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HomeMy WebLinkAbout2003 01 13 Regular C Development Agreement with Chanh Nguyen COMMISSION AGENDA ITEM C Consent Information Public Hearinf! Ref!ular X January 13.2003 Meeting MGR. rv-- /DeEt. ~ REQUEST: The City Manager requests the Commission authorize the City Manager to amend and execute the attached development agreement with Chanh Nguyen to repair a borrow pit located on aA.42 acre site north of Winter Springs High School, limiting access to the pond to the Seminole County unimproved trail right-of-way for a period not to exceed 6 months. 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. VllI 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. January 13,2003 Regular Agenda Item C Page 2 of3 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. 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. 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 A venue 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. The item was also deferred at the November 11 and November 25, 2002, City Commission meeting. On November 25,2002, the City Manager filed a request with the county through Commissioner Morris' office, to utilize the Cross Seminole County Trail right-of-way for access to the pond. On December 10, 2002, the County Commission reviewed this matter favorably for a period of 6 months. RECOMMENDATION: Staff recommends that the City Commission, subject to the applicant paying the $300 fee for a development agreement, authorize the City Manager to amend and execute the attached development agreement limiting access to the pond to the Seminole County unimproved right-of-way, for a period not to exceed 6 months. 2 January 13,2003 Regular Agenda Item C Page 3 of3 ATTACHMENTS: Attachment A - Development Agreement Attachment B - City residents' concerns voiced during City Commission Public Participation Attachment C - City Manager's letter to Commissioner Morris Attachment D - December 10, 2002, County Commission minutes COMMISSION ACTION: 3 wt B,y: BRO'NN,WARO,SALZMAN&WEISS,P.A.; 407 425 9596j Oct-23-02 11 : 39AMj Page 2 - ATTACHMENT A DRAFT 10-23-02 Prepun:u by und rctum to: Anthony A. Gurgnncsc, Esquire Hro....n, Wmd, ~I.znUlll &. Weiss, I'.A. /'oSI Oni~ Dox 2873 <)rLunoo, Florida 32802-2!l7J (407) 425-9566 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (herein referred to as the "Agreement"), made and executed this _ day of ,2002, by and between the CITY UF WINTER SPRINGS, a Florida municipal corporation (hereinafter referred to ac; "City"), whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and CHANH Q. NGUY EN 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 landfUl 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 WHERtAS, Owner desires to perfonn 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 h~t:under, 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 C.ity 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, the parties agree as follows: Page I or 9 ?nt 8y: BROWNIWAROISALZMAN&WEISSIP.A.j 407 425 9596; Oct-23-02 11 :40AMj Page 3/10 DRo\FT 10-23-112 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 Pro pert! . 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 bOJTOW pit referr~d to under this Agreement 1S depicted on Exhibit liB," which is hereby fully incorporated herein by this reference (hereinafter referred to as "BorTOW 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 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 tire 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 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~~mc:nt, 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,parkingl location of all trailers, offict:s, and other structures,- the Orange Avenue security gate; and such other matters reasonably required by Page 2 of 9 !f1t By: BROWNIWARDISALZMAN&WEISSIP.A. j 407 425 9596j Oct-23-0211:41AMj 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. Approval of the site plan by the City shall be a condition precedent to the landfill operations authorized by this Agreement. 54 Within thirty (30) days of the effective date of this Agreement, Owner shall submit to the City for approval a restoration pIau, 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 A8reemenl and all applicable federal, state, local, and special district laws. rebruJations, and permits. 