Loading...
HomeMy WebLinkAbout2006 09 25 Regular 303 Site Development Permit Agreement with Tousa Homes, Inc. COMMISSION AGENDA ITEM 303 Regular MGR /Dept. September 25,2006 Meeting REQUEST: The Community Development Department requests the City Commission approve a Site Development Permit Agreement with Tousa Homes, Inc. for site clearing at Sonesta Pointe PURPOSE: The purpose ofthis Agenda Item is to expedite the sitework for Sonesta Pointe at the Winter Springs Town Center. Sonesta Pointe is an Engle Homes project consisting of 408 townhome units on a 40.0 acre site located on the east side of Tuskawilla Road, immediately south of the S1. Johns Landing subdivision in the Winter Springs Town Center. CHRONOLOGY: August 9, 2004 - Concept Plan approved by City Commission September 27,2004 - Revised Concept Plan approved by City Commission August 28, 2006 - Aesthetic Review approved by City Commission CONSIDERATIONS: . The City desires to cooperate with the developer to expedite Sonesta Pointe to enhance the economic vitality of the Town Center. . The City Manager is not authorized to issue site development permits for Sonesta Pointe under the City Code; therefore, City Commission approval is required. . The Site Development Permit Agreement allows only the following construction activities to begin in advance of final engineering approval: o Demolition o Removal of vegetation o Removal of unsuitable soils o Dewatering o Grading / Filling 092506_ COMM _Regular _303_ Sonesta Pointe Site Development Pennit September 25, 2006 Regular Agenda Item 303 Page 2 . The applicant has submitted final engineering plans and other site development data and information to develop the property depicted on the attached site plan. The project is at a similar stage in the design review process as other recent projects were when they obtained Site Development Permits. . City Commission approval of this Site Development Permit does not approve any deviations from the City Code. Any deviations from the City Code shown on the attached plans, or at a later date on the final engineering plans, must be documented and approved as a part of a Developer's Agreement. FINDINGS: 1) The applicant has obtained an Environmental Resource Permit from the St. Johns Water Management District. 2) Pursuant to Section 3.4 of the attached Site Development Permit Agreement, the applicant must obtain all other required permits, both from the City and any other agencies as applicable, prior to commencing work onsite. RECOMMENDATION: Staff recommends approval of the Sonesta Pointe Site Development Permit Agreement, subject to the City Attorney's review of the subject Agreement. ATTACHMENTS: A Sonesta Pointe Site Development Permit Agreement B Sonesta Pointe Site Plan CITY COMMISSION ACTION: ATTACHMENT A SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT SONEST A POINTE SITE DEVELOPMENT PERMIT AGREEMENT This SONESTA POINTE SITE DEVELOPMENT PERMIT AGREEMENT (the "Permit") is issued by the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and agreed to by TOUSA HOMES, INC., a Florida corporation ("Tousa"), whose address is III N Orange Avenue, Suitel040, Orlando, Florida 32801, on this _ day of September, 2006. WITNESSETH: WHEREAS, Tousa has submitted final engineering plans and other site development data and information to develop the Property depicted on the attached site plan, which plans and data are currently being reviewed by the City for final approval; and WHEREAS, pending final engineering approval, Tousa has requested that the City permit preliminary site development work consistent with the submitted final engineering plans; and WHEREAS, although the final engineering plans have not been finalized and approved by the City, said plans and the site development data and information submitted to-date are sufficient enough for the City to issue a site development permit in order to allow Tousa to perform a limited scope of preliminary site development work in advance of final engineering approval under the terms and conditions stated herein; and WHEREAS, substantial land clearing and restoration of the Property is specifically contemplated and required by the City's Town Center policies and code in order to permit dense development and a neo-traditional scheme of new tree-canopied streets and planned green spaces; and WHEREAS, in furtherance of this request, the City desires to permit a limited scope of site development work under the terms and conditions stated herein and agreed to by Tousa; 092506_COMM_Regular_303_Attachment A -1- NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree to the terms and conditions set forth under this Permit as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby full incorporated herein by this reference. 2.0 Scope of Work. The scope of this Permit is limited to the following preliminary site development work on the Property: 2.1 Demolition. The demolition and removal of any existing fences, debris, etc. necessary to accomplish the work hereinafter detailed. 2.2 Removal of Vegetation. The removal of any existing trees, stumps and other vegetation which will not be preserved on the Property. 2.3 Removal of Unsuitable Soils. The removal of any unsuitable soils. 2.4 Dewatering. The dewatering of any existing surface and/or ground water necessary for site development as described herein. 