EX-10.(CB) POINCIANA PARKWAY REGULATORY AGREEMENT

Exhibit 10(cb)

POINCIANA PARKWAY REGULATORY AGREEMENT

by and between

POLK COUNTY, FLORIDA

and

AVATAR PROPERTIES INC.

TABLE OF CONTENTS

				Page
		ARTICLE I INCORPORATION OF RECITALS, DEFINITIONS AND INTERPRETATION
SECTION 1.01.		INCORPORATION OF RECITALS			2
SECTION 1.02.		DEFINITIONS			3
SECTION 1.03.		INTERPRETATION			5
SECTION 1.04.		SECTION HEADINGS			5
		ARTICLE II REPRESENTATIONS
SECTION 2.01.		REPRESENTATIONS OF OSCEOLA COUNTY			5
SECTION 2.02.		REPRESENTATIONS OF THE OWNER			6
		ARTICLE III POINCIANA PARKWAY
SECTION 3.01.		GENERAL			7
SECTION 3.02.		OWNERSHIP			7
SECTION 3.03.		OSCEOLA PROJECT AREA			8
SECTION 3.06.		FUNDING OF COSTS OF ACQUISITION AND CONSTRUCTION			8
SECTION 3.09.		ACCESS MANAGEMENT.			8
		ARTICLE IV PLANNING, DESIGN AND CONSTRUCTION
SECTION 4.01.		DESIGN CRITERIA			8
SECTION 4.02.		ACQUISITION, DESIGN AND CONSTRUCTION OF POINCIANA PARKWAY			8
SECTION 4.03.		COMPLETION DATE			9
SECTION 4.04.		INSURANCE			9
SECTION 4.05.		FORCE MAJEURE			11
		ARTICLE V DEFAULTS AND REMEDIES
SECTION 5.01		OWNER’S DEFAULT			12
SECTION 5.02		OSCEOLA COUNTY’S REMEDIES			12
SECTION 5.03		COUNTY’S DEFAULT			12
SECTION 5.04		OWNER’S REMEDIES			12
SECTION 5.05		AGREEMENT TO PAY ATTORNEYS’ FEES AND EXPENSES			13

				Page
		ARTICLE VI GENERAL PROVISIONS
SECTION 6.01.		INTERLOCAL AGREEMENT PROVISIONS			13
SECTION 6.02.		TRAFFIC SAFETY, EMERGENCY AND ENFORCEMENT SERVICES			13
SECTION 6.03.		REIMBURSEMENT BY OWNER OF CERTAIN COSTS INCURRED BY OSCEOLA COUNTY			14
SECTION 6.04.		TERM OF AGREEMENT			14
SECTION 6.05.		NO ADDITIONAL RIGHTS CONFERRED			14
SECTION 6.06.		INDEMNIFICATION			14
SECTION 6.07.		ENTIRE AGREEMENT			14
SECTION 6.08.		AMENDMENTS AND WAIVERS			14
SECTION 6.09.		NOTICES			14
SECTION 6.10		COOPERATION			15
SECTION 6.11		ASSIGNMENT			16
SECTION 6.12.		BINDING EFFECT			16
SECTION 6.13.		SEVERABILITY			16
SECTION 6.14.		EXECUTION IN COUNTERPARTS			16
SECTION 6.15.		APPLICABLE LAW			17
SECTION 6.16.		JURISDICTION AND VENUE			17
SECTION 6.17.		DISPUTE RESOLUTION			17
SECTION 6.18.		WAIVER OF JURY TRIAL			17
APPENDIX A		POINCIANA PARKWAY
APPENDIX B		DESIGN CRITERIA
APPENDIX C		ACCESS MANAGEMENT PLAN

POINCIANA PARKWAY REGULATORY AGREEMENT
(POLK COUNY)

          THIS POINCIANA PARKWAY REGULATORY AGREEMENT is made and entered into as of December 20, 2006, by and between POLK COUNTY, a political subdivision and charter county of the State of Florida (“Polk County”) and AVATAR PROPERTIES INC., a Florida corporation and/or its successors and assigns (collectively, the “Owner”).

RECITALS:

          A. Except as otherwise specified herein, capitalized terms used herein shall have the meanings ascribed thereto in Section 1.02 hereof.

          B. Poinciana Parkway, as depicted on Appendix A attached hereto, consists of the Osceola Project Area, the Poinciana Toll Road and the Polk Project Area and has been adopted as part of the Osceola County Comprehensive Plan, Polk County Comprehensive Plan, Orlando Metropolitan Planning Organization Long Range Transportation Plan and Transportation Improvement Element, and the Lakeland/Winter Haven Urbanized Area Metropolitan Planning Organization 2010 Long Range Transportation Study Cost Feasible Element.

          C. Poinciana Parkway, formerly named the “Parker Highway Project”, was identified by the Polk County Transportation Planning Organization (TPO) in its 2025 Long Range Transportation Plan as a proposed new two-lane arterial public road project which would be built by means of a public/private partnership and with private funding.

          D. The Poinciana Parkway Project is not included in Polk County’s approved CIP and Polk County lacks present or available capital improvement funding to construct Poinciana Parkway and/or acquire the necessary right-of-way absent private investment or funding.

          E. The Owner is the developer of multiple developments located in both Polk County and Osceola County, including the Poinciana Development and other local properties, further development of which may be hindered by lack of an efficient transportation ingress/egress route to areas north and northwest of the Poinciana Parkway corridor.

          F. The development and operation of the Poinciana Parkway will serve a public purpose, including, but not limited to:

          (1) it will create an additional hurricane evacuation route and increase access for public safety and emergency vehicles throughout Polk County and Osceola County, thus benefiting the citizens of Polk County and Osceola County.