5.6 Upon demand 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 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 ofa 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 imd 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 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 shaU 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 Manage.r 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 authorized herein. Page :\ of 9 !nt R,y: BROWN,WARO,SALZMAN&WEISS,P.A.; 407 425 9596; Oct .23.02 11 :41AM; Page 5/10 DRAFT 10-23-02 8.0 Houn of Operation. In carrying out the landtill operations, Owner shall operate only during weekdays between the hours of7:00 a.m. to 5:00 pm, unJess the City's City Manager grants a temporary exception in writing for good reasons demonstrated by Owner. In addition, Owner shall pertorm the landfill operations using standard trade practices which will reduce or negate noise, excessive traffic, or any other unreasonable disruption to the neighborhood affccted by Owner's operation 9.0 Trul'k Requirements, Owner shall require that aU trucks delivering materials to and from the Property shall abide by lhe following requirements: 9.1 The payload beds of all trucks shall be covered so as to eliminate debris blowing or falling olf 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) mires 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 00/100 ($25,00000) Dollar performance and payment bond or letter ofcredit to the City which shall insure the City against any and all damage to TuskawilJa Road from S.R. 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 of this Agreement. The bond or tetter 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 Page 4 of 9 ?nt By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct-23-02 11 :42AM; Page 6/10 DRAFT lo.1J.(}2 are terminated in the State of Florida, or ceases to be acceptable to the City, Owner !ihall 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 acceptabJe to the City. 11.0 Revotation. 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 th~ 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 ~th 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 purpO!ie!i 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 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 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 of termination which shall be tiled 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 of Entry. Owner hereby grants the City and its duly authorized agents and conlraClors an unconditional right of entry on the Property to delermine whether Owner is complying with the terms and conditions of this Agreement and applicable City Codes. 15.0 Best Ma~aeemeD. 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 I) S~nt By: BRONN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct - 23. 02 11 :43AM; Page 7! 1 0 DRAFT JU-ZJ~Z 15.2 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 Property, especially slopes and roadway shoulders. 160 Succenor 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 henefit 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 S~minole 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 Amendments. This Agreement shall not be modified or a,mended elCcept 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 f;ntire ^Ireemedt. Headinas. 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) shaD include all subparagraphs thereunder (e.g., 15.), 15.2, and 15.3). 20.0 Severability. If any provision of this Agreement shall be held lo be invalid or unenforceable to any extent by a court of competent .iurisdiction, the City shall have the unconditional right to either terminate this Agreement. modity this Agreement with the Owner's consent, or remain in the Agreemenl as modified by the court. 21. 0 R<<ordation. Upon full execution of this Agreement by the parties, this Agreement shall be record~d by the City in the Public Records of Seminole County, Florida, and shall run with the land. 22.0 City', rolice Powers. Owner acknowledges and agrees that the City hereby resesves 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 pol~ 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 nuU and void. Page 6 of 9 Sent By: BROWN,WARD,SALZMAN&WEISS,P.A.; 407 425 9596; Oct-23-02 11 :44AMj Page B/l0 DRAFT 1 ()"2J-OZ 23.0 Sovereii!D Immunity. Nothing contained in this Agreement shall be construed 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 shall designate to each other in writing: 24. l. 