HomeMy WebLinkAbout2002 11 11 Regular B NEW Development Agreement
COMMISSION AGENDA
ITEM B
Consent
Information
Public Hearin
Re ular X
November II, 2002
Meeting
MGR./C- IDeE!. )ff
REQUEST:
Community Development Department requesting Commission consider and approve a development
agreement for a 4.42-acre tract owned by Mr. Chanh Nguyen, located on the south side of Orange
Avenue, generally east of Central Winds Park and generally north of the Winter Springs High School.
The development agreement addresses filling an existing borrow pit.
PURPOSE:
The purpose of this agenda item is to request that the Commission approve a development agreement
addressing issues and concems pertinent to filling, covering, and re-vegetating an existing borrow pit site
owned by Mr. Chanh Nguyen. The development agreement addresses issues including, but not limited
to, access, security, acceptable and prohibited fill materials, hours of operation, monitoring, volume of
fill, re-vegetation, damage to City roads, speed lil~.lits, and debris dropped on City roads,
APPLICABLE LAW:
Section 166.021, Florida Statutes.
(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the govemment,
corporate, and proprietary powers to enable them to conduct municipal govemment, perfoml municipal
functions, and render municipal services, and may exercise any power for municipal purposes, except
when expressly prohibited by law.
(2) "Municipal purpose" means any activity or power which may be exercised by the state or its political
subdi visions.
November 11, 2002
City Commission Regular Agenda Item B
Page 2 of2
FINDINGS:
The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as
provided in s 2(b), Article VIII of the Florida Constitution and Chapter 166, Section 166.021, Florida
Statutes.
The development agreement is consistent with the City's Comprehensive Plan and Code of Ordinances.
The development agreement provides for reasonable use of the subject property, while addressing issues
and concerns pertinent to the present and future use of the site, in order to protect the general health,
safety, and welfare.
CONSIDERATIONS:
The site was annexed in October of 1999, In November of 1999, City Code Enforcement discovered the
illegal dumping on the site and initiated code enforcement action. Fineslliens were imposed at the rate
of$250 per day by the Code Enforcement Board in April 2000, attaining $186,000 by the time the site
became compliant in April of2002. On July 22,2002, the City Commission heard Mr. Nguyen's
request to forgive the code enforcement fines/liens and reduced the amount to $10,000, subject to the
applicant voluntarily annexing his adjacent property into the City,
Subsequent to the City Commission's action on the Code Enforcement issue, staff reviewed the site and
met with the applicant to determine how to allow the applicant reasonable use of the site while
protecting the public from potential negative impacts, Staff believes that this development agreement
protects the public while providing the applicant reasonable use of the site. Resolution 2001-45 sets the
fee for development agreements at $300.00,
At its regularly scheduled October 28, 2002, meeting, the City Commission deferred this item in order to
investigate the possibility of using a portion of the abandoned railroad right-of-way as an alternative to
Orange Avenue and the "Main Street" portion of Tuskawilla Road. If allowed, this alternate route would
direct truck traffic past the high school and through the traffic signal located on SR 434, just west of City
Hall. This is the route preferred by the applicant.
RECOMMENDATION:
Staff recommends that the City Commission approve the attached development agreement, subject to the
applicant paying the $300 fee for a development agreement.
ATTACHMENTS:
Development Agreement
COMMISSION ACTION:
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lnt By: BROWN,WARD,SAlZMAN&WEISS,P.A,; 407 425 9596j
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Preplll'I.'I.l b)' Ilnd rctum to:
Anthony A GurglUtCSC, Esquire
HroYtll. Wurd, &tlmUlll & Weiss, l'A
1'0Sl Ofii~ Dux 2873
OrJ.mut>, Florida 32802-2117:1
(407) 425-9566
DEVELOPMENT AGREEMENT
THIS DE VELOPMENT AGREEMENT (herein referred to as the "Agreement"),
made and executed this _ day of , 2002, 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 landf1lJ operations to fill the borrow pit. and
WHEREAS, the tilt shaU only be inorganic "clean debris" as approved by the Florida
Department of Environmental Protection and the City; and
WHElU;AS, 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 thc
Property may be developable in the future; and '
WHEREAS, the Owner and City desire to execute trus Agreement to effectuate the
filling of tht: borrow pit under the terms and conditions agreed to hereunder; and
W HEREASt providing Owner abides by all the terms and conditions set forth
hereunder, the City Commission of the City of Winter Springs finds that this Agreement is
consistent with the City's Comprehensive Plan as well as the Cit.y Code of Ordinances and
is a legislative act of the City Commission of the City of Winter Springs.
