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HomeMy WebLinkAbout2002 10 28 Regular H Development Agreement COMMISSION AGENDA ITEM H Consent Information Public Hearin Re ular x October 28, 2002 Meeting MGR. r-- /Dept. r 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 concerns 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 limits, 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 government, corporate, and proprietary powers to enable them to conduct municipal government, perform 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 subdivisions. October 28, 2002 City Commission Agenda Item H Page 2 of2 FINDINGS: The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as provided in s 2(b), Article vm 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. Fines/liens 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. 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: 2 ?nt By: BROWN,WARD,SALZMAN&WEISS,P.A. j 407 425 9596j Oct'23-0211:39AMj Page 2 DRAFT 10.23-01 Prepun.'I.l by und return to: Anthuny A. GarglUlCSC, Esquire UroVvl\, Wurd, SWzman &. Weis!I. P.A- Post 01li.;e Dux 2873 Orlando, Florida 32802-2K7J (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 landfill operations to fill the borrow pit~ and WHEREAS, the fill shall only be inorganic "clean debris" as approved by the Florida Department of Environmental Protection and the City; and WBEIU;AS, Owner desires to peJform 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 tbe future~ and WHEREAS, the Owner and City desire to execute this Agreement to effectuate the filling of the borrow pit under tbe terms and conditions agreed to hereunder; and WHEREASt providing Owner abides by oil 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'!l Comprehensive Plan as well a~ the City Code of Ordinances and is a legislative act of the City Commission of the City of Winter Springs. NOW. THEREFORE, in con~ideration of the mutual covenants and mutual benefits herein contained, tbe parties agree as follows: Page 1 of 9 ~nt By: BROWNJWARDJSALZMAN&WEISS,P.A.j 407 425 9596j Oct.23.0211:40AMj Page 3/10 DRAFT lo..2J-82 1 .0 Recitals. The foregoing recitals are hereby incorporated herein by this reference and deemed a material part of this Agreement. 2.0 'ntent and Purpose. 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 inorgllIlic material, as more particularly described in Paragraph 5.0 of this Agreement. 3.0 ProPettl. 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 ~it 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 necesscuy to engage in the landtill operations. 5.2 Tbe 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, ceramicsJ and uncontaminated concrete including embedded pipe or steel. U Street sweeping material, asbestos, contaminated and remediated soil, pollutants and hazardous waste. and organics are strictly prohibited and shaU not be used to fill 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 by a duly-licensed engineer, depicting the Property, Borrow Pit, ingress and egress to the Property, parkingJ location of allll'ailers, offic~sJ and oth~r structures, the Orange Avenue security gate~ and such other matters reasonably required by Page 2 of 9 ~nt By: BROWN,WARD,SAlZMAN&WEISS,P.A.; 407 425 9596; Oct-23-0211:41AM; Page 4/10 DRAFT 10.23.02 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. ^pproval of the site plan by the City shan be a condition precedent to the landfill operations authorized by this Agreement. 5.4 Within thirty (30) da.ys of the effe(jtive 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 deman\1 by the City, Owner shall remove from the Borrow Pit any material that does not comply with the tenns and conditions set forth in this Paragraph 5.0 6.0 Seturity Fencel 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 shan 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 13.0 of this Agreement. The fence shaD not be installed until the City approves the fence permit application 7.0 Haul Route. All materials being brought to and from the Property by vehicle shall be transported via Tuskawilla 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 shaD be required to provide the City with written verification that Seminole County does not object to Owner using said av~nue for the Ja.n\1fiJJ operations authorized herein. Page 3 of 9 ~nt By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Oct.23.0211:41AMj Page 5/10 DaAFT 10-13..01 8.0 Boun of Operation. In carrying out the landtill operations, Owner shaJJ operate only during weekdays between the hours of7:00 a.m. to S:oo p.m, unJess the City's City Manager grants a temporary exception in writing for good reasons demonstrated by Owner. In addition, Owner shall perform the landftll 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 Tnlck Reqllirements. Owner shall require that aU trucks delivering materials to and from the Property shaUabide by lhe folluwing requirements: 9.1 The payload beds of all trucks shall be covered so as to eliminate debris blowing or falling olf the truck.s. All debris falling on the roadways or adjacent property shan 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 fOf 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 ;ssent to any trucking company. 10.0 Payment Bond. Owner shall provide a Twenty-Five Thousand and no/lOO ($25,000.00) Dollar perfonnance and payment bond or letter of credit to the City which shall insure the City against any and all damage to Tuskawilla Road nom S.1l 434 to Orange Avenue resulting from the trucks delivering fill material to and from the Property. 10.1 The bond or Jetter 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 oftbis Agreement. The bond or letter of credit shall be in a fonn 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 Page 4 of 9 ~nt By: BROWN,WARO,SALZMAN&WEISS,P.A.j 407 425 9596j Oct-23-02 11 :42AMj Page 6/10 DRAFT 10.13-02 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 lctter 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 Revotstion. 