HomeMy WebLinkAbout2023 02 27 Regular 502 - Approval of First Modification to Development Agreement (Mattamy Homes - Hickory Grove Towwnhouse Project) • REGULAR AGENDA ITEM 502
Incnrinreted CITY COMMISSION AGENDA I FEBRUARY 27, 2023 REGULAR MEETING
1454
TITLE
Approval of First Modification to Development Agreement (Mattamy Homes - Hickory
Grove Townhouse Project)
SUMMARY
The City Commission previously approved a Development Agreement, dated
June 27, 2022, and Final Engineering Plans authorizing the development of a
maximum of 132 townhouse units on approximately 12.3 acres of land along
Blumberg Boulevard within the Town Center. Mattamy Orlando LLC now
owns the property and will develop the property.
The proposed project will have on-site stormwater ponds. However, one
condition of the Development Agreement also requires the Developer to
connect the stormwater discharge outfall to a specific manhole identified
near the Cross Seminole Trail near the City/School Board's joint use
stormwater pond, and obtain permission for doing so from the property
owner. The Agreement anticipated that the property owner would either be
the State of Florida and/or School Board. Subsequent to the execution of the
Development Agreement, the parties determined that the property owner is
the State of Florida because the manhole appears to be within the Trail
property. However, when the parties contacted the State, the State had no
record of the manhole and obtaining the State's approval was going to be
very challenging under the circumstances. Further, the parties realized that
the capacity of the City's stormwater pipe along and under Tuskawilla Road,
which drains stormwater into Lake Jesup, may be insufficiently sized to
receive any additional stormwater from the manhole and other inlets
including the outfall discharge from the townhouse project.
Notwithstanding, given the City Commission's previous authorization to
permit and complete the Wetland Park Stormwater Enhancement Project,
which is currently being designed and surveyed, the Developer and City staff
(including the City stormwater consultant - David Hamstra of Pegasus
Engineering) believe that it would be more mutually beneficial if Developer
participated in the Wetland Park project by connecting Developer's
stormwater outfall connection to an existing stormwater inlet within
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Tuskawilla Road that drains into the City's joint use pond. Other properties
within Phase 1 of the Town Center also drain into the City's joint use pond.
The proposed First Modification allows the Developer to participate in the
Wetland Park Stormwater Project, and reimburse the City the incremental
costs above the costs that the City would have incurred without the
Developer's participation. The Developer would also reimburse the City one-
third of the City's consultant's fees for the design, engineering and design
surveying for the Wetland Park Stormwater Project ($25,244.12).
Staff recommends approval of the attached First Modification to
Development Agreement.
RECOMMENDATION
Approve First Modification to Development Agreement (Mattamy Homes - Hickory
Grove Townhouse Project)
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THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony A.Garganese
City Attorney of Winter Springs
Garganese,Weiss,D'Agresta&Salzman,P.A.
111 N_Orange Avenue, Suite 2000
Orlando,FL 32802
(407)425-9566 FOR RECORDING DEPARTMENT USE ONLY
FIRST MODIFICATION
DEVELOPMENT AGREEMENT
Hickory Grove Townhomes
THIS FIRST MODIFICATION TO THE DEVELOPMENT AGREEMENT
("Agreement") is made and executed this day of , 2023, by and
between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ("City"), whose
address is 1126 East S.R. 434, Winter Springs, Florida 32708, and MATTAMY ORLANDO
LLC, a Florida limited liability company, as successor in title to JUANITA D. BLUMBERG, as
Trustee of the Juanita D. Blumberg Revocable Trust dated May 3, 2004 ("Developer"), whose
address is 2450 Maitland Center PKWY, #300,Maitland, Florida 32751.
