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HomeMy WebLinkAbout2010-038RESOLUTION NO. 2010- 038 A RESOLUTION APPROVING THE SETTLEMENT OF A LAWSUIT AND CLAIMS RELATING TO WATERWAY VILLAGE, A DEVELOPMENT OF REGIONAL IMPACT, INCLUDING, WITHOUT LIMITATION, CLAIMS UNDER THE BERT J. HARRIS, JR., PRIVATE PROPERTY RIGHTS PROTECTION ACT; MAKING CERTAIN FINDINGS; APPROVING SETTLEMENT DOCUMENTS; AND PRO- VIDING FOR AN EFFECTIVE DATE UPON COURT APPROVAL. WHEREAS, on November 9, 2004, the Board of County Commissioners adopted Resolution 2004-137 constituting a Development Order ("Development Order") pertaining to Waterway Village, a Development of Regional Impact ("Waterway Village"); and on December 13, 2005, the Board entered into a Developer's Agreement with DiVosta Homes L.P. ("DiVosta") relating to Waterway Village ("Developer's Agreement"); and WHEREAS, a dispute subsequently arose between Indian River County and DiVosta relating to concurrency for Waterway Village. Specifically, Indian River County took the position that all "development orders" and "development permits" as defined in §163.3164(7) and (8), Florida Statutes, were subject to the concurrency testing requirements of §163.3180, Florida Statutes, and therefore each new phase of Waterway Village was required to be tested for concurrency prior to approval of such phase. DiVosta disagreed and took the position that Waterway Village was vested for concurrency in its entirety, pursuant to § 163.3167(8), Florida Statutes, and §910.03(5) of the IRC Land Development Regulations (Concurrency Management System); and WHEREAS, as a result of the aforesaid dispute, DiVosta (1) filed a complaint in the Circuit Court, Indian River County, Florida, styled DiVosta Homes, L.P., et al. v. Indian River County, Florida, case #20070109 CA 19, seeking, among other things, a declaration that Waterway Village is vested for concurrency in its entirety ("Lawsuit"), and (2) presented a claim to Indian River County under the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001, Florida Statutes ("Bert Harris Claim") (collectively "Claims"); and WHEREAS, the parties have reached a settlement of the Claims, as set forth in the Settlement Agreement attached hereto as Exhibit "A", in amendments to the Development Order, as set forth in the Amended and Restated Development Order, Resolution 2010- 037 , and in amendments to the Developer's Agreement as set forth in the Amended Developer's Agreement, which amended order and agreement are attached as Exhibits A and B to the Settlement Agreement (collectively "Settlement" or "Settlement Documents"); and WHEREAS, the Board has determined that the Settlement is in the best interests of the citizens of Indian River County, Florida, and protects the public interest served by the statutes and regulations at issue, and should therefore be approved. 1 RESOLUTION NO. 2010- 038 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, THAT 1. Recitals. 2. Findings. the following findings: The above recitals are true and correct and are incorporated herein. The Board of County Commissioners hereby determines and makes a. The Settlement, as set forth in the Settlement Documents, is in the best interests of the citizens of Indian River County, Florida; b. The amendments to the Development Order and Developer's Agreement pertaining to Waterway Village, as reflected in the Settlement Documents, do not constitute a "substantial deviation" to the previously approved development within the meaning of §380.06(19), Florida Statutes. Specifically, the changes relate primarily to timing and local issues. With the changes, there will be no increase in the total number of units proposed, no additional adverse environmental impacts, no increases in project intensity and no decreases in compatibility. Because the changes do not constitute a substantial deviation and will not create a regional impact, the changes may be approved locally; c. The Board does not believe that the Settlement would 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, the Board finds that the relief set forth in the Settlement and Settlement Documents protects the public interest served by the regulations and statutes at issue, including, without limitation, Chapter 910 (Concurrency Management System) of the IRC Land Development Regulations, Chapter 1000 of the IRC Code, and Chapters 163 and 380, Florida Statutes, and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the Waterway Village real property. Specifically, (i) the primary elements of the relief granted to Waterway Village are (a) traffic capacity (but not other components of capacity, as set forth in Chapter 910 of the IRC Land Development Regulations and Chapter 1000 of the IRC Code), including traffic capacity created by DiVosta's improvements to 53rd Street and 58th Avenue (discussed below), is and will be available for Waterway Village through an agreed schedule for buildout of the development, and (b) the agreed schedule for buildout of the development is extended based in part upon §380.06 (19)(c), Florida Statutes, and judicial tolling resulting from the Lawsuit; 2 RESOLUTION NO. 2010- 038 (ii) another element of the relief is that DiVosta will advance construction of a portion of 53rd Street. This street is a major roadway in the Traffic Element of the County's Comprehensive Plan. Advancement of its construction will increase traffic capacity within Indian River County; (iii) another element of the relief is that DiVosta will advance improvement of 58th Avenue from a two-lane to a four -lane roadway between 49th Street and 53rd Street. Fifty -Eighth Avenue is a major roadway in the Traffic Element of the County's Comprehensive Plan. Advancement of this improvement will increase traffic capacity within Indian River County; (iv) another element of the relief is that DiVosta will pay certain traffic impact fees on or before December 31, 2015, which is an earlier date in time compared to the payment schedule if DiVosta were to win the lawsuit. The earlier paid fees will be paid into the County's Traffic Impact Fee Fund, which is used to pay the cost of improvements which increase the capacity of the roadway system within Indian River County; (v) each of the capacities and increased capacities described above will protect the public interest served by the regulations and statutes at issue. Without limitation, such capacities will help achieve the Transportation Element Goal as set forth in the County's Comprehensive Plan; and (vi) the relief granted is the appropriate relief necessary to prevent the County's position from inordinately burdening the Waterway Village real property, because traffic capacity will be available through the extended buildout of the development. 