HomeMy WebLinkAboutNguyen, Chanh Q. and Ngan M. Development Agreement -2003 04 03
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~prepared by and return to:
nthony A. Garganese, Esquire
rown, Salzman, Weiss & Garganese, P.A.
Post Office Box 2873
Orlando, Florida 32802-2873
(407) 425-9566
MARYANNE MORSE, CLERK OF CIRCUIT COURT
SEMINOLE COUNTY
BK 04799 PG 1715
CLERK'S # 2003071430
RECORDED 04/30/2003 11:42:13 AM
RECORDING FEES 69.00
RECORDED BY G Harford
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (herein referred to as the "Agreement"),
made and executed this ~day of IY\~ ,2003, by and between the CITY OF
WINTER SPRINGS, a Florida municipal corporation (hereinafter referred to as "City"),
whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and CHANH Q.
NGUYEN and NGAN M. NGUYEN, husband and wife (hereinafter referred to as "Owner"),
whose address is 4409 Steed Terrace, Winter Park, Florida 32792.
WITNESSETH:
WHEREAS, Owner owns certain real property located within the City of Winter
Springs, Florida, as legally described herein; and
WHEREAS, a borrow pit currently exists on that property; and
WHEREAS, Owner desires to engage in landfill operations to fill the borrow pit; and
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WHEREAS, the fill shall only be inorganic "clean debris" as approved by the Florida
Department of Environmental Protection and the City; and
WHEREAS, Owner desires to perform the landfill activities on the Property in a safe
and healthy manner, and in a manner that does not create a public nuisance, so that the
Property may be developable in the future; and
WHEREAS, the Owner and City desire to eX,ecute;this AgreeIIlent to effectuate the
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filling of the borrow pit under the terms and conditioh~ agreed to hereuirder'; and
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WHEREAS, providing Owner abides by all"tl1e: t~~s and conditions set forth
hereunder, the City Commission of the City ofWinte,rSR~~~~lnQd,~.Jh~t this Agreement is
consistent with the City's Comprehensive Plan as wellasthe City to& 'df Ordinances and is a
legislative act of the City Commission of the City of Winter Spri~gs.'
NOW, THEREFORE, in consideration of the mutual covenants and mutual benefits
herein contained, the parties agree as follows:
1.0 Recitals. The foregoing recitals are hereby incorporated herein by this
reference and deemed a material part of this Agreement.
Page 1 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1715
2.0 Intent and Puroose. The intent and purpose of this Agreement is to permit
Owner and their authorized designees to fill the borrow pit located on the Property with
inorganic material, as more particularly described in Paragraph 5.0 of this Agreement.
3.0 Prooertv. The real property subject to this Agreement is legally described on
Exhibit "A," which is hereby fully incorporated herein by this reference (hereinafter referred
to as "Property").
4.0 Borrow Pit. The borrow pit referred to under this Agreement is depicted on
Exhibit "B," which is hereby fully incorporated herein by this reference (hereinafter referred to
as "Borrow Pit").
5.0 Permit Authorized. Upon approval of the site plan required by Paragraph
5.3 herein and the restoration plan required pursuant to Paragraph 5.4 herein, the City hereby
grants Owner a permit to fill the Borrow Pit with inorganic materials subject to the following
terms and conditions:
5. 1 Prior to commencing and continuing the landfill operations permitted by this
Agreement, Owner shall obtain and maintain in good standing any required
federal, state, local and special district authorizations necessary to engage in
the landfill operations.
,....-..,
5.2 The material used to fill the Borrow Pit shall be limited to inorganic materials,
provided those materials also satisfy the definition of "clean debris" under
Section 62-701.200(15), Florida Administrative Code, which at the effective
date of this Agreement means: "any solid waste which is virtually inert, which
is not a pollution threat to ground water or surface waters, is not a fire hazard,
and is likely to retain its physical and chemical structure under expected
conditions of disposal or use. The term includes brick, glass, ceramics, and
uncontaminated concrete including embedded pipe or steel." Street sweeping
material, asbestos, contaminated and remediated soil, pollutants and
hazardous waste, and organics are strictly prohibited and shall not be used to
till the Borrow Pit.