          (2) It will ease the flow of vehicular traffic within Polk County and Osceola County, will provide a more direct route from the Poinciana Development to U.S. 17/92, will provide a more convenient access to Interstate 4 and the Western Beltway, and will provide a direct connection to the Orlando area beltway for residents of Polk and Osceola counties and for visitors to the area.

          G. In furtherance of the construction and completion of the Poinciana Parkway, the Owner has either obtained or is diligently pursuing necessary Poinciana Parkway Permits, Mitigation Sites and rights-of-way for the Poinciana Parkway through private transactions and will continue to pursue acquisition of the remaining needed rights-of-way and any remaining regulatory approvals necessary for project completion.

          H. Polk County Transportation staff have reviewed and commented on the Design Criteria developed by the Owner for Poinciana Parkway within Polk County, which Design Criteria appear to be consistent with FDOT standards. Polk County Transportation staff have also reviewed and commented on the sixty percent (60%) construction documents developed in accordance with the Design Criteria for the purpose of insuring coordination and harmonization of this project with Polk County’s CR54, Phase I, CIP project currently under construction.

          I. All costs associated with the acquisition of necessary rights-of-way, design, permitting and construction of the Poinciana Parkway will be provided for by the Owner and will not be funded from any public source.

          J. Polk County and the Owner desire to enter into this Agreement to memorialize Polk County’s approval of the acquisition, construction, ownership and operation of the Polk Project Area of the Poinciana Parkway by the Owner and to memorialize Polk County’s responsibilities for and jurisdiction over that section of road upon its completion.

          K. Pursuant to Florida Statutes, Sections 334.03(8) and 336.01, Polk County will have jurisdiction over the Polk Project Area portion of the proposed Poinciana Parkway but will not have jurisdiction, control or authority over either the Osceola Project Area or over the Poinciana Toll Road, both of which segments of the overall Poinciana Parkway project are within the jurisdiction of Osceola County.

          L. Having no jurisdiction over either the Osceola Project Area or the Poinciana Toll Road, Polk County does not object to, nor will it interfere with, any agreements now in place or which may be reached in the future between Osceola County and the Owner relating to the acquisition, construction, ownership, and operation of the Osceola Project Area and/or relating to the acquisition, construction, ownership, and operation of the Poinciana Toll Road as a private toll road, so long as the Poinciana Parkway, in its entirety as depicted on Appendix A remains at all times a road open to use and travel by the public upon payment of any applicable tolls.

          NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein and other valuable consideration, receipt and adequacy of which is hereby acknowledged, the parties mutually undertake, promise and agree for themselves, their successors and assigns as follows:

ARTICLE I
INCORPORATION OF RECITALS, DEFINITIONS AND INTERPRETATION

          SECTION 1.01. INCORPORATION OF RECITALS. The above recitals are true and correct and are incorporated into and made a part hereof.

          SECTION 1.02. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings unless the context hereof otherwise requires:

          “Access Management Plan” means the access management plan for Poinciana Parkway involving access to the Osceola Project Area being initially limited to twelve access points, six (6) full and six (6) partial intersections; access to the Poinciana Toll Road being initially limited to one signalized intersection near its southern limit and access to the Polk Project Area being initially limited to a major signalized intersection at U.S. 17-92 and three additional signalized intersections spaced to preserve the transportation capacity of the controlled access facility, all as depicted on Appendix B attached hereto.

          “Agreement” means this Poinciana Parkway Regulatory Agreement, including any amendments and supplements hereto (including all appendices and/or exhibits attached hereto) executed and delivered in accordance with the terms hereof.

          “Avatar Parcels” means the property which has been or will be acquired by the Owner as part of the necessary rights-of-way for construction of the Poinciana Parkway.

          “Completion Date” shall have the meaning set forth in Section 4.03 hereof.

          “Contractor” shall have the meaning set forth in Section 4.04 hereof.

          “Design Criteria” means the final criteria for Poinciana Parkway design and engineering included in the description of Poinciana Parkway as set forth in Appendix B attached hereto.

          “Enforcement Agencies” shall have the meaning set forth in Section 6.02 hereof.

          “Expansion Project” shall have the meaning set forth in Section 3.01 hereof.

          “Initial Term” shall have the meaning set forth in Section 6.04 hereof.

          “Interlocal Agreement” means the Interlocal Agreement between Polk County and Osceola County relating to the Poinciana Parkway, which agreement was approved by the Osceola County Board of County Commissioners on December 11, 2006 and which will come before the Polk County Board of County Commissioners for approval on December 20, 2006.

          “Mitigation Costs” means all of the costs associated with the Mitigation Work, including land acquisition, and any and all permits, licenses etc.

          “Mitigation Sites” means the real property acquired by the Owner in connection with the Mitigation Work.

          “Mitigation Work” means on-site or off-site improvements required by the Florida Department of Environmental Regulation, Southwest Florida Water Management District, South Florida Water Management District, Florida Game and Freshwater Fish Commission, United States Environmental Protection Agency, Army Corp of Engineers and United States Fish and

3

Wildlife Service to mitigate adverse environmental effects resulting from construction of Poinciana Parkway.

          “Osceola County” means Osceola County, a political subdivision and charter county of the State.

          “Osceola Project Area” means that segment of Poinciana Parkway located in Osceola County more particularly depicted on Appendix A attached hereto and made a part hereof, constituting approximately 4.17 miles of access roadways beginning at the Westerly right-of-way line of Eastborne Avenue and follows the existing alignment of Marigold Avenue, a two lane roadway constructed within an existing Osceola County right-of-way with a width of 150 feet which will be reconstructed by the Owner as a part of Poinciana Parkway utilizing a four lane urban curb and gutter section, ending at the intersection of Cypress Parkway (CR 580) and Marigold Avenue, including without limitation, all property rights, easements, appurtenances, rights-of-way, franchises and equipment relating thereto and deemed necessary or convenient for the acquisition, construction, renovation, reconstruction or operation thereof, with such changes, deletions, additions or modifications to the enumerated improvements, equipment and facilities, or such other improvements, equipment or facilities as may hereafter be approved by Osceola County in accordance with this Agreement.

