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Home My WebLink About2011 09 26 Regular 600 Jesups Landing Stockpile AgreementCOMMISSION AGENDA ITEM 600 September 26, 2011 Meeting CONSENT INFORMATIONAL PUBLIC HEARING REGULAR X MGR /DEPT Authorization REQUEST: The Public Works Department requesting authorization to enter into a Stockpile Agreement with Mattamy Partnership to permit the conditional stockpiling of soil on the Jesup's Landing townhome site in order to advance prepare a portion of the site for future townhome construction. SYNOPSIS: Mattamy Homes has submitted a request to the City to allow the stockpiling of soil on a 2 -acre portion of the Jesup's Landing site, where the underlying soils need to be surcharged in advance of townhome construction. The proposed Stockpile Agreement identifies the activities to be authorized and the conditions under which they shall be performed, including the provision of a letter of credit to the City. CONSIDERATIONS: Background Information: Jesup's Landing was approved by the City Commission in 2005 as a 185 -unit townhome subdivision by Levitt & Sons. The subdivision is located on a 17 -acre site in the Winter Springs Town Center off of Orange Avenue and behind Winter Springs High School. The sitework, including earthwork, utilities, and stormwater infrastructure, was substantially completed in 2007, but Levitt & Sons then filed for bankruptcy and all work stopped. No buildings have been permitted or constructed and the site has been inactive since 2007. The geotechnical evaluation for the original site design indicated the presence of buried organic muck material at the northeastern portion of the site. Based on this evaluation, the geotechnical engineer designed a stockpiling (surcharging) plan to pre - consolidate the deeper muck deposits. This surcharging plan was approved as part of the Jesup's Landing Final Engineering approval in June 2005; however, the surcharging activity was never started by Levitt & Sons. The original approved surcharging plan consisted of installing 12 -foot high surcharge mounds at six townhome building footprints and letting the surcharge sit for a minimum City Commission — Regular Meeting September 26, 2011 Regular Agenda Item # 600 Page 2 of 4 of six (6) months. The surcharge mounds would be monitored and removed after confirmation that the compressible soils have consolidated or settled to at least 90 percent under the surcharge load. New Developer - Mattamy Homes: • Mattamy Homes purchased the Jesup's Landing property in 2011 and is proceeding with site development planning and engineering for a 171 -unit all - townhome development. Mattamy received City Commission approval of a revised conceptual plan and Developer's Agreement at the June 27, 2011 City Commission meeting. • Mattamy Homes has submitted the Final Engineering plans for Staff review (1s submittal), with the first staff review meeting scheduled for October 4, 2011. Based on similar projects, the Final Engineering could be expected to be ready for the Planning and Zoning Board and then the City Commission for approval in November or December. • Mattamy Homes has submitted a request to the City to allow them to immediately proceed with the stockpiling of soil on a 2 -acre portion of the Jesup's Landing site, at the same general location and same design parameters that were part of the stockpiling plan that was approved in 2005. • Mattamy's proposed stockpile plan would consist of the importing and stockpiling of fill material up to 12 -feet in height on a 2 -acre area near the northeast part of the site (see Exhibit A). The proposed stockpile plan is slightly different from what was approved from the original Jesup's Landing plans, only with respect to the minor shifts in building locations as shown on the new concept plan. The general location of the proposed stockpiling (northeast area of the site), the height of the stockpile (maximum 12- feet), and the overall area subject to stockpiling (approx. 2- acres) has not changed. Mattamy would need to remove portions of the existing water and sewer systems located under the new stockpiles. Most of the existing water and sewer system will be removed and replaced as part of Mattamy's new site plan. Stockpile Agreement Summary • The proposed Stockpile Agreement (Exhibit B) documents the terms and the conditions applicable to the stockpiling activity. These include: • Stockpile to be approximately 40,000 cubic yards, which provides a 12 -foot high stockpile over an area of approximately 2- acres. • Silt fence and drainage swale to be built around the stockpile • Removal of existing onsite utilities that would be impacted by the stockpile • Providing a letter of credit to the City in the amount of $1.4 million. • The Stockpile Agreement was prepared by the City Attorney's office and Mattamy Homes has agreed to the terms of the Agreement as attached as Exhibit