5.3 Within thirty (30) days of the effective date of this Agreement, Owner shall
submit to the City for approval a site plan, drawn to scale bya duly-licensed
engineer, depicting the Property, Borrow Pit, ingress and egress to the
Property, parking, location of all trailers, offices, and other structures, and
such other matters reasonably required by the City. The construction trailer
and/or office shall be located within the interior part of the Property to avoid
being visible from Orange Avenue. Approval of the site plan by the City shall
Page 2 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1717
be a condition precedent to the landfill operations authorized by this
Agreement.
5.4 Within thirty (30) days of the effective date of this Agreement, Owner shall
submit to the City for approval a restoration plan, drawn to scale by a duly-
licensed engineer, depicting the proposed final status of the Property after the
landfill operations have been completed, including grade, slopes, water
retention areas, and other landscaping features of the Property deemed
necessary by the City to make the Property suitable for development purposes.
5.5 At all times, the Owner shall conduct the landfill operations of the Borrow Pit
in full compliance with this Agreement and all applicable federal, state, local,
and special district laws, regulations, and permits.
5.6 Upon demand by the City, Owner shall remove from the Borrow Pit any
material that does not comply with the terms and conditions set forth in this
Paragraph 5.0.
5.7 The term of this agreement shall be the period of time approved by Seminole
County for use of the Cross Seminole Trail, or one (1) year from the effective
date of this agreement whichever shall come first.
5.8
Owner shall fully comply with the fill procedures set forth in Paragraph 6.0
and the other terms and conditions set forth in this Agreement.
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5.9 Owner shall provide to the City a trip ticket for each delivery truck delivering
debris to the Property. The trip ticket shall identify at a minimum the name of
the trucking company, the date of the delivery, and the place of origin of the
debris.
6.0 Fill Procedures. Prior to any debris being dumped, placed or located within
the landfill area (pond), Owner shall contact the City for an inspection of the debris. If said
debris satisfies the conditions set forth in Paragraph 5.2 of this Agreement, the City shall issue
a permit authorizing the placement of the debris into the landfill area. For each inSpectIon,
Owner shall pay the City a $50.00 permit inspection fee.
6.1 Owner shall be required to temporarily locate any debris on the Property at
locations suitable for the City's inspection and approved in advance by the
City.
6.2 Owner shall establish a permit fee escrow account with the City and deposit
$500 within the account prior to any landfill operations commencing on the
Property. The escrow account shall remain open until the Agreement
Page 3 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1718
--.
terminates. At such time the escrow account is depleted to $100.00, the
Owner shall replenish the escrow account balance so that the balance equals at
least $500. The City shall have the right to draw from the escrow account to
pay for all permit fees or liquidated damages imposed by this Agreement. If
any escrow account balance remains at the termination ofthis Agreement, said
balance shall be applied to pay any other fees or liquidated damages that
Owner owes the City. Any remaining fees will be returned to the Owner.
6.3
The City shall have the unconditional right to conduct random inspections on
the Property.
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7.0 Security Fence. In conjunction with the site plan approval process described
in Paragraph 5.3, Owner shall submit a completed fence permit application to the City and
install a temporary six (6) foot chainlink: security fence along the entire southern boundary of
the property as required by the approved site plan. The fence shall comply with applicable
City Codes, shall not be constructed of barbed wire or any other material that may pose a
public safety hazard, and shall be constructed of a quality and type deemed acceptable to the
City. An appropriate gate(s) shall be installed for ingress and egress to the Borrow Pit. All
gates shall be closed and locked at all times during which the landfill operations authorized by
this Agreement are not occurring. The fence and gates shall be maintained in good order until
such time as the landfill operations have been completed, the Borrow Pit has been completely
filled, and the Property has been graded in accordance with Paragraph 14.0 of this
Agreement. The fence shall not be installed until the City approves the fence permit
application
8.0 Haul Route. All materials being brought to and from the Property by vehicle
shall be transported via the Cross Seminole Trail as permitted by Seminole County with
access from State Road 434 and via the "authorized delivery truck route" which is depicted
on Exhibit "C," attached hereto and fully incorporated herein by this reference. Owner shall
be required to provide the City with written verification that Seminole County does not object
to Owner using said avenue for the landfill operations authorized herein.
9.0 Hours of Operation. In carrying out the landfill operations, Owner shall
conduct storage, maintenance, and admimstrative aCtIVItIes between the hours of '/:UU a.m.
and 8:00 p.m. daily op the Property. However, the delivery of debris to the Property shall be
strictly limited to between the hours of7:30 a.m. and 1 :00 p.m., and between 3 :00 p.m. and
5:30 p.m., Monday through Friday. In addition, Owner shall perform the landfill operations
using standard trade practices which will reduce or negate noise, excessive traffic, or any
other unreasonable disruption to the neighborhood affected by Owner's operation.
