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HomeMy WebLinkAbout2003 05 27 Regular B.1 Master Development Agreement David Heritage Properties 052703 _Regular _ B I_Master _ Deve10ment_ Agreement_Davis _Heritage_Properties Page 1 of 1 COMMISSION AGENDA ITEM B.I Consent Informational Public Hearing Regular X May 27,2003 Meeting Mgr. ~ / Authorization Dept. REQUEST: Community Development Department requesting the City Commission to approve a Master Development Agreement between the City and Davis Heritage Properties G.P. Holdings, LLC. PURPOSE: This agenda item is needed to memp.rialize the conditions under which the City is willing to participate in two proposed developments In Winter Springs. CONSIDERATIONS: On March 24 and March 31, 2003 the Commission discussed proposals of Davis Heritage to possibly construct one affordable housing, and one market rate housing project in Wip.ter Springs. Each project will have separate development agreements which will be consistent with the provisions of the Master Development Agreement. UTTMnTNt'""'4. T..-_L~"..-....^,_+n.~__ _+, .o.~4-l,..o.._ .............,.~.a.^+ n71"\.n lrt ...'O'C'ln 1.. ~...... no cr 1 00 (\n/) rtl"'\.nn+~l"'lt.n +,... +ho ~~""'T - ---"'T-1.Jl.-"'-~.I.J.:'~-;--Il-J.Ipl\;.iII-:l.vlTl,.-a:(;"Iu..n,----,;:.J:J..~l-mVl.--pr~:JJ~-UU"I~--cru~ ....1..& LA. ~.L-':1'~7,VU~UUU"'''' """" "....."'" ............"J. RECOMMENDATIONS: It is recommended that the Commission approve the Master Development Agreement with Davis Heritage G.P. Holdings, LLC ATTACHMENTS: Master Development Agreement COMMISSION ACTION: \. " ! '.. REVISED DRAYf 5.20-03 MASTER DEVELOPMENT AGREEMENT This MASTERDEVELOPNIENT AGREEMENT is made and entered into as of this day of __.__._.__._,2003 by and between the CITY OF WfNTER SPRINGS, FLORIDA, a Florida municipal corporation (hereafier referred to as "City") and DAVIS HERITAGE GP HOLDINGS, LLC, a Plorida limited liability company (hereafter referred to as "Davis"), RECITALS: WHEREAS, this Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act; and WHEREAS, Davis desires to design, permit and construct two apartment complexes within the City of Winter Springs; and WHEREAS, one apartment complex will utilize tax credit financing from the State ofFlolida and consist of apartment units available for persons that are eligible for affordable housing (hereafter referred to as the "Cypress Pointe Project"); and WHEREAS, the other apartment complex will be a standard market rate project and consist of apartment units available for persons at market rate (hereafter referred to as the "Wagner's Curve Project"): and WHEREAS, Davis desires that the City participate in its application for tax credit financing by making a local monetary contribution to the Cypress Pointe Project; and WHEREAS, Davis' corporate philosophy is to invest in communities that they participate in and c.onsistent with this philosophy, Davis agrees to make a monetary contribution to the City involving the Wagner's Curve Project in order to further any municipal purpose deemed acceptable to the City's City Commission.: and WHEREAS. Davis intends to create twO (2) special purpose partnerships, one for each project described above, in order to design, permit and construct the projects within the City of Winter Springs; and Page 1 of 10 <:<:1<: aBed ~~^ldS8: ~ 80- ~<:.'\e~ ~96S6 S<:v LOv ~'~'d"SSI3M~N~~Zl~s'a8~M'NM088 :'\8 ~uas RJI.VISIm DRAFT QO.03 WHEREAS, Davis acknowledges and agrees that it will have controlling interest in both partnerships and shall have the right to bind both partnerships to all future obligations necessary to fully implement this Agreement including, but not limited to, the monetary contribution required hereto, and WHEREAS, Davis and the City agree that this Agreement is in their mutual be~1 interests and is also in the best interests of the public health, safety, and welfare of the citizem of Winter Springs, Florida. NOW THEREFORE in consideration of the terms and conditions set forth in this Agreement, and other good and valuable consideration. the receipt of which is hereby acknowledged by the parties, the City and Davis agree to the following: 1.0 incorporation of Recitals. The foregoing recitals are tnJe and correct and are herehy fillly incorporated herein hy this reference as a material part of this Agreement. 2.0. Definitions. Unless the context clearly indicates otherwise, the following words and phrases when used in this Agreement shall have the meaning ascrihed helow: 2 1 "Oavis" shall mean Davis Heritage GP Holdings, LLC, a r.lorida limited liability company. 2.2 "City" shall mean the City of Winter Springs, a Florida municipal corporation. 2.3 "Cypress PoiJlte Property" shall mean the real property subject to this Agreement and legally described on Exhibit "A" which is attached herein and fully incorporated herein by this reference. 2.4 "Wagner's Curve Property" shall mean the real property subject to this Agreement and legally described on Exhibit "B" which is attached hereto and fully incorporated herein by this reference or any other substitute property located within the City of Winter Springs that the City Commission approves. 2.5 "Agreement'l shall mean this Master Development Agreement made and entered into by and between the City of Winter Springs, Florida, a Florida municipal corporation and Davis Heritage GP Holdings, LLC. a Florida limited liability company, including all exhibits and written modifications thereto. Page 2 of 10 ,,/8 aBBd ~V'ldS8: ~ 80- ~,-^BV'l ~96S6 S,t LOt ~'~'d'SSI3M~N~V'lZl~S'a8~M'NM088 :^8 +uas RI!.VISIW URAl/I 5-20.(13 3.0 Davis' Ohlieations. Davis agrees as follows: 3.1 Davis shall form a Florida limited partnership called Cypress Pointe at Winter Springs, Ltd. (hereinafter referred to .as "Cypress Pointe") for purposes of designing, permitting, and constructing an apartment complex on the Cypress Pointe Property. Prior to pennitting with the City, Cypress Pointe shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set forth the terms and conditions of the development of the Cypress Point Project. 3 2 Davis shall form a Florida limited partnership called Wagner's Curve at Winter Springs, Ltd. (hereinafter referred to as "Wagner's Curve") for purposes of designing, permitting and constructing an apartment complex on the Wagner's Curve Property. Prior to permitting with the City, Wagner's Curve shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set fOI1h the tenns and conditions of development of the Wagner's Curve Project. 3.3 At such time the City approves the final site plan for either the Cypress Pointe Project or the Wagner's Curve Project, Davis shall invest in the Winter Springs' community by paying the City Two Hundred Fifty Thousand ($250,000.00) Dollars. The payment shall be by cashier's check made payable to the City or by wire transfer to a City hank account de!\ignated hy the City Manager. The City shall u!\e !\aid payment in furtherance of any municipal purpose deemed appropriate by the City Commission. if Davis does not make the community investment contribution required under this Paragraph, the City shall have no further obligation under this Agreement or any development agreement entered into pursuant to Paragraphs 3.1 and 3.2 of this Agreement. 