but the County
RM: 7375391 :
-I-9
Page 6 of -14) 116
a •
' r
will be responsible for arranging and paving for the costs of loading and
transporting the fill . The County agrees that the mining activities aceociat d . � ,it
- - - -" " - LLLVIl VV lull
extracting and transporting of this fill will not be charged against the limited
duration of the incidental to constriction mining permits issued to the De_ ye_ ln_ ne_,_-
for the development .
6 . 581h Avenue : . The Developer agrees to construct 58th Avenue as a four
lane roadway between 4 t Street and 53rd Street at it own expense Said constriction
shall continence no later than six ( 6) months after such time as the traffic modeling one
in conjunction with the Annual Report determines that the traffic volumes on 5Rth /aven „ e
between 49th Street and 57 Street exceed the adopted level of service or by January
2015 , whichever occurs first, and shall be completed within twelve ( 121 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, pem- ittingand construction costs associated with 5e
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, 51St
Court, and 491h Street improvements within the project or along the project
frontage at to 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 preuav all . traffic imr� act fees ( .c„ h ; est to
available impact fee credits ) for 1 . 596 dwelling units in Waterway V; llagP nn
later than December 31 , 2015 , unless those impact fees are nai_ d earlier at the time
of the issuance of building permits . The Developer shall have the opt; nn 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 elft ntc
provided however, the 20000 square feet of Neighborhood Commercial uses will
not be vested for traffic concurrency ' if ' the traffic impact fees for the
Neighborhood Commercial uses are nottiaid by December 31 . 2015 - The
Developer _ acknowledges that any impact fees tiaid to the County are non -
refundable under the Countv ' s Code of Ordinances .
RM: 7375391 : 1
-i-2
Page 7 of 4-66
i
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) .
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9 . Project Bids : The Developer shall not he required to publicly bird the
work described herein. but all work performed by the Developer shall he subject to the
reasonable determination by the County that the costs incurred for such work were
non-nal and custornaly.
-7-7h Stormwater Management : The Developer agrees to incorporate, at no
cost to the County, sufficient capacity in Waterway Village to }Diz47)= d-e_ cconmmodate
stomlwater storage and other St Johns River Water Management District mandated
permit conditions , effective on the date of permit issuance, for the impervious area effor
the following roadway sections and associated intersections • 53rd Street from King ' s
Highway (58th Avenue) to the eastern boundary of Waterway : �,-1 a-i-a� 43rd Avenue
from 49th Street to 53rd Street; 49th Streett related turn lanes ; and
King ' s Highway (58th Avenues four-lane widening along the project frontage . The
County agrees that the mining_ activities Vl
associated with extracting and transporting of
- - - - associated - It
this fill will not be charged against the limited duration of the incidental to const uction
mining permits 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.
8- 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 .
RM : 7375391 : 1
a-2
Page 8 of 1 (; 16
d
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.
(3 ) Professional Liability Insurance providing coverage for
intentional, reckless or negligent acts , errors, or omission committed or
alleged to have been committed by !he 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.
RM : 7375391 : 1
Page 9 of 4-61
o
I . I he 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, Lhe 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
e € rrrtAmended Aereement and for which the Developer is legally liable .
RM: 73 7539 1 : 1
4..2
Page 10 of 416
12 . Indian River Farms Water Control District Right- Of-Way Indian
River Farins 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 thisends 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.
4-Fi713 . Attachment to Amended and Re.ctatP 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 Restate 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 rive the Developer written notic
--- - Developer� + � notic
of such failure and .a sixty day opportunity to cure provided that if such failure caimot
reasonably be cured within such sixty day period as d the Developer shall have
period 411 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
- -- - - --- - � - - � " ' -" � � + r. ... v diligence Lv Vu1 �.I
such failure . Upon the failure of the Developer to timely cure its failure to perform it
obligations in accordance-herewith ,_ _ then the County shall have the optic of electing to
- - - - � + � option vi elect ng L�./
seek specific performance of such obligations or to treat the vesting for tra is
concurrency provided for in Subsection 3 . A . above as terminated,
�- .5 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
Amen ed Agreement shall be valid or binding unless accomplished in writing and
executed by all of the parties hereto .
RM : 73 75391 : 1
-I-9
Page 11 of -45j.6
• t 0 e
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: 73 7539 1 : 1
I9
Page 12 of -1--616
L . 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 .
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
A >nended 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 term, 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 fled in the Circuit Court
Indian River Colmty . 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.
Hams 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 - constitutinan
_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
a undance of caution. the parties have elected to seek Circuit Courtapproval 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 fnal 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: . 7375391 : I
+2
Page 13 of +616
n r J 5
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
By : By
Print Name : Print Name :
Its : Its :
BCC Approved:
WITNESS : By:
Name :
WITNESS :
(Corporate seal is acceptable in place
of witnesses)
RM: 7375391 : 1
-i-2
Page 14 of 4-61_6
Attest :
Clerk of Court
Name :
(Approved as to Form and
Legal Sufficiency)
TATE OF FLORIDA )
-- Non ,
COUNTY OF )
The foregoing instrument was ackmowledeed before me this of
. 20_10 . by . as of DiVosta.
Homes Holdin -gS , LLC . a Florida- limited liability company, in its rapacity as the general
Vll Vl Ul
partner of DiVosta Homes . L . P . . a Delaware limited partnership Personally known
or produced as identification
NOTARY PUBLI
SigLI
Print
State of Florida at T ar1�e
Y commission expires : (SEAL )
Serial Number if an
RM: 7375391 : 1
4-2
Page 15 of 4i116
EXHIBIT C TO SETTLEMENT AGREEMENT
IN THE CIRCUIT COURT OF THE 19TH
JUDICIAL CIRCUIT, IN AND FOR
INDIAN RIVER COUNTY, FLORIDA
CASE N0 . 20070109 CA19
DIVOSTA HOMES , L . P . , a foreign
limited partnership, and its general
partner, DIVOSTA HOMES HOLDINGS ,
L . L . C, a foreign limited liability
company,
Plaintiffs ,
V .