WITNESSETH:
WHEREAS,Developer is the current owner of approximately 12.3 acres, more or less, of
real property located in the Winter Springs Town Center,T4 Transect,generally north of Blumberg
Boulevard and bounded by Tuskawilla Road and Bear Springs Drive, Winter Springs, Seminole
County, Florida, as more particularly described herein; and
WHEREAS,Developer's predecessor in title entered into a Development Agreement with
the City, dated June 27, 2022 and recorded at Seminole County Official Record Book 10270, Pgs:
223-239(17 Pgs.)("Development Agreement"),in order to construct a townhome unit subdivision
on the Property with a maximum of 132 units ("Developer's Project"); and
WHEREAS, as a condition of approval for the Developer's Project, Section 6 (F) of the
Development Agreement requires Developer to revise the stormwater drainage plan to connect a
15-inch stormwater outfall pipe to an existing manhole located offsite on property owned by the
State of Florida so the Developer's stormwater system would connect to the City's existing
stormwater system between the Cross-Seminole Trail and Lake Jesup ("State Stormwater
Connection"); and
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WHEREAS, subsequent to the recording of the Development Agreement, the Parties
determined that the State Stormwater Connection may not be the most mutually beneficial option
for Developer's stormwater outfall connection and that a more mutually beneficial stormwater
outfall connection for the Project would likely be for the Developer to participate in a drainage
enhancement project("City Project") currently being designed by the City for the City's Wetland
Park property(Parcel ID#31-20-31-5TC-0000-OOBO)located on the east side of Tuskawilla Road,
for purposes of connecting the Developer's stormwater outfall system to the City's existing
stormwater system between Wetland Park and Lake Jesup (the "Wetland Park Stormwater
Connection"); and
WHEREAS, the intent and purpose of this First Modification is to modify the
Development Agreement to provide for the Developer to construct the Wetland Park Stormwater
Connection in lieu of the State Stormwater Connection in accordance with the terms and conditions
of this First Modification so Developer can proceed with the construction of the Project; and
WHEREAS,this First Modification to Development Agreement shall be recorded against
the Property so that the terms and conditions of approval related to the Project shall run with the
land; and
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein,the parties mutually agree as follows:
1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated
herein by this reference.
2.0 Authority, This Agreement is entered into pursuant to the Florida Municipal Home
Rule Powers Act.
3.0 The Property. The real property subject to this Agreement has a tax parcel
identification number of 26-20-30-5AR-OB00-028E,with the current address of 141 Bear Springs
Drive in Winter Springs, and is legally described in EXHIBIT "A", attached hereto and fully
incorporated herein by this reference ("Property").
4.0 Modification of the Specific Conditions of Approval - Section 6 (F). Section
6.0 (F) of the Development Agreement is hereby amended in its entirety as follows:
F. The Developer has submitted a revised stormwater drainage plan reflecting the Wetland
Park Stormwater Connection as depicted on EXHIBIT "B", attached hereto and which is fully
incorporated herein by this reference ("Revised Plan"). The Revised Plan, which has been
simultaneously approved by the City with approval of this Agreement, includes:
(1) Developer, at its sole expense, installing a 15-inch RCP stormwater pipe to
connect the Project's stormwater outfall to an existing inlet located within the
existing Tuskawilla Road right-of-way, said inlet being part of an existing
stormwater system that discharges into the existing High School/City joint use
stormwater pond located in the southeast corner of Parcel ID# 26-20-30-5AR-
OB00-0190, such pond itself being designed to discharge at capacity to the City's
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Wetland Park via existing pipes under Tuskawilla Road and with the flows
entering the Wetland Park eventually sheet flowing towards Michael Blake
Boulevard where they are captured by existing inlets and pipes that convey them
to Lake Jesup;
(2) removing all sediments within the inlet and existing storm pipe to ensure a clean
connection from the Project outfall to the High School/City joint use pond; and
(3) re-grading any right-of-way, swales and land affected by the work required by
items (1) and (2) above.
In conjunction with the aforesaid commitment by Developer, the City will include the
Project into the City's Wetland Park stormwater enhancement project ("City Project"), which is
currently underway, by designing, engineering, permitting, surveying and constructing
enhancements that raise the storage volume of Wetland Park in order to accommodate the
additional stormwater runoff volume from the Developer's Project. The Parties will cooperate in
this endeavor, and Developer's engineers (who shall be qualified and experienced in stormwater
engineering and permitting)will be allowed to provide input into the design and permitting process
for the City Project to the extent affected by the additional stormwater runoff volume from the
Developer's Project.
Developer agrees to contribute financially to the City Project as hereafter provided. First,
Developer shall reimburse City one-third (1/3) of the cost for design, engineering and design
surveying performed by Pegasus Engineering under the scope of services set forth in City Purchase
Order #202300000494 provided, however, Developer's reimbursement in regard to such City
Purchase Order shall not exceed TWENTY-FIVE THOUSAND TWO HUNDRED AND FORTY-
FOUR DOLLARS AND TWELVE CENTS ($25,244.12). Once such design, engineering and
design surveying has been substantially completed, Pegasus Engineering shall provide the Parties
an engineer's cost estimate for additional costs the City will incur in constructing the City Project
to accommodate Developer's stormwater along with the City's ("Incremental Costs").
