HomeMy WebLinkAbout2004 08 09 Regular 501
COMMISSION AGENDA
ITEM 501
CONSENT
INFORMATIONAL
PUBLIC HEARING
REGULAR X
August 9, 2004
Meeting
Mgr.;Z //#Dept.
Authorization
REQUEST:
The Community Development Department Arborist recommends the City Commission approve
the developer's agreement prepared by the City Attorney to allow a Winter Springs builder, Jorge
Espinosa, to remove 4 specimen trees, on a building lot for construction of a single family
residence.
PURPOSE:
The purpose of this agenda item is for the City Commission to consider a Winter Springs builder,
Jorge Espinosa, request to develop the lot at 800 Kilt Court, Winter Springs and to remove
specimen trees and other existing trees. The builder will also remove organic soils and bring in
fill dirt to establish a build able track.
APPLICABLE LAW AND PUBLIC POLICY:
On October 13,2003, Chapter 5 of the City Code was repealed and replaced with Ordinance No.
2003-22 (pertinent sections enclosed as attachments).
Sec. 5-2. Intent and Purpose.
Sec. 5-3. Definitions.
Sec. 5-4. Permit Required for Tree Removal and Land Clearing;
Separate Violations Criteria.
Sec. 5-8. Specimen or Historic Trees.
August 9, 2004
REGULAR AGENDA ITEM 501
Page 2
FINDINGS:
Sec. 5-14. Tree Protection During Development and Construction;
Periodic Inspection.
Sec. 5-16. Waivers and Appeals.
1) Section 5-8.b of the Arbor Ordinance provides that a specimen tree shall not be
removed except for extraordinary circumstances and hardships and only by final
permit approval by the City Commission.
2) Lot needs to be excavated of2-5 feet of muck soil and backfilled with an additional
amount to be raised to grade level.
3) The site requires additional fill soil to be brought up to the road level and may require
installation of retaining walls to prevent damage to remaining trees located on the site.
4) These (4) specimen trees along with (44) other trees on the lot need to be removed in
order to build the proposed house.
5) The applicant wants to do a test site on the property to determine the feasibility of
proper construction.
Seasonal Wetlands Staff has requested the owner to obtain a certificate from the State
Department of Environmental Protection to resolve any possible wetlands
jurisdiction issues before dredging and backfilling the site.
DEP Permit
Soil Testinl!
Replacements
Off-Site Plantinl!
Within 30 days of this developer's agreement, Mr. Espinosa will apply for
A DEP permit for dredge and fill. Upon issuance of the DEP permit, the
city agrees to issue a tree removal permit.
The developer agrees to test a confined area to determine soil density for
construction. If the soil density test is passed the developer will proceed
with tree the removals as well as dredging and filling of the lot.
Guidelines for specimen tree replacements in this developers' agreement
calls for twenty two (22) replacement plantings in addition to the ninety
seven (97) replacements for other tree removals.
The owner has expressed an interest in planting many fifteen gallon sized
types of trees on the Highlands H.O.A. grounds (with their approval), in an
attempt to satisfy the required tree replacement credit units. There has
been no landscape plans provided by the owner for staff to review to
determine the amount oftrees to go on-site and off-site.
August 9, 2004
REGULAR AGENDA ITEM 501
Page 3
Conclusion Staffs review of this application concludes that the applicant's request is
based upon long term improvements and safety issues that constitute
verification of extraordinary circumstances and hardship.
STAFF RECOMMENDATION:
Based upon staffs review of the facts related to this application, staff recommends that the City
Commission approve the attached Developer's Agreement...
ATTACHMENTS:
A. Ordinance 2003-22 (pertinent excerpts)
B. Location map
C. Developer's Agreement
COMMISSION ACTION:
See. 5-2.
. Intent and Purpose.
ATTACHMENT A
Ordinance
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. (8j Purpose. The pUlpose of this Chapter is to e6tablish protective regulations fur Trees within
the City In order 10 mainlaln and prolect the City Fol'e8t, to better control problems of
flooding, soli conversation, alr pollutiQll and nOlSe,and 10 make the City 8 helllthler, more
attractive and safer place in whioh to live.
