MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of this 3rd day of October, 1999, by and among MEADOW POINTE GENERAL
PARTNERSHIP, a Florida general partnership (the "Partnership"), DEVCO III, LLC,
a Florida limited liability company ("Devco"), and XXXXXX X. XXXX (the
"Executive Manager"), individually. Capitalized terms not defined herein shall
have the meaning ascribed to them in that certain Agreement of General
Partnership between Devco and Meadow Pointe East, L.L.C., a Delaware limited
liability company, of even date herewith (the "Partnership Agreement").
WITNESSETH:
WHEREAS, the Partnership has entered into an Agreement for Development,
Sale and Purchase of Real Property, dated October 5, 1999, with Clearwater Bay
Associates, Inc., a Florida corporation (the "Purchase Agreement"), pursuant to
which the Partnership has agreed to develop and market single family building
lots and building units in a master planned development presently known as
Xxxxxx Chapel Lakes (the "Property"); and
WHEREAS, pursuant to the terms of the Partnership Agreement, Devco and
the Executive Manager have agreed, and are obligated, to develop and manage the
Property in accordance with the Purchase Agreement and the Partnership
Agreement; and
WHEREAS, the Partnership, Devco and the Executive Manager desire to
enter into this Agreement for the purpose of defining the terms of their
relationship with respect to the development and management of the Property.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the parties hereto do hereby agree as follows:
1. MANAGEMENT AGREEMENT. Pursuant to the terms and conditions of this
Agreement, the Partnership hereby employs Devco as its manager of the Property
pursuant to the terms and conditions of this Agreement and the Partnership
Agreement. The Executive Manager agrees to fully perform all obligations of
Devco under this Agreement and the Partnership Agreement.
2. MANAGEMENT. The Executive Manager and Devco each agree that they
will use their best efforts to develop and manage the Property in accordance
with the terms of the Purchase Agreement and the Partnership Agreement
throughout the term of this Agreement. The Partnership hereby grants to Devco
the authority described in Section 1.3 of the Partnership Agreement.
3. CAPITAL IMPROVEMENTS. The Development Plan and Budget
(the "Budget")(approved pursuant to the terms of the Partnership Agreement)
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constitutes the authorization for Devco to expend money to develop and
market the Property. Except for expenditures made and obligations
incurred which were included in the Budget, previously approved by the
Partnership, or otherwise not required to be approved by the Partnership,
Devco shall not have any authority to make any expenditure or incur any
obligation on behalf of the Partnership.
4. PARTNERSHIP EXPENSES. The expense of any third party independent
contractor retained by the Partnership or by Devco on behalf of the Partnership
and in accordance with the Budget or otherwise approved of by the Partnership
shall be an expense of the Partnership.
5. EXECUTIVE MANAGER'S FEE. In consideration to oversee, supervise and
develop the Property on behalf of Devco under this Agreement and for the benefit
of the Partnership, the Executive Manager shall be paid the sum of One Hundred
Fifty Thousand Dollars ($150,000) per year during the term hereof from monies of
the Partnership and/or the CDDs (as defined in Section 8 herein), as applicable.
This fee shall be paid in equal monthly installments beginning one (1) month
from the date hereof.
6. PAYMENTS AND REIMBURSEMENTS TO DEVCO. Subject to Section 7 below, in
accordance with the Budget, as amended from time to time, the Partnership shall
promptly pay or, if applicable, reimburse Devco for all costs and expenses
reasonably incurred by Devco in connection with the performance of its duties
hereunder, including office overhead expense, professional and clerical expense,
and other standard annual charges listed on Exhibit A attached hereto and
approved by the Partnership. Except for the fee to be paid to the Executive
Manager as set forth in Section 5 above, the Partnership shall not pay or
reimburse Devco for any additional amounts for the services of the Executive
Manager.