          “Person” means an individual, a corporation, a partnership, an association, a joint stock company, a trust, a governmental entity or any other entity cognizable at law.

          “Plans and Specifications” means the plans and specifications for construction of Poinciana Parkway developed by the Project Engineer as defined below.

          “Poinciana Development” means the approximately 47,000 acre mixed-use development known as Poinciana, as shown in a Master Plan approved on August 31, 1971 and October 5, 1971 by Polk County and Osceola County.

          “Poinciana Parkway” means an approximately 9.66 mile four-lane road consisting of the Osceola Project Area, the Poinciana Toll Road and the Polk Project Area, beginning at the existing intersection of County Road 54 and US 17-92 in Polk County, Florida and terminating in Osceola County, Florida at the intersection of Marigold Avenue and Cypress Parkway (CR 580) more particularly depicted on Appendix A attached hereto and made a part hereof.

          “Poinciana Parkway Permits” means all of the governmental permissions, approvals, permits and the like authorizing the acquisition, development, construction and operation of the Poinciana Parkway, including any portions thereof, together with the portion of those certain permits obtained or acquired by the Owner from Parker Poinciana, Inc. related to the permitting of Parker Highway (now known as Poinciana Parkway) and the Mitigation Work.

          “Poinciana Toll Road” means the approximately 4.15 mile four-lane controlled access segment of Poinciana Parkway more particularly depicted on Appendix A attached hereto and made a part hereof, including without limitation, all property rights, easements, appurtenances, rights-of-way, franchises and equipment relating thereto and deemed necessary or convenient for the acquisition, construction, renovation, reconstruction or operation thereof, with such changes, deletions, additions or modifications to the enumerated improvements, equipment and facilities,

4

or such other improvements, equipment or facilities as may hereafter be approved by Polk County in accordance with this Agreement and by Osceola County in accordance with a separate agreement with Osceola County.

          “Polk Project Area” means that segment of Poinciana Parkway located in Polk County more particularly depicted on Appendix A attached hereto and made a part hereof, constituting approximately 1.34 miles of roadways leading from U.S. 17-92 to the Osceola/Polk County line.

          “Project Engineer” means Vanasse Hangen Brustlin, Inc., or any successor engineer or firm of engineers of reputation for skill and experience with respect to the construction, operation and maintenance of facilities similar to Poinciana Parkway, who is duly licensed under the laws of the State and designated by the Owner to perform the duties of the Project Engineer under the provisions of this Agreement.

          “Renewal Term” shall have the meaning set forth in Section 6.04 hereof.

          “State” means the State of Florida.

          SECTION 1.03. INTERPRETATION. Words importing the singular number shall include the plural in each case and vice versa, and words importing persons shall include firms and corporations. The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof,” and any similar terms, shall refer to this Agreement; the term “heretofore” shall mean before the execution of this Agreement; and the term “hereafter” shall mean after the execution of this Agreement. This Agreement shall not be construed more strongly against any party regardless that such party, or its counsel, drafted this Agreement.

          SECTION 1.04. SECTION HEADINGS. Any headings preceding the texts of the several Articles and Sections of this Agreement and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall neither constitute a part of this Agreement nor affect its meaning, construction or effect.

ARTICLE II
REPRESENTATIONS

          SECTION 2.01. REPRESENTATIONS OF POLK COUNTY. Polk County makes the following representations as the basis for the undertakings on the part of the Owner herein contained:

          (A) Polk County is duly organized and validly existing as a political subdivision and charter county of the State of Florida.

          (B) Polk County has full power and authority to enter into the transactions contemplated by this Agreement and the Interlocal Agreement and to carry out its obligations hereunder and thereunder.

          (C) Polk County is not in default under any provisions of the laws of the State material to the performance of its obligations under this Agreement and the Interlocal Agreement.

          (D) Polk County has duly authorized the execution and delivery of this Agreement and the Interlocal Agreement.

          (E) To Polk County’s knowledge, the authorization, execution and delivery of this Agreement and the Interlocal Agreement and the compliance by Polk County with the provisions thereof will not conflict with or constitute a material breach of, or default under, any existing law, court or administrative regulation, decree, order or any provision of the Constitution or laws of the State relating to Polk County or its affairs, or any ordinance, resolution, agreement, mortgage, lease or other instrument to which Polk County is subject or by which it is bound.

          (F) To Polk County’s knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or, to the best knowledge of Polk County, threatened against or affecting Polk County, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated hereby or which, in any way, would materially adversely affect the validity of this Agreement, the Interlocal Agreement, or any agreement or instrument to which Polk County is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby.

          SECTION 2.02. REPRESENTATIONS OF THE OWNER. The Owner makes the following representations as the basis for the undertakings on the part of Polk County herein contained:

          (A) The Owner is a duly organized and validly existing private entity duly authorized to transact business in the State.

          (B) The Owner has full power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder and thereunder.

          (C) The Owner is not in default under any provisions of the laws of the State material to the performance of its obligations under this Agreement.

          (D) The Owner has duly authorized the execution and delivery of this Agreement.

          (E) To the Owner’s knowledge, the authorization, execution and delivery of this Agreement and the compliance by the Owner with the provisions hereof will not conflict with or constitute a material breach of, or default under, any existing law, court or administrative regulation, decree, order or any provision of the Constitution or laws of the State relating to the Owner or its affairs, or any ordinance, resolution, agreement, mortgage, lease or other instrument to which the Owner is subject or by which it is bound.

          (F) To the Owner’s knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or, to the best knowledge of the Owner, threatened against or affecting the Owner, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any agreement or instrument to which the Owner is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby.

ARTICLE III
POINCIANA PARKWAY

          SECTION 3.01. GENERAL.