4.0 City's Obligations. The City agrees as follows: 4.1 The City agrees to negotiate in good faith and execute upon reaching acceptable terms two development agreements, one with Cypress Pointe and the other with Wagner's Curve. Each development agreement shall set forth the terms and conditions of the respective Cypress Pointe Project and the Wagner's Curve Project. 4.2 At such time the final site plan is approved by the City for the Cypress Pointe Project located on the Cypress Painte PropeI1y, and the City receives in full the payment Page 3 of 10 celt' e68d ~V>JdSe:: ~ e:o- ~c.'\e~~ ~96S6 Set' LOt' ~'~'d'SSI3M~N~V>JZl~S'O~~M'NMO~8 :'\8 lues RI':VIStm ORAl'T S.W-OJ required under Paragraph jJ ofthi~ Agreement, the City shall pay Cypress Pointe One Hundred Fifty Thousand ($150,000.00) Dollars. The payment shall be by check made payable to Cypress Pointe or by wire transfer to a bank account designated by Cypress Pointe. Davis shall ensure, and hereby represents and guarantees, that the payment is used by Cypress Pointe exclusively for the Cypress Pointe Project in order to make affordable housing available for City of Winter Springs' residents. 5.0 Periodic Review. This Agreement shall be subject to periodic review by the parties. Periodically, the City and Davis agree to cooperate and meet in good faith to discuss the progress made under this Agreement and whether any amendments should be made to this Agreement in furtherance of each others' mutual interests. 6.0 Cooperation. Davis and the City shall cooperate fully with each other to effectuate the term~, conditions and intentions of this Agreement. 7.0 Authority. Each party herehy repre~ent~ and warrants to the other that they have full power and authority to enler into this Agreement. Davis also represents that it is duly authorized to bind Cypress Pointe and Wagner's Curve to the terms and conditions contained in this Agreement. The City also represents that all requirements and procedures, including public hearings, have been properly conducted so that the execution hereof by the City shall con~'titute the final action of the City 8.0 Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) upon receipt of such notice, when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a nationally recognized overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail, etc., addressed to a party at the other address as specified below or from time to time by written notice to the other party delivered in accordance herewith: Davis: Stefan M. Davis Davis Heritage GP Holdings, LLC 20725 S.W. 46th Avenue Nt::Wbcrry, Florida 32669 Phone: (352)472-7773 Fax: (352)472-5969 Page 4 of 10 eelS aBed ~V'ldS8:~ 80-~e-Ael~ ~96S6 Sep LOP ~'~'dISSI3M~N~V'lZl~sla8~MINMO~8 :A8 ~uas RF.VrSv.D DRAFT 5.211.03 With copy to: Jim Stockman, Esquire Attorney at Law 20725 S.W 46th Avenue Newberry, Florida 32669 Phone: (352) 472-9310 Fa.....: (352) 472-8083 City: Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Phone: (407)327-5957 Fax: (407) 327-6686 With copy to: Anthony A. Garganese, Esquire City Attorney of Winter Springs Brown, Sah:man, Weiss & Garganese. P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Phone: (407) 425-9566 Fax: (407) 425-9596 9.0 Default~. Failure by either pany to perform each and every one of its obligations hereunder, or any violation of the City Code by Davis, Cypress Pointe, Wagner's Curve, or its contractors, shall constitute a default, entitling the nontlefaulting party to pursue whatever Temt::dies are available to it under Florida law or equity including, without limitation, an action for specific performance and/or injunctive relief. Prior to any party filing any action as a result of a default under this Agreement. the nondefaulting party shalt first provide the defaulting party with written notice of said default. Upon receipt ofsa.id notice. the defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the rea!>onable satisfaction of the nondetaulting party prior to filing said action. The cure period may be extended by mutual agreement of the parnes. The nondefaulting party shall have the right to terminate this Agreement if the default is not timely cured and the defaulting party shall immediately lose all rights and privileges granted hereunder. Furthermore, if the City declares a default under this Agreement, the City shall have the right to suspend the issuance of any and all City permits, or construction occurring on the Cypress Pointe Property or the Wagner's Curve Property, until the default has been fully cured by the defaulting party. 10.0 Successor~ and Assi2ns. This Agreement shall automatically be binding upon and shall inure to the benefit- of the successors and assigns of each of the parties. Page 5 of 10 ZZI9 <lBl?d ~V'ld98:~ 80-~~-};1?V'I ~96S6 S~V LOv ~'~'d'SSI3M~N~V'lZl~S'a8~M'NM088 :};8 ~U<lS REVISED DR..\Fi 5-20-03 11.0 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 12.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by hoth parties hereto. 13.0 Entire A~reement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Davis as to the subject matter hereof. 14.0 Severabilitv. If an)' provision of this Agreement shall be held to be invalid or unenforceable to any extent by a co un of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 15.0 Effective Date. This Agreement shall become effective upon approval by the City Commission of Winter Springs and execution of this Agreement by both panies (the "Effective Date"). 16.0 Termination. Unless sooner terminated by mutual agreement of the parties, this Agreement shall terminate at such time all the obligations of the parties required by Paragraphs 3.0 and 4.0 have been fully performed. 17.0 Relationship of the Parties. The relationship ofthe parties to this Agreement is contractual and Davi!\ is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither pany is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 18.0 Soverei2n Immunitv_ Nothing contained in this Agreement shlill be liunslrued as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state and federal law. Page 6 of 10 "ZelL aBed ~~d98:~ 80-~e-'\8~ ~96S6 Set LOt ~'~'d'SSI3M~N~~Zl~sla~~M'NMO~8 :'\8 ~uas RF.VlSlm nRA FT 5-20-0) 19.0 City's Police Power. The City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 20.0 Force Maicurc. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time Period") constitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, riots, c.ivil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such parly, or severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perfonn solely due to the Uncontrollable Event. 21.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 22.0 Penn its. The failure of this Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve Davis of the necessity of complying with the law governing said permitting requirements, conditions, terms, or restrictions. 