3. Approval of Settlement. Based upon the foregoing findings, the Board approves the Settlement, as set forth in the Settlement Documents. Specifically, the Board (a) approves the Settlement Agreement attached hereto as Exhibit "A", (b) acknowledges approval of the amendments set forth in the Amended and Restated Development Order, Resolution 2010- , attached to the Settlement Agreement as Exhibit "A", and (c) approves the amendments set forth in the Amended Developer's Agreement, attached to the Settlement Agreement as Exhibit "B". 4. County Approval/Effective Date of Settlement. The Board acknowledges that the Settlement includes settlement of the Bert Harris Claim. As set forth above, the Board does not believe that the Settlement would 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, the Board has determined that the Settlement and Settlement Documents should be approved by the Circuit Court, as set forth in §70.001(4)(d), Florida Statutes. The effective date of the Settlement and Settlement Documents shall be the date of such court approval, and 3 RESOLUTION NO. 2010- 038 conclusion of all appeals, if any. If, for any reason, a final Circuit Court approval of the Settlement and Settlement Documents is not obtained, then the approval set forth in this resolution, together with the Settlement and the Settlement Documents, shall be null and void. The foregoing resolution was moved for adoption by Commissioner Sol ari , and seconded by Commissioner Davi s , and upon being put to a vote, the vote was, as follows: of May Chairman Peter D. O'Bryan Aye Vice Chairman Bob Solari Aye Commissioner Wesley S. Davis Aye Commissioner Joseph E. Flescher Aye Commissioner Gary C. Wheeler Aye The Chairman thereupon declared the resolution duly passed and adopted this 11th day , 2010. ATTEST: Jeffrey K. Barton, Clerk of Court By:K/ Deputy Clerk BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA By: Peter D. O'Bryan, Chairma Approved as to form and legal sufficiency. Alan S. Polackwich, Sr., County ° ttorney 4 EXHIBIT A TO RESOLUTION SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , 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 1A, 1B, 1C 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 CA19 (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 J. 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. RM:663 7905:1 1 1 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 J. 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. Exchange of Settlement Documentation: The parties agree to exchange the following settlement documentation: RM:6637905:11 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.B. 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 2 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 Agreement: 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 terns 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 filings. 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 permitted 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.: DiVosta Homes, L.P. 9240 Estero Park Commons Blvd. Estero, FL 33928 Attn: Ryan Marshall RM:6637905:11 3 If to IRC: Office of County Attorney Indian River County 1840 25th Street Vero Beach, FL 32960 Attn: Alan Polackwich, County Attorney With a copy to: Ruden McClosky P.A. 222 Lakeview Avenue, Suite 800 West Palm Beach, FL 33401 Attn: Steven R. Parson, Esq. With a copy to: Shubin & Bass, P.A. 46 S.W. 1st Street, 3rd Floor Miami, FL 33130 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. Governing 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 RM:6637905:11 4 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 Agreement: 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., a Delaware limited partnership, By: DiVosta Homes Holdings, LLC, its general partner BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, a political subdivision of the State of Florida By: By: Ryan Marshall, Division President , Chair Date: , 2010 ATTEST: RM:6637905:11 5 Date: , 2010 , Clerk RM:6637905:1 1 6 APPROVED AS TO LEGAL FORM AND CORRECTNESS: By: Alan Polackwich, County Attorney EXHIBIT A TO SETTLEMENT AGREEMENT RESOLUTION 20092010- 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. FINDINGFINDINGS 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") requesting amendments to the Development Order for Waterway Village; 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 9`h 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 2010 held a duly noticed public hearing on the NOPC and heard and considered the testimony taken at the hearings thereat; and WHEREAS, it has been determined that the following findings of fact pertain to the Waterway Village development of regional impact: RM: 7375429: 1 (a) The proposed development is not in an area of critical state concern designation, pursuant to the provisions of Section 380.06, Florida Statutes; 48Exhibit 2 RESOLUTION 2010- (b) The State of Florida has not adopted a Land Development Plan applicable to the arearea in which the proposed development is to be located; (c) The proposed development, subject to the conditions specified herein and conditions specificspecified 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 9th day of November, 2001, that the ADA Development of Regional impact Application for Development Approval and the NOPC submitted by DiVosta are and Company is 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") DO 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 information 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. RM: 7375429: 1 2 RESOLUTION 24092010 - Commencement and Process of Development 2. In the event the developer fails, within enc year 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 permits shall be issued and vested for traffic concurrency except as noted as follows: Pha se Commencement Residential/ Single Family Dwelling unit -s ni Multiple Family Dwelling Units Recreational/ Clubhouse Other Date Commercial Years Vested Until Is 1 2005-4006 12/31/2016 733 0 2.2 acre School site 518 and Preservation areas 2 2012 12/31/2019 150 0 2.7 acre 2006 2007 310 3 2013 