          (A) The Owner shall acquire, develop and construct the Poinciana Parkway as a controlled access arterial roadway extending from the current intersection of U.S. 17-92 and County Road 54 in Polk County to the existing intersection of Marigold Avenue and Cypress Parkway (CR 580) for a total length of approximately 9.66 miles, all substantially in accordance with the Plans and Specifications. Poinciana Parkway will be comprised of three separate segments, the Osceola Project Area, the Poinciana Toll Road and the Polk Project Area, all of which have been designed as a four lane facility with provisions to be expanded in the future to a six-lane facility. Polk County has no jurisdiction or authority over either the Osceola Project Area or the Poinciana Toll Road and does not object to, nor will it interfere with, any agreements now in place or which may be reached in the future between Osceola County and Avatar relating to the acquisition, construction, ownership, and operation of the Osceola Project Area and/or relating to the acquisition, construction, ownership, and operation of the Poinciana Toll Road as a private toll road, so long as the Poinciana Parkway, in its entirety as depicted on Appendix A, remains at all times a road open to use and travel by the public upon payment of any applicable tolls.

          (B) Additionally, Polk County hereby acknowledges and agrees that, upon the mutual agreement of the Owner and Polk County, and if warranted by the then existing level of service conditions on the Poinciana Parkway, the Owner may undertake the expansion of the Poinciana Parkway to a six lane facility substantially in accordance with the Design Criteria (the “Expansion Project”). All costs associated with the expansion of the Poinciana Parkway, including but not limited to costs of permitting, design, right-of-way acquisition and construction, shall be provided for by the Owner from various sources available to the Owner at that time. Polk County agrees to assist and cooperate with the Owner to facilitate the completion of the Expansion Project, including, without limitation, granting to the Owner, as and when requested, all rights-of-way utilization permits necessary or required for the construction activity contemplated within the Polk Project Area in connection with the Expansion Project to the extent that Polk County has jurisdiction over such rights-of-way.

          SECTION 3.02. OWNERSHIP.

          (A) Pursuant to provisions and requirements of the Polk County Land Development Code, and upon inspection and approval for acceptance by the County Engineer, the Owner shall convey to Polk County any and all of the rights-of-way within the Polk Project Area then owned

7

by the Owner. The Polk Project Area shall be owned by Polk County and shall be operated and maintained by Polk County in accordance with the provisions of Section 3.03 hereof.

          (B) Pursuant to separate agreement between the Owner and Osceola County, the Poinciana Toll Road shall be owned, operated as a private toll road open to use and travel by the public upon payment of any applicable tolls which road shall be maintained by the Owner.

          (C) Pursuant to separate agreement between the Owner and Osceola County, the Osceola Project Area shall be owned by Osceola County and shall be operated and maintained by Osceola County.

          SECTION 3.03. POLK PROJECT AREA. Polk County covenants and agrees that it will, upon acceptance of the Polk Project Area of the Poinciana Parkway for maintenance purposes, operate and maintain the Polk Project Area in accordance with Polk County, and any applicable State, policies and procedures for the maintenance and repair of the public road system of Polk County.

          SECTION 3.04. FUNDING OF COSTS OF ACQUISITION AND CONSTRUCTION. The Owner acknowledges and agrees that Polk County shall not be obligated to pay or fund any portion of the costs associated with the acquisition and construction of the Poinciana Parkway and the same shall be provided for by the Owner from various sources available to the Owner. The Owner warrants and represents to Polk County that all funds necessary or required to pay or reimburse the costs associated with the acquisition and construction of Poinciana Parkway are or can be made available by or on behalf of the Owner.

          SECTION 3.05. ACCESS MANAGEMENT. Polk County and the Owner agree to control access to Poinciana Parkway as depicted in the Access Management Plan; provided however, that Polk County may permit additional access to the Polk Project Area upon reasonable prior notice to the Owner. Polk County acknowledges and agrees that all costs associated with providing access to the Polk Project Area at locations not depicted as initial access points on the Access Management Plan shall be paid by Polk County or by abutting property owners seeking such access, unless otherwise agreed to, in writing, by the Owner.

ARTICLE IV
PLANNING, DESIGN AND CONSTRUCTION

          SECTION 4.01. DESIGN CRITERIA. The Owner has developed, and Polk County has reviewed and commented upon, the Design Criteria attached to this Agreement as Appendix B.

          SECTION 4.02. ACQUISITION, DESIGN AND CONSTRUCTION OF POINCIANA PARKWAY.

          (A) The Plans and Specifications shall be developed substantially in accordance with the Design Criteria and shall be signed, sealed and certified by the professional engineer, surveyor or architect who prepared such materials.

          (B) The Owner shall proceed to obtain any then remaining necessary permits and approvals from any and all governmental agencies required for the acquisition, construction, installation and equipping of the Poinciana Parkway, substantially in accordance with the Plans and Specifications. If modifications or revisions to the Plans and Specifications with respect to the Polk Project Area are required by a governmental agency or authority as a condition to its issuance of required permits or approvals, the Owner shall provide prompt written notice to Polk County of the requested modifications or revisions.

          (C) The Owner shall cause the Poinciana Parkway to be constructed substantially in accordance with the Plans and Specifications, the Design Criteria, the issued permits, and all applicable laws, rules, regulations and standards. Upon commencement of construction of the Poinciana Parkway, the Owner shall complete construction and shall cause such construction to be completed free of construction liens or claims. The Owner agrees to diligently pursue construction of the Poinciana Parkway without unreasonable delay.

          (D) Construction engineering inspection services shall be provided by the Project Engineer, who shall also sign and seal the as-built drawings of the Poinciana Parkway. Polk County, at its option, may retain an independent consultant, reasonably acceptable to Polk County, to confirm the completion of construction of the Polk Project Area, substantially in accordance with the Plans and Specifications and provide to Polk County a certificate to that effect.