23.0 Counterparts. This Agreement may be executed in any number of counterpans, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 24.0 Applicable Law: Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the Winter Springs Code and Comprehensive Plan. The parties agree that venue shall be exclusively within Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all such federal disputes or actions. Page 7 of 10 eefe a6~d ~V'ld98: ~ 80- ~e-A~I^J ~96S6 Sev LOv ~'~'dISSI3M~N~V'lZl~S'a~~M'NMO~8 :A8 ~uas RJo:VISIW DRAfT 5-20-03 25.0 Declaration of the City Commission of Winter Sprin2s The City Commission of the City of Winter Springs hereby finds that this Agreement is consistent with the City's Comprehensive Plan and land development re!,rulations and is a legislative act of the City Commission of the City. The City Corrunission further finds that this Agreement promotes the public health, safety, and welfare and is consistent with, and an exercise of, the City's powers under the Municipal Home Rule Powers Act, as provided in Section 2(b), Article Vlll, of the Florida Constitution and Chapler 166.021, Florida Statutes. and the City's police powers. IN WiTNESS WHEREOF, Davis and the City have executed this Agreement in form sufficient to bind them as of the day and year first above written. WITNESSES: DAVIS HERTT AGE GP HOLDINGS, LLC a Florida limited liability ~ompany Print Name: By: Stefan M. Davis, Managing Member Print Name: CITY OF WINTER SPRINClS, a Florida Municipal Corporation By: John F. Bush, Mayor Print Name: Print Name: Page 8 of 10 ~~!6 aBed ~WdL8:~ 80-~G.^e~~ ~96S6 S~v LOv ~ "v'd'SSI3M~N"t~\JZl"tS'OCJ"tM'NMOCJ8 :^8 +uas REVISED DAA1'r 5.10-03 STATE OF FLORIDA COUNn' or The foregoing instrument was acknowledged before me this day of May, 20D) by of Davis Heritage GP Holdings, LLC, a Florida limited liability company, who executed the foregoing instrument and acknowledged beforc rot.: that he \,;xccutcd the same for the uses and purposes therein expressed and who is [ ] pcrsonaLly known to me or who I I has produced as idc:olificaLion and who did not take an oath. (NOTARY SEAL) Notary Public Signature Typed or Printed Notary Name Notary Public-SUte of Florida Commission No.: My commission expires: STATE OF FLORIDA COUNTY OF SEMfNOLE The foregoing instnunent \vas acknowledged before me this _ day of May, 2003 by John F. [lush, Mayor of the City of Winter Springs, who ls personally known to me and who did not take an oath. (NOTARY SEAL) Notary Public Signature Typed or Printed Notary Name COIIUllission No.: My commission expires: Page 9 of 10 ~~/O~ ~6ed ~V>JdL€: ~ €o- ~~-Ae~1J ~96S6 S~V LOv ! '~'d'SSI3M~N~V>JZ1~SI08~M'NM088 :A8 ~u~s RF.VTSF.O I)l~ .WI' S-2U.Cl) MASTER DEVELOPMENTAGREE~aNT EXHIBIT LIST 1. Exhibit "A" Legal Description of Cypress Pointe Property 2. Exhibit "B" Legal Description orWagner's Curve Propeny 1'.I!:h,<<IC,ly "r Winl<:r ~rf'nll"\t l.,;, Ila,il.ll<'M..lcr ^1!'..m<>nt.wI'U Page 10 of ]0 eel ~ ~ aBed !VoJdL8:~ 80.~e.iie~~ ~96S6 Sev LOv ~'~'d'SSI3M~N~VoJZ1~s'a~~M'NMO~S :iiS ~uas ,. , ( " MASTER DEVELOPMENT AGREEMENT This MASTER DEVELOPMENT AGREEMENT is made and entered into as of this day of , 2003 by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation (hereafter referred to as "City") and DAVIS HERITAGE GP HOLDINGS, LLC, a Florida limited liability company (hereafter referred to as "Davis"). RECITALS: WHEREAS, this Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act; and WHEREAS, Davis desires to design, permit and construct two apartment complexes within the City of Winter Springs; and WHEREAS, one apartment complex will utilize tax credit financing from the State of Florida and consist of apartment units available for persons that are eligible for affordable housing (hereafter referred to as the "Cypress Pointe Project"); and WHEREAS, the other apartment complex will be a standard market rate project and consist of apartment units available for persons at market rate (hereafter referred to as the "Wagner's Curve Project"); and WHEREAS, Davis desires that the City participate in its application for tax credit financing by making a local monetary contribution to the Cypress Pointe Project; and WHEREAS, Davis' corporate philosophy is to invest in communities that they participate in and consistent with this philosophy, Davis agrees to make a monetary contribution to the City involving the Wagner's Curve Project in order to further any municipal purpose deemed acceptable to the City's City Commission; and WHEREAS, Davis intends to create two (2) special purpose partnerships, one for each project described above, in order to design, permit and construct the projects within the City of Winter Springs;and WHEREAS, Davis acknowledges and agrees that it will have controlling interest in both partnerships and shall have the right to bind both partnerships to all future obligations necessary to fully implement this Agreement including, but not limited to, the monetary contribution required hereto; and Master Development Agreement Page 1 of 10 WHEREAS, Davis and the City agree that this Agreement is in their mutual best interests and is also in the best interests of the public health, safety, and welfare of the citizens of Winter Springs, Florida. NOW THEREFORE in consideration of the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged by the parties, the City and Davis agree to the following: 1.0 Incorporation of Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference as a material part of this Agreement. 2.0. Definitions. Unless the context clearly indicates otherwise, the following words and phrases when used in this Agreement shall have the meaning ascribed below: 2.1 "Davis" shall mean Davis Heritage GP Holdings, LLC, a Florida limited liability company. 2.2 "City" shall mean the City of Winter Springs, a Florida municipal corporation. 2.3 "Cypress Pointe Property" shall mean the real property subject to this Agreement and legally described on Exhibit "A" which is attached herein and fully incorporated herein by this reference. 2.4 "Wagner's Curve Property" shall mean the real property subject to this Agreement and legally described on Exhibit "B" which is attached hereto and fully incorporated herein by this reference or any other substitute property located within the City of Winter Springs that the City Commission approves. 2.5 "Agreement" shall mean this Master Development Agreement made and entered into by and between the City of Winter Springs, Florida, a Florida municipal corporation and Davis Heritage GP Holdings, LLC, a Florida limited liability company, including all exhibits and written modifications thereto. 3.0 Davis' Obligations. Davis agrees as follows: Master Development Agreement Page 2 of 10 3.1 Davis shall form a Florida limited partnership called Cypress Pointe at Winter Springs, Ltd. (hereinafter referred to as "Cypress Pointe") for purposes of designing, permitting, and constructing an apartment complex on the Cypress Pointe Property. Prior to permitting with the City, Cypress Pointe shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set forth the terms and conditions of the development of the Cypress Point Project. 