12/31/2020 150 0 0 2007 2008 442 4 2014 12/31/2021 52 98 1.5 acre 20,000 sq. ft. 2008 2009 0 Neighborhood Commercial* 5 2015 12/31/2022 150 0 2.4 acre 2009 2010 261 6 2016 12/31/2023 26 124 4.2 acre 2010 2011 7 2017 12/31/2024 113 0 0 Totals 1,374 222 13.0 acre RM: 7375429: 1 3 RESOLUTION 2010- * The 20 000 s• uare feet rf Nei hborhood Commercial uses will not be vested for traffic concurrenc if the traffic im ac fee for the Nei not •aid b December 31 2015 hborhood Commercial uses re 3.b. An a • .roved use ma be exchan . ed for an other a. •roved use so lon • as the exchan • e of uses does not • enerate additional net external P.M. peak hour tri ss. 3.c. The Master Develo ment Plan attache. as Exhibit B reflects •base boundaries and typical parcels; provided however the nom -a hic hases of development reflected on the Master Develo m nt Plan ma be modified sub'ect to review and a proval pursuant to Section 915.26 2 and Section 914.06 5 of the Code of Indian River Count so that the number of residential units Condition 3.a. ma be develo ed within the s ecified for a iven •hase in eora hic boundaries of an hase. The develo • er acknowled ' es that if it elects not to follow the . eo ra • hic e •uence •ment reflected on the Master Develo different of develo to develo m a hic se ment Plan the d-velo•er's election eo ' • cause the acceleration of trans sortation obligations s.ecified in Conditions 18 throu•h 27 if necessitated b local phasing requirements. ra uence ma 3.d. The develo • er acknowled . es that he Pro'ect is vested onl for traffic concurrenc and will not be vested for other facilities pursuant to this Development Order or the Amended Develo • er's A • reement. The Pro'ect ma become vested for all other facilities at an time b the develo er a • • 1 in • for a concurrenc certificate under the Coun 's conin-ency management system. obtaininv approval for such certificate based u•on ay.ilabilit of ca.acit and •a in all other im act fees. Buildout Date 4. This Project shall have a buildout date of December 31, 2024 2-042, unless otherwise amended pursuant to the conditions of this DO and Section 380.06, Florida Statutes. Termination Date 5. This DO shall expire on December 31,2021.31, 2024. 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. RM: 7375429: 1 4 RESOLUTION 24092010- Annual Report 7. The annual report required by subsection 380.06(18), Florida Statutes, shall be submitted each year on the anniversary date of the adoption of the DO to Indian River County, the Council, the Florida Department Environmental Protection, the Florida Department of Transportation, the St Johns River Water Management District and such additional parties as may be appropriate or required by law. The contents of the report shall include; those items required by this DO and Rule 9J-2.025(7), FAC. The Indian River County community development director shall be the local official assigned the responsibility for monitoring the development and enforcing the terms of the DO. General Provisions 8. Any modifications or deviation from the approved plans or requirements of this D:-O7DO shall be or made according to and processed in compliance with the requirements of Section 380.06(19), Florida Statutes and Rule 9J-2, FAC. 9. The definitions found in Chapter 380, Florida Statutes shall apply to this DO. 10. Reference herein to any governmental agency shall be construed to mean any future instrumentality that may be created or designated as a successor in interest to, or which otherwise possesses the powers and duties of any referenced governmental agency in existence on the effective date of this DO. 11. This DO shall be binding upon the developer and its assignees or successors in interest. MASTER DEVELOPMETNDEVELOPMENT PLAN (Conceptual PD Plan) 12. The Master Development Plan for Waterway Village DRI shall be attached as Exhibit "B" and considered binding sub'ect to Para»ra.h 3.c. The master development plan provides for a mix of residential unit types, neighborhood commercial uses, an elementary school site and an EMS site. In addition, the plan provides for certain public roads (51S` Court, 53rd Street and 43rd Avenue) traversing the site. TRANSPORTATION Rights -of -Way 13. No building permits for Waterway village DRI shall be issued until the ultimate rights-of-way within the project along 53rd Street, 58th Avenue, 49th Street, and 43rd Avenue and all intersections thereof, have been dedicated free and clear of all liens RM: 7375429: 1 5 RESOLUTION ?00 -92010 - and encumbrances to Indian River County as necessary and consistent with the Indian River County Comprehensive Plan. 14. The north/south street identified as 51st Court shall be dedicated to the eountyCounty and remain open street 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, also cFed-i-ted towafd an—in 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. TheThese 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 e&ui+tyCounty shall release its interest in those easements in conjunction with the previously described dedication of the necessary road rights-of-way. 16. No C.O'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 project 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 countyCounty and Indian River Farms Water Control District release of theirstheir interests in the H-1 canal and adjacent 53rd Street existing right -of way. 18. Prior to the issuance of a certificate of completion for phase 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 Waterway .il-lageVillage DRI shall be issued for more than 3-3-7--Elvelling units or after Dec - 31, 2005, whirl -eeeu s later,after January 1, 2011 until either: 1) contracts have been let for the intersection improvements RM: 7375429: 1 6 RESOLUTION 20492010 - 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. • 53rd Street and 58th Avenue: Signalize intersection and add left turn lanes on the north, south, and east ail 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. • 531 Street/43r1 Avenue: Install flasher convertible signal. • 49th Street/431 Avenue: Install flasher convertible signal. • 49th 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 contracts have been let for the intersection improvement improvements identified below; or 2) theimprovement improvements identified below has 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 roadway and intersection improvement improvements, including signalization modifications