7. MANAGEMENT FEES FROM THE COMMUNITY DEVELOPMENT
DISTRICTS. As more particularly set forth in the Purchase Agreement, the
Partnership plans to establish one or more community development districts
pursuant to Chapter 190, Florida Statutes (individually and collectively, the
"CDDs"), to finance and manage the construction of certain public infrastructure
improvements that will benefit the Property. As set forth in the Purchase
Agreement and Exhibit "F" thereto, the Partnership intends to enter into one or
more Project Management Agreements with the CDDs pursuant to which the
Partnership shall be compensated for supervising the construction of
infrastructure improvements by the CDDs. Devco will provide construction
management services to the CDDs on behalf of the Partnership, however, Devco
will not receive any management fees directly from the CDDs (including monies to
pay the Executive Manager's fee described in Section 5 above). The parties
anticipate that such fees will be paid to the Partnership by the CDDs and the
Partnership will, in turn, make payments to Devco (including all or a portion of
the Executive Manager's fee, as applicable). However, if and to the extent that
Devco receives such management fees from the CDDs (other than compensation
received by the Executive Manager or by other Devco employees for serving on the
board of supervisors of the CDDs), such fees paid directly by the CDDs shall be
credited against the amounts due to Devco hereunder.
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8. NON-ASSIGNABILITY. This Agreement is not assignable by Devco or the
Executive Manager without the prior written consent of both partners of the
Partnership.
9. EMPLOYEES; INDEPENDENT CONTRACTOR. Devco shall have in its employ at
all times a sufficient number of capable employees to enable it to reasonably,
properly, adequately, safely and economically manage, operate, maintain and
account for the Property. All matters pertaining to the employment, supervision,
compensation, promotion and discharge of such employees are the responsibility
of Devco, which is in all respects the employer of such employees. Devco shall
fully comply with all acts and regulations having to do with workmen's
compensation, social security, unemployment insurance, hours of labor, wages,
working conditions and other employer/employee related subjects. Neither Devco
nor the Executive Manager shall be considered employees of the Partnership.
Devco shall at all times during the term of this Agreement be considered an
independent contractor of the Partnership.
10. MANAGEMENT FEE UPON TERMINATION. Notwithstanding anything
contained herein to the contrary, if the Partnership terminates this Agreement
pursuant to Section 11 hereof, then in such event Devco shall only be entitled
to receive, as full and sole compensation under this Agreement, all payments
already paid or accrued pursuant to Sections 5, 6 and 7 hereof as of the date of
termination. Upon any such termination, the Partnership shall pay all reasonable
and customary costs and expenses incurred by Devco pursuant to the terms of this
Agreement and the Partnership Agreement through the date of the termination.
11. TERM AND TERMINATION.
(a) Term. This Agreement shall become effective on the date
hereof and shall continue in full force and effect, until earlier terminated
pursuant to Section 11(b) herein.
(b) Termination. This Agreement shall terminate immediately
upon the occurrence of the earlier of the following events:
(i) In the Partnership's reasonable discretion, For Cause
(as hereinafter defined).
(ii) Upon the termination of the Partnership for any reason
or the occurrence of any event described in Article 10 of the Partnership
Agreement.
(iii) Upon the termination of the Purchase Agreement for any
reason.
(iv) If Devco ceases to be a partner of the Partnership.
(c) Termination for Cause. "For Cause" shall mean (i) a
default by Devco in any respect in the performance or observance of any
covenant, or term of this Agreement or the Partnership Agreement, provided that
the breach shall be material and adverse to the Partnership and
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that Devco shall fail either (A) to cure, terminate or remove such default
within thirty (30) days after written notice thereof from the Partnership to
Devco, or (B) if such default cannot be cured within the aforesaid 30-day
period, to diligently pursue the cure of such default within such additional
period as shall be reasonable to cure such default, provided Devco is capable of
curing such default and such cure may be accomplished without damage or expense
to the Partnership by reason of the cure; or (ii) if Devco engages in criminal
misconduct or commits fraud which results in a loss to the Partnership.