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(b) Intent. The inlel1l of this Chapter is 10 enoourage lI1e protection oflbe maxjmum number of
~ Trees within the PrimlUy Tree Proteo1iQll Zone and of large Specimen Trees within the
SeoondlUy Tree Prolection Zollf;. rfls furfuer the lntont ofthi. Chapter to enoourage the
. proteotion of Trees native to Central Florida l!lld to encourage proper removal of exotic. pest
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To Ibi. end, it shall be unlawful to cut down, damage, poison, or in any other lUJU1Uer destroy
or cause to be destroyed any Tree or other vegetation as covered by the provisions of this
ordinance Chapter except in accordance with the provisions set forth herein.
(t-y) Stem. The main trunk of a plant; its primary axis that develops buds and shoom instead of
roots.
See: 5-4,
Permit Requited for Tree Removal and Land' Clearing; Separate Violations;
. Criteria1 Contractor Permit ~e<Juired,
(a)
..
- . -... --~~ cw.r vIIlerproVlB10n of this Chapter, Specimen or Historio Trees .
.. 8~ not be removed ex~t forexlraordlnary~OOllIll1d hardshlps snd onlybyllnal
' . pennit approved by the City Commission.
See. 5..9. Tree Replacement GufdeUnes.
(b)
SEeS-lit
(b)
..
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(a)
.Thle Replacement. All Trees that are removed or deslroyed snd subjeot to replacement by
this Chapter shal1 be replaced by a speoles of Tree oiled In Appendix B, Desirable Trees or
>'.ppeltdh.. C, 1'> erell cd Plant Iht or 8IIOh other Trees properly approved by the City Forester.
I men at cc · or e s c fi e 0 i . s
~ Roplacem.mt l,hall OCOllt wi1ltin ninety (90) thirty (3Q) days ofromoval or
destruction. whichever date is" earlier..! unless a. greater replacement period is provided for
good cause by permit. .
Criteria for Replacement Trees iias follows:
(1) Characteristics of Replacement Trees, The replacement Tree(s) shall have at least
equal shade potential, 'screening properties; and/or other characteristics comparable
to that of the Tree(s) reques.ted to be removed, .
'"
Burden of Tree Protection on Property Owner, It shall be the responsibility o~ a developer
or applkant property owner and their agents to ensure that any Tree shown on the Tree
inventory for which a Tree Removal permit has not been obtained is to be' protected, The
property owner shall guarantee survival ~fretained trees and Replacement Trees for one (1)
year from completion ofpennitted construction, unless a greater time period is required by
development agreement. If a retained or replacement Tree dies during that time period, the.
property owner shall replace the Tree in accordance with a remedial action apprqved under
~ 5-17 of this Chapter,
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required to he planted orretained under this Chapter. TreQB or plants Rlanted In thu CItY.' s rjlIDts-a~
a are. b . oct to removal or lrinunin b te Ci ~at ~ time :;;'::::~ ~~ ~i.nted
within a City tights-of- wa.y or ea-sem~ ~t lout ex re~ enl1i5~i 1 . ". 1.
Sec. 5-16.
(a)
~
Waivers~ Incentive Prol:ranu and Appeals.
Waivers, The City Conunission may giant a waiver to provisions of this Chapter where the
applicant demonstrates that the literal interpretation of the ordin~ Chapter will deny the
applicant reasonable use of the property or where such waiver can be demonstrated to be
consistent with the purpose and intent of the 01&111\1100 ChllPmt, The preservation of any
approved Tree'over four (4) inches in caliper may be considered as the basis for the granting
of a waiver from the literal application of the provisions of the City's land development
regulations. If, in the detennination of the City Commission, the sole basis for the request
for waiver is to preserve such Tree which would otherwise have to. be removed, it may direct
any required waiver fee to be waived. " .
ATTACHMENT B
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Fire Department Address Map
PRINTED: REVISED:
Nov. 2000
City of Winter Springs, FL
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ATTACHMENT C
BINDING DEVELOPMENT AGREEMENT
, THIS BINDING DEVELOPMENT AGREEMENT (hereinreferred to as the "Development
Agreement" made and executed this_ day of , 2004, by and between the
CITY OF W1NTER SPRINGS, a Florida municipal corporation (herein referred to as the "City")
whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and JORGE
ESPINOSA and MARCIA ESPINOSA, husband and wife, whose address is 314 Heatherwood Ct.,
Winter Springs, Florida, 32708 (hereinafter sometimes referred to as "Developer"),
WITNESSETH:
WHEREAS, Jorge and Marcia Espinosa, own certain undeveloped property in the City of
Winter Springs, Florida, described in Exhibit" A. attached hereto and incorporated fully herein by
reference (herein referred to as the "Subject Property"); and
WHEREAS, the Subject Property is located within The Highlands subdivision oftbe City of
Winter Springs, which is zoned single-family residential; and
WHEREAS, the Developers desire to develop this property by constructing two (2) single-
family residences on the Subject Property; and .