Incremental Costs shall be limited to the actual difference between the cost of the City Project
constructed to include the stormwater discharge from Developer's Project and the cost of the City
Project if it was designed and constructed solely to address City's stormwater/flooding issue. By
way of illustration and not limitation, if including the Developer's Project's stormwater discharge
triggers the need for a 15-inch(15") diameter pipe when a 12-inch(12")diameter pipe would have
been sufficient if the City Project were only addressing the City's stormwater / flooding issue,
Developer shall reimburse City for the difference in cost between the 15" pipe and the 12" pipe.
Likewise, any additional cost in labor or other expenses, such as wetland mitigation necessitated
by inclusion of the Developer's Project's stormwater discharge, if any, shall be included in the
Incremental Costs.
City anticipates Pegasus Engineering will have completed 60% design plans by the end of
the first week of April,2023, and aspires to have the necessary St. Johns River Water Management
District Permit issued by mid-July, 2023. The Parties shall use reasonable diligence to achieve
such timeline, but neither shall be held responsible for delays beyond the control and without the
fault of the Parties. Such causes may include but shall not be limited to, acts of God, including
adverse weather conditions, epidemic, pandemic, flood, or similar occurrence; strikes or other
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labor controversies; acts of terrorism or declarations of war; shortages of materials (including
temporary disruptions in supply chains which result in an unusual increase in the cost of materials
in excess of ordinary and customary price fluctuations) or inability to obtain labor or the timely
delivery of materials; fire or other casualties; orders or requirements of any governmental
authority.
City shall commence construction of the City Project as designed to include Developer's
Project's stormwater discharge as soon as it has received all necessary permits and approvals and
executed a construction contract pursuant to its usual contract procurement procedures. Once
commenced, City shall diligently prosecute such work to completion. Upon completion and
acceptance of such work City shall provide Developer an invoice for the Incremental Costs
together with customary supporting documentation. Developer shall reimburse City for the
Incremental Costs within thirty (30) days of its receipt of said invoice and documentation. In the
event Developer disputes any portion of the Incremental Costs Developer shall provide written
notice of such dispute to City within ten (10) days of its receipt of the City's invoice. The Parties
shall promptly seek to resolve any such dispute, but Developer shall still pay City all undisputed
amounts within thirty (30) days after its receipt of the City's invoice. In the event that City staff,
the Developer and their respective engineers are unable to resolve any disputed amount before the
end of the thirty (30) day payment period, said dispute shall be elevated on the thirty-first (31st)
day to the City Manager and the Developer's Director of Land Acquisition and Entitlement —
Orlando Division. If the Parties have failed to resolve the dispute within thirty(30)days after such
elevation, the Parties shall be free to pursue any and all other remedies available.
Upon the Effective Date (as hereinafter defined), City shall promptly issue the pending
Building Permit / Site Permit and Developer shall be free to commence construction of the
Developer's Project in accordance with the Development Agreement, Final Engineering Plans,
and the Construction Management Plan submitted to the City by Developer on or about August
10, 2022, including constructing the Wetland Park Stormwater Connection as depicted on the
Revised Plan with no further conditions being imposed by the City. Furthermore, Developer shall
be allowed to continue development of Developer's Project including, but not limited to,platting,
site development(including construction of ponds and internal stormwater management facilities,
construction of streets and sidewalks and installation of utilities), pulling building permits,
constructing model homes, constructing residential dwelling units, obtaining certificates of
completion and obtaining certificates of occupancy, prior to the completion of the City Project so
long as the stormwater discharge rate from the Property during such development does not at any
point exceed the Property's pre-development stormwater discharge rate which, the Parties agree,
is 6.56 cfs for the 25-year/24-hour storm event. As an interim and temporary measure,Developer
shall regrade and maintain the ditch within the City's right-of-way on the west side of Tuskawilla
Road north of the high school access road and south of the Seminole Trail and discharge there
until such time as the City completes the permitting and construction of the City Project
improvements at which time Developer shall promptly connect to the City's Wetland Park
stormwater system. City and Developer shall both monitor the stormwater discharge rate and City
agrees that so long as it does not exceed the pre-development stormwater discharge rate, City shall
not unreasonably withhold permits or fail to approve plans for the Developer's Project. However,
if at any time it reasonably appears, based on customary engineering calculations, that further
development activity will cause the Property's stormwater discharge rate to exceed the pre-
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development discharge rate, additional development activity shall not be commenced unless and
until Developer has taken necessary steps to re-establish the pre-development discharge rate.