B. City Commission — Regular Meeting September 26, 2011 Regular Agenda Item # 600 Page 3 of 4 Minimizing Impacts to the Surrounding Neighborhood: • To address the potential impacts to the surrounding neighborhoods, the following practices will be implemented by the contractor and enforced by City inspection staff: • The construction access route to and from the site for all trucks shall be through Central Winds Park to Orange Avenue. No truck traffic will be permitted on Tuskawilla Road or through Winter Springs High School. • All work will be performed during daylight hours, Monday through Friday • Dust will be controlled by stabilizing the stockpiles with seeded grass and with the use of a geotextile fabric. In addition, the contractor will have the ability to water the stockpile to control dust as needed. • The stockpile will be minimally compacted and will not use any vibratory equipment • The existing perimeter chain -link fence around the Jesup's Landing site will be maintained as a security fence during stockpile operations • The stockpile at Jesup's Landing will have a maximum height of 12 -feet. As a comparison, the existing stockpile at the adjacent site to the east, Artesian Park, is estimated to be 20 -25 feet in height. The Artesian Park site had an approved stockpile plan similar to Jesup's Landing; however, the site was abandoned after the material was imported to the site but before it was leveled out in accordance with the approved plans. FISCAL IMPACT: There is no fiscal impact associated with this agenda item. COMMUNICATION EFFORTS: This Agenda Item Has Been Electronically Forwarded To The Mayor And City Commission, City Manager, City Attorney /Staff, And Is Available On The City's Website, LaserFiche, And The City's Server. Additionally, Portions Of This Agenda Item Are Typed Verbatim On The Respective Meeting Agenda Which Has Also Been Electronically Forwarded To The Individuals Noted Above, And Which Is Also Available On The City's Website, LaserFiche, And The City's Server; Has Been Sent To Applicable City Staff, eAlert/eCitizen Recipients, Media/Press Representatives Who Have Requested Agendas /Agenda Item Information, Homeowner's Associations/Representatives On File With The City, And All Individuals Who Have Requested Such Information. This Information Has Also Been Posted Outside City Hall, Posted Inside City Hall With Additional Copies Available For The General Public, And Posted At Five (5) Different Locations Around The City. Furthermore, This Information Is Also Available To Any City Commission — Regular Meeting September 26, 2011 Regular Agenda Item # 600 Page 4 of 4 Individual Requestors. City Staff Is Always Willing To Discuss This Agenda Item Or Any Agenda Item With Any Interested Individuals. In addition to the Communications Efforts listed above, written notices regarding this agenda item have been sent to all residents of Tuscawilla Trace, St. Johns Landing, and all properties abutting Orange Avenue. A sign has also been posted at the front of the Jesup's Landing site providing public notice for this agenda item. RECOMMENDATION: Staff recommends the City Commission provide authorization to enter into a Stockpile Agreement with Mattamy Partnership to permit the conditional stockpiling of soil on the Jesup's Landing townhome site, and authorize the City Manager and City Attorney to prepare and execute any and all applicable documents. ATTACHMENTS: 1. Exhibit A — Stockpile Plan (2 sheets) 2. Exhibit B - Stockpile Agreement dated September 9, 2011 (9 pages) ENTRY SIGN ENTRY SIGN ,. .. LIFT STATION ORANGE AVENUE Vs) ORANGE AVENUE 7— — �—: 7�—F 1 20'a- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 - ,? 1 L , ) W 4- J ALLEY c ALLEY ALLEY ® — o , 22' r 0 I 21 22 23 24 25 26 27 @ 28 29 30 31 32 33 34 35 36 37 36 W I ° z 2 (26.I 01 O 7 ^ -- - O 1�— ' 6' EASEMENT NEIGHBORHOOD STREET V in NEIGHBORHOOD STREET I _ EASEMENT 4j L lop ,h GARDEN WALLS (TYP r - 0 99 100 101 102 103 104 105 106 107 108 109 110 111 112 p o f28° 2' 38 39 40 41 42 43 44 22' 63 98 45 46 47 8 W 10 a 64 97 j W ALLEY c I K , ALLEY I I IN I I —T I I I I 12' I N __j 65 96 4i N a: >- 00 ALLEY ALLEY r m I = � 22' W 66 95 0 113 114 115 116 117 118 10 119 120 121 122 123 124 Li Q z I W — 49 50 51 52 53 54 55 56 57 58 59 60 61 62 67 94 z I L 1 I �� _ � O . ?