WHEREAS, the Subject Property contains several S~cimen Trees as defmed by Chapter 5
of the City Code, entitled Tree Pmtectionand Preservation; and
WHEREAS, Speciinen Trees may not be removed without demonstrating the existence of
extraordfuarycircumstance and hardship upon the property owner, additionally approval of the City .
Commission is required (Section S-8(b), City Code); and
WHEREAS, the existence ofthe Specimen Trees upon the Subject Property will prohibit the
. .
construction of single-family residential dwellings and deny the Developer reasonable use of their
property, the City Commission has determined there exist extraordinary circumstances and hardship
upon the Developer; and
WHEREAS, the City is authorized to enter into binding Development Agreements with
developers; pursuant to the Florida Municipal Home Rule Powers Act and/or Chapter 163,. Sections
1633220 through 163.4243, Florida Statutes; and
WHEREAS, the City Commission of the City of Winter Springs finds that this Development
Agreement is consistent with the City's Comprehensive Plan aswe11 as City Code of Ordimmces and
is a legislative act of the City Commission of the City of Winter Springs.
NOW THEREFORE, in consideration of the mutual covenant and mutual benefits herein
contained, the parties agree as follows:
1.' Recitals. The foregoing recitals are hereby incorpomted fully herein by this reference.
2.. . Authority. This Development Agreement is entered into pursuant to the Florida MUnicipal
Home Rule Powers Act, and the City's Code of Ordinances.
3.
Representations of Developer. Developer hereby represents and warrants to the City that
they will perform fully the terms and provisions of this Development Agreement. . .
~~
4. Dredge and Fill Permit.
A. All approvals provided for in this Agreement are conditioned upon the application for
and issuance of a Dredge and Fill Permit, by the Florida Department of Environmental
Protection (hereinafter "DEP").
B. Developer agrees within thirty (30) days of the Effective Date of this Agreement to
apply for a DEPpemlit to allow for the removal of muck from the Subject Property and the
addition of clean fill to raise. the ground level to an acceptable elevation and soil density for
the construction of single-family residences.
S. Tree Removal Permit.
A. Upon the issuance of the PEP Dredge and Fill Permit, the City agrees toissue a tree
removal permit, in accordance with this Agreement and Chapter 5 of the City Code.
B. The Tree Removal Permit will provide for the removal of certain specimen and non-
specimen trees, identifiecI upon Developer's application for tree removal, on file with the
City's Forester as of July 12, 2004, and which are located within the proposed building
footprints of the single-family residential structures.
c. Developer agrees, . in accordance with Chapter 5 of the City Code, to pay all
applicable fees and to adhere to the tree. replacement guidelines provided therein and as
otherwise provided herein. The replacement schedule for SpeCimen Trees shall be as
follows:
Caliper of Specimen Tree
Number of Replacement Canopy Trees(from
Appendix B to Chapter 5, City Code)
R uired for Each S ecimen Tree Removed
5
6
24" u to but not includin 32"
E ual to or Oreater than 32"
D. Prior to the removal of any Specimen. Tree under the Tree Removal Permit,
Developer agrees to conduct a "suitability test" of the Subject Property. This suitability test
. will be performed by the Developer, in coordination with the City's Building Department, to
determine if the Subject Property can be made suitable for the construction of single family .
dwelling structures. The suitability test shall be performed in the confined area where each
residence is proposed .to be constructed, and will require thedearing of non-specimen trees,
dredging and filling in accordance with the DEPpermit, and then compacted to determine, in
accordance with the Florida Building Code, if the property can be suitably developed for
single:-family residential structures. Developer agrees to contract with an appropnately
licensed Florida engineering firm to conduct a feasibility study of the test area to detennine
'sOil compaction and density. The results of the' study shall be provided to the Building
Official for review and approval, as provided below.