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: 401-327-4753 24.2 Jfto 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 Of 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 aU work performed pursuant to this Agreement, Owner agrees to the fullest extent permitted by law, to indenuuly 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', RiJbt 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. specific perfonnance and injunctive relief) to enjoin the occurrence and condition of the breach. Page 7 of 9 lnt ~y: BROWN,WARD,SAlZMAN&WEISS,P.A. j 407 425 9596; Oct.23.02 11 :44AM; Page 9/10 DRAFT 10-23-02 28.0 AttorneyS' Fees. The prevailing party in any litigation arising under this Agreement shall be entitled to recover its rea.lionable 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 p~rsons 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. 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 ~.Y: BROWN,WARD,SALZMAN&WEISS,P.A.j 407 425 9596j Oct-23-02 11 :45AMj Page 10/10 DRAFT 10-23-1/2 STATE OF FLORIDA COUNlY OF SEMINOLE I hereby certify that the foregoing instrument w~s ~cknowledged before me this _ day of .2002. by CHANH Q. NGUYEN, a who is personally known to me, or 0 who has produced as identification. NOTARY PUBLIC Print Name: By: Print Name: Ngan M. Nguyen 5T A TE OF FLORlDA COUNTY OF SEMINOLE I hereby certify Umt [hI.: fun..-going instrument was acknowledged before me this _ day of ,20HZ, by NGAN M. NGUYEN, 0 who is personally known to me. or 0 who has produced as identification. NOTARY PUOLlC F \Du<;o'.C.,) ufW,,,,... Sprin&s'^e-manl.\NII"Y",,_Dcvclol'lDent_AGl<",.Joc Page 9 of 9 . . ATtAC-HMI:NT fi- CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING - OCTOBER 28, 2002 PAGE 2 OF 24 Mr. McCoy then stated that upon entering the new Town Center "Off of [State Road] 434, coming west from Tuskawilla Road and I would say that that curb cut is extremely inadequate - it needs to have a bigger relief coming out between the sidewalk and the street." Further, Mr. McCoy said, "I drove past the Publix, took the left turn, came up and tried to make a right turn out of that same entrance - same problem - I ended up with my front fender in the left lane, not the right lane." Mayor Partyka stated, "Mr. [Shane] Doran is here. We will just pose that question to him. " Mr. Bob Rucci, 973 Turkey Hollow Circle, Winter Springs, Florida: thanked Deputy Mayor Cindy Gennell for judging the Oak Forest Halloween costume party; and noted that he had attended a recent Seminole County Commission meeting and that County Commissioner Randy Morris should be in touch with City Officials regarding the proposed Master Plan for the Jetta Point property. Ms. Yvonne 1. Froscher, 623 Sailfish Road, Winter Springs, Florida: noted that she had reviewed the Development Agreement for the Orange Avenue property on tonight's Agenda and suggested that the $25,000.00 Bond be higher to handle any real problems; spoke of her concern with possible contamination; and suggested that a security fence would be a very good idea. Ms. Froscher also mentioned her concern with numerous dump truck trips affecting the City's new Town Center. . . . . . . . . . . . . . . . . . . . . . . . . . . . ~{.i: ~" ~:~:::~:~:~:~:~:~~ . . . . . . . . . . . . . ." . . . . . . . .......0... City Attorney Anthony A. Garganese arrived at 6:36 p.m. Ms. Helga Schwarz, 720 Galloway Court, Winter Springs, Florida: spoke about her concern with the more elaborate, color versions of the Winter Springs "Insider" and felt that it was being too editorialized. Mr. Mike Schreffler, 1160 Winter Springs Boulevard, Winter Springs, Florida: introduced himself as the new store manager of the Town Center Publix and remarked that the Grand Opening is scheduled for November th, 2002. .:..:. AGENDA NOTE: DISCUSSED NEXT. .:..:. THE FOLLOWING PUBLIC HEARING WAS CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING - NOVEMBER 11,2002 PAGE 2 OF 23 VOTE: COMMISSIONER MILLER: AYE COMMISSIONER MARTINEZ: AYE COMMISSIONER BLAKE: AYE COMMISSIONER McLEOD: AYE DEPUTYMAYORGENNELL: AYE MOTION CARRIED. Mayor Partyka added, "Also, 'B' is part of that - it is not a Public Hearing, but the same situation. And also, Regular 'c' - this is the Binford request - that was given to me by Mr. Baker also - that should be deferred" to the next Meeting. Next, Mayor Partyka mentioned the November 5th City Election and stated, "In terms of Commissioner [Michael S.] Blake, he was unopposed, and I had previously congratulated him." Further, Mayor Partyka stated, "I would like to congratulate Commissioner-Elect Sally McGinnis on her victory and wish her well. I also wish to congratulate Mayor- Elect John