HomeMy WebLinkAbout2010-120AMENDED DEVELOPER'S AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
DIVOSTA HOMES, L.P.
FOR WATERWAY VILLAGE
THIS AMENDED AGREEMENT is made and entered into this 11 th day of
May , 2010, by and between Indian River County, Florida, a political
subdivision of the State of Florida, 1840 25th 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 49th 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 Chapter 380, Florida Statutes, adopted
Resolution 2004-137 ("Development Order") approving Waterway Village as a DRI and
Planned Development project on November 9, 2004; and
WHEREAS, the County and the Developer share mutual goals and determined
that they could assist each other with respect to right-of-way acquisition, roadway and
drainage improvements, intersection improvements, and other improvements described in
the Development Order and required by the Planned Development; and
WHEREAS, the Development Order limited the number of building permits
which would be issued for Waterway Village before provision was made to accomplish
certain intersection improvements and other required improvements; and
WHEREAS, the Development Order specified that provision for the
accomplishment of the intersection improvements and required improvements could be
made by, among other methods, a local government developer's agreement; and
WHEREAS, Indian River Farms Water Control District ("District") possesses
rights-of-way which traverse Waterway Village, and which the District is willing to
release for the benefit of the Develop; and
WHEREAS, the County is willing to assist the Developer in acquiring title to the
rights-of-way to be released by the District, at no cost to the County; and
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WHEREAS, the County and the Developer entered into a Developer's Agreement
on December 13, 2005 ("Developer's Agreement") with respect to right-of-way
acquisition, roadway and drainage improvements, intersection improvements, and other
improvements described in the Development Order and required by the Planned
Development; and
WHEREAS, a dispute arose between the parties as to whether Waterway Village
is vested for traffic concurrency; and
WHEREAS, the parties have worked in good faith to resolve their disputes and
have agreed to certain terms and conditions which require that the Developer's
Agreement and the Development Order be amended; and
WHEREAS, the County pursuant to Section 380.06(19), Florida Statutes, adopted
Resolution 2010- 037 approving an Amended and Restated Development Order for
Waterway Village ("Amended and Restated Development Order") on
Mav 11th .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 written, between the Developer and the
County and that certain Developer's Agreement entered into on December 13, 2005
between Indian River County and DiVosta Homes, L.P, and recorded in Official Records
Book 1988, Pages 765-777 of the Public Records of Indian River County, Florida.
3. Building Permits and Vesting:
A. Building permits for Waterway Village shall be issued in staged
increments and vested for traffic concurrency as follows:
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(i) 733 single family dwelling units in Phases I and II were previously
vested for traffic concurrency and shall remain vested for traffic
concurrency through December 31, 2016. Development of a
recreational/clubhouse on 2.2 acres, the school site, and
preservation areas may also commence at any time and under the
County's development regulations are not subject to concurrency
and are therefore deemed vested.
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(ii) Commencing in 2012, 150 additional single family dwelling units
may pull building permits and shall remain vested for traffic
concurrency through December 31, 2019. Development of a
recreational/clubhouse on 2.7 acres may also commence in 2012 or
any time thereafter and under the County's development
regulations is not subject to concurrency and is therefore deemed
vested.
(iii) Commencing in 2013, 150 additional single family dwelling units
may pull building permits and shall remain vested for traffic
concurrency through December 31, 2020.
(iv) Commencing in 2014, 52 additional single family dwelling units
and 98 multifamily dwelling units may pull building permits and
shall remain vested for traffic concurrency through December 31,
2021. Development of a recreational/clubhouse on 1.5 acres may
commence in 2014 or any time thereafter and under the County's
development regulations is not subject to concurrency and is
therefore deemed vested. Development of 20,000 square feet of
Neighborhood Commercial uses may also commence in 2014 or
any time thereafter and shall remain vested for traffic concurrency
through December 31, 2021, subject to Paragraph 7.13. of the
Amended Developer's Agreement.
(v) Commencing in 2015, 150 additional single family dwelling units
may pull building permits and shall remain vested for traffic
concurrency through December 31, 2022. Development of a
recreational/clubhouse on 2.4 acres may also commence in 2015 or
any time thereafter and under the County's development
regulations is not subject to concurrency and is therefore deemed
vested.