� 1 /ONNE NEIGHBORHOOD STREET 7 7 O5 4 �7 68 93 Fes, 69 92 36 70 12'7@- 91 170 125 126 127 128 129 130 131 132 133 J' N 17 12' I I POOL — ! I ' I 71 90 I 6' EASEMENT — a + L ALLEY ALLEY ' EASEMENT 169 O d 72 89 I W w I 168 X36• � � J I i r � 134 135 136 137 138 139 140 141 142 i ( 167 73 88 166 74 87 O O 165 I MNEIGHBORHOOD STREET ;° 75 86 II r O 2 76 J 85 22 a 164 . I 77 84 22' 1I 143 144 145 146 147 148 149 t0 II 163 I 26'- 162 W ALLEY N W I 6 EASEMENT r W i W Cnn I N ALLEY ALLEY 161 ' EASEMENT °o I 0 rj 0 X; _ I = 160 41 m 1 78 79 80 81 82 83 0 ® I a! = 150 151 152 153 154 155 156 157 158 s W O w I I 159 12 Z —/ O6 FUTURE ROAC CITY VEHICLE PARK co CONNECTION ACCESS N N EDGE DRIVE N OPEN SPACE `� N SEILTRAP4ICESS SEMINOLE TRAIL SEMINOLE IL SEMINOLE TRAIL (PUBLIC EASEMENT SEMI RIGHT OF WAY) TRAIL ACCESS LE TRAIL EXISTING FENCE (PUBLIC EASEMENT 1 2 / 01' STABILIZED TRAIL ACCESS & GATE RIGHT OF WAY) DRIVE E MERG ENCY ACCESS RIGHT OF WAY) SEM/NOLE rRgIL xj*s Stockpile Area (Shaded) NTH RASS BLANKET FINAL GRADE EXISTING GRADE (STRIP SITE OF ALL VEGETATION & ROOTS) DEPTH / THICKNESS OF SUBSURFACE ORGANIC SOILS VARIES 7 TYPICAL SURCHARGE SECTION N.T.S. WITH BASS )LANKET Optional Post Position Principle Post Position Post (Options: Z' x 4" Or (Canted 20* Toward Flow) • 2� Min. .9;o. Wood, Steel 1.33 LbslFt. Min.) Filter Fabric (in 6' Max. Conformance With Sec. 985 FDOT Spec.) 2 Filter Fabric o !it Flow ELEVATION SECTION Note: Silt Fence to be paid for under the contract unit price for Stoked SlIt Fence (LF). 13 TYPE M SILT FENCE DETAIL N.T.S. EXHIBIT A T)0UI%*, ROW -iIL-t ItNbE----- '—FINAL GRADE SIX Di7M SHEET 2 EXISTING GRADE 7 ------ I , � 125 1:26 '127 1,218 !:�q (STRIP SITE OF ALL VEGETATION & ROOTS) - -- - ------ DEPTH THICKNESS OF LL 70 SUBSURFACE ORGANIC 0 1- %i) SOILS VARIES A-- - Y TYPICAL SURCHARGE SECTI C) = N.T.S. 72 8 9 T 1-54 13 5 1 1 3E 1,-z 7 1 140 1 41 /J SLOP -------- - - ,qk OPE 5 ./4 t-" " - -( , - F i ji" r \ I - cc 7'5 'NITICHBORH�")OP, �,TRIFET 6 ....... ff) 22' 1-- (— = I 7 22 14 1 6, 7 KET -- 'T - ----- t C'A -A A ALLC'i III( 1 1I T > > 30 9 8 0 81 P 2 j 150 1 1 1 52 1541 A. C r L L iJ 10 ---------- - – -------------- -------- 611 Y A T)�*?K ACCESS EDGIF DRIVE N - --- -------- FINAL GRADE - -------- -- > SLMINOI L IRAI( -A I'vI I f�A Ot TRPI r. \-EXISTING GRADE (STRIP SITE OF ALL 01 NAi,) VEGETATION & ROOTS) '1RAJL ACCES" (PIA30C FASFIAFNT 20' Ffli-I ZL DEPTH THICKNESS OF 6 A I I"'lol r OF vvi�. EML E 11, 1,',' ( A,- CF, S, S SUBSURFACE ORGANIC P I SOILS VARIES Y'*E%TYP SURCHARGE SECTION 11,2 N. DOUBLE ROW SILT FENCE MATCH EXISTING GRADE TYPICAL SWALE SECTION N. T. S. %,- UF1 ' _D\TION 1 - [ - 6' EAl-FHEN I FU IIJRE ROAD C.0t,IHE CTION 6' I-ASI-t-vIENT - u' E :,FMIENY -e,' FF ,SEMFNT f I,j f 1 RI, R 0 A F) cV o E 0 1 10 0 UJ OC I- d z > C 'T cc 4mc t- W Q W a . Z X C i-r cc g a = 0 > 9 0 in W z j �< M 13 cc 8 0 LAX 1 4C A a 119 1 E z Q 0 I - V) 3- Iq R CL A DRM: r`7 TT CHECKED: DLE DATE:- JUNE (A SCALE: In m 50 Cn joa #: 22502 SHEET #: 2 t 9' SLOPF cl OPE k *9 SLOP — SLOPE �— uuu illq IIlpui uu uu a uu1VVVl�I� uu T f VVVVIIi lu'u Ili�� III 8888 �uwuN .luau THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2040 Orlando, FL 32801 (407) 425 -9566 STOCKPILE AGREEMENT DRAFT 9/912011 THIS STOCKPILE AGREEMENT (the "Agreement ") is made and executed this day of September, 2011, by and between the CITY OF 'WINTER SPRINGS, a Florida municipal corporation (the "City'), whose address is 1125 East S.R. 434, Winter Springs, Florida 32708, and MATTAMY (JACKSONVILLE) PARTNERSHIP, a Florida general partnership ( "Mattamy Homes "), whose address is 400 Park Avenue South, Suite 220, Winter Park, Florida 32789. WITNESSETH: WHEREAS, Mattamy Homes is the fee simple owner of (or has the contractual right to purchase) certain real property located within the City in Seminole County, Florida and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property "); and WHEREAS, the Property is currently subject to that certain Development Agreement by and between the City of Winter Springs and Barclay 'Moods II, LLC, a Florida limited liability company, as recorded in Official Records Book 5 643 at page 1555, and the prior Phase I Site Development Permit Agreement by and between the City of Winter springs and Barclay Woods II, LLC, a Florida limited liability company, as recorded in Official Records Book 5735 at Pages 422 -430 ( "Prior Development Agreement "); and WHEREAS, Mattamy Homes intends to develop the Property as a single- family residential (townhouse) community pursuant to that certain development agreement between Mattamy Homes and the City, dated July 13, 2411, which was approved by the City Commission on June 27, 2011 ( "New Development Agreement "); and WHEREAS, the New Development Agreement is currently being held in escrow by the City Attorney, Brown, Garganese, Weiss & D'Agresta, P.A., until such time Mattamy Homes obtains additional development permits from the City as set forth in the New Development Agreement ( "Commencement Permits "); and Stockpile Agreement Mattamy (Jacksonville) Partnership /City of Winter Springs Page 1 of 14 WHEREAS, upon obtaining the Commencement Permits, the New Development Agreement will be recorded against the Property as a binding obligation on the Property and the Prior Development Agreement will be terminated by the City; and WHEREAS, if Mattamy Homes does not obtain the Commencement Permits within 18 months, however, the New Development Agreement shall be deemed null and void and the Prior