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HomeMy WebLinkAbout2008 04 28 Regular 602 Approval of Site Development Permit Agreement with Tousa Homes, Inc.- Sonesta PointeCOMMISSION AGENDA ITEM 602 Consent Information Public Hearin Re ular X Apri128, 2008 % ~" MGR. /~wlDe t. Meeting REQUEST: The Public Works Department requests the City Commission consider approving a Site Development Permit Agreement with Tousa Homes, Inc. for limited mowing and grubbing of selected wetland areas at Sonesta Pointe PURPOSE: The purpose of this Agenda Item is to grant Tousa Homes, Inc. a Site Development Permit to perform limited mowing and grubbing of selected wetland areas at Sonesta Pointe. AS explained below, the approval is subject to conditions that must be satisfied before the work is allowed. CHRONOLOGY: August 9, 2004 -Concept Plan approved by City Commission September 27, 2004 -Concept Plan Revision #2 approved by City Commission August 28, 2006 -Aesthetic Review approved by City Commission September 25, 2006 -Site Development Permit Agreement approved by City Commission December 1 1, 2006 -Final Engineering approved by the City Commission, subject to negotiating a Developer's Agreement May 14, 2007 -Concept Plan Revision #3 approved by City Commission, subject to negotiating a Developer's Agreement. January 2008, Tousa filed for bankruptcy protection. PROJECT HISTORY: • The City Commission and City staff have expended a considerable amount of time reviewing plans and permit applications related to the Sonesta Pointe project. To date, the Developer has not successfully completed the permit process and has not broken ground on this project. 042808_COMM_Regular_602_Sonesta Pointe Site Development Permit (2) April 28, 2008 Regular Agenda Item 602 Page 2 of 4 • Sonesta Pointe is an Engle Homes project that as of the most recently approved concept plan consists of 289 residential units made up of 114 detached single-family units, 72 duplex units, and 103 townhome units. The project is located on a 40.0 acre site on the east side of Tuskawilla Road, immediately south of the St. Johns Landing subdivision in the Winter Springs Town Center. • On September 25, 2006, the Winter Springs City Commission approved a Site Development Permit Agreement with Tousa for site clearing at the Sonesta Pointe subdivision. No work was performed and the permit has expired. • On December 11, 2006 the City Commission approved final engineering plans and an associated developer's agreement for the project, which at that time consisted of 408 townhome units. The developer's agreement was never finalized and recorded and no construction work was performed. • On May 14, 2007, the City Commission approved a revised concept plan for the Sonesta Pointe subdivision consisting of 289 residential units made up of 114 detached single- family units, 72 duplex units, and 103 townhome units. Final engineering for the revised concept plan has been reviewed by Staff but has not been submitted to the Commission for approval for a variety of reasons including the uncertainty surrounding the Developer and the Project after Tousa filed for bankruptcy protection earlier this year and the fact that a developer's agreement has not been successfully negotiated. The project has also been further complicated by the fact that at one time the City was advised that the Property was sold to another developer while in bankruptcy. The City was advised that the contract to sell the property was voided in bankruptcy. At this time, it is unclear what Tousa's intentions are for the property. • In addition, during the site development review process, Tousa represented in its plans that they controlled the land necessary to construct Michael Blake Boulevard from the development site to the former JDC Phase II development site, thereby allowing vehicular access to the Tousa site from S.R. 434. While Tousa acquired the project site from Schrimsher, it now appears that Tousa did not acquire a small segment of land that would connect the Tousa property to the former JDC phase II site. That small segment appears to be still owned by Schrimsher. This could potentially prove problematic for the construction of Michael Blake Boulevard and the future development of the Tousa site. As part of the development review process, Tousa obtained a permit from the U.S. Army Corp of Engineers that would have allowed Tousa to perform the work set forth in the attached Permit Agreement. The City has learned that this US Army Corp Permit has expired. It is unclear to the City whether Tousa will be successful in reviving that permit. Absent the U.S. Army Corp Permit, it appears that the proposed work can not occur. The proposed permit agreement requires that the all permits from the US Army Corp and other governmental agencies be obtained as a condition of the work. April 28, 2008 Regular Agenda Item 602 Page 3 of 4 PROPOSED SITE DEVELOPMENT PERMIT: Notwithstanding the uncertainty regarding