HomeMy WebLinkAboutMattamy (Jacksonville) Partnership Stockpile Agreement - 2011 09 26 THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Anthony Garganese
City Attorney of Winter Springs
Brown, Garganese, Weiss & D'Agresta, P.A.
1 1 1 N. Orange Avenue, Suite 2000
Orlando, FL 32801
(407) 425-9566
STOCKPILE AGREEMENT
THiS STOCKPILE AGREEMENT (the "Agreement ") is made and executed this
�o 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 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 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 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, 201 1, 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:
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(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
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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. 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.
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
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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
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(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]
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CITY OF WINTER SPRINGS
By: 6._
Charles Lacey, Mayo
ATTEST:
By: • a ^ r', o Luaces, City Clerk
APPROVED AS TO FORM AND LEGALITY
For the use and reliance of the City of Winter
Springs, Florida,, only.
CITY SEA', 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.
I- -
Witness my hand and official seal this.. day of September, 2011.
t1z S rt�ublic State of Florida 1
'h re Lorenzo•LuaCes _! r
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�p My Commisslon E01?174 Nola ' is r
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MATI'AMY (JACKSONVILLE) PARTNERSHIP,
a Florida general partnership
By: CALBEN (FLORI II •
CORPORATION. a Fl► ida co ►.oration, its
/ / / / ge .arnier
II Ec. /
/ .. '�. I' • ii i.. 4 .
Print lane • ���!► 1 .1`;'-!1!�►91i10� z-4, By: Steven A. Parker, P esident
4 1 ' nt ame: e: s- ;,- cir.._ q ,y-)1�`->
By: ..t _.. ORID CORPORATION, a
_ / / , 1or • . co -.oral i , nei partner
lr / / •
'rint . ne: S' � 1 1 I I 2 . . - even A. Parker, Pr i • en
j i il J;
int ame: p T -� r .t - C t 1i D>
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing was acknowledged before me this day of September, 2011 by Steven A.
Y P Y
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. /.
'44 ' / a .. ice. _' . . ' Y • _ 1 /'
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NO • :: Y P ' IC
My Commission Expires:
" KIMBERLY M. CHARLES
MY COMMISSION 4 EE040339
' • ,2 EXPIRES November 08, 2014
407 384163 wia.eom
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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.
11 . 1 i I \ ,r()I I`
MATZTAMY ,
September 30, 2011
Brown, Gargancsc, Weiss & D'Agresta, P.A.
Anthony A. Gargancsc
111 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
.1n PARK API.NUI! SOUTH. SUM, 220. \YINTIfR PARK, f -I ORID.A ' 2709
( 4 117) 59 9 -9994 F (4117) 597 -9998