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HomeMy WebLinkAbout2003 02 24 Regular D Nguyen Development Agreement Approval 022403_ Regular _ D _ Nguyen _ Development_ Agreement_Approval Page I of2 COMMISSION AGENDA ADD-ON Meeting ITEM D Consent Informational Public Hearing Regular X February 24, 2003 Mgr.~ / Dept. Authorization REQUEST: City Manager requesting the City Commission to approve a revised Development Agreement with Chang Nguyen related to repairs of a borrow pit located on a 4.42 acre site north of Winter Springs High School limiting access to the pond to the Seminole County unimproved right of way. PURPOSE: This Agenda Item IS needed approve the above referenced Development Agreement. CONSIDERATIONS: On January 13, 2003 the City Commission deferred action on approval of a Development Agreement with Mr. Nguyen to make repairs to the pond until. Such time that he had received County approval for use of the unimproved Seminole County Trail right of way. Subsequent to that meeting Mr. Nguyen has received approval from the County Commission and the State to use the right of way and will post bond with the County upon approval of the agreement with the City. The period of time permitted by the County Commission for the use of the trail is not clear. The County Commission approved six months. However, it took six weeks of that period to get State approval. It is our belief that the six month period was tied to anticipated initiation of improvements to the trail which was initially estimated to begin in July. It does not appear that the time table will, in fact, be met. 022403_ Regular _ D _Nguyen _ Development_ Agreement_Approval Page 2 of2 Therefore, we are recommending a time frame which provides for the period of time provided by the County or one year from the effective date of the Development Agreement. FUNDING: N/A RECOMMENDATION: Staff recommends approval of the revised Development Agreement. ATTACHMENTS: Revised Development Agreement COMMISSION ACTION: DRAFT 02-20-03 Prepared by and return to: Anthony A. Garganese, Esquire Brown, Ward, Salzman & Weiss, PA Post Office Box 2873 Orlando, Florida 32802-2873 (407) 425-9566 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (herein referred to as the "Agreement"), made and executed this _ day of , 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 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 execute this Agreement to effectuate the filling of the borrow pit under the terms and conditions agreed to hereunder; and WHEREAS, 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 City Code of Ordinances and is a legislative act of the City Commission of the City of Winter Springs. Page 1 of 10 DRAFT 02-20-03 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. 2.0 Intent 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 inorganic material, as more particularly described in Paragraph 5.0 of this Agreement. 3.0 Property. 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 arid hazardous waste, and organics are strictly prohibited and shall not be used to fill the Borrow Pit. Page 2 of 10 DRAFT 02-20-03 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, parking, location of all trailers, offices, and other structures, the Orange Avenue security gate; 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 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 i5.7 The term of this agreement shall be the period of time approved bYI Seminole County fQr use of the Cross Seminole Trail, or one (1) yearl Jrom th,~f?If~~ti"e., ga.teolJbi~ ~gre.e.lTlept whi~he\ler_~hCllL~()rp~JiI~t.i 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 security lfence surrounding the entire BorrO\\' Pit and ~io~gthe,ent,ir~~,.~()ut5~!n})Oung9ry ofI6~; Rrop~rty)s 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. 1\ 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 be maintained in good order until such time as the landfill operations have Page 3 of 10 DRAFT 02-20-03 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 approves the fence permit application 7.0 Haul Route. All materials being brought to and from the Property by vehicle shall be transported via Tusk3willa R03d 3nd Or3ngo Avonue or such othor haul route dosign3tod by the City's City M3n3gor in 'I/riting. The City roserves the solo right 3nd discrotion to change tho haul route at 3ny timo. Prior to using Or3nge I'vonuo, the cross Seminole trail as permitted by Seminole County with access from State Road 434. 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. 8.0 Hours of Operation. In carrying out the landfill operations, Owner shall operate only during weekdays between the hours of 7:00 a.m. to 5:00 p.m., unless the City's City Manager grants a temporary exception in writing for good reasons demonstrated 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 the following requirements: 9.1 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. 9.2 Notwithstanding any other posted speed limit, the speed of trucks shall not exceed twenty five (25) (20) miles per hour on Tusk3'Nill3 R03d bohvoon S.R. 434 and Or3ngo /\vonue the Cross Seminole Trail and the access road from State Road 434, 3nd twonty (20) miles por hour on Or3nge Avonuo. 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. Page 4 of 10 DRAFT 02-20-03 10.0 Performance Bond. Owner shall provide a Twenty-Five Thousand and no/100 ($25,000.00) 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 Aqreement. tho City ::1gainst any and ::111 d::1m::1go to Tuskawilla Road from S.R. 431 to Or::1ngo Avenue resulting from tho trucks delivering fill material to and from tho Property. 10.1 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. 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 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. 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 on 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 of Property. 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 Page 5 of 10 DRAFT 02-20-03 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 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. 14.0 City Riaht of Entry. 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. 15.0 Best Manaaement 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. 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 Property, 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 shall automatically be binding upon and shall inure to the benefit 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. Page 6 of 10 DRAFT 02-20-03 18.0 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. 19.0 Entire Agreement: Headings. 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., 15.0) shall include all subparagraphs thereunder (e.g., 15.1, 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. 21.0 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. 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. 23.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under 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 shall 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 32708 Telephone: 407-327-5957 Facsimile: 407-327-4753 24.2 If to Owner: Chanh Q. Nguyen Page 7 of 10 DRAFT 02-20-03 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 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 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 default of this Agreement. 27.0 City's Ri2ht 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, without limitation, specific performance and injunctive relief) to enjoin the occurrence and condition of the breach. 28.0 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. 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 persons 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 of the date first written above. Page 8 of 10 WITNESSES: Print Name: Print Name: Print Name: Print Name: STATE OF FLORIDA COUNTY OF SEMINOLE DRAFT 02-20-03 CITY OF WINTER SPRINGS, a Florida Municipal Corporation: By: Ronald W. McLemore, City Manager OWNER: By: Chanh Q. Nguyen I hereby certify that the foregoing instrument was acknowledged before me this_ day of ,2003, by CHANH Q. NGUYEN, 0 who is personally known to me, or 0 who has produced as identification. NOTARY PUBLIC Page 9 of 10 DRAFT 02-20-03 Print Name: By: Print Name: Ngan M. Nguyen STATE OF FLORIDA COUNTY OF SEMINOLE I hereby certify that the foregoing instrument was acknowledged before me this_ day of ,2003, by NGAN M. NGUYEN, 0 who is personally known to me, or 0 who has produced as identification. NOTARY PUBLIC F:IDocslCity of Winter SpringslAgreementsINguyen_Development_Agree.doc Page 10 of 10