10.0 Truck Reauirements. Owner shall require that all trucks delivering materials
to and from the Property shall abide by the following requirements:
FILE NUM 2003071430
OR BOOK 04799 PAGE 1719
10. 1 The payload beds of all trucks shall be covered so as to eliminate debris
blowing or falling off the trucks. All debris falling on the roadways or
adjacent property shall be immediately picked up by the trucking company or
the Owner. If the trucking company or the Owner fail to pick up the debris,
Owner agrees to reimburse the City for all costs incurred by the City to clean-
up the debris. The reimbursement shall be paid within fourteen (14) days of
receiving a cost invoice from the City.
10.2 Notwithstanding any other posted speed limit, the speed of trucks shall not
exceed twenty 20) miles per hour on the Cross Seminole Trail and the access
road from State Road 434. Owner shall be required to provide all trucking
companies delivering to and from the Property advance written notice of the
speed limits set forth in this paragraph. A copy of said notice shall be
provided to the City's City Manager on the same day said notice is sent to any
trucking company.
11.0 Performance Bond. Owner shall provide a One-Hundred Thousand and
no/100 ($100,000.00) Dollar performance and payment bond or letter of credit to the City
which shall insure that the Owner complies with all of the terms and conditions of this
Agreement.
11.1 The bond or letter of credit required by this paragraph shall be issued by a
surety or financial institution deemed acceptable to the City. The bond or
letter of credit shall remain continuously in effect during the term of this
Agreement, and any extensions thereto, and also remain in effect at least six
(6) months after the termination of this Agreement. The bond or letter of
credit shall be in a form acceptable to the City. All bonds or letters of credit
signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
11.2 If the surety or financial institution furnishing the bond or letter of credit to
the City is declared bankrupt or becomes insolvent or its rights to do business
are terminated in the State of Florida, or ceases to be acceptable to the City,
Owner shall within ten (10) days thereafter substitute another bond and surety
or letter of credit issued by a financial institution, which must be acceptable to
the City, or other types of security reasonably acceptable to the City.
12.0 Susuension and Revocation. This Agreement and the permit granted
hereunder are subject to suspension and/or termination by the City, upon written notice to
Owner, at any time for the failure of Owner and Owner's agents and contractors to comply
with the terms and conditions herein. Upon suspension or termination, Owner shallg
Page 5 oflI
FILE NUM 2003071430
OR BOOK 04799 PAGE 1720
immediately cease and desist all landfill operations permitted under this Agreement. Iflandfill
- operations have been suspended, such operations may only resume at such time as Owner has
completed appropriate remedial actions to the complete satisfaction of the City.
13.0 Notice to Contractors. Owner shall be required to provide all contractors
and agents with notice of the terms and conditions of this Agreement prior to any contractor
and agent engaging in any work on the Property. Contractors and agents shall be required to
abide by all applicable terms and conditions of this Agreement.
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14.0 Final Gradin2 and Insoection ofProoertv. Upon completion of the land-
filling of the Borrow Pit, Owner shall grade and landscape the Property in accordance with
the restoration plan required by Paragraph 5.4 of this Agreement. When the final grading and
landscaping have been completed, Owner shall request in writing to the City's City Manager
that the City perform a final inspection of the Property which shall be for purposes of
determining compliance with this Agreement. As part of the final inspection, Owner shall
provide the City with a written certification that all material used to fill the Borrow Pit
complies with the conditions set forth in Paragraph 5.0 above. Said certification shall be
prepared by a qualified person and in a form deemed acceptable to the City. The City
reserves the right to require Owner to provide, at Owner's expense, suitable soil borings and
water quality monitoring tests (pursuant to Paragraph 17.0) on the Property as part of the
certification. If the City determines that the Property has passed the final inspection, the
parties shall execute a written notice of termination which shall be filed in the Public Records
of Seminole County, Florida. Said notice shall indicate at a minimum that this Agreement has
been terminated and is no longer in full force and effect.
15.0 City Ri2ht of Entrv. Owner hereby grants the City and its duly authorized
agents and contractors an unconditional right of entry on the Property to determine whether
Owner is complying with the terms and conditions of this Agreement and applicable City
Codes.