this Project as mentioned above, Tousa has requested that the City permit clearing and grubbing in selected wetland areas onsite in order to satisfy conditions of Tousa's expired permit with the U.S. Army Corps of Engineers (USACOE). If the conditions of Tousa's permit with the USACOE are not satisfied, the ability to develop the Property in accordance with the approved concept plan and the City's Town Center Code may be jeopardized, including the construction of a portion of the proposed Michael Blake Boulevard that is located on land currently owned by Tousa and which runs through several areas of wetlands depicted on the attached Exhibit "B." • Tousa has proposed the clearing and grubbing of five (5) areas of onsite wetlands, exclusive of the two (2) ditches that traverse the site, as depicted in Exhibit "B" in the attached Site Development Permit Agreement. The clearing and grubbing would be limited to mowing, grubbing, and disking the top 12-inches of topsoil followed by leveling and compacting each area. • No trees are permitted to be removed under the proposed permit. Existing trees in the vicinity of the work areas aze required to be barricaded pursuant to Chapter 5 of the City Code and an orange fence must be installed at the tree drip line and subject to approval by the City Arborist. • The St. Johns River Water Management District has issued an Environmental Resource Permit for Sonesta Pointe. All proposed wetland impacts have been mitigated. • City Commission approval of this Site Development Permit does not approve any deviations from the City Code. Any deviations from the City Code must be documented and approved as a part of a Developer's Agreement. • Tousa must obtain all other required permits from both the City and any other agencies as applicable, prior to commencing work onsite including reviving the permit issued by the US Army Corp of Engineers. RECOMMENDATION: Staff acknowledges that there are many uncertainties regarding this project at this time, but at the request of Tousa, Staff recommends that the City Commission consider Tousa's request. ATTACHMENTS: Apri128, 2008 Regular Agenda Item 602 Page 4 of 4 1. Exhibit A - Sonesta Pointe Site Development Permit Agreement CITY COMMISSION ACTION: SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT This SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT (the "Permit") is issued by the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to by TOUSA HOMES, INC.., a Florida corporation ("Tousa"), whose address is 11315 Corporate Blvd., Suite 250, Orlando, Florida 32817, on this _ day of April, 2008. WITNESSETH: WHEREAS, during the past several years, Tousa has attempted to obtain the necessary permits for a residential town center development project within the City of Winter Springs; and WHEREAS, Tousa has previously received several approvals from the City for the Project that were either granted conditionally upon the successful negotiation of a development agreement with the City or that have expired; and WHEREAS, Tousa and the City have yet to successfully negotiate an acceptable development agreement; and and WHEREAS, Tousa has also sought an amendment to the conditional approvals as well; WHEREAS, Tousa previously received a permit from the St. Johns River Water Management District and U.S. Army Corp of Engineers; and WHEREAS, although Tousa has not received final approval for the proposed development project, Tousa desires to implement conditions set forth in the permit issued by the U.S. Army Corp of Engineers including the mowing and grubbing in selected wetland areas located on the project site; and Winter Springs Early Work Permit Agreement Apri1200$ -1- WHEREAS, Tousa claims that the permit issued by the U.S. Army Corp of Engineers will expire on and that if the conditions of Tousa's permit with the U.S. Army Corps of Engineers are not satisfied by that time, Tousa's ability to develop the project may be jeopardized including construction of the proposed Michael Blake Boulevard right-of--way located on the Property; and WHEREAS, although the final approvals have not been granted for the project, the conditional plans and the site development data and information submitted to the City to-date are sufficient enough for the City to issue a limited site development permit in order to allow Tousa to perform a limited scope of preliminary site development work in order for Tousa to satisfy the terms and conditions of the permit issued by the U.S. Army Corp or Engineers; and WHEREAS, Tousa has also mitigated some onsite wetlands pursuant to a permit issued by the St. Johns River Water Management District issued a permit for Sonesta Pointe on May 9, 2006 and the onsite wetlands have been mitigated; and WHEREAS, in furtherance of this request, the City desires to permit a limited scope of site development work under the terms and conditions stated herein and agreed to by Tousa; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to the terms and conditions set forth under this Permit as follows: 1.0 Recitals: Property. The foregoing recitals are true and correct and are hereby full incorporated herein by this reference. The real property which is subject to this Agreement is legally described in EXHIBIT "A," which is attached hereto and fully incorporated herein by this reference. 