3.2 Davis shall form a Florida limited partnership called Wagner's Curve at Winter Springs, Ltd. (hereinafter referred to as "Wagner's Curve") for purposes of designing, permitting and constructing an apartment complex on the Wagner's Curve Property. Prior to permitting with the City, Wagner's Curve shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set forth the terms and conditions of development of the Wagner's Curve Project. 3.3 At such time the City approves the final site plan for either the Cypress Pointe Project or the Wagner's Curve Project, Davis shall invest in the Winter Springs' community by paying the City Two Hundred Fifty Thousand ($250,000.00) Dollars. The payment shall be by cashier's check made payable to the City or by wire transfer to a City bank account designated by the City Manager. The City shall use said payment in furtherance of any municipal purpose deemed appropriate by the City Commission. If Davis does not make the community investment contribution required under this Paragraph, the City shall have no further obligation under this Agreement or any development agreement entered into pursuant to Paragraphs 3.1 and 3.2 of this Agreement. 4.0 City's Obligations. The City agrees as follows: 4.1 The City agrees to negotiate in good faith and execute upon reaching acceptable terms two development agreements, one with Cypress Pointe and the other with Wagner's Curve. Each development agreement shall set forth the terms and conditions of the respective Cypress Pointe Project and the Wagner's Curve Project. 4.2 At such time the final site plan is approved by the City for the Cypress Pointe Project located on the Cypress Pointe Property, and the City receives in full the payment required under Paragraph 3.3 of this Agreement, the City shall pay Cypress Pointe One Hundred Fifty Thousand ($150,000.00) Dollars. The payment shall be by check made payable to Cypress Pointe or by wire transfer to a bank account designated by Cypress Pointe. Davis shall ensure, and hereby represents and guarantees, that the Master Development Agreement Page 3 of 10 payment is used by Cypress Pointe exclusively for the Cypress Pointe Project in order to make affordable housing available for City of Winter Springs' residents. 4.3 Upon the effective date ofthis Agreement, the City, through its Mayor, individual City Commissioners and City Manager, shall conduct a thirty (30) day due diligence inspection of apartment complex properties developed and operated by Davis and their various holding companies located within Central Florida. Interested citizens may participate in due diligence inspections at the City's invitation. The City shall bear their own costs and expenses to conduct the due diligence. However, Davis. agrees, at no cost to the City, to fully cooperate with the City in this regard by making such apartment complex units and facilities available for on-site inspection. In addition, during the on-site inspections, Davis shall also make available management personnel to answer questions related to the operations and maintenance of the apartment complexes. Upon completion of the thirty (30) day due diligence period, the City shall have the unconditional right to terminate this Agreement for any reason by providing Davis written notice of said termination. The due diligence period may be extended by mutual written agreement of the parties. 5.0 Periodic Review. This Agreement shall be subject to periodic review by the parties. Periodically, the City and Davis agree to cooperate and meet in good faith to discuss the progress made under this Agreement and whether any amendments should be made to this Agreement in furtherance of each others' mutual. interests. 6.0 Cooperation. . Davis and the City shall cooperate fully with each other to effectuate the terms, conditions and intentions of this Agreement. 7.0 Authority. Each party hereby represents and warrants to the other that they have full power and authority to enter into this Agreement. Davis also represents that it is duly authorized to bind Cypress Pointe and Wagner's Curve to the terms and conditions contained in this Agreement. The City also represents that all requirements and procedures, including public hearings, have been properly conducted so that the execution hereof by the City shall constitute the final action of the City. 8.0 Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) upon receipt of such notic~, when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a nationally recognized Master Development Agreement Page 4 of 10 ~ overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail, etc., addressed to a party at the other address as specified below or from time to time by written notice to the other party delivered in accordance herewith: Davis: With copy to: City: With copy to: 9.0 Defaults. Stefan M. Davis . Davis Heritage GP Holdings, LLC 20725 S.W. 46th Avenue Newberry, Florida 32669 Phone: (352) 472-7773 Fax: (352) 472-5969 Jim Stockman, Esquire Attorney at Law 20725 S.W. 46th Avenue Newberry, Florida 32669 Phone: (352) 472-9310 Fax: (352) 472-8083 Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Phone: (407) 327-5957 Fax: (407) 327-6686 Anthony A. Garganese, Esquire City Attorney of Winter Springs Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Phone: (407) 425-9566 Fax: (407) 425-9596 Failure by either party to perform each and every one of its obligations hereunder, or any violation of the City Code by Davis, Cypress Pointe, Wagner's Curve, or its contractors, shall constitute a default, entitling the nondefaulting party to pursue whatever remedies are available to it under Florida law or equity including, without limitation, an action for specific performance and/or injunctive relief Prior to any party filing any action as a result of a default under this Agreement, the nondefaulting party shall first provide the defaulting party with written notice of said default. Upon receipt of said notice, the defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the reasonable satisfaction of the nondefaulting party prior to filing said action. Master Development Agreement Page 5 of 10 :- The cure period may be extended by mutual agreement of the parties. The nondefaulting party shall have the right to terminate this Agreement if the default is not timely cured and the defaulting party shall immediately lose all rights and privileges granted hereunder. Furthermore, if the City declares a default under this Agreement, the City shall have the right to suspend the issuance of any and all City permits, or construction occurring on the Cypress Pointe Property or the Wagner's Curve Property, until the default has been fully cured by the defaulting party. 10.0 Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. 11.0 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 12.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto. 13.0 Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Davis as to the subject matter hereof 14.0 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 15.0 Effective Date. This Agreement shall become effective upon approval by the City Commission of Winter Springs and execution of this Agreement by both parties (the "Effective Date"). 