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 oftiUs 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 13.0 Fina) Grading and Inspection orproQerty. Upon completion of the land- filling of the Borrow Pit, Owner shaJl 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 shaJlrequest in writing to the City's City Manager that the City perform a final inspection of the Propeny which shall be for purposes of determining compliance with this Agreemcnt. As part of the {mal 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 &e<<ptable 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 indicatest a minimum that this Agreement has been terminated and is no longer in full force and effect. 14.0 City Right orEnfry. Owner hereby grants the City and its duly authorized agents and contractors 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 ~st Mapqemenl 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. Page 5 of 9 Sent By: BROWN,WARD,SAlZMAN&WEISSJP,A.j 407 425 9596; Oct-23.Q2 11 :43AM; Page 7/10 DRAn 100U-4% 15.2 The placement of silt screens/barriers 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 Suc<<ssor and A,siCJUl. 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 benefit of the successors and assigns of the Property. 17.0 Applicable Law: VeD~ 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 S~nole County, Florida, fOT 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 Ame..~ments. This Agreement shaU not be modified or a,mended except by written agreement executed by aU parties hereto and approved by the City Commission or City Manager of the City ofWmter Springs. 19.0 Entire ^treemeat; Beadinls. This Agreement contains the entire asreernent between the parties as to the subject matter hereof Paragraph headings are for convenience of the parties only and are not to be oon..~tn.Jed as part of this Agreement. All references to whole paragraph numbers (e.g.) 15.0) shaD include all subparagraphs thereunder (e.g., 15.), 15.2, and 15.3). 20.0 Sevtrablli.,.. 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. 21.0 R<<ordation. Upon full execution of this Agreement by the parties, this Agreement shall be recQrdW 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 an police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its polk;e 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. P~6of 9 Sent By: BROWNIWARDISALZMAN&WEISSIP.A.j 407 425 9596j Oct.23-02 11 :44AMj Page 8/10 DRAFT to-Z3-G2 23.0 Soverehm Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state or federal law. 24.0 Notic:es. 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 shan designate to each other in writing: 24.1. If to City: Mr. Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32108 Telephone: 401-327.S9S7 Facsimile: 407.321-4753 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 eKercising any right or remedy under this Agreement shall not constitute a waiver of or preclude the exercise of any right or . remedy. 26.0 Indemnification and Hold Harmlm. For all work performed pursuant to this Agre~mcnt, Owner agrees to the fullest extent permitted by law, to indemnity and hold hannless the City, and its commissioners, employees, officers and city attorneys (individuaUy and in their officjal capacities) from and against any and all claims, Josses, 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 andlor in default of this Agreement. 27,0 ~i~ts Rilbt 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 limitation. spe<:ific perfonnance and injunctive relief) to enjoin the occurrence and condition of the breach. Page 7 of 9 ~nt By: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 4259596; Oct.23.0211:44AM; Page 9/10 DRAFT 10-13-<<1 28.0 Attorn~vs' 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 a joint venture or principal-agent relationship between the parties, and neither party is authorized to) nor shall either party act toward third p~rsons or the public in any maMer which would indicate any such relationship with the other. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. WITNESSES: CITY OF WINTER SPRINGS, a Florida Municipal Corporation: Print Name: By: Ronald W. McLemore, City Manager Print Name: OWNER: Print Name: By: Print Name: Chanh Q. Nguyen Page 8 of ') !nt By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct-23.02 11 :45AM; Page 10/10 DRAFT 10-23-4'1 STATE OF FLORIDA COUN1Y OF SEMINOLE I hereby certify that the foregoing instrument was acknowledged before me this _ day of ,2002, by CHAND 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 SEMJNOLE I hereby certify tbat lh\: fun.-going instrument was acknowledged before me this _ day of ,20U2, by NGAN M. NGUYEN, D who is personally known to me. or D who has produced as identification. NOTARY PUDLlC F:\D.x;.\City ufWiAl.... SpriQ&.'^a-m-\~""_~c"'rmenl_~.oIoc Page 9 of 9 (- - Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct.24.02 3:43PM; Page 1/3 Brown) War~ Salzman & Weiss, P.A. 225 Ec.ul Rohinson Slrc:cl .....Ilif,! 660 PO.!f Office Box 2873 Orlando. Florida J28V2-2873 (407) ./25-9566 (40J) 425-9596 fax a~ argan e sc:(fijo rlando fuw. ne I Date: 'October 24, 2002 Fo: Andrea IJorenzo-l,uaces. City Clerk City of1;Vinte,. Springs Fax: 407-327-4753 From: Joan Flowers, Assistant to Anthony A. Garganese, Esq., City Attorney Pages (including Ihis one): 3 File: City of ItVinler Springs - Our File No. 1193 Nguyen Development Agreement {(there are any questions regarding t!Jisjax, please call 407/425-9566. This[acsimile 1II6HO/ie i. ul/orne),!lcllenr pr/vilegud ~r(!rlal "'1<1 i.. accordingly. confidenna( 71th me.uagc /j inlend~d only [or Ihe irodJvldual or fnlil),! naMed <lh"vc, Iflne r6.:ei~r elflllis message /,f lIul/he inl6nded rUlpi~f1I. pteo:e be advised thaI any d/iseminorion. dmribunon. or copying ofl},i. communication i. 'm"crl}' prl)l,,'bilcd, Jjyotl MV(f r.,eived 11:/8 communication In error. please PlOllfy u: by 11l1e.l'hon~ i",mediolely QIUJ relu"., the nriginalllltllage /I) eilh~r O/lOw,< (lclrJr811 VIa I}", US. Mail. Th""k you. COMMEN1:): Please include attached exhibits to agellda item. Thank YOll. ~--tL::AO_ ",++-1/ Sent By: 6ROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct.24.02 3:43PM; Page 2/3 .r cITY 0< IM>IT (~ ~ \ p_."'OSv< LEGAL DESCRIP nON: LOT 15. BloOD< e. CF TH~ 0 R. "'ITCHCLL'S SUR~Y O~- n1~ LEVY CRANT 0/'1 LAt<. JESSUP, ,o.CCOROING TO THE p~ T niEHEOF AS REeOQOEO IN PLAT 900)( 1, PACE ~, Cf THE P Lie RECORDS OF SOAINOL! COUNTY. F~OIlIOA. 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