Bush on his victory." Mayor Partyka then offered his assistance to Mayor Bush during the transition time, and to the City of Winter Springs. Presentations Mayor Partyka pointed to a painting that has just been given to the City by the Winter Springs-Oviedo Lions Club, and noted it would have been part of the Winter Springs Arts Festival. (Note: This Festival has been cancelled). Mr. Tom Brown, 717 Adidas Road, Winter Springs, Florida: addressed the City Commission and thanked everyone for their support during a difficult personal situation. Mr. Brown also commended the Winter Springs Police and Fire Departments for their professional, and kind, and caring service during a personal situation. II. PUBLIC INPUT Ms. Tammy Fitzpatrick, 119 View Point Place, Winter Springs, Florida: as the President ~ :: of the Tuscawilla Trace Homeowner's Association, Ms. Fitzpatrick spoke of her concern ~: : with the negative impact that numerous dump truck loads to and from the Orange Avenue'. . . . . . . . . area Borrow Pit would have on their community. Mr. MJ. Soileau, 100 Tuskawil/a Road, Winter Springs, Florida: also noted his concern with the number of dump truck loads needed to fill the Orange Avenue area Borrow Pit and how this would affect his neighborhood. . . . . . . . . . . . . . . . . . . . :~i:i:i:i:( . . . . . . . . . . . . . . . . . . . Mayor Partyka asked that the City Clerk provide the Commission with a letter that Mr. Soileau gave to the Mayor. CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING - NOVEMBER 11,2002 PAGE 3 OF 23 Mr. Bob Rucci, 973 Turkey Hol/ow Circle, Winter Springs, Florida: spoke in support of the Paw Park Agenda Item; and asked if the City could set up an account for some of the donations they have received. Mr. Earl Roberts, 975 W.edgewood Drive, Winter Springs, Florida: spoke on his desire to have a tree removed from his property, and that he thought this issue was to be on this Agenda. With discussion, Mayor Partyka stated, "Does this Commission want to make a Motion to put it on the Agenda for later on - for discussion?" "SO MOVED." MOTION BY COMMISSIONER MARTINEZ. SECONDED BY DEPUTY MAYOR GENNELL. DISCUSSION. VOTE: COMMISSIONER BLAKE: AYE DEPUTY MAYOR GENNELL: AYE COMMISSIONER MARTINEZ: AYE COMMISSIONER McLEOD: AYE COMMISSIONER MILLER: AYE MOTION CARRIED. Deputy Mayor Cindy Gennell said to Mayor Partyka, "You are putting it on at the end of the Regular Agenda?" Mayor Partyka stated, "Yes." Mr. Medford McCoy, 114 Brookshire Court, Winter Springs, Florida: commented on a previous discussion about cost allocations and suggested that there could be possible. . . . . _ . _ _ . . . . . . . . . challenges. : . : . : . : . : . : . : . : . : . : . . . . . . . . . Ms. Judy Benson, 1212 Orange Avenue, Winte~ Springs. Flo~ida: s~~ke in opposition to:~: ~: ~: ~: ~: ~: the Nguyen Agenda Items and suggested a prevIOUS route agam be utIhzed. . : . : . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mr. Hans Hudtwalcker, 638 Cheoy Lee Circle, Winter Springs, Florida: asked about the' . . . . . . . . status of the dumpster to be located behind his residence at the Tuskawilla Office Park. Mr. David Maisonet, 1493 Connors Kane, Winter Springs. Florida: mentioned a sinkhole on Winter Springs Boulevard (across from the Tuscawilla Country Club) and his concern with children playing near it. Mayor Partyka stated, "Let the - City Manager with his Staff go out there and take a look at it." CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING NOVEMBER 25, 2002 I. CALL TO ORDER The Regular Meeting of Monday, November 25,2002 of the City Commission was called to order by Mayor Paul P. Partyka at 6:30 p.m. in the Commission Chambers of the Municipal Building (City Hall, 1126 East State Road 434, Winter Springs, Florida 32708). ROLL CALL: Mayor Paul P. Partyka, present Deputy Mayor Cindy Gennell, present Commissioner Robert S. Miller, present Commissioner Michael S. Blake, present Commissioner Edward Martinez, Jr., present Commissioner David W. McLeod, present City Manager Ronald W. McLemore, present City Attorney Anthony A. Garganese, present The Pledge of Allegiance followed a moment of silence. City Manager Ronald W. McLemore presented a Plaque each to Mayor Partyka and Deputy Mayor Cindy Gennell. Mayor Partyka noted for the record that '''Certificates of Election' were being awarded to Mayor-Elect John F. Bush; Commissioner Michael S. Blake; and Commissioner-Elect Sally McGinnis. Commissioner Edward Martinez, Jr. stated, "On behalf of this Commission, thank you very much for your support and I wish you and your families the greatest Thanksgiving ever." /' Agenda Changes were then discussed. II. PUBLIC INPUT . . . . . . . . .... . . .0. . . . . e.., . . . . . . . . . . . . . . . . . . . . Ms. Gretchen Hyde, 1I 66 Orange Avenue, Winter Springs, Florida: addressed the City ::~::::::: >;: Commission with her concerns about the history of the proposed Borrow Pit; inquired as :.:.... ..:,:::.:.:. to the delays related to the proposed Development Agreement; spoke of Code :::::::::(:::::::::: . . . . . . . . . . . .'. . . . . . . . CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING - NOVEMBER 25,2002 PAGE20FI7 Enforcement issues; and asked what assurances can be given that the proper fill will be used. Mr. Edward Shindelman, 709 Glasgow Court, Winter Springs, Florida: as the Vice President of the Highlands Patio Homeowner's Association, Mr. Shindelman remarked about erosion problems associated with Soldiers Creek and questioned ownership. With discussion between Commissioner Blake and Mr. Kipton D. Lockcuff, P.E., Public Works/Utility Department Director, Commissioner Blake asked, "Who owns the creek?" Mr. Lockcuffresponded, "The Highlands HOA [Homeowner's Association] - the Master HOA [Homeowner's Association] is what it looks like." Regarding a possible solution, Manager McLemore suggested, "I think all we can do is to confirm the ownership and then as Kip [Lockcuff] said, once we find the owner, we will cooperate with them in any way we can to try and find the solution." Commissioner Martinez stated, "I am suggesting that the same way we lend technical assistance to others, that the City Manager and Kip Lockcuff investigate and bring back a report and then you will know exactly who is responsible, and what they have to do." Mr. John Bush, 21 Tarpon Circle, Winter Springs, Florida: asked whether Florida Power is paying any interest on the uncollected revenue taxes, and inquired about the delay. Mr. M.J. Soileau, 100 Tuskawilla Road, Winter Springs, Florida: spoke on his ;:~~i:i:i:i:i:: frustration with the postponement of the proposed Borrow Pit situation; and thanked the :::.:.....:.:.:.:.: City for some work done at the North end of Tuskawilla Road. Ms. Judy Benson, 1212 Orange Avenue, Winter Springs, Florida: commented on her ::~;: i : i :; { opposition to the proposed Borrow Pit and the effect this would have on the community ::: . : . . . . . : . . . . . . . : : and Lake Jesup. . . . . Mr. Richard C. Kovacik, 921 Contravest Lane, Winter Springs, Florida: explained his concern with signage problems affecting his new business in the new Town Center, as a result of obtrusive trees. With discussion on this matter, Manager McLemore said, "If he [Mr. Kovacik] will come by tomorrow, we will sit down with him and go over the procedure he has to follow to do this." Mr. Kovacik stated, "I will call you tomorrow and make an appointment." Ms. Sharon Tackaberry, 634 Cheoy Lee Circle, Winter Springs, Florida: noted her support of any assistance the City Commission may help with, regarding solving the situation involving the height of the Tuskawilla Office Park wall. Ms. Tackaberry also inquired about of the proposed lighting planned for the Tuskawilla Office Park. Mr. Mervin Warner, 673 Keuka Court, Winter Springs, Florida: complimented Mayor Partyka and Deputy Mayor Gennell for their service to the City; and spoke ofthe issue on CITY OF WINTER SPRINGS MINUTES CITY COMMISSION REGULAR MEETING - NOVEMBER 25. 2002 PAGE 3 OF 17 this Agenda related to Colt Drive. Some photographs were displayed of Colt Drive. Additionally, Mr. Warner briefly addressed the City's proposed Paw Park and suggested that sponsors be utilized for some of the funding. . . . . . . . . . . :~:::.:.:.::: :.:...:-:-:-:-:-:- Mr. Marc Batchelor, 200 Torcaso Court, Winter Springs, Florida: commented on his concern with the proposed Borrow Pit. Mr. Brian Oliver, 630 Cheoy Lee Circle, Winter Springs, Florida: regarding the Tuskawilla Office Park, Mr. Oliver spoke of his displeasure with the Developer's solution to the drainage problem and asked if the City could work with the Developer to solve this problem. Mr. Oliver also noted his support for the City's Police and Fire Departments. Mr. Pradipkumar Raumanlah, 100 St. Johns Landing Drive, Winter Springs, Florida: :: ~i: i : i : i : i :: asked for assurance that the proposed Borrow Pit issue would not be postponed any more; .:.... . .........:: and asked that citizens' concerns be