          (E) Polk County agrees to assist and cooperate with the Owner to facilitate the acquisition, construction, completion and operation of the Polk Project Area. Promptly upon compliance with all applicable conditions of approval, Polk County shall grant to the Owner all rights-of-way utilization permits necessary or required for the construction activity contemplated under the Plans and Specifications within the Polk Project Area for rights-of-way over which Polk County has jurisdiction.

          SECTION 4.03. COMPLETION DATE. Acquisition and construction of Poinciana Parkway shall proceed with due diligence and best efforts to the completion thereof. Subject to the provisions of this Agreement, particularly Section 4.05 hereof, the Poinciana Parkway will be substantially complete and open to traffic not later than October 31, 2008 (the “Completion Date”). Substantial completion of the Poinciana Parkway shall be evidenced by a certificate of the Project Engineer to that effect to be delivered to Polk County, Osceola County and the Owner within thirty (30) days of the actual occurrence thereof.

          SECTION 4.04. INSURANCE.

          (A) The Owner shall require each contractor constructing improvements to Poinciana Parkway in the Polk Project Area (the “Contractor”) to purchase and maintain such insurance as will protect the Owner and Polk County from the claims, actions, damages or losses described below which may arise out of or result from the design and construction of improvements to Poinciana Parkway in the Polk Project Area, regardless of whether such design and construction is performed by the Contractor, a subcontractor or anyone directly (or indirectly) employed by any of them, anyone who any of them are in privity of contract with or anyone for whose acts any of them may be liable:

          (1) claims, actions or liability under workers compensation, disability benefits and other similar employee benefit acts which are applicable to construction of the improvements;

          (2) claims, actions or liability for damages due to bodily injury, occupational sickness or disease, or death of employees under any applicable employer’s liability law;

          (3) claims, actions or liability for damage due to bodily injury, disease or death of any person other than employees;

          (4) claims, actions or liability for damages insured by usual personal injury liability coverage which are sustained (a) by any person as a result of an offense directly or indirectly related to the employment of such person, or (b) by any other person; and

          (5) claims, actions or liability for damages because of bodily injury or death of any person or property damage arising out of the tenantship, maintenance or use of any motor vehicle.

          (B) The Comprehensive General Liability Insurance shall include premises-operations (including explosion, collapse and underground coverage) independent contractors, completed operations, and blanket contractual liability on all written contracts, all including broad form property damage coverage with a maximum coverage of as set forth below.

          (C) Unless otherwise approved by the Risk Management Director, the Comprehensive General and Automobile Liability Insurance, as required by subsections(A) and (B) shall be written for not less than the following limits of liability:

          (1) Comprehensive General Liability

		(a) Bodily Injury		$1,000,000 Each Occurrence
				$2,000,000 Aggregate (Completed Operations)
		(b) Property Damage		$1,000,000 Each Occurrence
				$2,000,000 Aggregate (Completed Operations)

          (2) Comprehensive Automobile Liability

		(a) Bodily Injury		$1,000,000 Each Person
				$1,000,000 Each Occurrence
		(b) Property Damage		$500,000 Each Occurrence

          (D) Comprehensive General Liability and Automobile Liability Insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy.

          (E) The Owner shall furnish evidence of such insurance to Polk County and Osceola County. The certificate shall contain a statement binding upon the insurance company prohibiting cancellation, termination, or modification of the policy or reduction of coverages without first giving Polk County and Osceola County thirty (30) days prior written notice of such proposed action.

          (F) The Owner shall, all times during the operation of the Poinciana Toll Road, maintain in full force and effect, at its own cost and expense, a comprehensive liability insurance policy for the protection of members of the general public who travel, either as passengers or drivers, upon the Poinciana Toll Road. Said comprehensive liability insurance policy shall be in a form reasonably satisfactory to Polk County and Osceola County and shall protect against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under the franchise. Minimum liability limits under the policy shall be Five Million Dollars ($5,000,000) for personal injury or death of any one person and Five Million Dollars ($5,000,000) for personal injury or death of two or more persons, in any one occurrence, and Five Million Dollars ($5,000,000) for damage to property resulting from any one occurrence. The policy shall contain a provision that written notice of any cancellation or reduction in coverage be delivered to Polk County and Osceola County at least thirty (30) days in advance of the effective date of cancellation. Each dollar amount provided for in this subsection (B) shall be increased or decreased for each calendar year based on the percentage increase or decrease in the Consumer Price Index — All Urban Consumers (U.S. City Average) published by the United States Department of Labor, Bureau of Labor Statistics, during the immediately preceding calendar year, using the years 1982-84 as a base of 100, or if such index is discontinued, the most comparable index published by any federal governmental agency. Polk County, a political subdivision of the State of Florida shall be named as an additional insured on all automobile and general liability policies arising from the operations arising from the construction and maintenance of the Poinciana Parkway. Polk County requires that a waiver of subrogation shall be endorsed to all policies of insurance with respect to Polk County.

          SECTION 4.05. FORCE MAJEURE. Neither Polk County nor the Owner shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the non-performing party could not avoid. The term “Uncontrollable Forces” shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the non-performing party. It includes, but is not limited to, fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and governmental actions.

          Neither party shall, however, be excused from performance if non-performance is due to forces which are preventable, removable, or remediable and which the non-performing party could have, with the exercise of reasonable diligence, prevented, removed or remedied with reasonable dispatch.

          The non-performing party shall, within a reasonable time of being prevented or delayed from performance by an Uncontrollable Force, give written notice to the other party describing the circumstances and Uncontrollable Forces preventing continued performance of the obligations of this Agreement.

ARTICLE V
DEFAULTS AND REMEDIES

          5.01 OWNER’S DEFAULT. Subject to the provisions of Section 5.02 hereof, an “Owner Event of Default” shall be deemed to have occurred under this Agreement should any one or more of the following events occur at any time:

          (a) Failure of the Owner to materially and timely comply with and perform each of the Owner’s obligations set forth in this Agreement.

