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HomeMy WebLinkAbout2011 09 26 Public Hearing 505 5th Amendment To Settlement AgreementCOMMISSION AGENDA ITEM 505 CONSENT INFORMATIONAL PUBLIC HEARING X REGULAR September 26, 2011 MGR /DEPT Meeting Authorization REQUEST: The Public Works Department and City Attorney requesting approval of a Fifth Modification of the Settlement Agreement between the City and the Tuscawilla Country Club to facilitate development of a portion of Parcel 7 as Townhome Property by Morgran Greens, LLC SYNOPSIS: Tuscawilla Greens was approved in 2007 for development of 60 condominium units on a portion of Parcel 7 of the Tuscawilla Country Club Property. Morgran Greens, LLC now owns this portion of Parcel 7 and is seeking to develop it as 60 townhome units. The Fifth Amendment to the Settlement Agreement is necessary to modify and clarify provisions under the Settlement Agreement so that the Settlement Agreement and the townhome plans are interpreted consistently. CONSIDERATIONS: • The original Settlement Agreement between the City and a previous owner of the Tuscawilla Country Club (TCC) defined two parcels of land, Parcels 7 and 8, which were granted certain conditional development rights. • In 2007, the owner of the TCC property requested a modification of the Settlement Agreement to accommodate a request to construct a cell tower on Parcel 8 and condominium units on a portion of Parcel 7. This request was approved by the City Commission in 2007 and recorded as part of the Third Amendment to the Settlement Agreement. • In 2008, a Fourth Amendment to the Settlement Agreement was approved by the City Commission which addressed the changes necessary to the Settlement Agreement necessary to make it consistent with the final engineering plans for the 60 -unit condominium project ( Tuscawilla Greens). The Fourth Amendment to the Settlement Agreement and the final engineering plans were approved by the City Commission at the September 8, 2008 City Commission meeting. • Sitework for the 60 -unit condominium project began and was substantially completed in 2009. However, the construction of the condominium buildings never materialized and City Commission — Regular Meeting September 26, 2011 Public Hearing Agenda Item # 505 Page 2 of 3 the site has been inactive since late 2009. The site currently has built infrastructure including paved streets, water and sewer services, stormwater management facilities, and other site - related improvements. • Morgran Greens LLC is the new owner of the development property and is seeking to develop it as a 60 -unit townhome project. The Fifth Amendment to the Settlement Agreement is necessary to modify and clarify provisions under the Settlement Agreement so that the Settlement Agreement and the townhome plans are interpreted consistently (see Exhibit 1 attached). The items covered under the Fifth Amendment are summarized as follows: • Changes the permitted development from 60 condominium units to 60 townhomes • Prohibits townhome rentals for less than a one -year period • Purchasers of townhome units receive membership (tennis level or higher) at the Tuscawilla Country Club • Updates the Agreement based on work complete to date • Documents the required additional landscaping at the Northern Way Borrow Pond • Addresses the requirement for construction of the fourth tennis court (see below for further discussion) • The Third Amendment to the Settlement Agreement required the construction of a total of four new tennis courts (two batteries of two courts per battery) on the Country Club property. Two of the four were a replacement for the two courts removed as part of the development, and the other two were considered additional courts. To date, three of the four required tennis courts have been built, with all three new courts located in close proximity to the Club's existing tennis courts. • Regarding the fourth tennis court, at the December 8, 2008 City Commission meeting, the Commission approved a condition whereby the fourth tennis court must be installed prior to the City's issuance of a Certificate of Occupancy for the 8 th of the 15 proposed condominium buildings. The Tuscawilla Country Club Owner, Winter Springs Golf, LLC, and the townhome site developer, Morgran Greens, LLC, have jointly submitted a letter requesting the Commission waive the requirement for the fourth tennis court (see attached Exhibit 2). The letter notes that an additional court is not required based on the current and projected membership levels and the associated demand for tennis courts. The Fifth Amendment to the Settlement Agreement, as currently shown in Exhibit 1, would need to be amended to waive the requirement for the fourth tennis court if the Commission approves the Club's request. FISCAL IMPACT: There is no fiscal impact associated with this agenda item. City Commission — Regular Meeting September 26, 2011 Public Hearing Agenda Item # 505 Page 3 of 3 COMMUNICATION EFFORTS: This Agenda Item Has Been Electronically Forwarded To The Mayor And City Commission, City Manager, City Attorney /Staff, And Is Available On The City's Website, LaserFiche, And The City's Server. Additionally, Portions Of This Agenda Item Are Typed Verbatim On The Respective Meeting Agenda Which Has Also Been Electronically