2.5 Gradinglfilling. furtherance of the planned development. The grading and filling of the Property III All preliminary site development work shall be performed and completed within one hundred and twenty (120) calendar days after the Effective Date of this Permit (as hereinafter described) and in accordance with all applicable local, state, and federal laws, regulations, and permits. The completion date may be reasonably extended by the City Commission upon good cause shown. Any site development work not specifically authorized hereunder is hereby strictly prohibited. Tousa shall be required to obtain other City permits required to implement the work authorized by this Agreement, including, but not limited to, demolition and arbor permits, and said l20-day period shall be extended for such period of time as such implementation may be delayed in order to obtain such other City permits. During the term of this Permit, the City and its agents shall have the unconditional right of entry onto the Property to conduct inspections to determine compliance with the terms and conditions of this Permit. 3.0 Conditions Precedent to Commencement of Work. Prior to commencing the work set forth in section 2.0, the following documents shall be submitted by Tousa to the City in a form acceptable to the City: 3.1 Sketch Plan. A sketch plan depicting the preliminary site development work authorized under section 2.0 and a stabilized construction entrance. 3.2 Construction Vehicle Routing Plan. A construction vehicle routing plan which is designed to provide for a safe and convenient route for construction vehicles and equipment to 092506_ COMM _Regular _303 _Attachment A -2- go to and from the Property. Said plan is subject to reasonable modification by the City Manager in order to safeguard persons and property. 3.3 Arbor Permit / Tree Bank Contribution. In addition to the standard Arbor Permit Fee, Tousa shall make a contribution to the City's tree bank in the amount of $39,000 ($500 each x 78 specimen trees) to partially offset the loss of tree canopy value to the City caused by the removal of existing trees located on the Property. Said contribution shall be used to purchase and install trees and landscape material within the Town Center. 3.4 Other Government Agency Permits. A copy of any and all required permits issued by any other government agency. 3.5 Engineer Certifications. A written certification from the appropriate project engineer and/or consultant documenting that the work authorized under section 2.0 is in compliance with applicable environmental laws, including, but not limited to, laws applicable to endangered or threatened species, artesian water wells, hazardous materials, and historical artifacts. 3.6 Listed Species Survey. A listed species survey prepared by a qualified environmental consultant, along with any necessary mitigation plans, shall be submitted and approved by the City prior to any construction activity under this permit. Tousa shall have the duty to keep updated and current plans, permits, and certifications on file with the City during the term of this Permit. This Permit shall not become effective until such time as the City receives and approves the documents required by this section. 4.0 Permit Fee. Upon issuance of this Permit, Tousa shall pay the City's standard construction inspection fee equal to one percent (1 %) of the estimated construction value of the work authorized by section 2.0. 5.0 Default: Restoration of Property. The City reserves the right to revoke or suspend this Permit if the City determines that Tousa is not in compliance with the terms and conditions of this Permit. Prior to revoking or suspending the Permit, the City will provide Tousa with written notice identifying any default of the Permit terms and conditions. Upon receipt of the notice of default, Tousa shall have five (5) business days to cure the default to the City's reasonable satisfaction unless additional time is granted by the City Manager. If Tousa fails so to cure the default, the City shall have the right to revoke or suspend this Permit. If the City suspends or revokes the Permit, Tousa shall immediately work to secure the Property to a safe condition to the City's reasonable satisfaction so that the Property does not become a public nuisance or a health and safety hazard. At the City's discretion, such work may include, but not be limited to, removal of debris and vegetation, grading of the Property, mulching, seeding, erecting sand barriers, fencing, and other activities to stabilize the Property from erosion. If Tousa fails to properly restore the Property within a reasonable period of time, the City shall have the right to make claim to and use the Security (as hereinafter described) to complete such work. In the event the amount of the Security is not sufficient to cover the City's expense for such work, Tousa agrees, upon written notice by the City, to reimburse the City for any incurred 092506_ COMM _Regular _303 _Attachment A -3- expenses not covered by the Security. If Tousa fails to fully reimburse the City, the City shall have the right to record, with the Seminole County Clerk of the Court, an assessment lien on the Property for any such un-reimbursed expenses. 6.0 Security. Upon issuance of this Permit, Tousa shall post a performance bond, irrevocable letter of credit letter of credit, or escrow deposit with the City in the amount of Fifty Thousand and Noll 00 Dollars ($50,000) as security that the work authorized and required by this Permit is performed and completed in full compliance with any and all terms and conditions of this Permit ("Security"). If the Security is a bond or irrevocable letter or credit, it shall be issued by a company or bank, and in a form, acceptable to the City Manager and the City Attorney. 