          (b) If any representation or warranty made by the Owner in this Agreement or subsequently made by the Owner in any written statement or document furnished to Polk County and related to the transactions contemplated by this Agreement, is false, incomplete, inaccurate or misleading in any material respect.

          (c) An Act of Bankruptcy by or on behalf of the Owner.

          5.02 POLK COUNTY’S REMEDIES. Should any Owner Event of Default occur and be continuing six (6) months after receipt of written notice to the Owner from Polk County specifying the existence of such Owner Event of Default (or within a reasonable time thereafter if such Owner Event of Default cannot reasonably be cured within such six (6) month period and the Owner begins to diligently pursue the cure of such Owner Event of Default within such six (6) month period), such Owner Event of Default shall become an “Owner Default,” and Polk County, as its sole and exclusive remedies, shall be entitled to elect any or all of the following remedies: (a) termination of this Agreement; (b) pursuit of specific performance of the Owner’s obligations under this Agreement or injunctive relief; (c) pursuit of any remedy at law or in equity that may be available as a consequence of such Owner Default; or (d) waiver of such Owner Default.

          5.03 POLK COUNTY’S DEFAULT. Subject to the provisions of Section 5.04 hereof, an “Polk County Event of Default” shall be deemed to have occurred under this Agreement should any one or more of the following events occur at any time:

          (a) Failure of Polk County to materially and timely comply with and perform all of Polk County’s obligations set forth in this Agreement.

          (b) If any representation or warranty made by Polk County in this Agreement or subsequently made by Polk County in any written statement or documents in any documents relating to the transactions contemplated hereby is false, incomplete, inaccurate or misleading in any material respect.

          5.04 OWNER’S REMEDIES. Should any Polk County Event of Default occur and be continuing thirty (30) days after receipt of written notice to Polk County from the Owner specifying the existence of such Polk County Event of Default (or within a reasonable time thereafter if such Polk County Event of Default cannot reasonably be cured within such thirty (30) day period and Polk County begins to diligently pursue the cure of such Polk County Event of Default within such thirty (30) day period), such Polk County Event of Default shall become

12

an “Polk County Default,” and the Owner, as its sole and exclusive remedies, shall be entitled to elect any or all of the following remedies: (a) pursuit of specific performance of Polk County’s obligations under this Agreement or injunctive relief; (b) pursuit of any other remedy permitted at law or in equity that may be available as a consequence of such Polk County Default; or (c) waiver of such Polk County Default.

          5.05 AGREEMENT TO PAY ATTORNEYS’ FEES AND EXPENSES. If, with respect to any Event of Default, the non-defaulting party employs attorneys or incurs other expenses for the collection of amounts due hereunder or for the enforcement of the performance or observance of any covenants or agreements on the part of the defaulting party contained herein, the defaulting party agrees that it will on demand therefor pay to the non-defaulting party the reasonable fees of such attorneys and such other reasonable expenses so incurred by the non-defaulting party, the amount of such fees of attorneys to be without regard to any statutory presumption.

ARTICLE VI
GENERAL PROVISIONS

          SECTION 6.01. INTERLOCAL AGREEMENT PROVISIONS. To the extent any provision of this Agreement constitutes a joint exercise of power, privilege or authority by and between Polk County and the Owner, such provision shall be deemed to be an “interlocal agreement” within the meaning of the Florida Interlocal Cooperation Act of 1969. This Agreement shall be filed in the Public Records of Polk County, Florida.

          SECTION 6.02. TRAFFIC SAFETY, EMERGENCY AND ENFORCEMENT SERVICES. Pursuant to Florida Statutes, Sections 334.03(8) and 336.01, Polk County will have jurisdiction over the Polk Project Area portion of the proposed Poinciana Parkway but will not have jurisdiction, control or authority over either the Osceola Project Area or over the Poinciana Toll Road, both of which segments of the overall Poinciana Parkway project are within the jurisdiction of Osceola County. To the extent deemed necessary by Polk County, the Owner shall grant to Polk County a perpetual easement over the Poinciana Toll Road and right of ingress and egress to and for the benefit of Polk County employees and agents, delivery and pick up services, fire and rescue protection services, police services, ambulance services and other authorities of law, United States mail carriers, and representatives of utilities. The Poinciana Toll Road and the Osceola Project Area, pursuant to Florida Statutes, Sections 334.03(8) and 336.01 and a separate agreement entered into between Osceola County and the Owner, shall be subject to the jurisdiction of Osceola County in establishing speed limits and traffic control devices deemed necessary and appropriate by Osceola County, and the Owner shall contract with the Osceola County Sheriff’s Department and/or the Florida Highway Patrol (collectively, the “Enforcement Agencies”), respectively, for the enforcement of traffic control and safety regulations.

          SECTION 6.03. REIMBURSEMENT BY OWNER OF CERTAIN COSTS INCURRED BY POLK COUNTY. The Owner shall also pay the reasonable fees and expenses of the Project Engineer or a third party consultant, retained by the Owner and reasonably acceptable to Polk County, to certify to the completion of construction of the Poinciana Parkway substantially in accordance with the Plans and Specifications.

          SECTION 6.04. TERM OF AGREEMENT. The term of this Agreement shall commence on the date of execution thereof by the last of Polk County and the Owner and unless terminated earlier pursuant to the provisions of this Agreement, and shall extend for a period of ninety-nine (99) years following the Completion Date.

          SECTION 6.05. NO ADDITIONAL RIGHTS CONFERRED. The Owner acknowledges and agrees that the execution of this Agreement or any activity resulting therefrom does not affect any existing rights to develop the Polk County portion of the Poinciana Development in a specific manner nor does this Agreement confer any new or additional development rights upon the Owner.