Forwarded To The Individuals Noted Above, And Which Is Also Available On The City's Website, LaserFiche, And The City's Server; Has Been Sent To Applicable City Staff, eAlert/eCitizen Recipients, Media/Press Representatives Who Have Requested Agendas /Agenda Item Information, Homeowner's Associations/Representatives On File With The City, And All Individuals Who Have Requested Such Information. This Information Has Also Been Posted Outside City Hall, Posted Inside City Hall With Additional Copies Available For The General Public, And Posted At Five (5) Different Locations Around The City. Furthermore, This Information Is Also Available To Any Individual Requestors. City Staff Is Always Willing To Discuss This Agenda Item Or Any Agenda Item With Any Interested Individuals. In addition to the Communications Efforts listed above, a sign has been installed at the front of the development property notifying the public that the Tuscawilla Greens project will be on the September 26, 2011 City Commission agenda. RECOMMENDATION: Staff recommends the City Commission approve the Fifth Amendment to the Settlement Agreement, subject to modification to waive the requirement for the fourth tennis court per the Tuscawilla Country Club's and Morgran Greens' request, and authorize the City Manager and City Attorney to prepare and execute any and all applicable documents. ATTACHMENTS: 1. Exhibit 1 — Fifth Amendment to Settlement Agreement (7 pages) 2. Exhibit 2 — Letter from Winter Springs Golf LLC and Morgran Greens LLC dated September 13, 2011 (1 page) EXHIBIT 1 THIS INSTRUMENT WAS PREPARED BY AND TO BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 111 North Orange Avenue, Suite 2000 Orlando, FL 32802 (407) 425 -9566 FIFTH AMENDMENT TO SETTLEMENT AGREEMENT APPLICABLE ONLY TO PARCELS "$," "D," "E," AND "F" DEPICTED ON EXHIBIT "A" OF THE THIRD AMENDMENT TO SETTLEMENT AGREEMENT THIS FIFTH AMENDMENT TO SETTLEMENT AGREEMENT is made and executed this day of September, 2011, by and between THE CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City "), whose address is 1126 East S.R. 434, winter Springs, Florida 32708, and MORGRAN GREENS, LLC, a Florida limited liability company (the "Owner "), whose address is 450 North Wyrnore Road, winter Park, Florida 32789 WITNESSETH: WHEREAS, this Fifth Amendment to Settlement Agreement is an amendment to that certain Settlement Agreement and Amended Settlement Agreement No. 1 which are recorded at O. R. Book 3102, Page 1354 (the "Original Settlement Agreement " ); as amended by that certain Second Amendment to Settlement Agreement, which is recorded at O. R. Book 3146, Page 0454; as amended by that certain Third Amendment to Settlement Agreement, which is recorded at O. R. Book 6881, Page 0235; and as amended by that certain Fourth Amendment to Settlement Agreement, which is recorded at O. R. Book 7090, Pages 844 through 850. All of said agreements are or will be recorded in the Public Records of Seminole County, Florida (sometimes, collectively referred to herein as "Settlement Agreement " }; and WHEREAS, Exhibit "A" of the Third Amendment to the Settlement Agreement amended the Golf Course and Development Area designations for Parcel 7, which is subject to the Settlement Agreement, and for such designation purposes identified portions of Parcel 7 as Parcels "A" through "F;" and WHEREAS, Parcels "B," "D," and "F" were also identified in the Third Amendment to Settlelment Agreement as the "Condominium Property ;" and WHEREAS, this Fifth Amendment to Settlement Agreement is only applicable to and effects the area described as Parcels "B," "D," "E" and "F" on said Exhibit "A," which is attached hereto and incorporated herein as Exhibit "A ;" and WHEREAS, Parcels "B," "D," "E" and "F" on said Exhibit "A" are hereinafter referred to as the " Townhome Property" and are legally described on Exhibit which is attached hereto and fully incorporated herein by this reference. WHEREAS, this Fifth Amendment to Settlement is not intended to be applicable to or effect any portion of the real property which is subject to the Settlement Agreement except for the Townhome Property; and WHEREAS, in relevant part and subject to certain terms and conditions, the Third Amendment to Settlement Agreement granted to the Owner the right to develop up to sixty (60) residential condominium units on a portion of the Townhome Property; and WHEREAS, subsequent to the Fourth Amendment to Settlement Agreement, the owner of the Townhome Property sold and conveyed that property to WINTER SPRINGS INVESTMENTS, LLC, a Florida limited liability company ( "winter Springs "). Winter Springs, in turn, financed a portion of the purchase price with a loan from Owner's predecessor in interest, MORGRAN HOLDINGS, LLC, a Florida limited liability company, winter Springs defaulted on the loan and mortgage in favor of Morgran Holdings, LLC and following the entry of a foreclosure judgment, a foreclosure sale was held and Morgran Holdings, LLC was the successful bidder at the foreclosure. Thereafter, it assigned its right to receive the Certificate of Title to the Townhome Property to the Owner; and WHEREAS, as the fee simple owner of the Townhome Property, the Owner is the successor in interest to that certain Settlement Agreement as it affects that