Development Agreement will remain in full force and effect; and WHEREAS, Mattamy Homes acknowledges that the City currently has several bond claims pending against a surety company that posted a surety bond, along with the prior developer, to complete and/or pay for the roads and other infrastructure permitted under the Prior Development Agreement; and WHEREAS, prior to obtaining the Commencement Permits, Mattamy Homes has requested that the City permit it to stockpile approximately 40,004 cubic yards of new soil on the Property which will be used by Mattamy Homes to grade the Property in accordance with their proposed plans and the Commencement Permits if approved by the City pursuant to the New Development Agreement; and WHEREAS, Mattamy Homes believes that stockpiling the soil at this time will assist in expediting the construction of their new project if it successfully obtains the Commencement Permits; and WHEREAS, unless Mattamy Homes successfully obtains the Commencement Permits, however, the stockpiling of new soil on the Property by Mattamy Homes could interfere with the City's efforts to complete the roads and other infrastructure under the Prior Development Agreement and could interfere with the City's pending bond claims; and WHEREAS, in consideration of the City authorizing Mattamy Homes to deliver and install the stockpile on the Property prior to obtaining the Commencement Permits, Mattamy homes desires to provide the City with a letter of credit securing the completion of the roads and other infrastructure covered by the aforementioned surety bonds in order to mitigate against the possibility of interfering with the City's current surety bond claims and desire to complete the aforementioned roads and other infrastructure. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authori . This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. I Obligations and Commitments In consideration of the City and Mattamy Homes entering into this Agreement, the City nd Matta Homes here agree as follows: � y � a � Stockpile Agreement Mattamy (Jacksonville) Partnership /City of Winter Springs Page 2 of 13 (a) Mattamy shall be permitted to import approximately 40,000 cubic yards of soil to the Property. Said soil shall be stockpiled in an area of approximately two (2) acres in size located on the northeast corner of the Property. The stockpiled soil shall also be placed and compacted to a maximum height of twelve (12) feet. It is anticipated that the stockpiled soil will be allowed to settle on the Property for approximately six (6) to twelve (12) months before being graded on the Property prior to the construction of the proposed townhome units. In addition, Mattamy shall be required to construct and maintain a silt fence and drainage swale around the perimeter of the stockpile area in order to control stormwater runoff. Said fence and swale shall be installed or constructed in accordance with plans and specifications approved by the City Engineer. Further, Mattamy shall be permitted to remove any existing water, sewer, and storm piping currently located within the stockpiled area, subject to approval of the City Engineer. (b) Prior to stockpiling the soil on the property pursuant to Paragraph 3(a) of this Agreement, Mattamy will deliver to the CITY an original irrevocable Letter of Credit ( "LOC ") in a dollar amount equal to One Million Four Hundred Thousand and No1100 Dollars ($1,400,000.00) to cover the completion of the infrastructure required by the Prior Development Agreement and subject to the existing Lexon Insurance surety bonds held by the City (Bond No. 1003688 and Bond No. 1003689). The purpose of the LOC shall be to ensure that Mattamy obtains the Commencement Permits pursuant to the terms and conditions of the New Development Agreement and issues to the City a new irrevocable letter of credit in accordance with Section 9 -76 of the City Code. The LOC shall be maintained in good standing until the Commencement Permits have been obtained by Mattamy, the replat of the Property is filed in the Official Records of Seminole County, Florida, and Mattamy provides the new letter of credit. The new letter of credit shall be delivered no later than the date of the recording of the final replat of the Property. At such time, the City will promptly release to Mattamy the LOC provided under this Agreement. In the event that Mattamy fails to obtain the Commencement Permits and the New Development Agreement is terminated pursuant to Paragraph 19 therein, the City shall have the right to make a claim under the LOC to receive the funds necessary to complete the infrastructure required under the Prior Development Agreement. LOC funds may also be used by the City to restore the Property to a safe condition including, but not limited to, reducing the height of stockpiles, regrading all or portions of the Property in order to mulch and grass and