NOW. THEREFORE, in consideration of the mutual covenants and mutual benefits
herein contained, the parties agree as follows:
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I ,0 Recitals. The foregoing recitals are hereby incorporated herein by this
reference and deemed a material part of this Agreement.
2,0 Intent and Purpose. The intent and purpose of this Agreement is to permit
Owner and thcir 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 Propern. The real property subject to this Agreement is legally described
on Exhibit "A," which is hereby fully incorporaled herein by this reference (hereinafter
referred to as "Property").
4,0 Borrow Pit. The bOITOW pit referr~d 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 corrunencing 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 Admini$trative 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 tenn 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
fill the Borrow Pit.
5,3 Within thirty (30) days of the effective date of this Agr~ement. Owner shall
submit to the City for approval a site plan, drawn to scale by a duly-licensed
engineer, depicting the Property, Borrow Pit, ingress and egress to the
Property, parlting, location of aU lrailers, omc~s, and other structures,- the
Orange Avenue security gate~ and such other matters reasonably required by
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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 be a condition precedent to tbe
landfill operations authorized by this Agreement.
5.4 Within thirty (30) days of the eft'e<::tlve date of this Agreement, Owner shall
submit to the City for approval a restoration plan, drawn to scale by a duly-
li.censed engineer, depicting the proposed final status of the Property after the
landflll 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 trus Agreement and all applicable federal, state, local,
and special district laws. rebrulations, 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
6,0 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 fence surrounding the entire Borrow Pit and 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. A security gate shall also
be installed along Orange Avenue. 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 he 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 13,0 of this Agreement. The fence shall not be installed until the
City arproves the fence permit application
7.0 Haul Route. An materials being brought to and from the Property by vehicle
shall be transported via TuskawiUa Road and Orange Avenue or such other haul route
designated by the City's City Manager in writing, The City reserves the sole right and
discretion to change the haul route at any time. Prior to using Orange Avenue, 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 authQrized herein.
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8,0 Houn of Operation. In carrying out the landtill operations, Owner shall
operate only during weekdays between the hours of7:00 a.01, to 5.00 pm, unless the City's
City Manager grants a temporary exception in writing for good reasons demollstrated by
Owner, 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.
9.0 Truck Requirements. Owner shall require that all trucks delivering materials
to and from the Property shall abide by lhe following requirements:
9,} The payload beds of all trucks shall be covered so as to eliminate debris
blowing or falling olf lhe 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 agTt~es 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.
9,2 Notwithstanding any other posted speed limit, the speed of trucks shall not
exceed twenty-five (25) miles per hour on Tuskawilla Road between S ,R. 434
and Orange Avenue and twenty (20) miles per hour on Orange Avenue.
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,
10.0 Payment Bond. Owner shall provide a Twenty-Five Thousand and no/100
($25,000,00) Dollar performance and payment bond or Jetter of credit to the City which shall
insure the City against any and all damage to TuskawiUa Road from S,R. 434 to Orange
Avenue resulting from the trucks delivering fiU material to and from the Property,
10,1 The bond or letter of credil 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
10,2 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 husiness
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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,
11 ,0 Revocation. This Agreement and the permit granted hereinunder is subject
to termination by the City at any time for the failure of Owner and Owner's agents and
contractors to comply with the terms and conditions herein,
12,0 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 un the Property. Contractors and agents shall be required
to abide by all applicable terms and conditions of this Agreement.
13.0 Final Grading and Inspection ofProgerty. 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 shaH request in writing to the City's City Manager
that the City perform a final inspection of the Property which shall be for purpose~ of
determining compliance with this Agreement. As part of the (mal inspection. Owner shall
provide the City with a written certification that all material used to fiU 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 fonn 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 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 oftermination 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.