considered as much as others. . . . . . . . . . . Discussion. Tape I /Side B With discussion, Manager McLemore spoke of current talks with a representative from Seminole County. In. CONSENT CONSENT A. Office Of The City Clerk Approval Of The November 11,2002 City Commission Regular Meeting Minutes. CONSENT B. Police Department Requesting The Expenditure Of $32,970.00 From The Special Law Enforcement Trust Fund To Acquire Two Police Vehicles For School Resource Officer/Community Relations Programs And Two Automated External Defibrillators. CONSENT C. Public Works Department Requesting Authorization To Pursue The Acquisition Of The Colt Drive Right Of Way. ATTACHMENT C November 25,2002 Commissioner Randy Morris Seminole County Commission 1101 East First Street Sanford, Florida 32771 Dear Commissioner Morris: This letter is to request your assistance in gaining temporary access to the Cross Seminole County Trail right of way in Winter Springs for truck traffic associated with the repair of a pond embankment. Mr. Chanh Nguyen owns a borrow pond adjacent to the north side of Winter Springs High School. Mr. Nguyen has a valid water management permit # 40-117-69344-1 to repair the south bank of the pond adjacent to the school. The required slope of the bank has been badly compromised by erosion creating a serious safety problem and rendering the pond useless for any purpose. The temporary use of the trail rights of way is needed for trucks and equipment to gain access to the site. The owner estimates that the bank can be restored in six to twelve months. At this time the trail right of way is the only feasible access route to the pond due to other access routes being blocked by road construction associated with the construction of the Winter Springs Town Center and the expansion of Central Winds Park. Additionally, there is substantial concern on the part of residents regarding the amount of truck traffic on City and County streets that would be associated with the project. In light of the substantial public interest involved in eliminating this safety hazard and restoring the future development potential of the area, I would appreciate your assistance in gaining the approval of the County and the State in utilizing the trail right of way for a minimum period of six months, and maximum period of twelve months for trucks and equipment to gain access to the pond. Attached for your information is a pond graphic showing a cross section of the repair area as it exists today, a cross section showing the area repaired, and an aerial view of the repair area. I am also attaching a map of the proposed traffic route utilizing the Cross Seminole Trail. If you need additional information, please contact me at your convenience. Sincerely, Ronald W. McLemore City Manager /jp cc: Mayor and Commission County Manager Chanh Nguyen Nguyen Attorney Attachments: 02/Letters/112102 Nguyen Access Request ~.. UNAPPROVED OFFICIAL MINUTES ~.- ---~._-- -- -- -- BCC ATTACHMENT D December 1.0; 2002 -_.-~." ."--- ....- .~_.._. . "._~_____.._. ... ._....-...__._.4 ......... -.--.-' .-..'-' ..,......-... Conunissioner Morris discussed the Letter ( copy. received & filed) from the .City Manager of Winter Springs requesting temporary access to the Cross Seminole Coun.ty Trail right-of-way for truck traffic associated with the repair of a pond embankment for a borrow pit owned by. Cha~h N.9uyen. - Motion by Commissioner Morris, seconded by Commissioner Henley to instruct staff to give permission, under the City of Winter Springs! supervision, temporary access to the Cross Seminole County Trail right-of-way for truck tr.affic associated with the repair of a pond emb.ankment at the borrow pi't owned by Chanh Nguyen, for a period not longer than six months and that t. ld b only during daylight hours (no the truck opera ~on wou e earlier than 8:0Q..a.m.) Districts 1, 2, 4 and 5 voted AYE. --...--'- post-I~Fax Note 7671 To t...~~' Co.lDept. John F Bush, Mayor received thefollowing e-mail, from Mr. Tom Waters. Mr. Waters is aware that this has become a public record. Notes Relating to Winter Springs Borrow Pit Development Agreement January 12,2003 1. Suggest that the Development Agreement contain a definition section so as to reduce any misunderstandings. 2. The Development Agreement uses the terms "landfill operations," "landfill activities" and "landfilling" throughout the document. );> Chapter 62-701, F.A.C., defines "Landfill" as- "Landfill" means a solid waste disposalfacility, which is an area of land or an excavation where wastes are or have been placed for disposal, for which a permit, other than a general permit, is required by Section 403. 