maintain disturbed areas, installing and maintaining fences around disturbed areas, fencing and screening areas deemed dangerous to the public, repairing damage to public infrastructure, regrading temporary access areas, and other actions reasonably deemed necessary by the City to protect the public health, safety, and welfare of the public from the abandonment of the Project. (c) All letters of credit required by this Agreement and pursuant to City Code shall be issued by a nationally recognized bank qualified to do business in the State of Florida that is deemed acceptable to the City. The City of Winter Springs shall be the named beneficiary under all such letters of credit and the letter of credit shall be in a form acceptable to the City Attorney. Stockpile Agreement Mattamy (Jacksonville) Partnership I City of winter Springs Page 3 of 13 4. ReI2 resentations of the Parties. The City and Mattamy hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will not be recorded in the Public Records of Seminole County, Florida. Upon execution, this Agreement shall constitute a legal, valid and binding obligation enforceable against the parties hereto in accordance with the terms and conditions of this Agreement. Mattamy represents that it has voluntarily and willfully executed this Agreement for purposes of binding itself to the terms and conditions set forth in this Agreement. 5. Successors and Assigns This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Mattamy and their respective successors and assigns. 6. Applicable Law This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7. Amendments This Agreement written agreement duly executed by both part; approved by the City Commission. shall not be modified or amended except by :s hereto (or their successors or assigns) and S. Entire Agreement This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Mattamy as to the subject matter hereof. 9. 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. 10. Relationship of the Parties The relationship of the parties to this Agreement is contractual and Mattamy 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. 11. 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 the state and federal law. 12. City's Police Power Mattamy agrees and acknowledges that 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. 13. 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 to this Agreement in the event of a dispute between the parties. Stockpile Agreement Mattamy (Jacksonville) Partnership /City of Winter Springs Page 4 of 13 14. Permits. The failure of this Agreement to address any particular City, county, state, and/or federal permit, condition, term, or restriction shall not relieve Mattamy or the City of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. 15. Third - Party Rights This Agreement is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 16. S]2eciflc Performance Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 17. Attorney's Fees In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 18. ' DeveloiDment Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Mattamy or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Mattamy is in breach of any term or condition of this Agreement. 19. 'Termination. In the event the City terminates the New Development Agreement, the City shall have the unconditional right, but not obligation, to terminate this Agreement by providing three (3) days prior written notice. 20. 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. Mattamy Homes Mattamy (Jacksonville) Partnership Steven A. Parker 400 Park Avenue South, Suite 220 Winter Park, Florida 32789 Attention: With a copy to: Mark Grimes, Esq. Stockpile Agreement Mattamy (Jacksonville) Partnership /City of Winter Springs Page 5 of 13 Pohl &Short, P.A. 280 West Canton Avenue, Suite 410 Winter Park, FL 32789 (407) 647 -7645 (407) 647 -2314 (fax) City: Kevin Smith City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: (407) 327 -5957 Fax: (407) 327 -4753 With a copy to: Anthony A. Garganese Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Ave, Suite 2000 Orlando, Florida 32801 Phone: (407) 425 -9566 Fax: (407) 425 -9596 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. Stockpile Agreement Mattamy (Jacksonville) Partnership /City of Winter Springs Page 6 of 13 CITY OF WINTER SPRINGS ATTEST: Andrea Lorenzo Luaces, City Clerk CITY SEAL Charles Lacey, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. Dated: STATE OF FLORIDA COUNTY OF SEMINOLE Anthony Garganese, City Attorney for the City of Winter Springs, Florida Personally appeared before me, the undersigned authority, Charles Lacey and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this day of September, 2011. (NOTARY SEAL) Notary Public My commission expires: Witnesses: MATTAMY (JACKSONVILLE) PARTNERSHIP, a Florida general partnership Stockpile Agreement Mattamy (Jacksonville) Partnership / City of Winter Springs Page 7 of 13 By: CALBEN (FLORIDA) CORPORATION, a Florida corporation, its general partner Print Name: By: Steven A. Parker, President Print Name: Print Name: Print Name: STATE OF FLORIDA COUNTY OF ORANGE By: MBC (FLORIDA) CORPORATION, a Florida corporation, its general partner By: Steven A. Parker, President The foregoing was acknowledged before me this day of September, 2011 by Steven A. Parker, in his capacity as President of Calben (Florida) Corporation, and in his capacity as President of MBC (Florida) Corporation, each in its respective capacity as general partner of Mattamy (Jacksonville) Partnership, a Florida general partnership, on behalf of said general partnership, and who [ ] is personally known to me or [ ] who has produced a Florida driver's license as identification. NOTARY PUBLIC My Commission Expires: Stockpile Agreement Mattamy (Jacksonville) Partnership 1 City of winter Springs Page 8 of 13 EXHIBIT " A " Legal Description Parcel 1: Lot 15, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. Parcel 2: Lot 16, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta. P.A. 111 N. Orange Avenue, Suite 2000 Orlando, FL 32801 (407) 425-9566 STOCKPILE AGREEMENT THIS STOCKPILE AGREEMENT (the "Agreement ") is made and executed this �lo` day of September, 2011, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City "), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and MATTAMY (JACKSONVILLE) PARTNERSHIP, a Florida general partnership ( "Mattamy 1- Ionies "), whose address is 400 Park Avenue South, Suite 220, Winter Park, Florida 32789. WITNESSETH: WHEREAS, Mattamy Homes is the fee simple owner of (or has the contractual right to purchase) certain real property located within the City in Seminole County, Florida and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property "): and WHEREAS, the Property is currently subject to that certain Development Agreement by and between the City of Winter Springs and Barclay Woods II, LLC, a Florida limited liability company, as recorded in Official Records Book 5643 at page 1555, and the prior Phase I Site Development Permit Agreement by and between the City of Winter springs and Barclay Woods II, LLC, a Florida limited liability company, as recorded in Official Records Book 5735 at Pages 422 -430 ( "Prior Development Agreement "); and WHEREAS, Mattamy I -Tomes intends to develop the Property as a single- family residential (townhouse) community pursuant to that certain development agreement between Mattamy Hones and the City, dated .luly 13, 2011, which was approved by the City Commission on June 27, 2011 ('New Development Agreement "); and WHEREAS, the New Development Agreement is currently being held in escrow by the City Attorney, Brown, Garganese. Weiss & D'Agresta, P.A., until such time Mattamy Homes obtains additional development permits from the City as set forth in the New Development Agreement ( "Commencement Permits "); and Stockpile Agreement Mattamy (Jacksonville) Partnership / City of Winter Springs WHEREAS, upon obtaining the Commencement Permits, the New Development Agreement will be recorded against the Property as a binding obligation on the Property and the Prior Development Agreement will be terminated by the City; and WHEREAS, if Mattamy Homes does not obtain the Commencement Permits within 18 months, however, the New Development Agreement shall be deemed null and void and the Prior Development Agreement will remain in full force and effect; and WHEREAS, Mattamy Homes acknowledges that the City currently has several bond claims pending against a surety company that posted a surety bond, along with the prior developer, to complete and/or pay for the roads and other infrastructure permitted under the Prior Development Agreement; and WHEREAS, prior to obtaining the Commencement Permits, Mattamy Homes has requested that the City permit it to stockpile approximately 40,000 cubic yards of new soil on the Property which will be used by Mattamy Homes to grade the Property in accordance with their proposed plans and the Commencement Permits if approved by the City pursuant to the New Development Agreement; and WHEREAS, Mattamy Homes believes that stockpiling the soil at this time will assist in expediting the construction of their new project if it successfully obtains the Commencement Permits; and WHEREAS, unless Mattamy Homes successfully obtains the Commencement Permits, however, the stockpiling of new soil on the Property by Mattamy Homes could interfere with the City's efforts to complete the roads and other infrastructure under the Prior Development Agreement and could interfere with the City's pending bond claims; and WHEREAS, in consideration of the City authorizing Mattamy Homes to deliver and install the stockpile on the Property prior to obtaining the Commencement Permits, Mattamy homes desires to provide the City with a letter of credit securing the completion of the roads and other infrastructure covered by the aforementioned surety bonds in order to mitigate against the possibility of interfering with the City's current surety bond claims and desire to complete the aforementioned roads and other infrastructure. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. Obligations and Commitments. In consideration of the City and Mattamy Homes entering into this Agreement, the City and Mattamy Homes hereby agree as follows: 2 (a) Mattamy shall be permitted to import approximately 40,000 cubic yards of soil to the Property. Said soil shall be stockpiled in an area of approximately two (2) acres in size located on the northeast corner of the Property. The stockpiled soil shall also be placed and compacted to a maximum height of twelve (12) feet. It is anticipated that the stockpiled soil will be allowed to settle on the Property for approximately six (6) to twelve (12) months before being graded on the Property prior to the construction of the proposed townhome units. In addition, Mattamy shall be required to construct and maintain a silt fence and drainage swale around the perimeter of the stockpile area in order to control stormwater runoff. Said fence and swale shall be installed or constructed in accordance with plans and specifications approved by the City Engineer. Further, Mattamy shall be permitted to remove any existing water, sewer, and storm piping currently located within the stockpiled area, subject to approval of the City Engineer. (b) Prior to stockpiling the soil on the property pursuant to Paragraph 3(a) of this Agreement, Mattamy will deliver to the CITY an original irrevocable Letter of Credit ( "LOC ") in a dollar amount equal to One Million Four Hundred Thousand and No /100 Dollars ($1,400,000.00) to cover the completion of the infrastructure required by the Prior Development Agreement and subject to the existing Lexon Insurance surety bonds held by the City (Bond No. 1003688 and Bond No. 1003689). The purpose of the LOC shall be to ensure that Mattamy obtains the Commencement Permits pursuant to the terms and conditions of the New Development Agreement and issues to the City a new irrevocable letter of credit in accordance with Section 9 -76 of the City Code. The LOC shall be maintained in good standing until the Commencement Permits have been obtained by Mattamy, the replat of the Property is filed in the Official Records of Seminole County, Florida, and Mattamy provides the new letter of credit. The new letter of credit shall be delivered no later than the date of the recording of the final replat of the Property. At such time, the City will promptly release to Mattamy the LOC provided under this Agreement. In the event that Mattamy fails to obtain the Commencement Permits and the New Development Agreement is terminated pursuant to Paragraph 19 therein, the City shall have the right to make a claim under the LOC to receive the funds necessary to complete the infrastructure required under the Prior Development Agreement. LOC funds may also be used by the City to restore the Property to a safe condition including, but not limited to, reducing the height of stockpiles, regrading all or portions of the Property in order to mulch and grass and maintain disturbed areas, installing and maintaining fences around disturbed areas, fencing and screening areas deemed dangerous to the public, repairing damage to public infrastructure, regrading temporary access areas, and other actions reasonably deemed necessary by the City to protect the public health, safety, and welfare of the public from the abandonment of the Project. (c) All letters of credit required by this Agreement and pursuant to City Code shall be issued by a nationally recognized bank qualified to do business in the State of Florida that is deemed acceptable to the City. The City of Winter Springs shall be the named beneficiary under all such letters of credit and the letter of credit shall be in a form acceptable to the City Attorney. 4. Representations of the Parties. The City and Mattamy hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the 3 terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will not be recorded in the Public Records of Seminole County, Florida. Upon execution, this Agreement shall constitute a legal, valid and binding obligation enforceable against the parties hereto in accordance with the terms and conditions of this Agreement. Mattamy represents that it has voluntarily and willfully executed this Agreement for purposes of binding itself to the terms and conditions set forth in this Agreement. 5. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Mattamy and their respective successors and assigns. 6. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 8. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Mattamy as to the subject matter hereof. 9. 