as warranted by County or State criteria. •--49th Street and 58th Avenue: Signalize intersection and add left turn lanes anon all approaches, • 45th Street and 58th turn lanes anon all approaches,, • 53rd Street anlfrom 58th Avenue to the project entrance Court) as a two lane roadway. (51St 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 53rd Street exceed the adopted level of service or b Janua 1 2015 whichever occurs first the four -lapin• of 58th Avenue between 49th Street and 53rd Street shall be commenced and shall be completed within twelve months after commencement. In the event the developer fails to commence construction within six months of the date the traffic modeling is submitted or by January 1, 2015 whichever occurs first or fails to complete construction within twelve months after commencement, the County shall cease RM: 7375429: 1 7 issuin buildin RESOLUTION 2-0492010- ermits unless and until the develo.er commences construction or com.letes construction res . ectivel The following intersection im.rovement shall be completed as part of the four-laning of that se ' ment: • 49th Street and 58th Avenue: Signalize intersection and add left tum lanes on all approaches 20b. The Count shall notif the developer after the County acauires all necessa ri'hts-of-wa and com•letes the design for the followin�_.ro'ect. Within six 6 's notice to commence construction the months developer shall commence construction of the following intersection improvements. The develo.er shall have twelve months to com.lete the construction from the date of the County's notice to commence construction. In the event the developer fails to commence construction within six months of the developer's receipt of the Count 's notice or fails to com.lete construction within twelve months of receipt of the notice, the County shall cease issuing building .en -nits unless and until the develo.er commences construction or com.letes construction, respectively. • 45th 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. rom the date of the Count 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 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 RM: 7375429: 1 8 RESOLUTION 2.0092010 - 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 northem project entrance on 43rd Avenue to 53rd Street, shall be completed prior to issuance of a certificate of completion for thasePhase 3, as identified on the master development plan. • 43rd Avenue and 53rd Street: Add northbound right turn and left turn lanes and westbound left turn lane and install flasher convertible signal. 23. No building permits for Waterway Village DRI shall be issued for more than 859 dwelling units or after December 31, 2-006 2007, 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, 2006,2008, 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 that sufficient funds will be available to complete the following intersection improvements, including signalization modifications as warranted by County or State criteria. RM: 7375429: 1 • 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. 9 RESOLUTION 2010- 25. No building permits for Waterway Village DRI shall be issued for more than 1,150 dwelling units or after December 31, 2006,2009, 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. • SR60 and 58th Avenue: Add northbound and southbound throw. h three lanes each and ri . ht turn lanes. Add eastbound and westbound left turn lanes (two lanes each). 26. No building permits for Waterway Village DRI shall be issued for more than 1,554 dwelling units or after December 31; 2011 whichever occurs later. until either: 1 contracts have been let for the intersection improvements identified below; or 2) the i 1i li sr have been included within the first two years of either the Indian River Coun ado s ted Road Buildin Pro ' ram or the Florida De . artment of Transportation adopted Five Year Work Program; or 3) a local •overnment 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, inc1udinm si•nalization modifications as warranted by County or State criteria. • 49th Street and US1: Add cast bouncieastbound 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 -turn lane Northbound left and right -turn lanes 28. As a minimum, the following turning lanes shall be provided at the intersection of 49th Street and the project entrance (51st Court): Westbound right -turn lane RM: 7375429: 1 10 RESOLUTION 2010 - Eastbound left turn lane Southbound left -turn lane and right turn lanes RM: 7375429: 1 RESOLUTION 20Q92010- Other Issues 29. Once the Count has comm need construction on the se ment of 53rd Street between the Lateral H Canal brid developer to commence construction 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 the County's notice to commence construction, the develo • er shall commence the construction of that segment and shall complete construction of that se • ment 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 com•lete construction within eighteen months after commencement, the Count shall cease issuinbuildin�_•ermits unless and until the develo•er commences construction or completes construction, respectively. No building permits shall be issued for more than 1,000 dwelling units until either 53'I Street has been built between 58th Avenue and Old Dixie highwa},Highway and a railroad fEi e and the FEC railroad crossin the Count shall not the the improvements identified below have been included within the first two years of 'ther the Indian River County adopted Road Building Program, or the Florida Florida Department of Transportation that sufficient funds will be available to modifications as warranted by County or State criteria. •--49th Street and US1: Add east bendeastbound left 4uFn lane and signalize, • SR60 and 58th Avenue: Add northbound and southbound right turn lanes. Add eastbound and westbound left turn lanes (two lanes each). 