707, 'FS. This term shall not include: (a) a land spreading site; (b) a surface impoundment; (c) an injection well defined under and subject to the provisions of Chapter 62- 528, FA.C; or (d) a construction and demolition debris disposal site regulated by Rule 62- 701.730, FA.C );> Suggest using a term other than "landfill'~ or defining the terms used in the Development Agreement. 3. Paragraph 5.2 of the Development Agreement states that only "clean debris" will be used to fill the Borrow Pit as per Section 62-701.200(15), F AC, which defines "Clean Debris" as - "Clean debris" means any solid waste which is virtually inert, l1(hich 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. >- Suggest changing wording from "The term includes..." to something such as "Fill material will be limited to..." in order to ensure that undesirable materials are not used. );> The debris used to fill to Borrow Pit needs to be tightly defined. 4. Paragraph 5.4 (last sentence) of the Development Agreement states". .. to make the Property suitable for development purposes." However, according to the St. Johns River Water Management District (SJRWMD) Permit No. 40-117-69344-1, dated June 29, 2001 - );> "PROJECT NAME: Winter Springs Site Agricultural Reclamation" - It does not refer to development. );> "A PERMIT AUTHORIZING: "filling 0.98 acres of an existing borrow pit to allow planting of a 3.6-acre citrus 2 grove in the City of Winter Springs in Seminole County. This permit authorizes 0.98 acres of impacts to an existing borrow pit." - Again, it does not refer to a development. ~ Paragraphs 24 & 25 of the SJRWMD permit also refer to a citrus grove. ~ Does the applicant have approval from SJR WMD to develop the property or plant a citrus grove? ~ Does the City have the right to allow development without SJR WMD modifying their permit? 5. Paragraph 8.0 states - "In addition, Owner shall perform the landfill operations using standard trade practices. . . " ~ What are the standard trade practices that are referenced? ~ Are they "landfill" practices? - Could that make the site fall under FDEP Solid Waste rules? 6. Paragraph 10 - requires a performance and payment bond of $25,000.00 to insure the City against any and all damage to Tuskawilla Road. ~ Memo date November II, 2002 to the City from CPH Engineers states that the cost of repairing Tuskawilla Road, if it were damaged would be approximately $303,00.00. 7. Paragraph 13 states - "As part of the final 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." ~ What happens if he cannot certify that it meets the requirements? 8. Paragraph 14.0- ~ Suggest changing wording so as to allow the City entry at any time. ~ Also, suggest adding language that the City will be provided with keys or combinations to all locks on the gates so they can gain entrance in the event of an emergency or if the owner or agents default on the project. 9. What about noise, dust, safety and odor effects on Winter Springs High School? ~ Is everyone aware how close the property and trail right-of-way are to WSHS? 10. Comments and Questions relating to the fill material- ~ Specifically, what is going to be used for fill? ~ Where will the fill material be brought in from? ~ Good fill dirt is a commodity. That is why the borrow pit was dug in the first place. ~ Concrete is becoming more of a commodity all of the time. It is very recyclable. ~ Most Central Florida roads are asphalt. Asphalt is not considered clean fill; however, it is not mentioned in the definitions/Development Agreement. ~ Is the Owner or his agents considering using Construction and Demolitions Debris Fines? 3 ~ If wrong materials are used to fill this borrow pit it could result in - . The land settling in the future - giving Winter Springs its very own sink hole. Contamination to groundwater, affecting private drinking water wells, Lake Jessup, etc. Problem materials include o Asphalt Odors - especially - Gypsum, e.g., from drywall or C & D fines o Releases Hydrogen Sulfide gas - a very unpleasant "rotten egg" odor. Organic materials, e.g., from tree or landscape debris. o Other odors of decaying materials. Odors could effect - o Central Winds Park o WSHS o Homeowners o The Town Center 11. Suggest that the City consider employing an engineer or geologist qualified in the filling of such borrow pits to review the Development Agreement. . . .