2.0 Scoue of Work. The scope of this Permit is limited to the following preliminary site development work on the Property: 2.1 Clearing and Grubbing. The clearing and grubbing of five (5) areas of onsite wetlands, exclusive of the two (2) ditches that traverse the site, as depicted in EXHIBIT "B". Said Exhibit is attached hereto and fully incorporated herein by this reference. Clearing and grubbing shall be limited to mowing, grubbing, and disking the top 12-inches of topsoil followed by leveling and compacting each area. All clear and grubbed materials shall be removed from the site. 2.2 Tree Removals and Protection. The removal of any trees is strictly and absolutely prohibited under this permit. In order to protect all existing trees on the Property, existing trees shall be barricaded in accordance with Chapter 5 of the City Code. Barricades shall consist of orange fencing and shall be located at the drip line of each tree, unless prior approval is granted by the City Arborist. All preliminary site development work shall be performed and completed within ninety (90) calendar days after the Effective Date of this Permit (as hereinafter described) and in Winter Springs Early Work Permit Agreement April 2008 -2- accordance with all applicable local, state, and federal laws, regulations, and permits. The completion date may be reasonably extended by the City Commission upon good cause shown. Any site development work not specifically authorized hereunder is hereby strictly prohibited. Tousa shall be required to obtain other City permits required to implement the work authorized by this Agreement, and said 90-day period shall be extended for such period of time as such implementation may be delayed by the City in reviewing and issuing such other City permits. During the term of this Permit, the City and its agents shall have the unconditional right of entry onto the Property to conduct inspections to determine compliance with the terms and conditions of this Permit. 3.0 Conditions Precedent to Commencement of Work. Prior to commencing the work set forth in section 2.0, the following documents shall be submitted by Tousa to the City in a form acceptable to the City: 3.1 Construction Vehicle Routi~:g Plan. A written construction vehicle routing plan which is designed to provide for a safe and convenient route for construction vehicles and equipment to go to and from the Property. Said plan is subject to reasonable modification by the City Manager in order to safeguard persons and property. 3.2 Otfier Government Agency Permits. A copy of any and all required permits issued by any other government agency. 3.3 Engineer Certifications. A written certification from the appropriate project engineer and/or consultant documenting that the work authorized under section 2.0 is in compliance with applicable environmental laws and permits including, but not limited to, laws applicable to endangered or threatened species, artesian water wells, wetlands, hazardous materials, and historical artifacts. Tousa shall have the duty to keep updated and current plans, permits, and certifications on file with the City during the term of this Permit. This Permit shall not become effective until such time as the City receives and approves the documents required by this section. 4.0 Permit Fee. Upon issuance of this Permit, Tousa shall pay the City's standard construction inspection fee equal to one percent (1%) of the estimated construction value of the work authorized by section 2.0. 5.0 Default; Restoration of Prot~erty. The City reserves the right to revoke or suspend this Permit if the City determines that Tousa is not in compliance with the terms and conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Tousa with written notice identifying any default of the Permit terms and conditions. Upon receipt of the notice of default, Tousa shall have five (5) business days to cure the default to the City's reasonable satisfaction unless additional time is granted by the City Manager or unless less time is provided by the City Manager because exigent circumstance warrant an immediate or more expedient cure in order to protect the public, health, safety and welfare.. If Tousa fails so to cure the default with the time proscribed herein, the City shall have the right to revoke or suspend this Permit without further notice. If the City suspends or revokes the Permit, Tousa shall Winter Springs Eazly Work Permit Agreement April 2008 -3- immediately work to secure the Property to a safe condition to the City's reasonable satisfaction so that the Property does not become a public