(vi) Commencing in 2016, 26 additional single family dwelling units
and 124 multifamily dwelling units may pull building permits and
shall remain vested for traffic concurrency through December 31,
2023. Development of a recreational/clubhouse on 4.2 acres may
also commence in 2016 or any time thereafter and under the
County's development regulations is not subject to concurrency
and is therefore deemed vested.
(vii) Commencing in 2017, 113 additional single family dwelling units
may pull building permits and shall remain vested for traffic
concurrency through December 31, 2024.
B. The two dates specified in paragraphs 3.A.(ii) — (vii) are the dates
between which building permits for the development specified in each provision
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must be pulled in order to maintain the vesting of the applicable dwelling units or
nonresidential development. The vesting provided for in paragraphs 3.A.(i) —
(vii) shall lapse for dwelling units or nonresidential development for which a
building permit has not been pulled before the expiration of the applicable vested
period.
C. An approved use may be exchanged for any other approved use so
long as the exchange of uses does not generate additional net external p.m. peak
hour trips.
D. The County acknowledges that it has loaded all of the trips from
the 1,596 dwelling units, the recreational/clubhouse use, and the school site in
Waterway Village onto its road system for concurrency modeling, and those
respective uses shall remain vested and reserved for the Waterway Village DRI
until the timeframes to pull building permits as set forth in Subsection 3.A. above
have expired.
E. The Developer acknowledges that Waterway Village is vested only
for traffic concurrency and will not be vested for other facilities pursuant to this
Agreement or the DRI Development Order. Waterway Village may become
vested for all other facilities at any time by the Developer applying for a
concurrency certificate under the County's concurrency management system,
obtaining approval for such certificate based upon availability of capacity, and
paying all other impact fees.
4. Intersection Improvements: The County and the Developer desire to
address the conditions of the Amended and Restated Development Order relating to
intersection improvements as follows:
A. The Developer agrees to plan, survey, design, permit, and
construct the intersection improvements identified in Exhibit `B" on or before the
date or event specified in the Amended and Restated Development Order. Prior
to construction, the Developer shall relocate all conflicting utilities. The
Developer also agrees to identify needed right-of-way, prepare legal descriptions
and parcel sketches, prepare appraisals, negotiate and obtain county approval of
purchase prices, and acquire the needed right-of-way. The Developer shall
invoice the County for costs of appraisals and for closing costs, including
purchase price, and the County shall reimburse the Developer pursuant to
paragraph 8, below. If the Developer is unable to acquire the needed right-of-way
or if the County disapproves a reimbursable cost, the County agrees to initiate the
eminent domain process within thirty (30) days notice by the Developer that the
right-of-way could not be acquired through negotiation. The County, through its
Public Works Director or his designee, shall have thirty (30) days to review and
approve reimbursable costs. Failure to reply to the Developer within thirty (30)
days shall constitute approval.
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B. The Developer shall contribute to the County the following sums
of money toward the Intersection Improvements specified below ("Contribution
Amount"). The Developer shall not receive compensation or impact fee credits
for these Contribution Amounts.
See Exhibit "C" attached hereto and made a part hereof.
C. The Developer agrees to plan, survey, design, permit, and
construct the Intersection Improvements at 45`h Street and 58`h Avenue on or
before the date or event specified in the Amended and Restated Development
Order, provided, however, that the County shall be responsible for and shall pay
81.93% of such costs. The County shall be responsible for 100% of the costs for
appraisals, closing costs, and the purchase price if additional right-of-way is
acquired by the Developer. If additional right-of-way is required to make the
Intersection Improvements, the Developer agrees to identify the required right-of-
way, prepare legal descriptions and parcel sketches, prepare appraisals, negotiate
and obtain County approval of purchase prices, and acquire the needed right-of-
way. The County shall be responsible for 100% of appraisal costs and closing
costs, including purchase price, for such additional right-of-way, and the County
shall reimburse the Developer pursuant to paragraph 8 below. If the Developer is
unable to acquire the needed right-of-way or if the County disapproves a
reimbursable cost, the County agrees to initiate the eminent domain process
within thirty (30) days notice by the Developer that the right-of-way could not be
acquired through negotiation. The County, through its Public Works Director or
his designee, shall have thirty (30) days to review and approve reimbursable costs.