Consistent with §166.033(5), Fla. Stat., City shall not require as a condition of processing
or issuing a development permit or development order, as those terms are legally defined in s.
163.3164, Fla. Stat., that Developer obtain a permit or approval from any state or federal agency
unless the agency has issued a final agency action that denies the federal or state permit before the
municipal action on the local development permit.
Developer shall be responsible for maintaining the Developer's Project's stormwater
system up to the inlet connection on Tuskawilla Road and Developer shall submit an annual signed
and sealed stormwater report to the City associated with the Developer's Project's stormwater
management system up to such inlet. The report shall document the conditions and operation and
maintenance of the stormwater ponds and control structures. Once a Homeowner's Association
("HOA") for Developer's Project has been formed and is functioning, Developer shall assign its
obligations under this paragraph to such HOA and Developer shall be relieved of same.
5.0 Effective Date. This First Modification to Development Agreement shall become
effective upon approval by the City Commission and execution of this First Modification by both
parties hereto.
6.0 Recordation. Upon full execution by the Parties, this First Modification shall be
recorded in the Public Records of Seminole County, Florida by the City. The Developer shall be
responsible for all recording fees associated with this First Modification.
7.0 Other Terms.All other provisions of the Development Agreement not modified
by this First Modification shall remain in full force and effect. In the event of any conflict or
ambiguity between the terms of the Development Agreement and this Agreement,this Agreement
shall control.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date
first above written.
CITY OF WINTER SPRINGS
By:
Kevin McCann, Mayor
Date:
ATTEST:
By:
Christian Gowan, City Clerk
CITY SEAL
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APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter Springs,
Florida only.
Date:
By:
Anthony A. Garganese, City Attorney for
the City of Winter Springs,Florida
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Signed and sealed in the presence of: MATTAMY ORLANDO LLC, a Delaware
limited liability company
By:
Print Name: Printed Name:
Title:
Date:
Print Name:
STATE OF FLORIDA )
ss:
COUNTY OF ORANGE )
The foregoing instrument was sworn to, subscribed and acknowledged before me this
day of , 2023 by , as of Mattamy
Orlando LLC, a Delaware limited liability company, on behalf of the company. They appeared
before me by means of. L] online notarization, or [_] physical presence and is LJ personally
known to me, or [ ] has produced as identification.
(Signature of Notary Public)
Print Name:
Notary Public, State of Florida
Commission No.:
My Commission Expires:
DEVELOPER IS HEREBY ADVISED THAT SHOULD DEVELOPER FAIL TO
FULLY EXECUTE, AND DELIVER TO THE CITY, THIS FIRST MODIFICATION
WITHIN THIRTY (30) DAYS FROM THE DATE THAT THE CITY COMMISSION
APPROVES THIS FIRST MODIFICATION, THIS FIRST MODIFICATION, AND THE
MODIFICATIONS REFERENCED HEREUNDER, SHALL AUTOMATICALLY BE
DEEMED NULL AND VOID.
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EXHIBIT "A"
A PORTION OF LOTS 28, 29 AND 30, BLOCK B, D.R. MITCHELL'S SURVEY OF
THE LEVY GRANT ON LAKE JESSUP AS PER PLAT THEREOF AS RECORDED IN PLAT
BOOK 1,PAGE 5 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY,FLORIDA; BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF LOT 28, BLOCK B, D.R.
MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP AS PER PLAT THEREOF
AS RECORDED IN PLAT BOOK 1, PAGE 5 OF THE PUBLIC RECORDS OF SEMINOLE
COUNTY, FLORIDA AND RUN SOUTH 71024'38" EAST ALONG THE NORTH LINE OF
SAID LOTS 28 AND 29 AND THE SOUTH RIGHT OF WAY LINE OF SECOND STREET
FOR A DISTANCE OF 333.41 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE
SOUTH 71024'38" EAST ALONG SAID LINE FOR A DISTANCE OF 533.01 FEET TO A
POINT ON A CURVE CONCAVE SOUTHWESTERLY HAVING TANGENT BEARING OF
SOUTH 65037'28" EAST AND A RADIUS OF 358.00 FEET; THENCE DEPARTING SAID
NORTH LINE OF LOTS 28 AND 29 AND THE SOUTH RIGHT OF WAY LINE OF SECOND
STREET AND RUN SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 39008'43" FOR A DISTANCE OF 244.59 FEET TO THE POINT OF
TANGENCY; THENCE RUN SOUTH 26028'45" EAST, A DISTANCE OF 237.47 FEET TO A
POINT OF CURVATURE OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A
RADIUS OF 142.00 FEET AND A CENTRAL ANGLE OF 45000'00"; THENCE RUN
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE FOR A DISTANCE OF 111.53
FEET TO THE POINT OF TANGENCY; THENCE RUN SOUTH 71028'45" EAST, A
DISTANCE OF 253.56 FEET TO A POINT ON A CURVE CONCAVE SOUTHERLY AND
HAVING A TANGENT BEARING OF SOUTH 72024'14" EAST AND RADIUS OF 82.00
FEET; THENCE RUN SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH
A CENTRAL ANGLE OF 12029'09" FOR A DISTANCE OF 17.87 FEET TO THE POINT OF
TANGENCY; THENCE RUN SOUTH 59055'05" EAST, A DISTANCE OF 40.83 FEET TO A
POINT OF CURVATURE OF A CURVE CONCAVE WESTERLY AND HAVING A RADIUS
OF 30.00 FEET; THENCE RUN SOUTHERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 90000'00" FOR A DISTANCE OF 47.12 FEET TO THE
POINT OF TANGENCY; THENCE RUN SOUTH 30004'55" WEST ALONG THE WESTERLY
RIGHT OF WAY LINE OF TUSKAWILLA ROAD (FORMERLY BRANTLEY AVENUE)
FOR A DISTANCE OF 261.86 FEET; THENCE DEPARTING SAID RIGHT OF WAY LINE
AND RUN ALONG THE NORTHERLY LINE OF PARCEL 6 AS PER THE WARRANTY
DEED AS RECORDED IN OFFICIAL RECORDS BOOK 4164, PAGE 1552 OF THE PUBLIC
RECORDS OF SEMINOLE COUNTY,FLORIDA FOR THE FOLLOWING COURSES: FROM
A POINT BEING ON A CURVE CONCAVE NORTHWESTERLY AND HAVING A
TANGENT BEARING SOUTH 30004'55" WEST AND A RADIUS OF 15.00 FEET; THENCE
RUN SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 39019'07" FOR A DISTANCE OF 10.29 FEET TO THE POINT OF TANGENCY;
THENCE RUN SOUTH 69024'02" WEST FOR A DISTANCE OF 53.25 FEET; THENCE
NORTH 60043'32" WEST FOR A DISTANCE OF 136.29 FEET; THENCE NORTH 71024'05"
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WEST FOR A DISTANCE OF 498.39 FEET; THENCE DEPARTING SAID NORTHERLY
LINE OF PARCEL 6 AND RUN ALONG THE NORTHERLY LINE OF PARCEL 4 AS PER
THE WARRANTY DEED AS RECORDED IN OFFICIAL RECORDS BOOK 4056, PAGE OF
0428 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA FOR THE
FOLLOWING FIVE (5) COURSES: THENCE RUN NORTH 18°35'55" EAST FOR A
DISTANCE OF 137.55 FEET; THENCE NORTH 71°24'05" WEST, A DISTANCE OF 293.20
FEET; THENCE RUN NORTH 00°00'00" EAST FOR A DISTANCE OF 200.02 FEET;
THENCE NORTH 83031'22" WEST, A DISTANCE OF 105.03 FEET; THENCE NORTH
71024'05" WEST, A DISTANCE OF 162.54 FEET TO A POINT ON EASTERLY LINE OF A
TRACT OF LAND AS PER THE WARRANTY DEED AS RECORDED IN OFFICIAL
RECORDS BOOK 4423,PAGE 1797 OF THE PUBLIC RECORDS OF SEMINOLE COUNTY,
FLORIDA; THENCE RUN NORTH 18035'55" EAST ALONG SAID EASTERLY LINE FOR A
DISTANCE OF 325.13 FEET TO THE POINT OF BEGINNING.
CONTAINS 535,912 SQUARE FEET OR 12.303 ACRES MORE OR LESS.
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EXHIBIT `B"
REVISED STORMWATER DRAINAGE PLAN REFLECTING THE WETLAND
PARK STORMWATER CONNECTION
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