1. If it is determined by the Building Official that the Subject Property can be
made suitable for the construction of single- family dwelling units, the Developer may
remove the remaining Specimen and non-specimen trees, in accordance with the Tree
Removal Permit ,and this Agreement. The Developer further agrees to replace the
removed trees in accordance with Chapter 5 and this Agreement. The replacement
. trees shall be located where practical on the Subject Property, but where not practical
on property owned by the Highlands Homeowners' Association, Inc, (hereinafter
"Associatio'n"), as deemed acceptable to City and the Association.
2. If it is determined by the Building Official that the Subject Property is not
, suitable for. the construction of single-family dwelling units, the Developer may not
remove the remaining Specimen and non-specimen trees identified by Tree Removal
Permit. The Developer further agrees to replace the trees removed for the suitability
test in accordance with Chapfer 5. The replacement trees shall be located where '
practical, on the Subject Property, but where not practical on property owned by the
Association, as deemed acceptable to City imd the Association.
6. Cooperation and Further Assurances. Developer and the City shall cooperate fully
with each other to effectuate the tenus, conditions and intentions of this Agreement. Further,
each party agrees to adjus1, initial, re-execute and re-deliver any and all documents subject to
this Agreement if deemed necessary or desirable by one 'or the other of the parties,
7. Authority and Assignment. Each party hereby represents and WEUT3I1tstothe otherthatthey
have full power and authority to enter into this Agreement. Developer also represents that it
is duly authorized to bind the Developer Property to the terms and conditions contained in
this Agreement. The City also represents that aII.requirements and procedures, including
public hearings, have been properly conducted so that the execution hereof by the City shall
constitute the fInal approval of this Agreement by the City.
8. Notices. Any notice required or allowed to be delivered hereunder shall be in writing
and shall be deemed to be .delivered when: (a) hand delivered to the official hereinafter
desi~ or (b) one day after deposit with a nationally recognized ovemightcourier
serVice, e.g. Federal Express, Purolator, Airborne, Express Mail etc., or (c) by facsimil.e
delivery2- addiessed to a party at the other address as specified below or from time to time by
written notice to the other party delive~d in accordance herewith:'
Developer:
Mr. Jorge Espinosa
314 Heatherwood Court
Winter Springs, FL 32708
Phone: 407-365-3232
Fax: 407-365-6223
City:
City of Winter Springs
Attention: City Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: 407-327-1800
Fax: 407-327-4753
With copy to:
Anthony A. Garganese, Esq.
City Attorney for the City of Winter Springs
Brown, Gargiuiese, Weiss & D'Agresta, P.A.
225 E, RobinSon Street - Suite 660
POBox 2873
Orlando, FL 32802
Phone: 407-425-9566
Fax: 407-425-9596
. 9. Defaults. Failure by either party. to perform each and every one of its obligations
hereunder shall constitute a default, entitling the no defaulting party to pursue whatever
remedies are available to it under Florida law or equity including, without limitation, an
actton for specific performance and/or injunctive relief, Prior to any party filing any action
as a result ofa default under this Agreement, the non~defaulting party shall :first provide the
defaulting party with written notiCe 'of said default. Upon receipt of said notice. the
defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to
the reasonable satisfaction of the non~defaulting party prior to filing said action. The
prevailing party in any litigation ari~ing under thiS Agreement shall be entitled to recover its
reasonable attorney's fees and costs, whether incurred at trial or'appeal.
10. Successon and Assims. This Agreement shall automatically be binding upon and shall
inure to the benefit of the successors and assigns of each of the parties,
11. ADulicable Law and Venue. This Agreement shall be govemedby and construed in
accordance with the Jaws of the State of Florida. Venue for any state court action shall be
exclusively in Seminole County, Flori~ while'venue for any federal court action shall be
exclusively in the United States Middle District Court of Florida, Orlando Division.'
12.. Amendments. This Agreement shall not be modified or amended except by written
agreement duly executed by both parties hereto.
13. Entire A2I"eement. This Agreement supersedes any other agreement, oral or written, and
contains the entire agreement between the City and Developer as to the subject matter
hereof;
14. Severability. If any proyision of this Agreement shall be held to be invalid or unenforceable
to any extent by a court of competentj urisdiction, the same shall not affect in any respect the
validity or enforceability of the remainder of this Agreement.
15. Effective Date. This Agreement shalL become effective upon approval by the City
Commission of Winter Springs and execution of this Agreement by 'both parties (the
"Effective Date").