property; and WHEREAS, the Fourth Amendment to Settlement Agreement recognized that subsequent to the Third Amendment to Settlement Agreement being approved and recorded, the City had received a formal Permit Application for approval of the final development plans and engineering plans for the Condominium Property, which the City approved on September 8, 2008, authorizing the development of the sixty (60) residential condominium units (the "September 8, 2008 Plan "); and WHEREAS, subsequent to the acquisition of the Townhome Property through the foreclosure, the Owner has submitted a formal Permit Application to the City for approval of revised final development plans and engineering plans for development of a townhouse project (the "Townhouse Plans ") on the Townhome Property; and WHEREAS, on September 26, 2011, the City Commission approved the Townhouse Plans thereby authorizing the development of the sixty (60) townhouse units (the "Approved Townhouse Plans"); and WHEREAS, the Owner and the City desire to modify and clarify provisions under the Settlement Agreement so that the Settlement Agreement and the Approved _z_ Townhouse Plans are interpreted consistently relative to said modifications and clarifications listed herein; and WHEREAS, the City and the Owner have determined that it is in their mutual interest to further modify the Settlement Agreement as it only relates to the Townhome Property in order to facilitate Owner's development of the Approved Townhouse Plans. NOW, THEREFORE, in consideration of the recitals and other good and valuable consideration, the Owner and the City agree to modify the original Settlement Agreement as amended by the First, Second, Third and Fourth Amendments to Settlement Agreement for the Townhome Property, as follows: 1.0 ACKNOWLEDGMENT. The Owner and the City hereby acknowledge and agree that the original Settlement Agreement, as amended by the Second, Third and Fourth Amendments to Settlement Agreement, is valid and binding upon the parties, except as modified herein. The parties agree that they have been fully informed of all matters relating to the Settlement Agreement, as amended, and intend to be bound by this Fifth Amendment to Settlement Agreement. 2.0 RECITALS. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. The effective date of this Fifth Amendment to Settlement Agreement shall be the date that it is fully executed and recorded in the Public Records of Seminole County, Florida (the "Effective Date " ). 3.0 The terms and provisions of the Settlement Agreement which deal with the development of the Townhome Property are hereby modified. The Owner shall be permitted to construct up to sixty (60) residential townhouse units rather than condominium units on that portion of the Townhome Property identified as the "Development Area" on Exhibit "A" to the Third Amendment to Settlement Agreement. The parties agree and stipulate that subject to the issuance of all required permits, the future development of Townhome Property shall be governed by the provisions of Paragraph 3.0. contained within the Third Amendment to Settlement Agreement, as modified by the Fourth Amendment to Settlement Agreement and this Fifth Amendment to Settlement Agreement. 4.0 In lieu of condominium units, the Owner shall be permitted to construct up to sixty (50) residential townhouse units on the portion of the Townhome Property identified as "Development Area" on Exhibit "A" attached to the Third Amendment to Settlement Agreement ( "Townhouse Unit Area "). The residential townhouse units shall be constructed on the Townhouse Unit Area in substantial conformance with the Approved Townhouse Plans. Further, the Owner acknowledges and agrees that Parcel `E" on Exhibit "A" attached to the Third Amendment to Settlement Agreement shall maintain its Golf Course designation under the Settlement Agreement. The Approved Townhouse Plans, as may be amended by the parties in accordance with the City Code, are hereby fully incorporated herein by this reference, and shall be kept on file at the Winter Springs City Hall. The Plans may be amended in accordance with the City Code, - 3 - from time to time, without requiring an amendment to this Fifth Amendment to Settlement Agreement. 5.0 Paragraph 3.0(a)(1) of the Third Amendment to Settlement Agreement is hereby deleted and revised to read as follows: Short -term transient rentals of the townhouse units on the Townhouse Unit Area shall be strictly prohibited. In furtherance of this restriction, the Owner agrees to deed restrict the residential townhouse units and provide that the rental of any of the residential townhouse units on the Townhouse Unit Area for a period of less than one (1) year is strictly prohibited. The City shall be a third party beneficiary under the deed restrictions for purposes of enforcing this rental restriction. Said deed restrictions shall be a condition of final engineering approval by the City. 6.0 Paragraph 3.0(a)(2) of the Third Amendment to Settlement Agreement is hereby deemed not applicable to the Townhome Property, but shall remain a continuing obligation on the Tuscawilla Country Club property legally described in the Settlement Agreement. [OWNER AND CLUB ARE REQUESTING THAT THE 4 TH TENNIS COURT REQUIREMENT BE DELETED -- COMMISSION DISCUSSION AND