          SECTION 6.06. INDEMNIFICATION. For the separate consideration of ten dollars ($10) and other valuable consideration paid to it by Polk County, the Owner hereby agrees to indemnify, defend and hold Polk County harmless from and against any and all liability for any loss, injury or damage to persons or property, including, without limitation, consequential damage including without limitation, all costs, expenses, court costs and reasonable attorneys’ fees, imposed on Polk County by any person whomsoever arising out of this Agreement, except for any such loss, injury or damage that is caused by or results from the gross negligence or willful misconduct of Polk County, its employees, agents or contractors. The commercial liability insurance that the Owner is required to carry pursuant to Section 4.04(B) hereof shall include coverage of the foregoing contractual indemnity. The provisions of this Section 6.06 shall survive the expiration or any termination of this Agreement.

          SECTION 6.07. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof, and supersedes all prior other and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof, except as specifically set forth herein.

          SECTION 6.08. AMENDMENTS AND WAIVERS. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by all parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, unless otherwise expressly provided.

          SECTION 6.09. NOTICES. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the parties at the following addresses:

		Polk County:		Mr. Michael Herr County Manager
				330 West Church Street
				Drawer PW 02
				Bartow, Florida 33830
		With a copy to:		Joseph G. Jarret, Esquire
				County Attorney
				330 West Church Street
				Drawer PW 02
				Bartow, Florida 33830
		Osceola County:		Ms. Jo Thacker
				County Manager
				1 Courthouse Square, Suite 4700
				Kissimmee, FL 34741
		With a copy to:		Kate Stangle, Esq.
				Acting County Attorney
				1 Courthouse Square,
				Kissimmee, FL 34741
		Owner:		Avatar Properties Inc.
				201 Alhambra Circle, Suite 1200
				Coral Gables, FL 33134
				Miami, FL
				Attention: General Counsel
		With a copy to:		Julie Kendig-Schrader, Esq.
				Greenberg Traurig, PA.
				450 South Orange Avenue
				6th Floor
				Orlando, FL 32801

Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Any notice shall be deemed given on the date such notice is delivered by hand or facsimile transmission or three days after the date mailed.

          6.10 COOPERATION. The parties will cooperate with each other, to the extent permitted by applicable law, in every reasonable way in carrying out the transactions contemplated by this Agreement, in fulfilling all of the conditions to be met by the parties in connection with this Agreement and in obtaining and delivering all documents required hereunder.

          6.11 ASSIGNMENT.

          (A) Avatar Properties Inc. may assign its rights title and interests in, to and under this Agreement to a single purpose entity established by Avatar Properties Inc. for the purpose of owning and operating the Poinciana Toll Road, and such entity shall expressly assume all obligations of the Owner under this Agreement. Prior to the Completion Date, Avatar Properties Inc. hereby guarantees the prompt and satisfactory performance of all obligations under this Agreement assigned pursuant to this subsection. Polk County represents that it would not have executed this Agreement without the foregoing guarantee of performance. Avatar Properties Inc. represents that the execution of this Agreement is expected to result in financial and other valuable benefits to Avatar Properties, Inc. and constitutes good, sufficient and valuable consideration for the assumption by Avatar Properties Inc. of its obligations hereunder.

          (B) Avatar Properties Inc. and any single purpose entity established by Avatar Properties Inc. for the purpose of owning and operating the Poinciana Toll Road may assign this Agreement to any successor in title to the real property underlying the Poinciana Toll Road.

          (C) Other than the assignment expressly permitted by subsections (A) and (B), neither party may effect an assignment of this Agreement without the prior written consent of the other party.

          (D) No assignment shall become effective unless (1) the proposed assignee is be a duly organized entity authorized to transact business in the State; (2) the proposed assignee specifically agrees, in writing, to be bound by all the provisions of this Agreement relating to the continuing operation of the Poinciana Parkway; and (3) the operation of the Poinciana Toll Road shall, at all times, be under the direction and supervision of an active operator with the expertise, qualifications, experience, competence, skills and know-how to perform the toll road operations in accordance with this Agreement (an “Operator”), which Operator may be the proposed assignee itself, any of its affiliates, or any qualified party with whom the proposed assignee has entered into a contract for purposes of operating the road or its tolling facilities. Except as provided in subsection (A), Avatar Properties Inc. shall have no further obligations under this Agreement upon an assignment of its rights, title and interests in, to and under this Agreement to any person or entity in accordance with the provisions of this Section.

          SECTION 6.12. BINDING EFFECT. To the extent provided herein, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns and shall inure to the benefit of the parties, their respective successors and assigns.

          SECTION 6.13. SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.

          SECTION 6.14. EXECUTION IN COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

          SECTION 6.15. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.

          SECTION 6.16. JURISDICTION AND VENUE. The parties to this Agreement agree that venue shall lie in Polk County, Florida.

          SECTION 6.17. DISPUTE RESOLUTION.

          (A) The parties agree to resolve any dispute related to the interpretation or performance of this Agreement in the manner described in this Section 6.17. Either party may initiate the dispute resolution process by providing written notice to the other party.

          (B) After transmittal and receipt of a notice specifying the area or areas of disagreement, the parties agree to meet at reasonable times and places, as mutually agreed upon, to discuss the issues.

          (C) If discussions between the parties fail to resolve the dispute within 60 days of the notice described in Section 6.17(A) hereof, the parties shall appoint a mutually acceptable neutral third party to act as a mediator. If the parties are unable to agree upon a mediator, either the Owner or Polk County will request appointment of a mediator by the Chief Judge of the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida. The mediation contemplated by this Section 6.17(C) is intended to be an informal and non-adversarial process with the object of helping the parties reach a mutually acceptable and voluntary agreement. The decision making shall rest solely with the parties. The mediator shall assist the parties in identifying issues, fostering joint problem-solving, and exploring settlement alternatives. It is understood that any settlement may require approval of Polk County’s Board of Commissioners.