(d) Effect of Termination. Upon termination of this Agreement,
Devco shall, as soon as practicable but in no event later than the thirtieth
(30th) day after notice is given in accordance with Section 13 hereof:
(i) Surrender and deliver to the Partnership:
(A) all funds held by Devco in connection with the
Property; and
(B) any other monies of the Partnership in possession
of Devco in any bank account;
(ii) Deliver to the Partnership as received any monies due
the Partnership under this Agreement but received by Devco after the effective
date of such termination;
(iii) Deliver to the Partnership all materials, equipment,
tools and supplies, keys, contracts and documents relating to the Property, and
copies of such other accountings, papers, and records as the Partnership shall
request pertaining to the Property;
(iv) If applicable, assign the existing contracts relating
to the development of the Property to the Partnership or such third parties as
the Partnership shall direct;
(v) Vacate any portion of the Property then occupied by
Devco as a consequence of this Agreement; and
(vi) Furnish all such information in order to effectuate an
orderly and systematic ending of Devco's duties and activities hereunder.
Within ten (10) days after any such termination, Devco shall deliver to the
Partnership any written reports required hereunder for any period not covered
by prior reports at the time of termination. With regard to the originals
of all papers and records pertaining to the Property, the possession of
which are retained by Devco after termination, Devco shall: (A) make the same
available for inspection and reproduction by the Partnership at reasonable
times upon request of the Partnership; (B) deliver same into the Partnership's
possession in the event the Partnership in good faith requires same for use
in a legal or quasi-legal proceeding; and (C) not destroy the same without
first offering to deliver the same to the Partnership.
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12. ASSIGNMENTS. Neither party may assign its rights and/or
obligations hereunder without the prior written consent of each other party to
this Agreement.
13. NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing (including facsimile, telex, telefax
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
With a copy to:
MEADOW POINTE GENERAL Xxxxx X. Xxxxxxx, Esq.
PARTNERSHIP Gunster, Yoakley, Xxxxxx-Xxxxx
& Xxxxxxx, P.A.
c/o BF Enterprises, Inc. 000 X. Xxxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxx 000-Xxxx
Xxxxx 0000 Xxxx Xxxx Xxxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
DEVCO III, L.L.C. Akerman, Senterfitt & Xxxxxx
00000 Xxxxx Xxxxxxx Xxxxxx 000 X. Xxxxxx
Xxxxx, Xxxxxxx 00000 Suite 1500
Attn: Xxxxxx X. Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000 Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may designate by notice complying with the
terms of this Section 13. Each such notice shall be deemed delivered on: (a) the
date delivered if by personal delivery; (b) the date telecommunicated if by
telegraph; (c) the date of transmission with confirmed answer back if by
facsimile, telex, telefax or other telegraphic method; and (d) the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
14. BINDING EFFECT. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective legal
representatives, successors and permitted assigns.
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15. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect in any way
the meaning or interpretation of this Agreement.
16. GOVERNING LAW. This Agreement and all transactions contemplated
by this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida without regard to principles of conflicts
of laws.
17. NO CONSTRUCTION AGAINST DRAFTSMEN. The parties acknowledge that
this is a negotiated Agreement, and that in no event shall the terms hereof be
construed against either party on the basis that such party, or its counsel,
drafted this Agreement.
18. SEVERABILITY. If any provision of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
19. ABILITY TO ENTER INTO AGREEMENT. Each party represents and warrants
that it is duly organized, validly existing and in good standing under the laws
of the state of its organization, with all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
20. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
21. ARBITRATION. Notwithstanding anything to the contrary in this
Agreement, all claims for monetary damages and disputes relating in any way to
the performance, interpretation, validity, or breach of this Agreement shall be
referred to final and binding arbitration, before a single arbitrator, under the
commercial arbitration rules of the American Arbitration Association in Pasco
County, Florida. The arbitrator shall be selected by the parties and if the
parties are unable to reach agreement on selection of the arbitrator within
thirty (30) days after the notice of arbitration is served, then the arbitrator
will be selected by the American Arbitration Association. All documents,
materials, and information in the possession of a party to this Agreement and in
any way relevant to the claims or disputes shall be made available to the other
parties for review and copying not later than sixty (60) days after the notice
of arbitration is served. To the extent that a party would be required to make
confidential information available to any other, an agreement or an order shall
be entered in the proceeding protecting the confidentiality of and limiting
access to such information
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before a party is required to produce such information. Information produced by
a party shall be used exclusively in the arbitration or litigation that may
arise, and shall not otherwise be disclosed. In no event shall a party be
entitled to punitive damages in any arbitration or judicial proceeding and all
parties hereby waive their rights to any punitive damages. In the event an
arbitration panel or a court concludes that the punitive damages waiver
contained in the previous sentence is unenforceable, then the parties agree that
the court with subject matter jurisdiction over the confirmation of the award
shall have sole and exclusive jurisdiction to determine issues of entitlement
and amount of punitive damages. The arbitrator shall NOT have subject matter
jurisdiction to decide any issues relating to the statute of limitations or to
any request for injunctive relief, and the parties hereby stipulate to stay the
arbitration proceeding (without the need of a bond) until any such issues in
dispute are resolved. Judgment upon the award rendered by the arbitrator shall
be final, binding and conclusive upon the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns, and may be entered in any court of competent jurisdiction.