DECISION REQUIRED] 7.0 Paragraph 3.0(a)(3) of the Third Amendment to Settlement Agreement is hereby deleted and revised to read as follows: All purchasers of the residential townhouse units on the Townhouse Unit Area shall receive membership (minimum tennis level membership) at the Tuscawilla Golf and Country Club for purposes of satisfying the City's recreation level of service requirements under the City's Comprehensive Plan. The tennis membership shall permit the townhouse unit owners to use the recreational amenities at the Tuscawilla Golf and Country Club (e.g. pool, tennis courts, golf course, and gym facility) under membership terms, fees, and conditions specified in agreements between the Owner and the Tuscawilla Golf and Country Club. 8.0 Paragraph 3.0(b) of the Third Amendment to Settlement Agreement is hereby deleted and revised to read as follows: The Owner and the City acknowledge that there are wetland, flood plain, and flood way mitigation issues on the Townhome Property which must be satisfactorily addressed in order to permit the sixty (do) residential townhouse units to be constructed. The Owner agrees to diligently pursue a Letter of Map Revision (LOMB) from the Federal Emergency Management Agency (FEMA) for any encroachments into the 1 00-year flood plain and flood way, as said areas are defined by law. For reference only, the location of the flood plain and flood way is generally depicted on -4- the Approved Townhouse Plans. All such encroachments are subject to review and approval by the City and FEMA. Owner shall submit such engineering data that is reasonably necessary to satisfy the City and FEMA. If the City requires the services of an engineering consultant to review the engineering data supplied by Owner, Owner shall reimburse the City for the reasonable costs of all such services. 9.0 The parties agree and hereby stipulate that the obligations set forth in Paragraph 7.0 of the Third Amendment to Settlement Agreement had been fully and completely satisfied. 10.0 The parties hereby acknowledge that the described golf course maintenance building previously located on Parcel 7 has been relocated to the Parcel 8 remainder pursuant to Paragraph 2.0 of the Fourth Amendment to Settlement Agreement. 11.0 The parties hereby acknowledge that the excavation and relocation of the soil pursuant to Paragraph 3.0 of the Fourth Amendment to Settlement Agreement have been accomplished and fully satisfied. However, the water level in the borrow pond did not rise to the level represented in the design plans. Therefore, additional side slope landscaping by Owner shall be required to enhance the appearance of the pond as a condition of final acceptance by the City of the twnhome site development on the Townhome Property. 12.0 Paragraph 4.0 of the Fourth Amendment to Settlement Agreement is hereby deleted and revised to read as follows: No later than the date on which the first temporary or permanent Certificate of Occupancy is issued by the City for any townhouse unit on the Townhouse Unit Area , the Owner shall obtain for the benefit of the City an emergency ingress and egress for the Townhome Property in the form attached hereto and incorporated hereby as Exhibit "C ". 13.0 RECORDATION. This Agreement shall be recorded in the Public Records of Seminole County, Florida. [Signature Page Follows] -5- IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the date first above written. Signed, sealed and delivered in the presence of: CITY OF WINTER SPRINGS ,as Mayor ATTEST: By: as City Clerk APPROVED AS TO FORM AND LEGALITY for the use and reliance of the City of Winter Springs only. Date: By . Anthony A. G arganese City Attorney for the City of Winter Springs, Florida STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of September , 2011, by , as Mayor of the City of Winter Springs, Florida, who is personally known to me or who has produced a driver's license or identification card, or who has produced as identification. My commission expires: (NOTARY SEAL) (Signature of Notary Public on line above) (Print Name of Notary Public on Iine above) s162 Signed, sealed and delivered in the presence of: (witness to sign on line above) (witness to print name on line above) (Witness to sign on line above) (witness to print name on line above) STATE OF FLORIDA COUNTY OF OWNER: MORGRAN GREENS, LLC, a Florida limited liability company By: Daniel Thall, as Vice President The foregoing instrument was acknowledged before me this day of September, 2011, by Daniel Thall, as Vice President of Morgran Greens, LLC, a Florida limited liability company, on behalf of the Company, who is personally known to me or who has produced a driver's license or identification card, or who has produced as identification. My commission expires: (Signature of Notary Public on line above) (Print Name of Notary Public on line above) (NOTARY SEAL) -7- .,EXHIBIT 2 September 13, 2011 The Cit of Winter Sprin 1126 East State Road 434 Winter Sprin FL 32708 RE: The Greens at Tuscawilla; Re for Waiver of New Tennis Court Constructions Re To Whom It Ma Concern: Respectfull submitted, MORGRAN GREENS, LLC, a Florid *t•d liabilit compan B Iv v. WINTER SPRINGS GOLF, LLC,, a Flor* o li liabilit compan B Daniel S. Thall, as+*eet+ive Vice President Date: 9 -IT'll N k Date: LI Pa -1-