Failure to reply to the Developer within thirty (30) days shall constitute approval.
D. The Developer's obligation with respect to the Intersection
Improvements identified in the Amended and Restated Development Order,
paragraphs 16, 19 through 29, shall be deemed satisfied so long as the Developer
is in compliance with this Amended Agreement. The County shall not withhold
any approval or permit because of the condition of any intersection so long as the
Developer is in compliance with this Amended Agreement.
5. 53`d Street: The Developer will plan; provide right-of-way (without
compensation); design; permit; and construct 53`d Street as a 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 design of the bridge across the Lateral H and
North Relief canals; and (b) submit engineering plans to the County for its review and
approval prior to the commencement of construction of 53`d 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
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shall not unreasonably withhold or delay such approval. Failure to reply to the
Developer within thirty (30) days shall constitute approval.
B. The Developer and the County shall share equally the cost of
construction, design, and engineering of 53`d Street from 58`h Avenue to the east
property line of Waterway Village; provided, however, that the County's
obligation for the cost of landscaping shall be limited to one-half of $100,000.00
per mile. The Developer shall fund and install all border landscaping.
C. The Developer shall have no responsibility for the design,
engineering, or construction costs of 53`d Street east of the Developer's east
property boundary, or for the bridges across Lateral H and North Relief canals.
D. The Developer's obligation with respect to 53`d 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 53`d 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 53`d 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 53`d
Street located in Sections 21 and 22, Township 32, South, Range 39 East, Indian
River County, Florida, including, but not limited to, the reservation of road right-
of-way described in Deed Book 66 Page 35, Deed Book 67 Page 267 and Deed
Book 60 Page 86, Public Records of Indian River County, Florida.
F. The construction of 53`d Street as described above will require the
excavation of a lake to receive the drainage from 53`d Street ("the Lake"). The
Developer agrees to dig the Lake, to install the required drainage pipes from 53`d
Street, and to allow 53`d Street to drain into the Lake and thereafter to furnish
appropriate easements to the County for the use, maintenance and replacement of
such piping. The County agrees that the mining activities associated with
extracting and transporting of this fill will not be charged against the limited
duration of the incidental to construction mining permits issued to the Developer
for the development.
G. The Developer agrees to furnish the County fill (not to exceed
100,000 cubic yards) for use by the County in the construction of 53`d Street east
of the Lateral H. Canal. The fill will be at no cost to the County but the County
will be responsible for arranging and paying for the costs of loading and
transporting the fill. The County agrees that the mining activities associated with
extracting and transporting of this fill will not be charged against the limited
duration of the incidental to construction mining permits issued to the Developer
for the development.
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6. 581h Avenue: The Developer agrees to construct 581h Avenue as a four -
lane roadway between 491h Street and 53`d Street, at its own expense. Said construction
shall commence no later than six (6) months after such time as the traffic modeling done
in conjunction with the Annual Report determines that the traffic volumes on 58th Avenue
between 49th Street and 53`d Street exceed the adopted level of service or by January 1,
2015, whichever occurs first, and shall be completed within twelve (12) months after
commencement. The Developer and the County shall in good faith agree upon the
methodology of any such traffic modeling.
7. Impact Fees: The following impact fee provisions shall be applicable to
the development:
A. The Developer shall receive traffic impact fee credits for all
design, engineering, permitting, and construction costs associated with 58th
Avenue and 53`d 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 53`d 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 43`d Avenue, 5151
Court, and 49th Street improvements within the project or along the project
frontage at the Developer's sole cost with no impact fee credits allowed. The
Developer shall construct sidewalks required by the Amended and Restated
Development Order and the approved Planned Development Plan at the
Developer's sole cost and expense with no impact fee credits allowed.
B. The Developer agrees to prepay all traffic impact fees (subject to
available impact fee credits) for 1,596 dwelling units in Waterway Village no
later than December 31, 2015, unless those impact fees are paid earlier at the time
of the issuance of building permits. The Developer shall have the option to
prepay the traffic impact fees for the 20,000 square feet of Neighborhood
Commercial uses by December 31, 2015, or at such time as the Developer elects;
provided however, the 20,000 square feet of Neighborhood Commercial uses will
not be vested for traffic concurrency if the traffic impact fees for the
Neighborhood Commercial uses are not paid by December 31, 2015. The
Developer acknowledges that any impact fees paid to the County are non-
refundable under the County's Code of Ordinances.