14,0 City Right arEntry. Owner hereby grants the City and its duly authorized
agents and COnlractors an unconditional right of entry on the Property to detennine whether
Owner is complying with the terms and conditions of this Agreement and applicable City
Codes,
15,0 Best Ma.paeemen. 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
minimum, with additional measures utilized as needed, these practices shall include:
15.1 Grading shall be employed to avoid off-Property runoff and to keep sediment
on the Property.
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1 5,2 The placement of silt screenslbarriers to minimize wind-blown debris and dust
15.3 Erosion control measures including, but not limited to, seeding, mulching, and
sodding the Propeny, especially slopes and roadway shoulders.
16.0 Successor and Assiens. Owner shall notify the City. in advance and in
writing, of any transfer of ownership of the Property. This Agreement shan automatically be
binding upon and shall inure to the henetit of the successors and assigns of the Property,
17.0 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,
18,0 Amendment!. 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.
19,0 EntireAlreemellt. HeadinKs. 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 <::on!ltrued as part of this Agreement. All references to
whole paragraph numbers (e.g" 15.0) shan include all subparagraphs thereunder (e,g., 15. I,
15.2, and 15_3),
20,0 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 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,
210 Recordation. Upon full exe<:ution of this Agreement by the panics, this
Agreement shaJl be recordt:d by the City in the Public Records of Seminole County, Florida,
and shall run with the land,
22.0 City'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.
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23.0 SovereieD ImmunUy. Nothing contained in this Agreement shall be
c,onstrued 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.
24.0 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
delivered at the addresses set forth below or at such other addresses as the parties hereto shalJ
designate to each other in writing:
24,( , If to City:
Mr, Ronald W McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs. Florida 32108
Telephone: 407-327-5957
Facsimile: 407-327-4753
24.2 If to Owner: Chanh Q, Nguyen
Ngan N, Nguyen
4409 Steed Terrace
Winter Park, Florida 32792
Telephone: 407-657-1467
Emergency Telephone:
25.0 Waiver. Any forbearance by the City in exercising any right orremedy under
this Agreement shall not constitute a waiver of or preclude the exercise of any right or
remedy,
26.0 Indemnification and Hold Hannle.u. For all work performed pursuant to
this Agreement, Owner agrees to the fullest extent permitted by law, to indemnify lUlU 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 default of this Agreement.
27,0 City's Rilhl 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 be entitled to equitable relief (including,
wilhout limitlltion! spedfic perfonnance and injunctive relief) to enjoin the occurrence and
condition of the breach,
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28,0 AttorneyS' Fees. The prevailing party in any litigation arising under this
Agreement shall be entitled to recover its rea~onable attorneys' and paralegal fees and costs,
whether incurred at trial or appeal,
29,0 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 pt:rsuns or the public in any manner which would indicate any
such relationship with the other,
IN WITNESS WHEREOF, the parties have executed this Agreement as ufthedate
first written above.
WITNESSES:
CIlY OF W1NTER SPRINGS,
a Florida Municipal Corporation:
Print Name:
By:
Ronald W. McLemore, City Manager
Print Name:
OWNER:
Print Name:
By:
Print Name:
Chanh Q. Nguyen
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STATE OF FLORiDA
COUNlY OF SEMINOLE
I hereby certify that the foregoing instrument w~s acknowledged before me this _ day of
,2002, by CHANH Q. NGUYEN, 0 who is personally known to me, or u who has
produced as identification,
NOTARY PUBLIC
Print Name:
By:
Print Name:
Ngan M. Nguyen
STATE OF FLORIDA
COUNTY OF SEMINOLE
I hereby certify that tht; fun.;going instrument was acknowledged before me this _ day of
,2002, by NGAN M. NGUYEN, 0 who is personally known to me. or 0 who has
produced as identification.
NOTARY PUDLlC
F \Duc.'.C,I} ufW,,,,,,, lIpt"'ll-''^e_manl.\Nsuv",,_~c1<>rmmt_~tc.~
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