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HomeMy WebLinkAbout2021 07 12 Consent 312 - Winter Springs Westgate Terrace Agreement • CONSENT AGENDA ITEM 312 ,n m=ared CITY COMMISSION AGENDA I JULY 12, 2021 REGULAR MEETING 1959 TITLE Winter Springs / Westgate Terrace Agreement SUMMARY RECOMMENDATION Approval of Settlement Agreement related to City of Winter Springs v. Westgate Terrace Apartments, LLC, Code Enforcement Case No. 2021 CE000606. 129 SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is made and entered this day of , 2021(the "Effective Date") by and between WESTGATE TERRACE APARTMENTS, LLC, a Michigan limited liability company ("Westgate"), whose mailing address is 1112 Orange Ave, Winter Springs, FL 32708 and the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City", together with Westgate, the "Parties"), whose mailing address is 1126 E State Rd 434,Winter Springs, FL 32708. WHEREAS, the Parties have been engaged in a protracted dispute arising out of the removal of trees and clearing of land on the property located at Parcel IDs 31-20-31-503-0000- 0050 and 31-20-31-503-0000-0070 (collectively,the "Property"), as more particularly described in Exhibit "A," which has resulted in the City bringing Code Enforcement Case No. 20210E000606 (the "Matter"); and WHEREAS, the Parties dispute certain facts of the Matter including fault related to the tree removal in a manner contrary to the City Code and the amount of resulting fines and mitigation requirements that may be associated therewith; and WHEREAS,the City has set a Code Enforcement hearing in the Matter for July 14, 2021; and WHEREAS, each party desires that the Matter be fully resolved as set forth herein. NOW THEREFORE and in light of the mutual covenants provided herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. Within ninety (90) days of the Effective Date, Westgate shall contribute the sum of Eighty-Four Thousand and 00/100 dollars ($84,000.00) (the "Tree Bank Contribution") to the City's "tree bank", as established under the City's Code of Ordinances ("Code"), to be used for enhancement and maintenance of trees on public lands. No interest shall be charged on this Tree Bank Contribution unless Westgate defaults in payment, in which case interest at one and a half percent(1.5%) per month shall apply until the Tree Bank Contribution is made in full. 2. Within ninety (90) days of the Effective Date, Westgate shall, at its own cost and expense and with the contractors and vendors of its choosing, purchase and plant twelve (12) five (5) inch diameter at breast height caliper (measured four and one- half feet from the base of tree at ground level) Florida grade 41 single trunk Live Oak trees along the frontage of the Property facing Orange Avenue (the "Tree Plantings"). The Tree Plantings and the Tree Bank Contribution are referred to herein collectively as the "Settlement Obligations." 3. The City acknowledges that Westgate intends to pursue residential development of the Property in the future, and thus the Tree Plantings shall be located and spaced along the Property's frontage to beautify the Property's frontage along Orange Avenue and to accommodate future development plans for the Property, including sufficient area for a potential access drive into the Property. To protect the health and viability of the Tree Plantings, Westgate shall be permitted to temporarily tap into the City's irrigation lines running along Orange Avenue until such time as 1 0894179\192307\11186457v7 130 Westgate installs its own infrastructure to support irrigation of the Tree Plantings on the Property. At two business days prior to installation of the Tree Plantings, Westgate shall notify the City's Economic and Community Development Director of the time and date of the intended planting and the planned locations for each tree. The City may review the proposed locations for the trees to ensure no adverse impacts on existing City infrastructure and to ensure the spacing is appropriate to promote long term viability of each tree. In the event the City objects to any tree location, it shall so notify Westgate (within such two business day period) prior to Westgate's installation of the trees. Further,the City shall be allowed to be present at the time of planting to ensure the Tree Plantings comply with the provisions herein. 4. Westgate shall ensure survival of the trees for two years from the date of planting and, in the event any tree included in the Tree Plantings dies, it shall be required to be replaced with a five inch caliper diameter at breast height, Florida grade 41 Live Oak tree within sixty days of notification by the City that one of the trees included in the Tree Plantings has died. 5. Within sixty (60) days of the Effective Date, Westgate shall ensure the soils on the Property are stabilized (and remain stabilized) for erosion control in accordance with Code, including through hydroseeding or comparable means. Westgate shall notify the City in writing upon completion of such stabilization in order for the City to conduct an inspection of the same. If requested by the City following such inspection, Westgate shall obtain an engineering compaction report to confirm the Property is properly stabilized. Westgate shall have sixty (60) days after the City's request for such report to obtain the same. 6. For and in consideration of the mutual agreements set forth herein, Westgate and the City agree the terms and conditions of this Agreement are reasonable under the totality of the circumstances, and each Party for itself, and on behalf of its successors, assigns or trustees, and anyone claiming by, through, or under any of them, shall agree to the following upon satisfaction of the Settlement Obligations: a. The City shall permanently dismiss the Code Enforcement Case; b. The Parties agree to fully waive, release and forever discharge the other Party from and against any fines or sums related to the Matter , and claims, known or unknown, arising out of or resulting from the Matter and the terms and conditions hereof, including but not limited to any damage to any trees on or off the Property resulting from the Matter; and c. The Parties shall perform all further acts and execute, acknowledge, and deliver any documents that may be reasonably necessary to effectuate the terms of this Agreement. 