EX-10.3






AMENDMENT TO

TRANSPORTATION CONCURRENCY AGREEMENT




THIS AMENDMENT TO TRANSPORTATION CONCURRENCY AGREEMENT (this “Amendment”), is made and entered
into as of      July 25     , 2008, by and between Avatar Properties Inc., a Florida
corporation (the “Developer”), and Osceola County, a charter county and political subdivision of
the State of Florida (the “County”).



W I T N E S S E T H:




WHEREAS, the County and the Developer have previously entered into a Transportation
Concurrency Agreement, dated December 15, 2006 (the “Original Agreement”); and



WHEREAS, the County and the Developer now desire to amend certain provisions of the Original
Agreement, as hereinafter set forth;



NOW THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:



SECTION 1. AMENDMENTS. Section 4 of the Original Agreement is hereby amended as follows:



[4] Provision of Improvements to Serve the BLIVR Development.




A. Construction of Poinciana Parkway (“Parkway”)




1. Responsibility – Developer shall design, finance and cause the construction
of the Parkway pursuant to the Poinciana Parkway Regulatory Agreement between the Developer
and the County, of even date herewith (the “Regulatory Agreement”) and as further described
in Exhibit B attached hereto and incorporated herein by this reference (the “Parkway”).




2. Schedule – Construction of the Parkway shall be commenced not later than the first
quarter of 2007 and shall be substantially complete and open for traffic not later than the
third quarter of 2008, subject to force majeure (as provided in Section 4.05 of the
Regulatory Agreement) and the County’s compliance with the Property Acquisition Agreement.




2. Schedule – Notwithstanding the occurrence of any “Force Majeure Events”
(as defined in Section 4.05 of the Regulatory Agreement), financing for the acquisition,
development and construction of the Poinciana Parkway shall be completed and actual
construction shall be commenced not later than February 14, 2011. Subject to the occurrence
of Force Majeure Events, Poinciana Parkway shall be substantially complete and open for
traffic not later than December 31, 2011.




B. Other Transportation Facilities – Other than the Parkway, the additional
transportation facilities required to serve the Vested Property during the next 20 years
(the “Future Transportation Facilities”) have been identified by Leftwich Consulting
Engineers, Inc. in its Poinciana Transportation Assessment and Impact Fee Rate Study, dated
October, 2006 (the “Study”). The Study is attached hereto as Exhibit “C” and is
incorporated herein by this reference. The Study also includes the calculation of impact
fees to be paid in connection with road impact construction in the Vested Property (the
“Poinciana Impact Fee District”).




1. Funding of the Future Transportation Facilities – Construction of the Future
Transportation Facilities identified in the Study shall be funded as follows:




a. Future Transportation Facilities classified by the County as principal arterials
shall be funded from the proceeds of impact fees imposed against property located in
“District 1,” pursuant to Ordinance No. 2003-24.




b. Future Transportation Facilities classified by the County as minor arterials and
major collectors shall be funded from the proceeds of impact fees imposed against property
located in “District 3,” pursuant to Ordinance No. 2003-24.




c. Future Transportation Facilities not classified by the County as principal
arterials, minor arterials or major collectors, which the parties acknowledge will primarily
serve the Poinciana Impact Fee District, shall be funded from the proceeds of impact fees
imposed against property located in the Poinciana Impact Fee District, pursuant to Ordinance
No. 06-53. The Owner acknowledges that (i) there is a rational nexus between the need for
such Future Transportation Facilities and the new development against which the impact fees
will be imposed pursuant to Ordinance No. 06-53, and (ii) the funds have been properly
earmarked for the construction of such Future Transportation Facilities.




This subsection shall not be construed to preclude the County from implementing alternative
lawful funding sources in the future.




2. Doverplum Northbound from Koa Street to Country Club Road. The parties
acknowledge that Doverplum Avenue, northbound from KOA Koa Street to Country Club
Road, is currently deficient and not eligible for impact fee funding. The Developer agrees
to deposit the amount necessary to cure this deficiency ($1,908,950.00) in the same manner
required for deposit of the “Security Amount” pursuant to Section 9 of the Property
Acquisition Agreement between the parties dated December 15, 2006. Within six months of the
opening of the Poinciana Parkway, monitoring of Doverplum northbound from Koa Street to
Country Club Road shall be commenced by Developer. If such monitoring demonstrates that
this segment remains deficient, the County shall use the funds deposited to cure the
deficiency and if the deposit is insufficient for such purpose, the County shall notify
Developer of the difference and Developer shall pay such amount to the County within thirty
(30) days of such notification. If such monitoring demonstrates that this segment is no
longer operating at a deficiency, the deposit shall be returned to Developer within a
reasonable time and “Concurrency Exemption Impact Fees” imposed by the County in the Osceola
County portion of the Poinciana Development shall be increased to provide funding for any
projected future deficiency. If the Developer fails to comply with its obligation to
construct Poinciana Parkway, as set forth in Section 4.A. hereof, the funds deposited shall
be retained by the County in lieu of the concurrency obligations of Developer, if any, that
would have arisen prior to the date of such default but for this Agreement. Developer shall
not be entitled to any reimbursement of such monies from any Poinciana Impact Fee
District.




3. Priority of Construction. The County shall be solely responsible for
establishing the priority for construction of transportation facilities funded from proceeds
of the impact fees described in clauses a., b. and c. of the foregoing paragraph, including
the Future Transportation Facilities. However, the Developer’s rights to proceed with the
Vested Development shall not be impaired by the County’s prioritization of such
construction.




4. Polk County Participation. Both the County and Developer agree that a
majority of trips that are currently generated by the Polk County portion of the BLIVR
Property utilize Osceola County roads. As a result, resolution of the transportation issues
facing the BLIVR Development would benefit from the participation of Polk County. Both
parties agree to cooperate in attempts to involve Polk County in the resolution of
transportation issues for the BLIVR Development and to favorably recommend expansion of the
impact fees imposed in the Poinciana Impact Fee District to the Polk County portion of the
BLIVR Development.



SECTION 2. STATUS OF ORIGINAL AGREEMENT. Except as expressly modified by this Amendment, the
Original Agreement shall be and remain in full force and effect.



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



OSCEOLA COUNTY, FLORIDA



By: /s/ KEN SHIPLEY



Chairman/Vice Chairman



Board of County Commissioners



ATTEST:



/s/ DELORES T. WHALEY


Clerk/Deputy Clerk to the Board


(SEAL)



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



	 	 	 	 	 
	 	 	AVATAR PROPERTIES INC.
	WITNESSES:
	 	By:  /s/ PATRICIA K. FLETCHER
	/s/ MARIBEL G. PILA
	 	 	—	 
	Name: Maribel G. Pila
	 	Name: Patricia Kimball Fletcher
	 
	 	Title:  Executive Vice President
	/s/ NORA E. SANCHEZ
Name: Nora E. Sanchez
	 	 	 	 






STATE OF FLORIDA


COUNTY OF MIAMI-DADE



The foregoing instrument was acknowledged before me by Patricia Kimball Fletcher, as Executive
Vice President of Avatar Properties Inc. on behalf of said corporation. She is personally
known to me or has produced      N/A     , as identification, and did (did not) take an
oath.



WITNESS my hand and official seal, this 16th day of July, 2008.



	 	 	 
	
 
	 	/s/ MARIBEL G. PILA

Notary Public

State of Florida
	My commission expires: Oct. 20, 2010

	 	Commission No. DD 594512







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