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
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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;
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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
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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
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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;
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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
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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;
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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
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