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 constructed, the guaranteed date of completion for the construction of each needed improvement, the party responsible for the guaranteed construction of each improvement, en -Eland the form of the binding commitment that guarantees construction of each improvement. Additionally, this report shall include a trip RM: 7375429: 1 12 RESOLUTION ;0492010 - 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 feservepreserve 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 mammals, 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 RESOLUTION 24492010- 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 fixfor 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 protestprotect 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 arfor 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 laudland clearing permit(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. the Develope+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 lands outside of Indian River County, the developer shall provide documentation to Indian River County demonstrating why mitigation could not be provided in the e-e-lCounty. The habitat mitigation plan shall be approved by Indian River County, the USFWS, and the Florida Park Service prior to the initiation of site clearing on the project s+resite 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 a way that is suitable for the Florida Scrub - Jay. The developer shall comply with all USFWS, and FFWCC recommendations regarding the management of habitat for this State and federally threatened species. theThe 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 RESOLUTION 2010- 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 approveapproved 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 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 a-pproveapproved 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. Detai1Details 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 by 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 is resident on, or otherwise significantly dependant upon, the project site, the developer shall cease all activities which might RM: 7375429: 1 15 RESOLUTION 20042010 - 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 proj ect. 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 mitigation requirements 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 made 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 Management 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 all 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 to release of any site plan or issuance of any land development permit offor all or a 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 zone 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 a minimum width of 15 feet and a -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: I 16 RESOLUTION 2 -0 -02010 - 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 clear!clearly marked prior to the commencement of construction activities to ensure those areas are protected. These provisions shall be addressed in any land clearing permit(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 developersdeveloper 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 improvement site plans and preliminary PD plans submitted to Indian River County for review and permitting. 49. The developer shall design and construct the surface water management system so that maintenance of normal hydroperiods 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 a plan establishing wetland control elevations and post - development drainage sub -areas for each wetland to St. Johns River Water Management District and Indian River County for approval. This plan may be RM: 7375429: 1 17 RESOLUTION 20 -0 -92010 - included in the Preserve Area Management Plan. theThe plan shall demonstrate how sufficient quantities of surface runoff from portions of the developed areas will be conveyed to wetland areas in order to maintain or improve their existing hydroperiod. 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. 51 The developer shall coordinate with the IRFWCD and SJRWMD to identify the preferred locationlocations 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 do N, elopdeveloper and Indian River County shall work together to minimize the amount of impervious surface constructed for the purposes of automobile parking on the Waterway villagcVillage 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. theThe plan shall include methods for minimizing the impact of chemical runoff associated with lawn and landscape maintenance. The Deve-lopefdeveloper 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 Area Management Plan and shall be subject to approval by the St. jJohns River Water Management District, and Indian River GatuTiCounty prior to beginning any excavation activity. Littoral zones RM: 7375429: 1 18 RESOLUTION ;0492010 - 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. t1The 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 assLFr dassure 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 '.;'Village development until the developer has provided written confirmation ferfrom 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 villageVillage development until the developer has provided written confirmation feffrom 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 58`h Avenue to the eastern property line of the project site. 59. The preferred source of irrigation water shall be treated wastewater effluent at such time 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 19 RESOLUTION 20092010 - reuse water when }sit becomes available. theThe developer shall enter into a reuse agreement with Indian River County to accept stormwater/brine/wastewater effluent for augmenting lake supply to be used for irrigation and maintaining pond levels. theThe 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 relit 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 development for 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 development, 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: 1 20 RESOLUTION 20092010- 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 RESOUCRERESOURCE 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 dedicate -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 dedication 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 dedication—issuance of a certificate of completion for plrfa ePhase 1. The countyCounty 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 dedieeat-ion conveyance shall extend a minimum of 20 years from the date of did -i -c7 conveyance. Any reverter clause used shall be approved by the County Attorney and shall have the property revert to Indian River County for use as public open space or public park area. Police and Fire Protection RM: 7375429: 1 21 RESOLUTION 20092010- 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 4edica ; 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 1 A-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 DivisionalDivision of Historical Resources in the RM: 7375429: 1 22 RESOLUTION 200 -92010 - 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 berm 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 49th Street, 43rd Avenue, 58th Avenue, 53rd Street and 51st 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 dwelling 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 occupancy completion for 828 dwelling units Phase 2. 