16.0 Termination. Unless sooner terminated by mutual agreement of the parties or by the City as provided in Paragraph 4.3, this Agreement shall terminate at such time all the obligations of the parties required by Paragraphs 3.0 and 4.0 have been fully performed. Master Development Agreement Page 6 of 10 17.0 Relationship of the Parties. The relationship ofthe parties to this Agreement is contractual and Davis is an independent contractor and not an agent ofthe City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and ~either party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 18.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state and federal law. 19.0 City's Police Power. The City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 20.0 Force Majeure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time Period") constitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unabl~ to perform solely due to the Uncontrollable Event. 21.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 22.0 Permits. The failure ofthis Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve Davis of the necessity of complying with the law governing said permitting requirements, conditions, terms, or restrictions. Master Development Agreement Page 7 of 10 23.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 24.0 Applicable Law: Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the Winter Springs Code and Comprehensive Plan. The parties agree that venue shall be exclusively within Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all such federal disputes or actions. 25.0 Declaration of the City Commission of Winter Springs. The City Commission of the City of Winter Springs hereby finds that this Agreement is consistent with the City's Comprehensive Plan and land development regulations and is a legislative act of the City Commission of the City. The City Commission further finds that this Agreement promotes the public health, safety, and welfare and is consistent with, and an exercise of, the City's powers under the Municipal Home Rule Powers Act, as provided in Section 2(b), Article vrn, ofthe Florida Constitution and Chapter 166.021, Florida Statutes, and the City's police powers. IN WITNESS WHEREOF, Davis and the City have executed this Agreement in form sufficient to bind them as of the day and year first above written. WITNESSES: DAVIS HERITAGE GP HOLDINGS, LLC a Florida limited liability company By: " CITY OF WINTER SPRi'NGS, . a Florid . cipal Corporati<;m ~.~ By: Jo A-~J~ Master Development Agreement Page 8 of 10 STATE OF FLORIDA COUNTY OF A\OU1Ua... The foregoing instrument was acknowledged before me this ~ day of June.., 2003 by Stefan M. Davis, Managing Member of Davis Heritage GP Holdings, LLC, a Florida limited liability company, who executed the foregoing instrument and acknowledged before me that he executed the same for the uses and purposes therein expressed and who is [Xl personally known to me or who [ l has produced as identification and who did not take an oath. -(D KIMBERLY A. MATTAIR . MY COMMISSION /I CC 966274 EXPIRES: Dee 8. 2004 . . nv FL NotarY Service & Bonding, Inc. HlOO3-NOTfV' . ~Q.~ No~ Public Signature ~imberl~ A. 1l1a+tc4~ Typed or Printed Notary Name Notary Public-State of Florida Commission No.: My commission expires: (NOTARY SEAL) STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me thisCP- day O;-;;"--'L , 2003 by John F. . Bush, Mayor of the City of Winter Springs, who is personally known to me and who did not take an oath, \ . I}L - No@ i~ Si~a~re I. , .--" -M)) ~":C.u,- ~-A-(..A::::.) Typed or Printed Notary Name Commission No.: My commission expires: (NOTARY SE~ Andrea lorenzo..luaees , . ~~ MyCommlssion 00209870 '\!) ExpIres May 09. 2007 Master Development Agreement Page 9 of 10 1. Exhibit "A" MASTER DEVELOPMENT AGREEMENT EXHmIT LIST Legal Description of Cypress Pointe Property Legal Description of Wagner's Curve Property F:\DocslCity of Winter SpringsIDavis HeritagelMaster_Agreemenl wpd 2. Exhibit "B" Master Development Agreement Page 10 of 10 ..... .' ~ ~ == sa :=3 ~ ~ DAVIS HERITAGE I..,TD L :IMI TED SECTION 33. TOWNSHfP CITY OF WINTER 20 SOUTH. RANGE SO EAST SPRINGS.-SEMINOiE dOUNTY.'FLORIDA '-::.. C'fPr,.cSS' PO\'I~}~ DESCRlPTlONS: PARCEL "A" rHA T PART OF rRACTS "I" AND "K~', THE HIGHLANDS SECTION' THREE, AS RECORDED IN PLA r BOOK 17, PAGES. 48 AND 49 Of.. THE PUBLIC RECORDS OF SEMINOLE COUNTY, FlORIDA, DESCRIBED AS FOLLOWS:. ., BEGIN A T mE SOUTHWEST CORNER OF AF"ORESA'D TRACT ",.., SAID SOUTIiWES T CORNER BEING ON THE NORrHERl Y RIGH.T-Of-wA Y I OF THE lONGWOflO-WACNF.R ROAD (STATE ROAD 434); THENCE N.1I'49'JO"E. ALONG. THE EAST LINE OF SAID TRACT ",", i192.46' . I F"EEf: THENCE 5.78"0',30"[., 103,67 FF.ET;' THENCE S.04-'4S"B"W., .444-.17 FEET; THENCE 5.4,3'17'52"[. 12.3.07 FEET; THE'NCE 5.07' I SO'42"W., 73.65 F"EO; THENCE 5.32'53'13"[., 72.'9 FEET; THENCE S.61'03'27"L, 181.9.3 rEEf; THEHCE 5.4-8'27'52"[', 170.96 FEET;,. THENCE 5.65"IO'55"F.., 122.27 FEET; THHICE N.86"2'20NE.. 521.26 F"[ET; THENCES.OO'49"3"E., 338.07 n:.Er.: rHENCE N.B9'59'34 "W"I 735.75 FEET TO THE AFORESAID NORTHERl Y RIGHT -OF -WA Y; THENCE N.82'5.3'.3'NW.. 614.65 rfET ALONG SAID RIGHT -Of" -:WA Y Ut~E 1"0 THE PO'N T oreEGINNING. '. , CONTAINING 14.761 ACRES MORE OR lESS. PARCEL "a" -.' .. . ji. I THAT PORTION or lOT 57, 8l0CI( D, DR. M'TCHEll'S SURVEY Of THE LEVY GRMH AS RECORDED 'N PlA T BOOK f. PAGE 5. PUBUCIII. RECORDS OF SEMINOLE COUNTY, flORIDA lYINC NORTH OF STATE ROAD 434 ANq WEST OF THf. FlORIDA POWER CORPORATION EASEMENT. ~., . ::.. CONT AIN/NG 0.229 ACRES MORE OR LESS. '" . ALL THE ABOVE DESCRIBED CONTAIN'NG 14.99' ACRES MORE OR lESS. I~ SURVEYOR'S NOTES: BEARiNGS ARE BASED ON THE NOR THEPl Y RIGHT- AS BEING N.82'S,J',Jy"w., PER DESCRIPTION" . '.1, / S'TE BENCHMARK, nEVA nONS AND CONrOlUf~S AUI :'. DES/GNATION.NVMBER 2J8340l, flEVAT/ONl60..989 o n~Nn,.cc Qrr,:,'./r:~rn I: '0.....",.,. _ -:--.. -I .~...-. . . . .'. . . . I, '.' . '.~~~--.-.---..-.-...._....;-._-,.......,,~~..~_..~.._-~~ .I.:.,.....~ .- ....~-- ---... ~..'_h'..'_'_ ___._. ._..,__.._,..~-,-:,.~~____._._._,._."..__..__..........-.-_._...___._-.....,""""--,..__.-~,~..:.-,..,.--..1..-.,...-;...~:.n'.-.~~~.'r.'.""';.7:--;-...!:.. . ,.,' t '," WAGNER'S CURVE LEGAL DESCRIPTION . . PARCEL ID NO, 26-20-30-5AR-ODOO-0180 LEG LOTS 18,-29 & E 219 FTOFLOT20NLY OFNEWSR434 (LESS NLY 100FT OFWLY 30FTOFLOT 19&BEG906 FTN 7DE037MIN 44SEC W& 80FTN 83 DEG 8 MIN S5 SEC E OF SW COR LOT 18 IN 36-20-30 RUN N 83 DEG 8 MIN 55 SEC E 75 FT S 6 DEG 51 MIN 5 SEC E 120 FT S 83 DEG 8 MIN 55 SEC W 75 FTN 6 DEG 51 MIN 5 SEC W 120 FT TO BEG) BLK D D R MITCHELLS SURVEY OF THE LEVY GRANT PB 1 PG 5 PARCEL ID NO, 26-20-30-5AR-ODOO-018B LEG THAT PT OF LOT 18 L YlNO 8L Y & EL Y OF NEW SR 434 BLK D D R MITCHELLS SURVEY OF THE LEVY GRANT PB 1 PO 5 "t. . -~XIIIB:IT''"B'' I.VL.. LOCAL GOVERNMENT VERIFICATION OF STATUS OF . SITE PLAN APPROVAL FOR MULTIFAMILY DEVELOPMENTS Name of Development: Cypress Pointe Apartments SR 434~ Intersection of SR 434 & Tfmberlane Trail Address of Development Site: Winter Springs. t:lorida 32708 . 