16.0 Best Mana2ement Practices. Owner and their agents and contractors shall
employ best management practices during construction on the Property and upon completion
of the landfill operations to assure that all sediments are retained on the Property. At a
mmImum, WIth addItIonal measures utIlIzed as needed, these practIces shall mclude:
16. 1 Grading shall be employed to avoid off-Property runoff and to keep sediment
on the Property.
16.2 The placement of silt screenslbarriers to minimize wind-blown debris and dust.
Page 6 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1721
16.3 Erosion control measures including, but not limited to, seeding, mulching, and
sodding the Property, especially slopes and roadway shoulders.
17.0 Water Quality Test. Prior to the commencement of any landfill operations
on the Property and upon completion of said operations, Owner shall provide the City a
primary and secondary contaminant report of the water quality of the pond located on the
Property. In addition, until completion of said operations, Owner shall provide the City a
monthly V. O. C. test report of the water quality of said pond. All water quality tests and
reports shall be conducted and prepared by a duly qualified professional and laboratory
mutually acceptable to the City and Owner. All laboratory reports shall be delivered directly
to the City Manager from the laboratory.
18.0 Remedies in Liauidated Dama2es. Nothing herein shall affect the rights in
law or equity for either party except as specifically described in this paragraph covering
liquidated damages for certain violations and breaches under this Agreement.
18.1 Owner and City agree that it is impossible to determine with any reasonable
accuracy the amount of compensatory damages the City and the public would be entitled to
recover upon Owner's breach or violation of Paragraphs 6.0, Fill Procedures, 8.0, Haul
Route, 9.0, Hours of Operation, and 17.0, Water Quality Test, under this Agreement by
Owner. It is also agreed that the compensatory damages consequent upon breach or violation
of said paragraphs are not readily ascertainable at the time this Agreement was prepared and
executed. Thus, in the event that Owner breaches or violates any of Owner's obligations,
covenants or promises under Paragraphs 6.0, Fill Procedures, 8.0, Haul Route, 9.0, Hours of
Operation, and 17.0, Water Quality Test, of this Agreement, City shall be entitled to recover,
as liquidated damages, the sum equal to $500.00 for each violation or breach, except that for
each violation or breach of the terms and conditions under Paragraph 8.0, Haul Route, the
City shall be entitled to recover a sum equal to $100.00.
18.2 For the purposes of Paragraph 18.1 of this Agreement, it is agreed that any
liquidated damages assessed to Owner equal the fair market value of the obligation breached
or violated by Owner and the liquidated damages are not disproportionate to any
compensatory damages that might reasonably be expected to follow from a breach or
violation. In addition, the liquidated damages set forth herein are mutually agreed to be
reasonable, not intended to be a penalty and are reasonably related to the actual damages that
would be suffered by the City and the public. For violations or breaches of Paragraphs 6.0,
Fill Procedures, 8.0, Haul Route, 9.0, Hours of Operation, and 17.0, Water Quality Test, the
parties agree that the City shall not have the option to recover actual compensatory damages
over the liquidated damages set forth herein.
Page 7 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1722
19.0 Successor and Assiens. Owner shall notify the City, in advance and in writing,
of any transfer of ownership of the Property. This Agreement shall automatically be binding
upon and shall inure to the benefit of the successors and assigns of the Property.
20.0 Applicable Law: Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida and the Winter Springs Code. The parties
agree that venue shall be exclusively within Seminole County, Florida, for all state disputes or
actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all
such federal disputes or actions.
21.0 Amendments. This Agreement shall not be modified or amended except by
written agreement executed by all parties hereto and approved by the City Commission or
City Manager of the City of Winter Springs.
22.0 Entire Aereement: Headines. This Agreement contains the entire agreement
between the parties as to the subject matter hereof Paragraph headings are for convenience
of the parties only and are not to be construed as part of this Agreement. All references to
whole paragraph numbers (e.g., 16.0) shall include all subparagraphs thereunder (e.g., 16.1,
16.2, and 16.3).
23.0 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 City shall have the
unconditional right to either terminate this Agreement, modify this Agreement with the
Owner's consent, or remain in the Agreement as modified by the court.
. 24.0 Recordation. Upon full execution of this Agreement by the parties, this
Agreement shall be recorded by the City in the Public Records of Seminole County, Florida,
and shall run with the land.