nuisance or a health and safety hazard. At the City's discretion, such work may include, but not be limited to, removal of debris and vegetation, grading of the Property, mulching ,seeding, erecting sand barriers, fencing, and other activities to stabilize the Property from erosion. If Tousa fails to properly restore the Property within a reasonable period of time, the City shall have the right to make claim to and use the Security (as hereinafter described) to complete such work. In the event the amount of the Security is not sufficient to cover the Gity's expense for such work, Tousa agrees, upon written notice by the City, to reimburse the City for any incurred expenses not covered by the Security. If Tousa fails to fully reimburse the City, the City shall have the right to record, with the Seminole County Clerk of the Court, an assessment lien on the Property for any such un-reimbursed expenses. 6.0 Securi Upon issuance of this Permit, Tousa shall post a performance bond, irrevocable letter of credit letter of credit, or escrow deposit with the City in the amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00) as security that: (i) the work authorized and required by this Permit is performed and completed in full compliance with any and all terms and conditions of this Permit; (ii) any and all fines/penalties are fully paid and remediation work performed pursuant to Chapter 5 of the City Code for the improper damage or removal of existing trees on the Property ("Security"); and (iii) repairs are made to any public infrastructure that is damaged as a result of Tousa's work under the terms and conditions of this Permit. If the Security is a bond or irrevocable letter or credit, it shall be issued by a company or bank, and in a form, acceptable to the City Manager and the City Attorney. 7.0 Indemnity, Release, Hold Harmless. Tousa hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees, and attorneys from and against all claims, losses, damages, personal injuries (including but not ~ limited to death), or liability (including reasonable attorneys fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of this Permit; and (2) any work performed under this Permit, including, but not limited to any and all acts and omissions of Tousa and its contractors. 8.0 Representations and Warranties. Tousa represents and warrants that the work authorized by this Permit is being performed with the knowledge and understanding that said work is being done prior to final engineering approval by the City and that final engineering approval may be denied by the City or result in additional site development not contemplated by this Permit or that any conditional permit approvals may expire. Tousa agrees that they are assuming the full and complete risk that final engineering may de denied by the City or additional site development work may be required and may include modification of the work performed under this Permit or that any conditional approvals may expire. In addition, the undersigned representative of Tousa hereby represents and warrants that this Agreement once executed is a binding obligation on Tousa notwithstanding the fact that Tousa has filed for bankruptcy protection and that the undersigned has the authority to execute this Agreement on Tousa's behalf. 9.0 No City Representation and Warranties. Tousa acknowledges and agrees that, although this Permit indicates that the City is considering final engineering approval for the Winter Springs Early Work Permit Agreement April 2008 -4- Property and Tousa and the City have not come to terms on a development agreement, the City in no way represents or warrants that the City has approved or will approve said plans or development agreement. 10.0 Prior Consent Required for Transfer of Permit. This Permit is not transferable or assignable without the prior consent of the City Commission. 11.0 Applicable Law. This Permit shall be governed by and constructed in accordance with the laws of the State of Florida. 12.0 Amendments. This Permit shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. 13.0 Entire Permit Agreement. This Permit supersedes any other agreement, oral or written, and contains the entire agreement between the City and Tousa as to the specific work authorized under section 2.0 of this Permit. 14.0 Severabilitv. If any provision of this Permit shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional right to declare this Permit null and void and require that the work authorized by section 2.0 be immediately stopped. 15.0 Effective Date. This Permit shall become effective upon approval by the City Commission, execution of this Permit by all parties hereto, and the completion of the conditions precedent set forth in section 3.0 of this Permit ("Effective Date"). 16.0 Relationship of the Parties. The relationship of the parties to this Permit is contractual and Tousa is 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. 17.