14.99 Acres Size of Development Site (include unit of measure): Zoning Designation: Mark the applicable statement: 1. 0 The above-referenced Development is new construction or rehabilitation with new construction and the final site plan was approved by action of the on (Legally Authorized Body*) (Date) 2, ~ The above-referenced Development is new construction or rehabilitation with new construction and the prelimiDary or conceptual site plan was approved by action of the City of Winter Spgs-. Comm, on May 27. 2003 (Legally Authorized Body*) (Date) 3. 0 The above-referenced Development is new construction or rehabilitation with new constrnction and requires site plan appr9va1 for the new construction work. However) this jurisdiction does not provide preliminary/conceptual site plan approval or other similar process prior to issuing fInal site plan approval. The preliminary or conceptual site plan bas been reviewed by on (LegaJJy Authorized Body.) (Date) 4. 0 The above-referenced Development is rehabilitation without any new construction \ and does not require additional site plan approval or similar process, C-l · "Legally Authorized Body" is not aD individual. Applicant must state the name of the City Council, County Commission, Board, Department, Division, etc" with authority over such matters. CERTIFICATION I certifY that the City/County of Winter Springs (Name of City or County) to verify status of site plan approval as specified above and I further certify that the information stated above is true and correct. /?,(;JVM'~ ~~ ~ s(gnature has vested in me the authority , "/(-03 Date Ronald W. McLemore City Manager Print or Type Name and Title This certification must be signed by the applicable City's or County's Director of Planning and Zoning, chief appointed official (staff) responsible for dctennination of issues related to comprehensive planning and Zoning, City Manager, or County MllIIagerl Administrator!Coordinator. Signatures from local elected officials are. not acceptable, nor are other, signatories. If this certification is applicable to this Development and it is inappropriately signed, the Application will fail thresbold. If this certification contains corne-tions or 'white-out', or if it is scanned, imaged, altered, or retyped, the Application wi![ fail.to meet threshold and will be reject!=d. 1be CertiflcatiOD may be photocopied. UAI016 (Rev.oC'())) Exhibit 26 MASTER DEVELOPMENT AGREEMENT 's MASTER DEVELOPMENT AGREEMENT is made and entered into as of this day of 2003 by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal co oration (hereafter referred to as "City") and DAVIS HERITAGE GP HOLDINGS, LLC, a Florida limited liability company (hereafter referred to as "Davis"). RECITALS: WHEREAS, this Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act; and WHEREAS, Davis desires to design, permit and construct two apartment complexes within the City of Winter Springs; and WHEREAS, one apartment complex will utilize tax credit financing from the State ofFlorida and consist of apartment units available for persons that are eligible for affordable housing (hereafter referred to as the "Cypress Pointe Project"); and WHEREAS, the other apartment complex will be a standard market rate project and consist of apartment units available for persons at market rate (hereafter referred to as the "Wagner's Curve Project"); and WHEREAS, Davis desires that the City participate in its application for tax credit financing by making a local monetary contribution to the Cypress Pointe Project; and WHEREAS, Davis' corporate philosophy is to invest in communities that they participate in and consistent with this philosophy, Davis agrees to make a monetary contribution to the City involving the Wagner's Curve Project in order to further any municipal purpose deemed acceptable to the City's City Commission; and WHEREAS, Davis intends to create two (2) special purpose partnerships, one for each project described above, in order to design, permit and construct the projects within the City of Winter Springs; and WHEREAS, Davis acknowledges and agrees that it will have controlling interest in both partnerships and shall have the right to bind both partnerships to all future obligations necessary to fully implement this Agreement including, but not limited to, the monetary contribution required hereto; and Master Development Agreement Page 1 of 10 WHEREAS, Davis and the City agree that this Agreement is in their mutual best interests and is also in the best interests of the public health, safety, and welfare of the citizens of Winter Springs, Florida. NOW THEREFORE in consideration of the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged by the parties, the City and Davis agree to the following: 1.0 Incorporation of Recitals. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference as a material part of this Agreement. 2.0. Definitions. Unless the context clearly indicates otherwise, the following words and phrases when used in this Agreement shall have the meaning ascribed below: 2.1 "Davis" shall mean Davis Heritage GP Holdings, LLC, a Florida limited liability company. 2.2 "City" shall mean the City of Winter Springs, a Florida municipal corporation. 2.3 "Cypress Pointe Property" shall mean the real property subject to this Agreement and legally described on Exhibit "A" which is attached herein and fully incorporated herein by this reference. 2.4 "Wagner's Curve Property" shall mean the real property subject to this Agreement and legally described on Exhibit "B" which is attached hereto and fully incorporated herein by this reference or any other substitute property located within the City of Winter Springs that the City Commission approves. 2.5 "Agreement" shall mean this Master Development Agreement made and entered into by and between the City of Winter Springs, Florida, a Florida municipal corporation and Davis Heritage GP Holdings, LLC, a Florida limited liability company, including all exhibits and written modifications thereto. 3.0 Davis' Obligations. Davis agrees as follows: Master Development Agreement Page 2 of 10 3.1 Davis shall form a Florida limited partnership called Cypress Pointe at Winter Springs, Ltd. (hereinafter referred to as "Cypress Pointe") for purposes of designing, permitting, and constructing an apartment complex on the Cypress Pointe Property. Prior to permitting with the City, Cypress Pointe shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set forth the terms and conditions of the development of the Cypress Point Project. 3.2 Davis shall form a Florida limited partnership called Wagner's Curve at Winter Springs, Ltd. (hereinafter referred to as "Wagner's Curve")for purposes of designing, permitting and constructing an apartment complex on the Wagner's Curve Property. Prior to permitting with the City, Wagner's Curve shall be required to negotiate in good faith and execute upon reaching acceptable terms a development agreement with the City that shall set forth the terms and conditions of development of the Wagner's Curve Project. 