25.0 Citv's Police Powers. Owner acknowledges and agrees 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. Any City permits
issued on the Property prior to the effective date of this Agreement that are in conflict with
this Agreement are hereby deemed null and void.
26.0 Sovereien Immunitv. Nothing contained in this Agreement shall be
construed as a waiver ofthe City's right to sovereign immunity under Section 768.28, Florida
Statutes, or any other limitation on the City's potential liability under state or federal law.
27.0 Notices. All notices and correspondence in connection with this Agreement
must be in writing. Notice and correspondence shall be sent by first class mail or hand
Page 8 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1723
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delivered at the addresses set forth below or at such other addresses as the parties hereto shall
designate to each other in writing:
27.1 If to City: Mr. Ronald W. McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Telephone: 407-327-5957
Facsimile: 407-327-4753
27.2 If to Owner: Chanh Q. Nguyen
Ngan N. Nguyen
4409 Steed Terrace
Winter Park, Florida 32792
Telephone: 407-657-1467
Emergency Telephone: 407-629-1235
28.0 Waiver. Any forbearance by the City in exercising any right or remedy under
this Agreement shall not constitute a waiver of or preclude the exercise of any right or
remedy.
29.0 Indemnification and Hold Harmless. For all work performed pursuant to
this Agreement, Owner agrees to the fullest extent permitted by law, to indemnify and hold
,.- harmless the City, and its commissioners, employees, officers and city attorneys (individually
and in their official capacities) from and against any and all claims, losses, damages, personal
injuries (including but not limited to death), or liability (including reasonable attorneys fees
through all administrative and appellate proceedings)~ directly or indirectly arising out of or
resulting from any act or omission of Owner, and its employees, agents, and contractors under
this Agreement and/or in breach or violation of this Agreement.
30.0 City's Riebt to Seek Equitable Relief. Owner agrees, acknowledges and
recognizes that any breach of this Agreement by Owner may result in irreparable harm to the
City. Owner agrees that in addition to and not in lieu of all legal and equitable remedies
available to City by reason of such breach, City shall b@ entitl@d to equitable relief(including,
without limitation, specific performance and injunctive relief) to 'enjoin the occurrence and
condition of the breach.
31.0 Attornevs' Fees. The prevailing party in any litigation arising under this
Agreement shall be entitled to recover its reasonable attorneys' and paralegal fees and costs,
whether incurred at trial or appeal.
Page 9 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1724
32.0 No Joint Venture. Nothing herein shall be deemed to create ajoint 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.
33.0 Contractor Joinder. All contractors hired by Owner to perform any of
Owner's duties and responsibilities under this Agreement shall be required to execute a
joinder and guarantee prior to performing such duties and responsibilities. Said joinder and
guarantee shall be in a form acceptable to the City and shall require the contractor to abide by
the full terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as ofthe date
first written above.
CITY OF WINTER SPRINGS,.
a Florida Municip~l'<=orporation:
By: jJ~{/.m(?-----==>
Ron~w:1VfcLemore, City Manager
... L.c.c. A-~
OWNER: I
By~{adV
Chanh Q. Nguyen
~t
pnnfi!J S1C~&.7"~
.-------
BY:C'r'/~
Ngan . Nguyen
Page 10 of 11
FILE NUM 2003071430
OR BOOK 04799 PAGE 1725
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STATE OF FLORlDA
COUNTY OF SEMINOLE
I hereby certify that the foregoing instrument was acknowledged before me this (~ay of
Api;') ,2003, by CHANH Q. NGUYEN, 0 who is personally known to me, or ~ho has
produced FL iD('~" err:; Li c..~L(lS identification,
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~herebY certifY iliat lhe foregoing instrument was acknowledged before me this C/f l>day of
2003, by NGAN M. NGUYEN, 0 who is personally known to me, or ~ho has
pro uced PfaO.-I N;;'Fj)f.LJ:~x5370W as identification, (
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rlLE NUM 2003071430
799 PAGE 1726
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t:.^HltSll "tS';ILE NUM 20
OR BOOK 047
'vi A TER
CURRENT PROFILE
PROPOSED PROFILE
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L FlU. m IE ItIlRlWIIC
2. NOT m SCALE
REPAIR AREA
POND FILLING PLAN VIEW'
MEAD BDRRD\J PIT FILLING
11121/2002
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EXHIBIT "e"