80. The following external pedestrian improvements are required: Roadway From To Selected Facility 49th Street 43rd Avenue East Property Line 8' sidewalk, north side 49th Street 58th Avenue 43rd Avenue 8' sidewalk, north side RM: 7375429: 1 23 RESOLUTION 2010- 53rd Street 43rd Avenue East Property Line 5' sidewalk, both sides 53rd Street 58th Avenue 43rd Avenue 5' sidewalk, both sides 58th Avenue 49th Street North Property Line 5' sidewalk, both sides 43rd Avenue 49th Street 53rd 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 51st 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 feilfor all buildings and signs within with 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 1st of every year after adoption of the DO and shall contain the following: RM: 7375429: 1 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 D-O:DO, PD rezoning conceptual PD plan approval. 24 RM: 7375429: 1 RESOLUTION 2-0092010- f. A description of any request, and the status of that request, for a modification to the approved to -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; 7. status of water, wastewater, and irrigation services and infrastructure; 8. status and viability of artvany 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; 25 RM: 7375429: 1 RESOLUTION 200-92010- 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. 26 RESOLUTION 2_0492010 - Effective Date of Amendments The amendments set forth in this Amended and Restated Development Order (as compared to the ori•inal Develo•ment Order. Resolution 2004-137) (collective) "Develo • ment Order Amendments") are Hart of a settlement ("Settlement" of certain claims asserted b DiVosta includinm. without limitation claims set forth in that certain complaint filed in the Circuit Court. Indian River County, Florida, st led DiVosta Homes, L.P., et al v. Indian River County, Florida, case # 2007_0109 CA 19j'Lawsuit") and claims •resented under the Bert J. Harris Jr. Private Pro • ert Ri • hts Protection Act (collectively "Claims"1 The terms of the Settlement of the Claims are set forth in the Develo ment Order Amendments the Develo er's A•reement Amendments as defined in the Amended Develo • er's A • reement. executed by the .arties at or about the time of adoption of this Amended and Restated Develo•ment Order) and a Settlement A reement also executed b the •arties at or about the time of ado •tion of this Amended and Restated Development Order coilectivel "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 a., �,al if any. If for any reason a final Circuit Court a. 'royal 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 2010 - PASSED AND ADOPTED on this day of 2009.2010. theThe 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 Wesley S. DavisPeter D. O'Bryan Vice -Chairman Joseph E. 1 lescherBob Solari Commissioner Gary C. Wheeler Commissioner Peter DWesley S. O'BryanDavis Commissioner -Bob -Sol -a, i Joseph E. Flescher The Chairman thereupon declared the resolution duly passed and adopted this day of , 2009.2010. BOARD OF COUNTY COMISSIONERS OF INDIAN RIVER COUNTY BY , Chairman Board of County Commissioners ATTEST: Clerk State of Florida. County of Indian River RM: 7375429: 1 28 RESOLUTION 24002010 - 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., 2009.2010. APPROVED AS TO PLANNING MATTERS Community Development Director APPROVED AS TO LEGAL SUFFICIENCY County Attorney RM: 7375429: 1 29 Notary Public 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 , 20 ,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 Florida Statutes, adopted Resolution 2004-137 ("Development Order") approving Waterway Village as a DRI and Planned Development project on November 9, 2004; and `af,LRE WHEREAS, the County and the Developer share mutual goals and €-l7determined that they could assist each other with respect to right-of-way acquisition, roadway and drainage improvements, intersection improvements, and other improvements -i-e-tiet +0.37 »-erne. rt described in the Development Order and required by the Planned Development; and WHERE:A.S. the Developmen4-- r ier lirlrti irx L, ei 'bEj4di-r pe -H -1 -Tits which will be issued for Nraterway be: re r lion lr + Eo accomplish certain intersection impro,,=rments and othe-=r- HF€ ',-;7;11; and 'WHEREAS, the Development Order sf--�ecifieslimited the number of building permits which would be issued for Waterway Village before provision was made to accomplish certain intersection im.rovements and other required improvements. and WHEREAS, the Development Order specified that provision for the accomplishment of the intersection improvements and required improvements ,t a,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 RM: 7375391: 1 42 Page 1 of -1€116 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 Count nd the Develo.-r entered int. a Develo.er's A• eement on December 13, 2005 "Developer's A •reement" with res. ect to ri • ht-of-wa ac.uisition roadwa and drainage im.rovements intersection im.rovements and other im.rovements described in the Devel ment Order and re uired b the Planned Development; and WHEREAS a dis.ute arose between the .arties as to wheth-r Waterwa Villa•e is vested for traffic concurrency; and WHEREAS the .arties have work -d in good faith to resolve their dis.utes and have a•reed to certain terms and conditions which re.uire that the Developer's A reement and the Develo. meat Order be amended. and WHEREAS the County pursuant to Section 380.06 19) Florida Statutes adopted Resolution 2110- a..rovin ' an Amended . ld Re tated Devel , .ment Order for Waterwa Villa • e "Amended and Restated Develo.ment Order' 011 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 a • ree to enter into this Amended A re - ment and to agree as follows: i. Recitals: The foregoing recitals are hereby incorporated as if fully restated herein. 