3.3 At such time the City approves the final site plan for either the Cypress Pointe Project or the Wagner's Curve Project, Davis shall invest in the Winter Springs' community by paying the City Two Hundred Fifty Thousand ($250,000.00) Dollars. The payment shall be by cashier's check made payable to the City or by wire transfer to a City bank account designated by the City Manager. The City shall use said payment in furtherance of any municipal purpose deemed appropriate by the City Commission. If Davis does not make the community investment contribution required under this Paragraph, the City shall have no further obligation under this Agreement or any development agreement entered into pursuant to Paragraphs 3.1 and 3.2 of this Agreement. 4.0 Citp's Obligations. The City agrees as follows: 4.l The City agrees to negotiate in good faith and execute upon reaching acceptable terms two development agreements, one with Cypress Pointe and the other with Wagner's Curve. Each development agreement shall set forth the terms and conditions of the respective Cypress Pointe Project and the Wagner's Curve Project. 4.2 At such time the final site plan is approved by the City for the Cypress Pointe Project located on the Cypress Pointe Property, and the City receives in full the payment required under Paragraph 3.3 of this Agreement, the City shall pay Cypress Pointe One Hundred Fifty Thousand ($150,000.00) Dollars. The payment shall be by check made payable to Cypress Pointe or by wire transfer to a bank account designated by Cypress Pointe. Davis shall ensure, and hereby represents and guarantees, that the Master Development Agreement Page 3 of 10 payment is used by Cypress Pointe exclusively for the Cypress Pointe Project in order to make affordable housing available for City of Winter Springs' residents. 4.3 Upon the effective date of this Agreement, the City, through its Mayor, individual City Commissioners and City Manager, shall conduct a thirty (30) day due diligence inspection of apartment complex properties developed and operated by Davis and their various holding companies located within Central Florida. Interested citizens may participate in due diligence inspections at the City's invitation. The City shall bear their own costs and expenses to conduct the due diligence. However, Davis agrees, at no cost to the City, to fully cooperate with the City in this regard by making such apartment complex units and facilities available for on-site inspection. In addition, during the on-site inspections, Davis shall also make available management personnel to answer questions related to the operations and maintenance of the apartment complexes. Upon completion of the thirty (30) day due diligence period, the City shall have the unconditional right to terminate this Agreement for any reason by providing Davis written notice of said termination. The due diligence period may be extended by mutual written agreement of the parties. 5.0 Periodic Review. This Agreement shall be subject to periodic review by the parties. Periodically, the City and Davis agree to cooperate and meet in good faith to discuss the progress made under this Agreement and whether any amendments should be made to this Agreement in furtherance of each others' mutual interests. 6.0 Cooperation. Davis and the City shall cooperate fully with each other to effectuate the terms, conditions and intentions of this Agreement. 7.0 Authority. Each party hereby represents and warrants to the other that they have full power and authority to enter into this Agreement. Davis also represents that it is duly authorized to bind Cypress Pointe and Wagner's Curve to the terms and conditions contained in this Agreement. The City also represents that all requirements and procedures, including public hearings, have been properly conducted so that the execution hereof by the City shall constitute the final action of the City. 8.0 Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) upon receipt of such notice, when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a nationally recognized Master Development Agreement Page 4 of 10 overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail, etc., addressed to a party at the other address as specified below or from time to time by written notice to the other party delivered in accordance herewith: Davis: Stefan M. Davis Davis Heritage GP Holdings, LLC 20725 S.W. 46th Avenue Newberry, Florida 32669 Phone: (352) 472-7773 Fax: (352) 472-5969 With copy to: Jim Stockman, Esquire Attorney at Law 20725 S.W. 46th Avenue Newberry, Florida 32669 Phone: (3 52) 472-9310 Fax: (352) 472-8083 City: Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Phone: (407) 327-5957 Fax: (407) 327-6686 With copy to: Anthony A. Garganese, Esquire City Attorney of Winter Springs Brown, Salzman, Weiss &Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Phone: (407) 425-9566 Fax: (407) 425-9596 9.0 Defaults. Failure by either party to perform each and every one of its obligations hereunder, or any violation of the City Code by Davis, Cypress Pointe, Wagner's Curve, or its contractors, shall constitute a default, entitling the nondefaulting party to pursue whatever remedies are available to it under Florida law or equity including, without limitation, an action for specific performance and/or injunctive relief. Prior to any party filing any action as a result of a default under this Agreement, the nondefaulting party shall first provide the defaulting party with written notice of said default. Upon receipt of said notice, the defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the reasonable satisfaction of the nondefaulting party prior to filing said action. Master Development Agreement Page 5 of 10 The cure period may be extended by mutual agreement of the parties. The nondefaulting party shall have the right to terminate this Agreement if the default is not timely cured and the defaulting party shall immediately lose all rights and privileges granted hereunder. Furthermore, if the City declares a default under this Agreement, the City shall have the right to suspend the issuance of any and all City permits, or construction occurring on the Cypress Pointe Property or the Wagner's Curve Property, until the default has been fully cured by the defaulting party. 10.0 Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. 11.0 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 12.0 Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto. 13.0 Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Davis as to the subject matter hereof. 14.0 Severabilitv. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 15.0 Effective Date. This Agreement shall become effective upon approval by the City Commission of Winter Springs and execution of this Agreement by both parties (the "Effective Date"). 16.0 Termination. Unless sooner terminated by mutual agreement of the parties or by the City as provided in Paragraph 4.3, this Agreement shall terminate at such time all the obligations of the parties required by Paragraphs 3.0 and 4.0 have been fully performed. Master Development Agreement Page 6 of 10 17.0 Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Davis is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 18.