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 18.0 City's Police Power. Tousa agrees and acknowledges that the City hereby reserves all police powers granted to the City by law, particularly with respect to whether or not the City Winter Springs Early Work Permit Agreement April 2008 -5- Commission will approve the final engineering plans for the Property. In no way shall this Permit be construed as the City bargaining away or surrendering it police powers. 19.0 Third-Party Rights. This Permit is not athird-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 20.0 Attorney's Fees. Should the City take any action to enforce this Permit, Tousa agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and costs, through all appellate proceedings, in connection with said enforcement. 21.0 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 Permit. The failure of this Permit to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Tousa 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 other permits for the Property in the event that Tousa shall be in default hereunder beyond any notice and cure period, if any. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] Winter Springs Early Work Permit Agreement April 2008 -6- IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: By: Andrea Lorenzo Luaces, City Clerk CITY SEAL STATE OF FLORIDA COUNTY OF SEMINOLE Anthony Garganese, City Attorney for the City of Winter Springs, Florida Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well know to me be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument of 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 , 2008. (NOTARY SEAL) CITY OF WINTER SPRINGS By: John F. Bush, Mayor APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: By: Notary Public My commission expires: Winter Springs Early Work Permit Agreement April 2008 _7. Signed, sealed and delivered in the presence of the following witnesses: TOUSA HOMES, INC., a Florida corporation By: Signature of Witness Chamma Skipper, Director of Land Development Date: Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 2008, by Chamma Skipper, as Director of Land Development of TOUSA HOMES, INC.., a Florida corporation. He is personally know to me or has produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Winter Springs Early Work Permit Agreement April 2008 -8- SECTIONS 6 8 31, TOWNSHIP 20 SOUTH, RANGE 31 EAST WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA SWL ~ ... .oMS L.NMC Owx ~,C ~ \ ~/ /~/- \ T \ a w I -s.~s5.= lI S~.rn"~5 L~A~N NG ~` \ ~ST r ~i~z0 I u~~~ler~um snY'wT ++-~ni ~ / ~~ ~'j aLieale. / \I\ ~i~ s n Y \\-,~,al.aa NYaI'LM. 1. NT OE ENCENENT -u~ki ~LYR ~"itiv \~ q ~ ~~ TflWll 1f D 6V38'DO' r.4 r \ SWL 1 '1 R.150.00' ° PCINi jE-~ONNl1C... _.... ~ - w~ • \ ~ gar R ~~ ~ OW ZONE AE-10 1W !0 0 IW aoan A41VU Is1oN I p, ~,>B N : ~~ sT L 1 -_ D.R. MITCHELL'S SURVEY OF \\\ ~~ N'A91YLi ~i E LEW CRANT ON UKE .ESSI/P ~m~.iao O "l~ LOT l ` ~.~ .~ N D T ~ j 1 ~ n ` PLA TTEO w~a .~ J~~=gam ,fl Area 1 ~~~ Q z$3~ J PARCELI ~~~~~ ^ ``~ ~? i ~ q, a~ y SWL °0 Te rP wrwn~P°a ~a°Fm ~ '\ \~~ 39 Y Tu i V7 m ~' , ce: ~ ~~` 1 .P$. ~ 1 S$fi 1,, '~ Nse's7'S9wag9.e6'(o) L o T a z'? %~~ P mT 6 6EONWNO aLYMI J~ 9M f1Ax a ``` ~~ Py NJIf08'01'E 16.00' s~ w 'R 1 >„ Michael Blake Blvd ~ gs ¢~ 1 ,~, a, ~ PARCEL2 ~ ~ ll Area 2 ,~ ,~~,~ ;;, _~_ ~~o~ a. Right-of-Way '- ~;, ~$ ~ ~z~. ~ , il0 ':''~~, ' t)l \ 11 A ~~A.~~~~1ea nA Neo.~wcr. ~ ~~ .,e ~; THE LEW GRANT ON LAKE JESSUP ~~ Area 4 p NOT PLATTED ~~ Y' LOT 5 ~' ~ / ~~ I ~ ii ~ ~ a N T Area 5 $ ,,~ ,~ ; o' .~ ,,. ~~.;; ~ „a ~ ~- r D.R. MITCHELL'S SURVEY OF p.~N. 1 153 1 ,w i % ME LEW GRANT ON LAKE .ESSUP ~ G ~ w~rm~. nxa LOT 8 16 m,5 ~.~ Ico ,ss 15e1ST 1~ N v NSY1652 w11192fi.50 ~1 •••~NQ 1 N9P16'S21V 1.70' ~- ~~ I , { f 'lil tl ~ f ~i $`~'Ifa'w ~i.`(.~ 111 ,1 ,1 I n `I. 1` EXHIBIT B SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT This SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT (the "Permit") is issued by the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to by TOUSA HOMES, INC.., a Florida corporation ("Tousa"), whose address is 11315 Corporate Blvd., Suite 250, Orlando, Florida 32817, on this~~'"~day of aril; 2008. ~SNS't' WITNESSETH: WHEREAS, during the past several years, Tousa has attempted to obtain the necessary permits for a residential town center development project within the City of Winter Springs; and WHEREAS, Tousa has previously received several approvals from the City for the Project that were either granted conditionally upon the successful negotiation of a development agreement with the City or that have expired; and WHEREAS, Tousa and the City have yet to successfully negotiate an acceptable development agreement; and WHEREAS, Tousa has also sought an amendment to the conditional approvals as well; and WHEREAS, Tousa previously received a permit from the St. Johns River Water Management District and U.S. Army Corp of Engineers; and WHEREAS, although Tousa has not received