8. Invoices: Any invoices submitted by the Developer to the County for the
County's payment shall be reimbursed by the County according to the Prompt Payment
Act. (Sections 218.70-218.80, Fla. Stat. 2004).
9. Proiect Bids: The Developer shall not be required to publicly bid the
work described herein, but all work performed by the Developer shall be subject to the
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reasonable determination by the County that the costs incurred for such work were
normal and customary.
10. Stormwater Management: The Developer agrees to incorporate, at no
cost to the County, sufficient capacity in Waterway Village to accommodate stormwater
storage and other St. Johns River Water Management District mandated permit
conditions, effective on the date of permit issuance, for the im�3ervious area for the
following roadway sections and associated intersections: 53` Street from King's
Hi4hway (58'h Avenue) to the eastern boundary of Waterway Village; 43`d Avenue from
49' Street to 53`d Street; 49'h Street project related turn lanes; and King's Highway (581h
Avenue) four -lane widening along the project frontage. The County agrees that the
mining activities associated with extracting and transporting of this fill will not be
charged against the limited duration of the incidental to construction mining permits
issued to the Developer for the development. The capacity shall be such as to
accommodate the drainage for the described section of 53`d Street if and when it is
widened to six lanes. As part of its design and construction of 53`d Street described
herein, the Developer shall design, permit, and install drainage improvements to direct
the drainage from the future widening of 53`d 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 53`d Street as a four -lane road.
11. Insurance and Indemnification: During the Developer's performance of
any construction in County right-of-way covered by this Amended Agreement, the
Developer shall provide the County with evidence that the Developer or the Developer's
Contractor has obtained and maintains the insurance listed below.
A. The Developer or the Developer's Contractor shall procure and
maintain for the duration of all construction contracts, insurance against claims
for injuries to persons or damages to property which may arise from or in
connection with the performance of the work hereunder by the Developer, his
agents, representatives, employees or sub -contractors.
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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.
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(3) Professional Liability Insurance providing coverage for
intentional, reckless or negligent acts, errors, or omission committed or
alleged to have been committed by the Developer's Engineer with a limit
of $500,000 per claim/annual aggregate.
There shall be no more than $5,000 deductible per claim amount unless approved
by the County Risk Manager. Any deductibles or self-insured retentions greater
than $5,000 must be approved by the Risk Manager for Indian River County with
the ultimate responsibility for same going to the Developer.
C. The Developer's insurance coverage shall be primary.
D. All above insurance policies shall be placed with insurers with a
Best's rating of no less than AV. The insurer chosen shall also be licensed to do
business in Florida.
E. The insurance policies procured shall be per occurrence policies or
as generally available on the open insurance market.
F. The Insurance Carriers shall supply Certificates of Insurance
evidencing such coverage to the Indian River County Risk Management
Department prior to the commencement of any work in a County right-of-way.
G. The insurance companies selected shall send written verification to
the Indian River County Risk Management Department that they will provide
thirty (30) days written notice to the Indian River County Risk Management of its
intent to cancel or terminate said policies of insurance.
H. A written safety inspection plan must be submitted to the Indian
River County Risk Management Department for approval prior to the
commencement of any work in a County right-of-way.
I. The Developer shall include in all sub -contracts for sub -contractors
the above insurance requirement or show them as insured under its policies or
shall furnish separate certificates and endorsements for each sub-
contractor. All coverages for sub -contractors shall be subject to all of the
requirements stated herein.
J. Up to $1 million, the Developer hereby agrees to indemnify Indian
River County and Representatives thereof from all claims arising solely from
intentional, reckless or negligent acts, errors or omissions of the Developer or the
Developers' Representatives in the performance of Services under this Amended
Agreement and for which the Developer is legally liable.
