HomeMy WebLinkAboutDavis Heritage GP Holdings Master Development Agreement -2003 05 27MASTER
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:
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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
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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
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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.
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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.
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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.
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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