final approval for the proposed development project, Tousa desires to implement conditions set forth in the permit issued by the U.S. Army Corp of Engineers including the mowing and grubbing in selected wetland areas located on the project site; and Winter Springs Early Work Permit Agreement April 2008 -1- WHEREAS, Tousa acknowledges and agrees that the U.S. Army Corp of Engineers permit has expire and Tousa intends to attempt to renew said permit prior to engaging in any of the work authorized under this Agreement; and WHEREAS, Tousa represents that if the conditions of Tousa's permit with the U.S. Army Corps of Engineers are not satisfied upon renewal of the permit, Tousa's ability to develop the project may be jeopardized including construction of the proposed Michael Blake Boulevazd right-of--way located on the Property; and WHEREAS, although the final approvals have not been granted for the project, the conditional plans and the site development data and information submitted to the City to-date aze sufficient enough for the City to issue a limited site development permit in order to allow Tousa to perform a limited scope of preliminary site development work in order for Tousa to satisfy the terms and conditions of the permit issued by the U.S. Army Corp or Engineers; and WHEREAS, Tousa has also mitigated some onsite wetlands pursuant to a permit issued by the St. Johns River Water Management District issued a permit for Sonesta Pointe on May 9, 2006 and the onsite wetlands have been mitigated; and WHEREAS, in furtherance of this request, the City desires to permit a limited scope of site development work under the terms and conditions stated herein and agreed to by Tousa; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to the terms and conditions set forth under this Permit as follows: 1.0 Recitals; Property. The foregoing recitals are true and correct and are hereby fully incorporated herein by this reference as material terms of this Agreement. The real property which is subject to this Agreement is legally described in EXHIBIT `°A." which is attached hereto and fully incorporated herein by this reference. 2.0 Scope of Work. The scope of this Permit is limited to the following preliminary site development work on the Property: 2.1 Cleari~:g and Grubbi;+:g. The clearing and grubbing of five (5) azeas of onsite wetlands, exclusive of the two (2) ditches that traverse the site, as depicted in EXHIBIT "B". Said Exhibit is attached hereto and fully incorporated herein by this reference. Clearing and grubbing shall be limited to mowing, grubbing, and disking the top 12-inches of topsoil followed by leveling and compacting each area. All clear and grubbed materials shall be removed from the site. 2.2 Tree Removals and Protection. The removal of any trees is strictly and absolutely prohibited under this permit. In order to protect all existing trees on the Property, existing trees shall be barricaded in accordance with Chapter 5 of the City Code. Barricades shall consist of orange fencing and shall be located at the drip line of each tree, unless prior approval is granted by the City Arborist. 1Vinter Springs Early Work Permit Aereement April 2008 .2. All preliminary site development work shall be performed and completed within ninety (90) calendar days after the Effective Date of this Permit (as hereinafter described) and in accordance with all applicable local, state, and federal laws, regulations, and permits. The completion date may be reasonably extended by the City Commission upon good cause shown. Any site development work not specifically authorized hereunder is hereby strictly prohibited. Tousa shall be required to obtain other City permits required to implement the work authorized by this Agreement, and said 90-day period shall be extended for such period of time as. such implementation may be delayed by the City in reviewing and issuing such other City permits. During the term of this Permit, the City and its agents shall have the unconditional right of entry onto the Property to conduct inspections to determine compliance with the terms and conditions of this Permit. 3.0 Conditions Precedent to Commencement of Work. Prior to commencing the work set forth in section 2.0, the following documents shall be submitted by Tousa to the City in a form acceptable to the City: 3.1 Construction: Ve/ticle Rorrti~:g Plar:. A written construction vehicle routing plan which shall be designed to provide for a safe and convenient route for construction vehicles and equipment to go to and from the Property. Said plan is subject to reasonable modification by the City Manager in order to safeguazd persons and property. 3.2 Otlter Gover~:me~:t Agency Permits. A copy of any and all required unexpired permits issued by any other government agency including, but not limited to, the U.S. Army Corp of Engineer permit mentioned above. 