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. 10. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Mattamy 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. 11. 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 the state and federal law. 12. City's Police Power. Mattamy agrees and acknowledges that 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. 13. 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 to this Agreement in the event of a dispute between the parties. 14. Permits. The failure of this Agreement to address any particular City, county, state, and/or federal permit, condition, term, or restriction shall not relieve Mattamy or the City 4 of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction. 15. Third-Party Rights. This Agreement is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 16. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 17. Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 18. Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Mattamy or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Mattamy is in breach of any term or condition of this Agreement. 19. Termination. In the event the City terminates the New Development Agreement, the City shall have the unconditional right, but not obligation, to terminate this Agreement by providing three (3) days prior written notice. 20. 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. Mattamy Homes Mattamy (Jacksonville) Partnership Steven A. Parker 400 Park Avenue South, Suite 220 Winter Park, Florida 32789 Attention: With a copy to: Mark Grimes, Esq. Pohl & Short, P.A. 280 West Canton Avenue, Suite 410 Winter Park, FL 32789 (407) 647-7645 5 (407) 647 -2314 (fax) City: Kevin Smith City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: (407) 327 -5957 Fax: (407) 327 -4753 With a copy to: Anthony A. Garganese Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Ave, Suite 2000 Orlando, Florida 32801 Phone: (407) 425 -9566 Fax: (407) 425 -9596 IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. [Signature Page Follows] 6 CITY OF WINTER SPRINGS By: 6-4 Charles Lacey, Mayo • ` ATTEST:. By: • I ..'',� o Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. CITY SEAL, Dated: By: Anthony arganese, City Attorney for the City of Winter Springs, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Personally appeared before me, the undersigned authority, Charles Lacey and Andrea Lorenzo Luaces, well known to me to be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument on behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this.), day of September, 201 1. � Nota � g r ea Lor nzo L u aces • re Lorenzo•Leces � mm4u on E874 '� tc �an My CoExpkesosro912011 0871 My commission expires: C 7 • • • tit .- ',.•.• N. '•1 . . .. f � ' , . . 1\� . 1 . : �f . %...,,' I • • - _ .:,.,r "."."4".V.1..'V-•....i^ "...y.°‘f....N.1 Sl :;; 4 ntJhuFi (N.1,n1 r .i'tna.w . • _ ` ��unuJ- nwnrnq.J et+Ntm1: , `,. ., '' ` 4�� +. r.t,�VPO'Sl nuiraimma ; ' W. i. rl'' l • . ./ l- : r osu�caaa es�4q ''bn ,, • i MATTAMY (JACKSONVILLE) PARTNERSHIP, a Florida general partnership By: CALBEN (FLORI P • , CORPORATION. a FI► ida co►.oration, its - / 1A / / ge ' : artner Print N ame 0.1M1/111111 V� By: Steven A. Parker, President r I- ,--1-, ._, i'nt ame ,;r,:, 1 ,Y110` By: ► A �■�I ORID CORPORATION, a / .for 4. co partner i_ ...�.� ►..... 11 II 4. 4 �. e 'rint • le: 4 M UM 1A M -� c . " even A. Parker, Pr i • en 44 ____/ i nt ame: two Y1' r(i T k \ - m ) STATE OF FLORIDA COUNTY OF ORANGE The fore loi was acknowled Ted before me this c� day of September, 2011 by Steven A. b n T t= g Parker, in his capacity as President of Calben (Florida) Corporation, and in his capacity as President of MBC (Florida Corporation, each in its respective capacity as general partner of Mattamy (Jacksonvill . rtnership, a Florida general partnership, on behalf of said general partnership, and who [ ] is personally known to me or [ ] who has produced a Florida driver's license as identification. c� � . .......L., - ./... . Y • � � a . NO • ::Y P : IC My Commission Expires: ,; ef' ; KIMBERLY M. CHARLES z + r MY COMMISSION # EE040339 a'to EXPIRES November 08, 2014 497 398-0153 nb..tom 8 EXHIBIT "A" Legal Description Parcel 1: Lot 15, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. Parcel 2: Lot 16, Block B, D.R. MITCHELL'S SURVEY OF THE LEVY GRANT, as recorded in Plat Book 1, Page 5, of the Public Records of Seminole County, Florida. 1VIATitrAM T September 30, 201 1 Brown, Garganesc, Weiss & D'Agresta, P.A. Anthony A. Garganesc 1 11 N. Orange Ave., Suite 2000 P.O. Box 2873 Orlando, FL 32802 -2873 Re: Stockpile Agreement Dear Anthony: Please find attached the executed stockpile agreement. If you have any further questions, please don't hesitate to give me a call. Warm Regards, Stev . Par er President 4410 1'AIIK A\'I:NLII SUUTII, SUITE "o, \l'ItiTI:R I'.ARK, F10R11)A 3 27 A 9 1 ( 4 117) 599 -9994 F (407) 599 -9998