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state and federal law. 19.0 City's Police Power. The City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 20.0 Force Majeure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time Period") constitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision ofthis Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. 21.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 22.0 Permits. The failure ofthis Agreement to address any particular City, county, state, and federal permit, condition, term, or restriction shall not relieve Davis of the necessity of complying with the law governing said permitting requirements, conditions, terms, or restrictions. Master Development Agreement Page 7 of 10 23.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 24.0 Applicable Law; Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the Winter Springs Code and Comprehensive Plan. The parties agree that venue shall be exclusively within Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all such federal disputes or actions. 25.0 Declaration of the City Commission of Winter Springs The City Commission of the City of Winter Springs hereby finds that this Agreement is consistent with the City's Comprehensive Plan and land development regulations and is a legislative act of the City Commission of the City. The City Commission further finds that this Agreement promotes the public health, safety, and welfare and is consistent with, and an exercise of, the City's powers under the Municipal Home Rule Powers Act, as provided in Section 2(b), Article VIII, ofthe Florida Constitution and Chapter 166.021, Florida Statutes, and the City's police powers. IN WITNESS WHEREOF, Davis and the City have executed this Agreement in form sufficient to bind them as of the day and year first above written. DAVIS HERITAGE GP HOLDINGS, LLC a Florida limited liability company By: Stefa .Davis, Managing Member CITY OF WINTER SPR,~'NGSj a Florid icipal Corporation ~, ~.? ~. By: 1~ y,~^~ ~~-~-~-~~ Joh .Bush, Mayor Print Name:~,.~ ~q,.,. ~~~ Master Development Agreement Page 8 of 10 WITNESSES: STATE OF FLORIDA COUNTY OF A~ C1C,hUa The foregoing instrument was acknowledged before me this ~ day of ~l~l-~,, 2003 by Stefan M. Davis, Managing Member of Davis Heritage GP Holdings, LLC, a Florida limited liability company, who executed the foregoing instrument and acknowledged before me that he executed the same for the uses and purposes therein expressed and who is [XJ personally known to me or who [ ] has produced as identification and who did not take an oath. (NOTARY SEAL) .,.,- STATE OF FLORIDA COUNTY OF SEMINOLE KIMBERLY A. MATfA1R MY COMMISSION # CC 966274 EXPIRES: Dec 8, 2004 1.8po-3.NOTARY FL Notary Service & Bondi~9. ~~' Notary Public Signature Typed or Printed Notary Name Notary Public-State of Florida Commission No.: My commission expires: The foregoing instrument was acknowledged before me this day of~ 2003 by John F. Bush, Mayor of the City of Winter Springs, who is personally known to me and who did not take an oath. (NOTARY SEAL)„ Andrea laenzo-luaces ,~" My Cpmmission DD209870 ~?a ~d~ Expires May 09 2007 Nola >.c Si ature Typed or Printed Notary Name Commission No.: My commission expires: Master Development Agreement Page 9 of 10 MASTER DEVELOPMENT AGREEMENT EXHIBIT LIST Exhibit "A" Legal Description of Cypress Pointe Property Exhibit "B" Legal Description of Wagner's Curve Property F:\Docs\City of Winter Springs\Davis Heritage\Ivlaster_Agreement.wpd Master Development Agreement Page 10 of 10 ~AVI S ~,~R I TALE ~ IM.~ ~'~ED ]'.,Tip SEC'T' I ON 3 S, TOWtVSH I P 2 0 30UTH , RAI11tuE ~ 0 EAST' CITY OF WINTER 3 PR I NGS - SEMI HOLE COUIITT'Y , F LOIZ I DA CsJ r-i y r~ESCRrP7fords~ PARCEL. "A" Tf1AT PART OF 1RACTS "!"' AND "K", THE HIGHLANDS SECTION tHREE, AS RECORDED 1/d PLAT 800K i7, PAGES 48 AND 49 OF THE Pu8L1C RECORDS OF SEf41NOLE COUfdTY, FLORIDA, DESCRIBED AS FOLLOWS: SEGRd AT THE SOUTHWEST CORNER OF AFORESAID TRACT °r", SAfD SOUTHWEST CORNER BEIfdG Ofd THE NORTHERLY R1GNT-OF-UPAY OF THE LONGY4000-WACNFR ROAD (STATE ROAD 434); THEtdCE N_il'49'30"E. ALOtJC THE EAST LINE OF 5Af0TRACT "f", 1192.46 FEET; THENCE 5.78'10'30"E., 103.67 FEET; THENCE 5.04'45'18"W., 444.17 FEET; THENCE 5.43'17'52"F. 123.07 f'•EEr; THENCE 5.07' 50'42"W., 73.65 FEET; TJ~iENCE 5.32'53'13"E.. 72.19 FEET; 7NENCE 5,61'03'27°E., 781.93 FEET; THEh1CE 5.48'27'52"E., 170.96 FEET; TldEfdCE 5.65'10'55"E., 122.27 FEET; TiiENCE 14.86'12'20"E., 521.26 FEET; THENCE 5.00'49'13"E., 338.07 FEET; THENCE 1d.89'S9'34"W., 735.75 FEET TO THE AFORESAfD NORTHERLY RIGHT-OF-WAY; THENCE 14.82'53'31"W., 514.65 FEET ALONG SAIL1 RIGHT-OF-WAY LftdE T'0 7HE POINT OF BEGINNfNG. CON TAtfdIldC 14.751 ACRES MORE OR LESS. PARCEL "B° 7HAT PORTION 0{ LOT 57, BLOCK D, DR. MITCHELL'S SURVEY OF THE LEdY GRAf4T AS RECORDED !N PLAT 800K 1, PAGE 5. PUBLIC RECORDS OF SErti'fNOLE COUfdTY, FLORIDA LY1tdG NORTH OF STATE ROAD 434 ANO WEST OF THf. FLORIDA POWER CORPORATtON E A 51: t~dEr~f T. COt4fA1f411JC 0.229 ACRES MORE OR LESS. ALL T1{E ABOVE DESCRIBED CONTAl141NG 14.991 ACRES 1.40RE OR LESS. s SURVEYOR'S NOTES: BEARINGS ARE BASED ON THE NORTHERLY'',RtGHT- AS BEING N.82'S3'3f"W_, PER DESCRIPTION: SITE BENCHMARK, ELEVATIONS ANU CONTOUliS ARI OESiGNA7fON NUM$ER 2383401, ELEVATION b0.98? O r1G N/1TCC p['I^l1 vG'ar~ a /o"r n i. .. „~ .•-.• ~• 'WAGNER'S CURVE LEGAL DESCRIPTION PARCEL ID NO. 26-20-30-SAR-OD00-0180 LEG LOTS 18,29 & E 219 FT OF LOT 20 NLY 4F NEW SR 434 (LESS NLY 100 FT OF WLY 3o FT OF LOT 19 & BEG 906 FT N 7 DEG 37 MIN 44 SEC W & 80 r-T N s3 DEG 8 MAN 55 SEC E OF SW COR LOT 18 IN 36-20-30 RUN N 83 DEG 8 MIN 55 SEC E 75 FT S 6 DEG 51 MIN 5 SEC E 120 FT S 83 DEG 8 MIN 55 SEC W 75 FT N 6 DEG 5 i MIN 5 SEC W 120 FT TO BEG) DLK D D R MITCHELLS SURVEY OF THE LEVY GRANT PB 1 PG 5 PARCEL ID N0.26-20-30-SAR-OD00-018B LEG THAT PT OF LOT 18 LYING SLY 8i ELY OF NEW SR 434 BLK D D R MITCHELLS SURVEY OF THE LEVY GRANT PB 1 PG 5 _ __ ~_. - -- E~I~IBIT «B~~- --_ - __ - R~~~1v'~ ARR 2 4 BROWN, GARGANESE, WEISS & D'AGRES`I'~TM'~~ "`~ ~~o~ ys dt ~~ Debra S. Babb-Nutcher" Offices in Orlando, Joseph E. Blitch Ft. Lauderdale & Tampa Usher L. Brown' Suzanne D'Agresta" Anthony A. Garganese° William E. Reischmann, Jr. J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer "Board Certified City, County & Local Government Law 'Board Certified Appellate Practice Danielle Harker City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 Apri123, 2009 Re: City of Winter Springs / Davis Heritage GP Holdings Dear Danielle: Tara L. Barrett Vivian P. Cocotas Robin Gibson Drage Gregg A. Johnson Katherine W. Latorre" Bridgette M. Miller Alfred Truesdell Lynn M. Vouis Gary M. Glassman Erin J. O'Leary' Amy J. Pitsch Catherine D. Reischmann" Of Counsel Please find enclosed for safekeeping, the original fully executed Master Development Agreement executed on May 27, 2003. Should you have any questions, please do not hesitate to contact me. /jf Enclosure Very ly yours, ennette Farris Assistant to Anthony A. Garganese 111 N. Orange Ave, Suite 2000 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net