7.0 Indemnity, Release, Hold Harmless. Tousa hereby agrees to indemnify, release, and hold harmless the City and its commissioners, employees, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorneys fees and costs through all appellate proceedings), directly or indirectly arising from, out of, or caused by: (1) the risk identified in section 8.0 of this Permit; and (2) any work performed under this Permit, including, but not limited to any and all acts and omissions of Tousa and its contractors. 8.0 Representations and Warranties. Tousa represents and warrants that the work authorized by this Permit is being performed with the knowledge and understanding that said work is being done prior to final engineering approval by the City and that final engineering approval may be denied by the City or result in additional site development not contemplated by this Permit. Tousa agrees that they are assuming the full and complete risk that final engineering may de denied by the City or additional site development work may be required and may include modification of the work performed under this Permit. 9.0 No City Representation and Warranties. Tousa acknowledges and agrees that, although this Permit indicates that the City is considering final engineering approval for the Property, the City in no way represents or warrants that the City has approved or will approve said plans. 10.0 Prior Consent ReQuired for Transfer of Permit. This Permit is not transferable or assignable without the prior consent ofthe City Commission. 11.0 Applicable Law. This Permit shall be governed by and constructed in accordance with the laws of the State of Florida. 12.0 Amendments. This Permit shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. 13.0 Entire Permit A2reement. This Permit supersedes any other agreement, oral or written, and contains the entire agreement between the City and Tousa as to the specific work authorized under section 2.0 of this Permit. 092506_ COMM _Regular _303 _Attachment A -4- 14.0 Severability. If any provision of this Permit shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City has the unconditional right to declare this Permit null and void and require that the work authorized by section 2 be immediately stopped. 15.0 Effective Date. This Permit shall become effective upon approval by the City Commission, execution of this Permit by all parties hereto, and the completion of the conditions precedent set forth in section 3.0 ofthis Permit ("Effective Date"). 16.0 Relationship of the Parties. The relationship of the parties to this Permit is contractual and Tousa is not an agent of the City. 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. 17.0 Soverei2D Immunitv. Notwithstanding any other provIsIOn set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to anyone person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination ofthis Agreement. 18.0 City's Police Power. Tousa agrees and acknowledges that the City hereby reserves all police powers granted to the City by law, particularly with respect to whether or not the City Commission will approve the final engineering plans for the Property. In no way shall this Permit be construed as the City bargaining away or surrendering it police powers. 19.0 Third-Partv Rb~hts. This Permit is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 20.0 Attornev's Fees. Should the City take any action to enforce this Permit, Tousa agrees that the City shall have the right to collect reasonable prevailing party attorney's fees and costs, through all appellate proceedings, in connection with said enforcement. 21.0 Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Permit. The failure of this Permit to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Tousa of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all other permits for the Property in the event that Tousa shall be in default hereunder beyond any notice and cure period, if any. 092506_ COMM _Regular _303 _Attachment A -5- [SIGNATURE BLOCKS BEGIN ON NEXT PAGE] 092506_ COMM _Regular _303_ Attachment A -6- IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS By: John F. Bush, Mayor ATTEST: By: Andrea Lorenzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. CITY SEAL Date: By: Anthony Garganese, City Attorney for the City of Winter Springs, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Personally appeared before me, the undersigned authority, John F. Bush and Andrea Lorenzo Luaces, well know to me be the Mayor and City Clerk respectively, of the City of Winter Springs, Florida, and acknowledged before me that they executed the foregoing instrument of behalf of the City of Winter Springs, as its true act and deed, and that they were duly authorized to do so. Witness my hand and official seal this _day of ,2006. (NOTARY SEAL) Notary Public My commission expires: 092506_COMM_Regular_303_Attachment A -7- Signed, sealed and delivered in the presence of the following witnesses: TOUSA HOMES, INC., a Florida corporation Signature of Witness By: Richard A. Jerman, Vice President Date: Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 2006, by Richard A. Jerman., as Vice President of TOUSA HOMES, INC.., a Florida corporation. He is personally know to me or has produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: 092506_ COMM _Regular _303 _Attachment A -8- ATTACHMENT B SONESTA POINTE SITE PLAN SONESTA POINTE AT TOWN CENTER CONSTRUCTION PLANS FOR ENGLE HOMES CARNAHAN. PROCTOR. CROSS INC. CONSULTING ENGINEERS. SURVEYORS' PlANNERS 105 EAST ROBINSON STREET SUlTE312, ), SITE PLAN CPC AUTH, NO, 00002936 FILE NO. 050522 1 09/08/06 ALL JAT REVISED PER CITY NO DATE BY CK'D REVISIONS CARNAHAN. PROCTOR. CROSS. INC. CONSULTING ENGINEERS. SURVEYORS. PLANNERS CPC AUTH. NO. 00002936 FILE NO. 050522 ~ SONESTA POINTE AT TOWN CENTER CONSTRUCTION PLANS FOR ENGLE HOMES SITE PLAN 1 09/08106 ALL JAT REVISED PER CITY NO DATE BY CK'D REVISIONS