3.3 E~:gineer Certificatio~:s. A written certification from the appropriate project engineer and/or consultant documenting that the work authorized under section 2.0 is in compliance with applicable environmental laws and permits including, but not limited to, laws applicable to endangered or threatened species, artesian water wells, wetlands, hazardous materials, and historical artifacts. Tousa shall have the duty to keep updated and current plans, permits, and certifications on file with the City during the term of this Permit. This Permit shall not become effective until such time as the City receives and approves the documents required by this section. 4.0 Permit Fee. Upon issuance of this Permit, Tousa shall pay the City's standard construction inspection fee equal to one percent (1 %) of the estimated construction value of the work authorized by section 2.0. 5.0 Default; Restoration of Property The City reserves the right to revoke or suspend this Permit if the City determines that Tousa is not in compliance with the terms and conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Tousa with written notice identifying any default of the Permit terms and conditions. Upon receipt of the notice of default, Tousa shall have five (5) business days to cure the default to the City's reasonable satisfaction unless additional time is granted by the City Manager or unless less time Winter Springs Early Work Permit Agreement April 2008 -3- is provided by the City Manager because exigent circumstance warrant an immediate or more expedient cure in order to protect the public, health, safety and welfare.. If Tousa fails so to cure the default with the time proscribed herein, the City shall have the right to revoke or suspend this Permit without further notice. If the City suspends or revokes the Permit, Tousa shall immediately work to secure the Property to a safe condition to the City's reasonable satisfaction so that the Property does not become a public nuisance or a health and safety hazazd. At the City's discretion, such work may include, but not be limited to, removal of debris and vegetation, grading of the Property, mulching ,seeding, erecting sand barriers, fencing, and other activities to stabilize the Property from erosion. 1f Tousa fails to properly restore thc Property within a reasonable period of time, the City shall have the right to make claim to and use the Security (as hereinafter described) to complete such work. In the event the amount of the Security is not sufficient to cover the City's expense for such work, Tousa agrees, upon written notice by the City, to reimburse the City for any incurred expenses not covered by the Security. If Tousa fails to fully reimburse the City, the City shall have the right to record, with the Seminole County Clerk of the Court, an assessment lien on the Property for any such un-reimbursed expenses. 6.0 Security. Upon issuance of this Permit, Tousa shall post a performance bond, irrevocable letter of credit letter of credit, or escrow deposit with the City in the amount of Twenty-Five Thousand and No/100 Dollazs ($25,000.00) as security that: (i) the work authorized and required by this Permit is performed and completed in full compliance with any and all terms and conditions of this Permit; (ii) any and all fines/penalties are fully paid and remediation work performed pursuant to Chapter 5 of the City Code for the improper damage or removal of existing trees on the Property; and (iii) repairs aze made to any public infrastructure that is damaged as a result of Tousa's work under the terms and conditions of this Permit ("Security"). If the Security is a bond or irrevocable letter or credit, it shall be issued by a company or bank, and in a form, acceptable to the City Manager and the City Attorney. 7.0 Indemnity, Release Hold Harmless. Tousa hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorneys fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of this Permit; and (2) any work performed under this Permit, including, but not limited to any and all acts and omissions of Tousa and its contractors. 8.0 Representations and Warranties Tousa represents and warrants that the work authorized by this Permit is being performed with the knowledge and understanding that said work is being done prior to final engineering approval by the City and that final engineering approval may be denied by the City or result in additional site development not contemplated by this Permit or that any conditional permit approvals may expire. Tousa agrees that they are assuming the full and complete risk that final engineering may de denied by the City or additional site development work may be required and may include modification of the work performed under this Permit or that any conditional approvals may expire. In addition, the undersigned representative of Tousa hereby represents and warrants that this Agreement once executed is a binding obligation on Tousa notwithstanding the fact that Tousa has filed for Winter Springs Early Work Permit Agreement Apri12008 -4- bankruptcy protection and that the undersigned has the authority to execute this Agreement on Tousa's behalf. 