2. Entire Agreement: This Amended Agreeesepreviou nt supedes all mrs aeements and re•resent .tlons whether oral or written between the Develo.er and he that ount an certain D vel e 's A erne t entered into on December 13 200 b twe n Indi.n River un an. DiV to H mes L.P and rec.rde in Offici 1 Records Book 1988 Pages 765-777 of the Public Record of Indian Riv-r Coun Florida. 3. Building Permits and Vesting: A. B . ildin �_. emit for Waterwa Villae shall be sued in sta • ed increments and vested for traffic concurrency as follows: RM: 7375391: 1 1-9 (il 733 sinele family dwelling units in Phases I and T1 wPte 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 re ervation areas m. also com nence a an time and under the Page 2 of 1616 RM: 7375391: 1 +9 Coun 's develo ment re ' ulati sns are not sub'ect to concurrenc and are therefore deemed vested. ii Commencin in 2012 150 additional sin le famil dwellin units may pull building permits and shall remain vested for traffic concurrenc 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 Coun 's develo.ment regulations is not subject to concurrency and is therefore deemed vested. iii Commencing in 2013. 150 ad•ition.l sin le famil dwellilg units may pull building permits and shall remain vested for traffic concurrency through December 31, 2020. iv ommencin in 2014 52 a.. i Tonal sin le famil dwellin ' unit an• 98 m iltif.mil dwellin unit ma ull buildin ennits 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 devel..ment re ulations is not sub'ec to concurrenc 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, subiect to Paraara.h 7.B. of the Amended Developer's Agreement. (v) Commencin. in 2015, 150 additional single family dwellin• 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 develo.ment regulations is not subject to concurrency and is therefore deemed vested. (vi) Commencin. in 2016, 26 additional single family dwellin• 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 re !illations is not subiect to concurrenc and is therefore deemed vested. vii Commencin in 2017 11 a•. it .n.1 in • le famil dwellin ' units may pull building permits and shall remain vested for traffic concurrency through December 31, 2024. Page 3 of 44416 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 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 flevelol3€Fthe 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 RM: 7375391: 1 49 Page 4 of -1-(-,1 6 fourteenthi (4430) days to review and approve reimbursable costs. Failure to reply to the Developer within fourteerithirty (4430) 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. C. The Developer agrees to plan, survey, design, permit, and construct the Intersection Improvements at 45th Street and 58th Avenue on or before the date or event specified in the Amended and Restated Development Order, provided, however, that the County shall be responsible for and shall pay 81.93% of such costs. The County shall be responsible for 100% of the costs for appraisals, closing costs, and the purchase price if additional right-of-way is acquired by the Developer. If additional right-of-way is required to make the Intersection Improvements, the Developer agrees to identify the required right-of- way, prepare legal descriptions and parcel sketches, prepare appraisals, negotiate and obtain County approval of purchase prices, and acquire the needed right-of- way. The County shall be responsible for 100% of appraisal costs and closing costs, including purchase price, for such additional right-of-way, and the County shall reimburse the Developer pursuant to paragraph =8 below. If the Developer is unable to acquire the needed right-of-way or if the County disapproves a reimbursable cost, the County agrees to initiate the eminent domain process within thirty (30) days notice by the Developer that the right-of-way could not be acquired through negotiation. The ecithiltCounty, through its Public Works Director or his designee, shall have fourtee-thirty (-1-430) days to review and approve reimbursable costs. Failure to reply to the Developer within fe-tifttenthirty (-;430) 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 -a so long as the Developer is in compliance with this Amended Agreement. --. 5. 53rd Street: The Developer will plan; provide right-of-way (without compensation); design; permit; and construct 53rd Street as a four -lane divided roadway from 58th Avenue east to the Developer's eastern boundary according to the timetable and/or event schedule approved by the County in the Amended and Restated Development Order. The Developer shall: (a) work with the County's Engineer to coordinate the roadway design with the design of the bridge across the Lateral H and North Relief canals; and (b) submit engineering plans to the County for its review and RM: 7375391: 1 49 Page 5 of 166 16 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 Developer 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 -,i 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 de-ve-4-ep&Developer's obligation with respect to 53rd Street, identified in the Amended and Restated Development Order and otherwise, shall be deemed satisfied so long as the Developer is in compliance with this Amended Agreement, and the County shall not withhold any approval or permit because of the condition of 53rd Street as long as the Developer is in compliance with this Amended Agreement. E. At the time the County accepts title or dedication from the Developer for the 53rd Street right-of-way, the County shall execute a release of any interest the County has in Murphy Act right -of- way for the existing 53rd Street located in Sections 21 and 22, Township 32, South, Range 39 East, Indian River County, Florida, including, but not limited to, the reservation of road right- of-way described in Deed Book 66 Page 35, Deed Book 67 Page 267 and Deed Book 60 Page 86, Public Records of Indian River County, Florida_ =17 F. The construction of 53rd Street as described above will require the excavation of a lake to receive the drainage from 53rd Street ("the Lake"). The Develo • er agrees to dig the Lake, to install the required drainage Dies from 53rd Street, and to allow 53rd Street to drain into the Lake and thereafter to furnish as.ro.riate ea ements t• the Count f• the use maintenance and re.1 cement of such piping. The County al. ees that the minin• activities associated with extracting and transporting of this fill will not be charged a•ainst the limited .uration of the inci.ental to constru i.n mining .ermit issued to the Develo.er for the development. G. The Developer agrees to furnish the County fill (not to exceed 110 010 cubic ards for use b the Count in the construction of 53rd treet east of the Lateral H. Canal. The fill will be at no cost to the County but the County RM: 7375391: 1 i-9 Page 6 of -1-616 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. 