HomeMy WebLinkAbout2011 10 10 Public Hearings 500.1 Tuscawilla Greens 5th Amendment to Settlement Agreement
COMMISSION AGENDA
CONSENT
INFORMATIONAL
ITEM 500.1
PUBLIC HEARING X
REGULAR
MGR /DEPT
October 10, 2011
Meeting
Authorization
REQUEST: The 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 the
new property owner, 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
October 10, 2011
Public Hearing Agenda Item # 500.1
Page 2 of 4
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 relate to the
development property owned by Morgran Greens LLC. only and are summarized as
follows:
Changes the permitted development from 60 condominium units to 60 townhomes
o
Prohibits townhome rentals for less than a one-year period
o
Purchasers of townhome units receive membership (tennis level or higher) at the
o
Tuscawilla Country Club
Updates the Agreement based on work complete to date
o
Documents the required additional landscaping at the Northern Way Borrow Pond
o
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.
At the September 26, 2011 City Commission meeting, the Commission discussed the
Fifth Amendment to the Settlement Agreement but postponed any action to allow Staff
and the City Attorney further time to negotiate the required timing of the fourth tennis
court.
Agenda Item #500 for the October 10, 2011 Commission Meeting is requesting the
Commission’s direction regarding the required timing of the fourth tennis court. The
Staff recommendation is to grant the request by Winter Springs Golf, LLC and Morgran
Greens, LLC to release the townhome development property from the fourth tennis court
requirement provided Winter Springs Golf, LLC. agrees to modify the Settlement
Agreement with respect to the Club property to require the commencement of
construction of the fourth tennis court no later than 90 days after the Country Club’s
membership level reaches 550 members (combined tennis and golf members) (“Tennis
Court Deadline”).
The attached Fifth Amendment to the Settlement Agreement between the City and
Morgran Greens, LLC. has been prepared according to Staff’s recommendation. If the
Commission provides different direction under Item 500, then the Fifth Amendment to
the Settlement Agreement may also need to be amended to incorporate the different
direction provided by the City Commission.
City Commission – Regular Meeting
October 10, 2011
Public Hearing Agenda Item # 500.1
Page 3 of 4
The City Commission should refer to Item 500 on this Agenda for additional background
information which has not been reiterated in this Item.
FISCAL IMPACT:
There is no fiscal impact associated with this agenda item.
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 October 10, 2011 City Commission agenda.
RECOMMENDATION:
Staff recommends the City Commission approve the Fifth Amendment to the Settlement
Agreement as recommended by Staff and subject to the Tuscawilla Country Club executing an
amendment to the Settlement Agreement incorporating the Tennis Court Deadline directed by
the City Commission under Item 500.
Alternatively, Staff recommends the City Commission approve the Fifth Amendment to
the Settlement Agreement incorporating any contrary direction provided by the City Commission
under Item 500 and this Item.
City Commission – Regular Meeting
October 10, 2011
Public Hearing Agenda Item # 500.1
Page 4 of 4
ATTACHMENTS:
1.Exhibit 1 – Fifth Amendment to Settlement Agreement (7 pages)
THIS INSTRUMENT WAS PREPARED
BY AND TO BE RETURNED TO:
Anthony Garganese
City Attorney of Winter Springs
111 North Orange Avenue, Suite 2000
Orlando, FL 32802
(407) 425-9566
FIFTH AMENDMENT TO SETTLEMENT AGREEMENT
APPLICABLE ONLY TO PARCEL ,
AGREEMENT
THIS FIFTH AMENDMENT TO SETTLEMENT AGREEMENT
is made
THE CITY OF
and executed this ______ day of September, 2011, by and between
WINTER SPRINGS, a Florida municipal corporation
MORGRAN GREENS, LLC, a
1126 East S.R. 434, Winter Springs, Florida 32708, and
Florida limited liability company
Road, Winter Park, Florida 32789
W I T N E S S E T H :
WHEREAS,
this Fifth Amendment to Settlement Agreement is an amendment to
that certain Settlement Agreement and Amended Settlement Agreement No. 1 which are
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
WHEREAS,
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
WHEREAS,
WHEREAS,
this Fifth Amendment to Settlement Agreement is only applicable
to and effects the area described as Parcels
which is attached hereto and incorporated herein as ; and
WHEREAS
are legally described on 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
WINTER
owner of the Townhome Property sold and conveyed that property to
SPRINGS INVESTMENTS, LLC, a Florida limited liability company
. Winter Springs, in turn, financed a portion of the purchase price with a loan
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
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 Townhouse 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
Townhouse
WHEREAS,
the Owner and the City desire to modify and clarify provisions
under the Settlement Agreement so that the Settlement Agreement and the Approved
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
.
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:
ACKNOWLEDGMENT.
The Owner and the City hereby acknowledge
1.0
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.
RECITALS.
2.0 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
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
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 (60) residential townhouse units on the portion of the Townhome Property
Settlement Agreement (. 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 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,
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
related to the fourth tennis court 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.
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
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 (60) residential
townhouse units to be constructed. The Owner agrees to diligently pursue
a Letter of Map Revision (LOMR) from the Federal Emergency
Management Agency (FEMA) for any encroachments into the 100-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
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 townhome 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
C
RECORDATION.
13.0 This Agreement shall be recorded in the Public
Records of Seminole County, Florida.
[Signature Page Follows]
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
By: __________________________
______________________,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. Garganese
City Attorney for the City of Winter
Springs, Florida
STATE OF FLORIDA
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this _____ day of
_______________________________, as Mayor of the City of
September , 2011, by
Winter Springs, Florida,
who is personally known to me or who has produced a
________________________ as identification.
My commission expires: ______________________________
(Signature of Notary Public on line above)
______________________________
(Print Name of Notary Public on line above)
(NOTARY SEAL)
Signed, sealed and delivered
in the presence of: OWNER:
MORGRAN GREENS, LLC, a
Florida limited liability company
____________________________________
By: __________________________
(Witness to sign on line above)
____________________________________ Daniel Thall, as Vice President
(Witness to print name on line above)
ÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞÞ
(Witness to sign on line above)
____________________________________
(Witness to print name on line above)
STATE OF FLORIDA
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this _____ day of
Daniel Thall, as Vice President of Morgran Greens, LLC, a
September, 2011, by
Florida limited liability company,
on behalf of the Company, who is personally known
to me or who has produced a __________
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)