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12. Indian River Farms Water Control District Ripht-Of-Way: Indian
River Farms Water Control District ("District") is in possession of right-of-way which
traverses Waterway Village, and which is more particularly described on Composite
Exhibit "D" attached hereto and made a part hereof ("District Right -of -Way"). The
Developer and the District have entered into an agreement ("Agreement") which provides
that the District shall convey title to the District Right -of -Way to the County, to be held
in escrow, until the County can comply with the terms of this paragraph. The County
hereby agrees to convey to the Developer, by County deed, if appropriate, or by
abandonment to the Developer as the adjacent property owner, the District Right -of -Way,
as part of the consideration of this Amended Agreement. The Developer shall be
responsible for obtaining its own title insurance, and any costs associated with said
conveyance, including surveys, documentary stamps, or recording fees. If the County is
unable to convey title to the District Right -of -Way to the Developer by September 8,
2006, then the Developer shall have the option to direct the Escrow Agent under the
Agreement, to return the deed for the District Right -of -Way back to the District and
return to the Developer the Purchase Price held in escrow under the Agreement. The
County's conveyance of the District Right -of -Way to the Developer shall be a release of
any interest the County has in the District Right -of -Way.
13. Attachment to Amended and Restated Development Order: Upon
approval and execution by the Developer and the County, this Amended Agreement shall
be attached as an exhibit to the Amended and Restated Development Order, in
accordance with the terms of the Amended and Restated Development Order.
14. Failure to Perform: If the Developer fails to perform its obligations as
set forth in this Amended Agreement, the County shall give the Developer written notice
of such failure and a sixty day opportunity to cure, provided that if such failure cannot
reasonably be cured within such sixty day period and the Developer shall have
commenced to cure such failure within such sixty day period and thereafter diligently and
expeditiously proceeds to cure the same, such sixty day period shall be extended for so
long as it shall reasonably require the Developer in the exercise of due diligence to cure
such failure. Upon the failure of the Developer to timely cure its failure to perform its
obligations in accordance herewith, then the County shall have the option of electing to
seek specific performance of such obligations or to treat the vesting for traffic
concurrency provided for in Subsection 3.A. above as terminated.
15. Miscellaneous:
A. In the event of any litigation arising out of this Amended
Agreement, the prevailing party shall recover attorneys' fess and costs for the
non -prevailing party.
B. No amendment, modification, change, or alteration of this
Amended Agreement shall be valid or binding unless accomplished in writing and
executed by all of the parties hereto.
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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.
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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
Amended Agreement.
N. The words herein and hereof and words of similar import, without
reference to any particular section or subdivision of this Amended Agreement,
refer to this Amended Agreement as a whole rather than to any particular section
or subdivision hereof.
O. In the event any 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 filed in the Circuit Court,
Indian River County, Florida, styled DiVosta Homes, L.P., et al v. Indian River County,
Florida, case # 20070109 CA 19 ("Lawsuit") and claims presented under the Bert J.
Harris, Jr., Private Property Rights Protection Act (collectively "Claims"). The terms of
the Settlement of the Claims is set forth in the Developer's Agreement Amendments, the
Development Order Amendments (as defined in Resolution 2010-037, constituting an
Amended and Restated Development Order pertaining to Waterway Village), and a
Settlement Agreement executed by the parties simultaneously with the execution of this
Amended Developer's Agreement (collectively "Settlement Documents"). In an
abundance of caution, the parties have elected to seek Circuit Court approval in the
Lawsuit of the Settlement and Settlement Documents. The Settlement and Settlement
Documents shall be effective as of the date of Circuit Court approval, and conclusion of
all appeals, if any. If, for any reason, a final Circuit Court approval of the Settlement and
the Settlement Documents is not obtained, then the Settlement and the Settlement
Documents shall be null and void.
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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.
a Delaware limited partnership
By: DiVosta Homes Holdings, LLC,
a Delaware limited liability company;
its General Partner
By:AW
PrinAame:ftAI I%N nIts: �dal� lanc/
WITNESS:
WITNESS:
(Corporate seal i acceptable in place
of witnesses)
RM:7031940:9
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
By: % X.L�CiI�
Print Name: Pei
Its: Chairman
1)
BCC Approved: May 11 , 2010
By: N/A
Name: N/A
Page 13 of 14
Attest: Jeffrey K. Barton, Clerk
o urt
By: �
Deputy Clerk of Court
Name:
(Approved as to Form and AA�'�o---
Legal Sufficiency) Cl//
STATE OF FLORIDA )
)ss:
COUNTY OF `4'z /% 4 ce,��t )
The foregoing instrument was acknowledged before; me this /a-C�of
2010, by _ � Eas�(/�iC¢l� c I//C /X -b% W4X-hof DiVosta
Homes I oldings, LLC, a Florida limited liability company, in its capacity as the general
partner of DiVosta Homes, L.P., a Delaware limited partnership. Personally known
I/ or produced as identification.