INDIAN RIVER COUNTY, a political
subdivision of the state of Florida,
Defendant .
STIPULATION FOR APPROVAL OF SETTLEMENT AGREEMENT
AND DISMISSAL WITH PREJUDICE
Plaintiffs , DiVosta Homes , L . P . and DiVosta Homes Holdings, L .L . C . (collectively
"DiVosta"), and Defendant, Indian River County ("County") , by and through their undersigned
counsel, stipulate and agree to the following :
1 . That the parties have entered into a Settlement Agreement, a copy of which is
attached hereto as Exhibit 1 .
2 . That the Court is requested to enter its Final Order approving the Settlement
Agreement and incorporating the terms of the Settlement Agreement into the Final Order,
3 . That this action be dismissed, with prejudice, with each party to bear its own costs
and attorneys ' fees .
RM : 6637905 : 11
4 . That the Court shall retain jurisdiction over this matter to enforce the terms and
conditions of the Settlement Agreement; provided, however, that the Parties shall not be required to
obtain the Court ' s approval of any future amendments to the Development Order or the Developer ' s
Agreement (as such terms are defined in the Settlement Agreement), or to the plans and documents
associated therewith.
Glenn N. Smith, Esq . Juan J. Farach, Esq.
Ruden McClosky P .A. Shubin & Bass , P .A.
Post Office Box 1900 46 SW First Street, Third Floor
Fort Lauderdale, FL 33301 Miami, FL 33130
Florida Bar Number 165334 Florida Bar Number 957704
Counsel for DiVosta Counsel for County
Dated : Dated:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by
Facsimile and U. S . Mail to Glenn N. Smith, Esq. , Ruden McClosky P . A. , Post Office Box 1900, Fort
Lauderdale, FL 33301 ; Bruce Barkett, Esq. , Collins , Brown, PO Box 3686, Vero Beach, FL 32964 ;
Juan J. Farach, Esq. , Shubin & Bass , P . A. , 46 SW First Street, Third Floor, Miami , FL 33130; Alan
S . Polackwich, Sr. , Esq. , Office of County Attorney, Indian River County, 1840 25th Street, Vero
Beach, FL 32960 this _ day of , 2010 .
RUDEN McCLOSKY P .A .
Post Office Box 1900
Fort Lauderdale, FL 33301
Phone : (954) 527-2466
Fax : (954) 333 -4066
Glenn . Smith@Ruden . com
By:
Glenn N. Smith, Esq.
Florida Bar No . 165334
Attorneys for DiVosta
RM : 6637905 : 11
EXHIBIT D TO SETTLEMENT AGREEMENT
IN THE CIRCUIT COURT OF THE 19th
JUDICIAL CIRCUIT, IN AND FOR
INDIAN RIVER COUNTY, FLORIDA
CASE N0 . 20070109 CA19
DIVOSTA HOMES , L . P . , a foreign
limited partnership, and its general
partner, DIVOSTA HOMES HOLDINGS ,
L . L . C , a foreign limited liability
company,
Plaintiffs ,
V .
INDIAN RIVER COUNTY, a political
subdivision of the state of Florida,
Defendant .
AGREED FINAL ORDER APPROVING SETTLEMENT AGREEMENT
AND DISMISSING CASE, WITH PREJUDICE
THIS CAUSE having come before the Court upon the Parties ' Stipulation for Approval of
Settlement Agreement and Dismissal with Prejudice and the Court having otherwise been duly
advised in the premises , it is hereupon :
CONSIDERED , ORDERED AND ADJUDGED that :
1 . That the Parties ' Stipulation be and the same is hereby accepted and approved by this
Court, and the terms of said Stipulation are incorporated herein by reference .
2 . That the Parties ' Settlement Agreement be and the same is hereby approved by this
Court and made a part of this Final Order by reference .
3 . That the Court specifically finds that the relief set forth in the Settlement Agreement
protects the public interest served by the regulations and statutes at issue, and is the appropriate
relief necessary to prevent the governmental regulatory effort from inordinately burdening the
Waterway Village real property, all as set forth more fully in the Settlement Agreement.
RM : 663 7905 : 11
4 . That this action be and the same is hereby dismissed, with prejudice, with each party
to bear its own costs and attorneys ' fees .
5 . That the Courtretains jurisdiction over this matter to enforce the terms and conditions
of the Settlement Agreement; provided, however, that the Parties shall not be required to obtain the
Court ' s approval of any future amendments to the Development Order or the Developer ' s
Agreement (as such terms are defined in the Settlement Agreement), or to the plans and documents
associated therewith .
DONE AND ORDERED this day of , 2010 at Vero Beach, Indian
River County, Florida.
CIRCUIT COURT JUDGE
Copies Furnished:
Glenn N. Smith, Esq . , Ruden McClosky P .A. , Post Office Box 1900, Fort Lauderdale, FL 33301
Bruce Barkett, Esq. , Collins, Brown, PO Box 3686, Vero Beach, FL 32964
Juan J. Farach, Esq . , Shubin & Bass , P . A. , 46 SW First Street, Third Floor, Miami, FL 33130
Alan S . Polackwich, Sr. , Esq . , Office of County Attorney, Indian River County, 1840 25 "' Street,
Vero Beach, FL 32960
RM: 6637905 : 11