9.0 No City Representation and Warranties Tousa acknowledges and agrees that, although this Permit indicates that the City is considering final engineering approval for the Property and Tousa and the City have not come to terms on a development agreement, the City in no way represents or warrants that the City has approved or will approve said plans or development agreement. 10.0 Prior Consent Renuired for Transfer of Permit This Permit is not transferable or assignable without the prior consent of the City Commission. 11.0 Applicable La~v. This Permit shall be governed by and constructed in accordance with the laws of the State of Florida. 12.0 Amendments. This Permit shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. 13.0 Entire Permit Agreement. This Permit supersedes any other agreement, oral or written, and contains the entire agreement between the City and Tousa as to the specific work authorized under section 2.0 of this Permit. 14.0 Severability. If any provision of this Permit shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional right to declare this Permit null and void and require that the work authorized by section 2.0 be immediately stopped. 15.0 Effective Date. This Permit shall become effective upon approval by the City Commission, execution of this Permit by all parties hereto, and the completion of the conditions precedent set forth in section 3.0 of this Permit ("Effective Date"). 16.0 Relationship of the Parties The relationship of the parties to this Permit is contractual and Tousa is 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 towazd third persons or the public in any manner, which would indicate any such relationship with the other. 17.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions Winter Springs Early Work Permit Agreement April 2008 -j- arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 18.0 City's Police Power. Tousa agrees and acknowledges that the City hereby reserves all police powers granted to the City by law, pazticulazly with respect to whether or not the City Commission will approve the final engineering plans for the Property. In no way shall this Permit be construed as the City bargaining away or surrendering it police powers. 19.0 Third-Party Rights. This Permit is not athird-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 20.0 Attorney's Fees. Should the City take any action to enforce this Permit, Tousa agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and costs, through all appellate proceedings, in connection with said enforcement. 21.0 Development Permits. Nothing herein shal] limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Permit. The failure of this Permit to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Tousa 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 other pemuts for the Property in the event that Tousa shall be in default hereunder beyond any notice and cure period, if any. [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] Winter Springs Early Work Permit Aereement April 2008 -6- IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS By: .y~ ~ /~lL~'Y~ J F. Bush, Mayor ATTEST: By: CITY SEAL STATE OF FLORIDA COUNTY OF SEMINOLE APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. ~~~~ d~ Date: By: thony Gazganese, City Attorney for the City of Winter Springs, Florida Personally appeazed before me, the undersigned authority, John F. Bush, well know to me to be the Mayor of the City of Winter Springs, Florida, and acknowledged before me that he executed the foregoing instrument of 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 (NOTARY ~ r.~ Notary Public State of Florida ~: Danielle Harker ~, c d My Commission DD663371 '~'aa°~ Expires 0411512011 Luaces, City Clerk day of ~' ~~: {~ T , 2008. n ~ ) ~ ~~ Not Public My commission expires: %4 ~ ~ ~ f ~ Winter Springs Early Work Permit Agreement April 2008 -7- Signed, sealed and delivered in the presence of the following witnesses: ~~' ~ ~~ ~~ Sign u~re~of Witness %~7 Printed Name of Witness /~ Signature of Witness Printed Name of 1Vimess STATE GF FLO DA COUNTY OF ~?(1(' _ as identification The foregoing instrument was acknowledged before me this ~ day of ~~'(-~~~lL~r ?008, by Chamma Skipper, as Director of Land Develo me p nt of TOUSA HOMES, INC.., a Florida corporation. He is personally know to me or has produced (NOTARY SEAL) ~~111111111111I1//~// `,,,.•~~~a~ce ~H yak%; _ 0~1011201r1 ~~1~RY PYdIIC •` Co~~oissioo ! ~r'l. ooss~2es ~~~~''% E OF F l~~`~~P~``\ '///,/llllllllllll~~` TOUSA HOMES, INC., a Florida corporation Date: d ~`~~ d~ By: ,~ a Skipper, Director of Land Development ' ~/~ ,~ (N//otj~ary ublic Signature) / C.,"~lldice ~~-~~~s (Print Name) ' Notary Public, State of ~/U2~ j)~; Commission No.: ~D~ 8 ~avs' My Commission Expires: / Winter Springs Early Work Permit Agreement April ?008 -8-