RM:7031940:9
NOTARY PUBLIC
Sign
Print A 8oc✓e-S
State of Florida at Large
My commission expires: (SEAL)
Serial Number, if any:
NU 1 RYPUBLIC-SPATE OF FLORIDA
........Kathryn A. Bowes
Commission # DD581103
Expires: SEP. 13, 2010
wONDFD T-Ul' AnANTIC BONDING CO., INC,
Page 14 of 14
EXHIBIT A
THAT PART OF THE SW 1/4 OF SECTION 15, TOWNSHIP 32 SOUTH, RANGE 39 EAST,
LYING SOUTH OF THE NORTH RELIEF CANAL; THAT PART OF TTS SW 1/4 pfi T14E SE
1/4 OF SECTION 15, TOWNSHIP 32 SOUTH, RANGE 39 EAST, LYING SOUTE3 OF TIM
NORTH RELIEF CANAL AND WEST OF LATERAL "H" CANAL; THE SOUTH 1/2 OF THE
SOUfIi 1R OF SECTION 16, TOWNSHIP 32 SOUTH, RANGB 39 EAST, LYING SOUTH OF
THE: NORTH RELIEF CANAL; THE NW IA OF SECTION 22, TOWNSHIP 32, 90UfH.
RANGE 39 EAST, AND THAT PART OF THE 14W 1/4 OF THE NE 1/4 OF SHC:.TION 22,
TOWNSHIP 32 SOUTH, RANGE 39 FAST, LYING WEST OF LATERAL "H" CANAL, ALL
LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA; AND TRACTS 1 T7�gOLIGH 8,
INCLUSIVE SECTION 21. TOWNSHIP 32 SOUTH, RANCE 39 EAST. ACCORDING TO THE
LAST GENERAL PLAT OF LAND OF THE INDIAN RIVER FARMS COMPANY '_..A I\T])S, AS
RECORDED IN PLAT DOOK 2, PAGE 25 OF THE FUE13C RECORDS OF ST. LUCIE
COUNTY. FLORIDA; SAILS LAND NOW LYING AND BUING DNINDIP.NRIVER COUNT"i,
FLORIDA.
LESSANDEXCEPT: THE SOUFH60.06FBFTOFTRACTS 5THROUGHS.1NCLUSIVEOF
SECTION 21, TOWNSHIP 32 SOUTH, RANGE 39 EAST, ACCORDING TO THE LAST
GENERAL PLAT OF .LANDS OF THE INDIAN 'RIVER FARMS COMYANy LANDS
RECORDED IN PLAT BOOK 2, PAGE 25, ST. LUCM COUNTY; FLORIDA, PUBLJC
RECORDS, NOW LYING AND BEING IN INDIAN RIVEA2COI7 MFLORIDATOGE'ITIER
WITH THE SOUTH 60.00 FRET OF THE NORTHWEST QUARTER (114) OF SRCTION 22,
TOWNSHIP 32 SOUTH, RANGE 39 EAST, INDIAN RLV.ER COUNTY, FLORIDA.
AND LESS AND EXCEPT: THE NORTH 12 FEET OF THE SOUTH 72 FEET CIP TUB FAST
1 i58.9 FEET OF. TRACT 7, AND IM NORTH 12 FEET OF THE SOUTH 72 OF THE WEST
641.1 FEI7T OF TRACT 8, IN SECTION 21, TOWNSHIP 32 SOUTH, RANG$ 39 EAST,
ACCORDING TO THE LAST GENERAL PLAT OF LANDS OF THE INDIAN RIVER PAR
COMPANY, RECORDED IN FLAT BOOR 2, PAGE 25, OF TIE PUBLIC RECORDS OF ST.
LUCIE COUNTY, I;LORIDA; SAID LAND NOW LYING AND BEING IN INDIAN RIVER
COUNTY, FLORIDA.