          (D) If the parties are unable to reach a mediated settlement within 120 days of the mediator’s appointment, either party may terminate the settlement discussions by written notice to the other party. In such event, either party may initiate litigation within 120 days of the notice terminating the settlement discussions. Failure by the party initiating the dispute resolution procedure to commence litigation within the 120 day period shall be deemed to constitute an acceptance of the interpretation or performance of the other party.

          SECTION 6.18. WAIVER OF JURY TRIAL. POLK COUNTY AND THE OWNER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR POLK COUNTY AND THE OWNER ENTERING INTO THIS AGREEMENT.

IN WITNESS WHEREOF, the Board of County Commissioners of Polk County, Florida, has caused this Agreement to be executed and delivered as of the day and year first above written.

/s/ Frida L. Wash
By: Deputy Clerk

          IN WITNESS WHEREOF, the Owner has caused this Agreement to be executed and delivered as of the day and year first above written.

/s/ Mario D. Fielder
	Name:	Mario D. Fielder
/s/ Rosa Zamora
	Name:	Rosa Zamora

By:	/s/ Dennis J. Getman
	Name:	Dennis J. Getman
	Title:	Executive Vice President

STATE OF FLORIDA
COUNTY OF POLK

          The foregoing instrument was acknowledged before me by  Bob English     , as Chair and Frida Wash as Deputy Clerk of the Board of County Commissioners of Polk County, on behalf of said County. They are personally known to me or has produced ___ (type of identification) and did (did not) take an oath.

          WITNESS my hand and official seal, this 21st day of December, 2006.

My commission expires: 11/24/07

STATE OF FLORIDA
COUNTY OF Miami-Dade

          The foregoing instrument was acknowledged before me by Dennis J. Getman, as Executive Vice President of Avatar Properties Inc., on behalf of said corporation. He is personally known to me or has produced ___ (type of identification) and did (did not) take an oath.

          WITNESS my hand and official seal, this 19th day of December, 2006.

My commission expires: November 4, 2010

APPENDIX A
MAP OF POINCIANA PARKWAY AND SURROUNDING AREAS

APPENDIX B
DESIGN CRITERIA

ROADWAY DESIGN CRITERIA
POINCIANA PARKWAY/MARIGOLD AVENUE
FROM US 17/92 TO CYPRESS PARKWAY
OSCEOLA & POLK COUNTIES

Design Element

Criteria Urban (Rural)

Source

Notes

General Criteria

Functional Classification

Principal Arterial

FDOT Green Book Ch. 1

Design vehicle

P, SU, WB-50 WB62 @US17-92/Cypress

FDOT Green Book Ch. 3

Design Year (Open/Future)

2007/2022

Design Speed

45 MPH (60 MPH)

FDOT Green Book Ch. 3

See the typical section package for the design speeds for the individual segments.

Typical Section

Lane widths

12’

FDOT Green Book Ch. 3

Shoulder widths

10’ Outside/4’ Paved; 6’ Median

FDOT Green Book Ch. 3

Typical cross section slopes

0.02 Inside & Median Lane

FDOT Green Book Ch. 3

0.03 Outside Lane

Horizontal Clear zone

4’ – C&G 18’ – 45 to 50 MPH (>1500 ADT) 30’ – 60 MPH and above (>1500 ADT)

FDOT Green Book Ch. 3

Roadside slopes (front slopes)

1:4 (Front Slopes)

FDOT Green Book Ch. 3

1:3 (Back Slopes)

Horizontal geometry

Max. deflection w/o a curve

1°00’00” (0°45’00”)

FDOT PPM Ch. 2

Minimum radius

880’ Urban (e max = 0.05) 1640’ Rural (e max = 0.10)

FDOT Green Book Ch. 3

Max. Curvature using 0.02

0° 30’ 00” (0° 15’ 00”)

FDOT PPM Ch. 2

Minimum length of curve

15V(>=400’)

FDOT PPM Ch. 2

Min. tangent between reverse curves

—

Superelevation transition ratio

1:150 (1:250)

FDOT PPM Ch. 2

Max. superelevation

0.05 (0.10)

FDOT Green Book Ch. 3

Min. Intersection stopping sight distance

400’ (625’)

FDOT Green Book Ch. 3

ROADWAY DESIGN CRITERIA
POINCIANA PARKWAY/MARIGOLD AVENUE
FROM US 17/92 TO CYPRESS PARKWAY
OSCEOLA & POLK COUNTIES

(Continued)

Design Element

Criteria Urban (Rural)

Source

Notes

Vertical geometry

Max. Profile Grade

5% (3%)

FDOT Green Book Ch. 3

Min. Profile Grade

0.3% (Curb & Gutter)

FDOT Green Book Ch. 3

Flat Terrain

Max. grade change w/o vertical curve

0.60% (0.20%)

FDOT Green Book Ch. 3

Minimum length vertical curve

3 times the Design Speed

FDOT Green Book Ch. 3

Minimum crest vertical curve

300’ (500’)

FDOT Green Book Ch. 3

Min. K Value for Crest Vertical Curve

120 (290)

FDOT Green Book Ch. 3

Minimum sag vertical curve

200’ (400’)

FDOT Green Book Ch. 3

Min. K Value for Sag Vertical Curve

90 (150)

FDOT Green Book Ch. 3

Minimum stopping sight distance

400’ (625’)

FDOT Green Book Ch. 3

Base clearances above DHW elev.

Median

55 MPH and Over

40’ Width

FDOT Green Book Ch. 3

Multilane Facilities — Rural Highways

Under 55 MPH

22’ Width

FDOT Green Book Ch. 3

50 MPH Urban

19.5’ Width

FDOT Green Book Ch. 3

Urban Streets

45 MPH and Less

15.5’ Width

FDOT Green Book Ch. 3

APPENDIX C

ACCESS MANAGEMENT PLAN

(Map of Poinciana Parkway depicting Access Points)