6. 58th Avenue: The Developer agrees to construct 58th Avenue as a four - lane roadway between 49th Street and 53rd 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 531-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 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 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 ima t fee redits for 1 5 .. dwellin units in W , terwa Villa • e 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; .row.-. h.wever the 21 000 s uare feet of Nei hborhood Commercial uses will not .e vested for traffic c.ncurrenc if the traffic im act fee f.r 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. RM: 7375391: 1 -1-9 Page 7 of -1-616 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). ')-&' dleper an -County :,h-cfl ;wcpare.----m+-ivally dg1-024l13-}+e Bid Package—ad a mutually agree -able Frequa iiication Packa<t +�r I,lfis— 1�e m r� described herein. D --eloper '.'Ill ael ert;se and seek Ci;'r,`1 r }eFi bi ._. ;te-}:-:" £'Y tacton qua1ifie£4e con*etc the work de` .riled herein. 1 bid o}l Dernandcjliarveh ite as-- e—q-uireC by tiie Cet-nty Pr-rchi;l.inf.. ivisio}r. n9us-t a.gre an the Contractor ;e1- -[Ed r • yr 9. Project Bids: The Developer shall not be required to publicly bid the work described herein, but all work performed by the Developer shall be subject to the reasonable determination by the County that the costs incurred for such work were normal and customary. 7,10. Stormwater Management: The Developer agrees to incorporate, at no cost to the County, sufficient capacity in Waterway Village to p accommodate stormwater storage and other St. Johns River Water Management District mandated permit conditions, effective on the date of permit issuance. for the impervious area f;ffor the following roadway sections and associated intersections: 53rd Street from King's Highway (58th Avenue) to the eastern boundary of Waterway , i1Ia' eVillage; 43rd Avenue from 49th Street to 53rd Street; 49th Street improvementsproject related turn lanes; and King's Highway (58th Avenue four -lane widening along the project frontage. The County agrees that the minim 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 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 --9 Page 8 of -a-616 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 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 Depai Lwent for approval prior to the commencement of any work in a County right-of-way. RM: 7375391: 1 Page 9 of 4-6_1_6 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. 9. RM: 7375391: 1 a2 Page 10 of 4316 12. Indian River Farms Water Control District Right -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. 1013. 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 reasonabl be cured within such six da _. eriod and the Develo. er ' 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 Develo.er in the exercise of due dili.ence to cure such failure. Upon the failure of the Developer to timely cure its failure to perform its obli • ations in accordance herewith, then the County shall have the option of electin . t. seek .ecific .erfonnance of such oi.ns .r to treat the vesting for traffic concurrency provided for in Subsection 3.A. above as terminated. 11.15. Miscellaneous: A. In the event of any litigation arising out of this Amended Agreement, the prevailing party shall recover attorneys' fess and costs for the non -prevailing party. B. No amendment, modification, change, or alteration of this Amended Agreement shall be valid or binding unless accomplished in writing and executed by all of the parties hereto. RM: 7375391: 1 -9 Page 11 of-If}1f 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: 7375391: 1 Page 12 of -14316 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- . constituting an Amended and Restated Development Order pertaining to Waterway Village), and a Settlement Agreement executed by the parties simultaneously with the execution of this Amended Developer's Agreement (collectively "Settlement Documents"). In an abundance of caution, the parties have elected to seek Circuit Court approval in the Lawsuit of the Settlement and Settlement Documents. The Settlement and Settlement Documents shall be effective as of the date of Circuit Court approval, and conclusion of all appeals if any. If, for any reason, a final Circuit Court approval of the Settlement and the Settlement Documents is not obtained, then the Settlement and the Settlement Documents shall be null and void. RM: 7375391: 1 -9 Page 13 of -4)16 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: WITNESS: WITNESS: (Corporate seal is acceptable in place of witnesses) RM: 7375391: 1 -49 BCC Approved: By: Name: Page 14 of a-616 Attest: Clerk of Court Name: (Approved as to Form and Legal Sufficiency) STATE OF FLORIDA COUNTY OF ) )ss: The foregoing instrument was acknowledged before me this of 2010, by , as of DiVosta Homes Holdings, LLC, a Florida limited liability company, in its capacity as the general partner of DiVosta Homes, L.P., a Delaware limited partnership. Personally known or produced as identification. RM: 7375391: 1 -2 NOTARY PUBLIC Sign Print State of Florida at Large My commission expires: (SEAL) Serial Number, if any: Page 15ofk316 EXHIBIT C TO SETTLEMENT AGREEMENT IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 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. Ruden McClosky P.A. Post Office Box 1900 Fort Lauderdale, FL 33301 Florida Bar Number 165334 Counsel for DiVosta Dated: Juan J. Farach, Esq. Shubin & Bass, P.A. 46 SW First Street, Third Floor Miami, FL 33130 Florida Bar Number 957704 Counsel for County 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:663 7905:11 EXHIBIT D TO SETTLEMENT AGREEMENT IN THE CIRCUIT COURT OF THE 19th JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 20070109 CA 19 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:6637905:11 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 Court retains 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 25th Street, Vero Beach, FL 32960 RM:6637905:11