CONTAINING 696.642 ACRES, MORE OR LESS
EXIII BIT B
WATERWAY VILLAGE
DEVELOPER FUNDED
INTERSECTION IMPROVEMENTS
INTERSECTION IMPROVEMENTS
CONDITION
58th Avenue tempormy entrance including flasher conv. signal
16
53rd Street & 58th Avenue, including fidl traffic signal
19
53rd Street & 51st Court, including flasher convertible siutal
19,27
53rd Street & 43rd Avenue, includinj flusher convertible signal
19
19th Street & 43rd Avenue, including flasher convertible signal
19
19th Street & 51st Court, including flasher convertible signal
19,28
45th Street & 58th Avenue, including full traffic signal
20
49th Sirect & 58th Avenues, including full trallic signal
20
53rd Street & 43rd Avenue, including Hill traffic signal
22
u:ryplamm�p;uuknravlanelnper n;ErecmeN eVunnsin
FJCMff Cl
WATERWAY VILLAGE
DEVELOPER CONTRIBUTION 5 MUKAiYY
FOR INTERSECTION IMPROVEMENT'S
•lidiln hMl Cawily dWWrWuimVI uulyeia aflh's k=tlNm lbnsfu nn
!raffle dma u aw7eND 'ft Pnao LW ®pan a bMOd Ww m hdj"g US 1 impua agrten rr? e.
0 ARCADIS LNw
£
aw6 sson, ble &, W¢bb�t Inca
iY0+uinokp. Noq Ito,WMPMmB+ImABRxum
166T1aM4seM •loc (wfISM•1s1s. Wsm ww.iain.wln
Wase PTlm BIW1k • part R4 Wake -OdwWo •vmo rWch
�... 19B U3f / L8 8874 ---- .._-.._
CANAL R/W
7.69 ACRES +/-
. . .--4 S8W,
�pl i;NLT:
RBC 57 E
WA f}� r•Ip 4a10
I!J'
PR..e,RbzPa.25
K_V
JI
N) 8"W 6340.08 a•culnmaSw — N88.41•TOTAL) 288141' �!
SOa'IT67'Wtea el''°�
;
CANAL R/l'f
`
30.00' aWE ae1'IYn
P.O
6
ITOTALI
7.63 ACRES I/ c
I `
- D89'40Rfi'E
.. { 5948.21
_
N89•40'2 `W
53.48.
narn+3aaa oT
Oa' CN
6'11'37-C
TT07ALI
xrnTH rann :�
towILn
A7x*A
!
:'x1101121 A*F. T:, Ra[ 3
*F i LL TAT•. u L, RSC m L I
4[CTILVe iI. TwP. 'S.'. IME+:JL I3
1 1
ww wm CS.
RAT OF LNpl llp
-
nmRrori
ol.
CANAL R/W
7.69 ACRES +/-
. . .--4 S8W,
�pl i;NLT:
RBC 57 E
WA f}� r•Ip 4a10
I!J'
PR..e,RbzPa.25
K_V
JI
N) 8"W 6340.08 a•culnmaSw — N88.41•TOTAL) 288141' �!
M=wornr (TOTAL)
tom
;
xafim sons
IA
iocTl RiAGt I
RW 114
I `
1kL'Tlpl it T'iM, 52:. Rl:i eG4
�j
M
�CI'Or+9LTWP.ti3, LaC'el°
-'�-mm4 %fN N.---..-�--
tiJ.T SI Lupo AIp R W !al
Imo,- r
y15T .1 SeClTN 12Y
11
Oa' CN
RPMM 12
towILn
A7x*A
m
SB9041.32" R-
Iva x •".,
2864.21'
nmRrori
ol.
TKN U Set a.TAx w
504.4242 c
M
II
rrAU
526'
�M7.Oa4TF.
ITAL1'
CANAL R/W-
7.63 ACRE!+/-
HW. V4 CP
6ecT1wlY1.'nTP. az t, aae es e.
J. C'1:
P.T.S.. NOT TO SCALE
P.OA. - POINT OF 8£GIPDCW
P.O.G. - POY14T OF COAMNMNah&NT
PAi - PI -AT BOOK
RDE . RAA M
R/W - RIOHT�OF-WAY
TWP . TOWNSHIP
EXHIBrf "b"
RYAS. -p - x.Td
2