22. RELATIONSHIP OF PARTIES. The parties are aware and agree that the
relationship between the Partnership and Devco (including the Executive Manager)
under this Agreement shall be that of an independent contractor and not an agent
or employee.
23. NO THIRD PARTY BENEFICIARY. This Agreement is solely between the
parties hereto and no person or persons not a party hereto shall have any rights
or privileges whatsoever either as a third party beneficiary or otherwise.
24. INCONSISTENCIES. Notwithstanding anything herein to the contrary,
if any provision in this Agreement shall be deemed inconsistent with the
Partnership Agreement, such provision herein shall be deemed invalid to the
extent so inconsistent and the Partnership Agreement shall control such matter
between the parties to this Agreement.
25. ENFORCEMENT COSTS. If any civil action, arbitration or other legal
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonably attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action, arbitration or legal proceeding, in addition to any other relief to
which such party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administration costs,
sales and use taxes and all other charges billed by the attorney to the
prevailing party.
26. JURISDICTION AND VENUE. The parties acknowledge that a
substantial portion of the negotiations, anticipated performance and execution
of this Agreement occurred or shall occur in Pasco County, Florida. Any civil
action, arbitration or legal proceeding arising out of or relating to this
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Agreement shall be brought in the courts of record of the State of Florida in
Pasco County or the United States District Court, Southern District of
Florida. Each party consents to the jurisdiction of such court in any such
civil action, arbitration or legal proceeding and waives any objection to the
laying of venue of any such civil action, arbitration or legal proceeding in
such court. Service of any court paper may be effected on such party by
mail, as provided in this Agreement, or in such other manner as may be provided
under applicable laws, rules or procedure or local rules.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
the day and year first above written.
MEADOW POINTE GENERAL
PARTNERSHIP:
MEADOW POINTE EAST, L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
DEVCO III, L.L.C., General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------
Name: Xxxxxx X. Xxxx
Title: President
EXECUTIVE MANAGER:
/s/ Xxxxxx X. Xxxx
----------------------
Xxxxxx X. Xxxx
DEVCO, III, L.L.C.
By: /s/ Xxxxxx X. Xxxx
-------------------
Name: Xxxxxx X. Xxxx
Title: President
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EXHIBIT "A"
EXPENSES
(See Attachment)
0
XXX (XXXXXX XXXXX III) DEVCO NON CDD
Standard Annual Charges
2000 2001 2002 2003 2004
---- ---- ---- ---- ----
1. Office rent $3,000 $3,150 $3,308 $3,473 $3,647
2. Office utilities 180 189 198 208 219
3. Telephone (including mobile phones) 1,440 1,512 1,588 1,667 1,750
4. Receptionist services 1,752 1,840 1,932 2,028 2,130
5. Computer service charges 1,500 1,575 1,654 1,736 1,823
6. Office supplies, expense 108 113 119 125 131
7. Club dues 2,400 2,520 2,646 2,778 2,917
8. Mileage 4,500 4,725 4,961 5,209 5,470
9. Devco staff 144,000 151,200 158,760 166,698 175,033
------- ------- ------- ------- -------
Total $158,880 $166,824 $175,165 $183,923 $193,120
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