16. Recordation. A memorandum of this Agreement and any amendments hereto shall be
recorded in the publicrecords of Seminole County, Florida and shall run with the Developer
Property. The memorandum shall be in a form mutually acceptable to the City and
Developer and shall promptly be' recorded. The memorandum shall include the legal
description of the real property described. in Exhibit "A" (the "Developer Property"),
17. .RelationshiD of the Parties. The relationship of the parties to this Agreement is contractual
arid Developer is an independent contr~ctor and not an agent of the City. Nothing herein
shall be deemed to create a joint venture or principal-agent relationship lJetween 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. .
18. Sovereim Immunitv. Nothfug contained in this Agreement shall be construed asa
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 and federal Jaw.
19. City's Police' Power. 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. " .
20. Force Majeure. The parties agree that in the event that the failure by either
party to accomplish any action required hereunder within a specified time period
("Time Period") constitutes a default under the terms of this Agreement and, ifany
such failure is due to any unforeseeable or unpredictable event or condition beyond
the control of such party, including, hut not limited to, acts of God, acts of
government authority (other than the City's own acts), acts of public enemy or war,
riots, civil disturbances, power failure, shortages of labor or materials, inj unction or
other court proceedings beyond the control of such party, or severe adverse weather
conditions ("Uncontrollable Event"), then, notwithstanding any provision of this
Agreement to the contrary, that failure shall not constitUte.a default under this
Agreement and any Time Period proscribed hereunder shall be extended by the .
amount of time that such party was unable to perform solely due to the
Uncontrollable Event. .
21. InterDretation. The parties hereby agree and acknowledge that they have both
. participated equally in the drafting of this Agreement and no party shall be favored or
disfavored regarding the interpretation of this Agreement in the event of a dispute
between the parties.
22. Permits. The failure of this Agreement to address any particular City, county,
state, and federaIpermit, condition, term. or restriction shall not relieve Developer or .
the City of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction.
23. Third Party Rie:hts. This Agreement is not a third party beneficiary contract and
shall not in any way whatsoever create any rights on behalf of any third party.
24. Countemarts. Tbis Agreement maybe executed in any number of
counterparts, each of which when so executed and delivered shall be considered an
original agreement; but such counterparts shall together constitute but one and the
sa.n:te instrument.
25. Declaration of the City Commission of Winter SprinEs. The CitY Conunission of
the City of Winter Springs hereby finds that this Agreement is consistent with the
City's Comprehensive Plan and land development regulations and is a legislative act
of the City Commission of the City. The City Commission further finds that this
Agre.ement promotes the public health, safety, and welfare and is consistent with, and
an exercise of, the City's powers under the Municipal Home Rule Powers Act, as .
provided in s. 2(b), Article VITI of the Florida Constitution and Chapter 166.021,
Florida Statutes, and the City's police powers,
26. Conflict with City Code. To the extent the City Commission detennines there is
a specific conflict between the provisions of the City of Winter Springs Code and 1his
Agreement, the parties agree that the provisions of this Agreement shall control as if
.approved by the City Commission as a legislative act
. .
IN WITNESS WHEREOF, Developer and the City have executed this Agreement'
in form sufficient to bind them as of the day and year first above written,
Witnesses: JORGE ESPINOSA, a married man
Print Name:
MARCIA ESPINOSA, his wife '
Print Name:
STATE OF FLORIDA.
COUNTY OF SEMINOLE
The foregoing.instrument was acknowledged before me this day of ,
2004 by JORGE & MARCIA ESPINOSA, a married couple, who executed the foregoing
instrument and acknowledged before me that they executed the same for the uses and
purposes therein expressed and 0 who is personally known to me or 0 who has produced
as identification and who did not" take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Printed' Notary Name
,
My co:tnmission expires:
';'
Witnesses:
CITY OF WINTER SPRINGS, a municipal
corporation existing Under the laws of the
State of Florida, ,
Print Name:
By:
John F. Bush
Its Mayor
Print Name:
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me this _ day of
. 2004 by JOHN F, BUSH, Mayor of the City of Winter Springs, 0 who is
personally known to me and 0 who did not take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Printed Notary Name
My commission expires:
G:\Lawycr\jcflb\City ofWinler Springs\Agn:emcnlS\BINDING DEVELOPOMENT AGREEMENT_Esplnosa.doc