7. Venue for any litigation pertaining to the subject matter hereof shall be exclusively in the state courts in and for Seminole County, Florida. Should litigation ensue as to the enforcement of any Parties' rights under this Agreement,the prevailing party shall be entitled to recover its attorney's fees and costs incurred in such litigation. 8. This Agreement may only be amended by written agreement of the Parties hereto. 9. Within 7 days after the City approves and executes this Agreement, the City shall record the Agreement in the public records of Seminole County, Florida. This 2 0894179\192307\11186457v7 131 Agreement shall run with title to the Property. No certificate of occupancy for the Property shall be issued by the City to Westgate until Westgate or its successors or assigns completes the Settlement Obligations. 10. In order to ensure the protection of persons and property, and to mitigate liability for Westgate resulting from the same,the City shall not prevent Westgate from filing for and obtaining a tree removal permit(s) from the City for those trees identified with a health assessment of "poor" and necessary or recommended to be removed by the City's arborist, Mary L. Edwards, in her report dated April 15, 2021, titled "Summary of Tree Inspections at 1268 Orange Ave, Winter Springs, FL" (attached hereto as Exhibit "B"),which report the City's Arborist has previously reviewed and confirmed the findings contained therein. In accordance with Code's provisions on the removal of trees that are determined by the City's Arborist to be dead or dying, including those set forth in Exhibit "B", in order to remove any such trees,Westgate would not be required to perform any additional replanting or mitigation or make payment of any tree bank contributions to the City. 11. Each Party acknowledges and exchanges with the other a covenant of good faith and fair dealing in timely compliance with the terms of this Agreement and in the submission of applications and approvals contemplated herein. 12. Nothing provided herein shall limit or expand the City's authority to review,grant, or deny any development permit applications, requests, or development orders related to the Property at any time. [SIGNATURE PAGES FOLLOW] 3 0894179\192307\11186457v7 132 IN WITNESS WHEREOF,the Parties have executed this Agreement as of the Effective Date. WESTGATE: 1 WESTGATE TERRACE APARTMENTS,LLC By: 1 Name• Title: G.e- STATE OF FLO A COUNTY OF rr'/l >� The foregoing instrument was acknowledged efore me, by means ofphysical presence or online notarization, this / day of 2021, by -xsSRr� fj a 2Y of Westgate Terrace Apartments, LLC who is personally known to me or procruced CLt4L)e,-1 f t'cav1 5e- -as identification. C Zry Public ) NEE My Commissio xpires: 6-71134edl 39381 4 0894179U92307\1 11864570 Scanned with CamScanner 133 CITY: CITY OF WINTER SPRINGS,FLORIDA [SEAL] By: Kevin McCann, Mayor ATTEST: By: Christian Gowan, City Clerk Approved as to form: By: Anthony A. Garganese, City Attorney STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me, by means of physical presence or online notarization, this day of 2021, by as Mayor of the City of Winter Springs, who is personally known to me or produced as identification. Notary Public My Commission Expires: 5 0894179\192307\11186457v7 134 Exhibit "A" Legal Descriptions Parcel ID 31-20-31-503-0000-0050 described as: ELY 1/2 OF LOT 5 +ALL LOT 6 &LOT 7 (LESS ELY 11.25 FT) TUSKAWILLA SHORES PB 6 PG 93 Parcel ID 31-20-31-503-0000-0070 described as: E 11.25 FT OF LOT 7&ALL OF LOTS 8 &9 &WLY 1/2 OF LOT 10 TUSKAWILLA SHORES PB 6 PG 93 6 0894179\192307\11186457v7 135 Exhibit "B" 0 666AAA �/ ks���`4A�66 09og rrtPs• 4'/J Com• • � •�>> rd J M/E Mary L.Edwards Consulting Arborist smices April 15,2021 Kevin Maddox Landscape Manager City of Winter Springs SUMMARY OF TREE INSPECTIONS AT 1268 ORANGE AEV,WINTER SPRINGS,FL. This document details a site inspection made on April 14,2021 to inspect the perimeter trees located at the active construction site at 1268 Orange Avenue,Winter Springs,FL.by the Project Certified Arborist on Wednesday April 7,2021 Assignment I met with the owner Sam Awal and Jeff Washeck Certified Arborist with A Sun State Tree to review the site perimeter trees in question for preservation and conduct a health assessment. The health assessment ratings will be categorized based on using the following description below: Excellent-Specimen tree good health,good candidate for preservation. Good-Tree that meets available points for good structure,viable canopy and without decay. Typically good candidate for preservation. Fair-Tree that doesn't meet one of the defects listed good structure,viable canopy or has internal decay present. Not always recommended for preservation unless it has either the opportunity for correction or if not corrected left in a natural setting away from any targets(structure,pedestrian walkway,etc.). Poor-Tree that meets multiple stress items and should be considered for removal only.This also includes Invasive Species- Removal Only Trees are dynamic,living organisms which change over time.The observations made herein reflect the opinion of the Arborist at the time of inspection and do not guarantee the condition of the trees anytime in the future. Trees or parts can fail at any time;these failures cannot always be predicted. Inspections of these trees were based on a ground level visual observation only,I did not perform sound testing,advanced Arboricultural testing or gather any forensic samples for further examination. The assessment does not take into consideration any information unknown,not visible or detectable at the time of this report Observations: • The site had been previously cleared of interior trees,palms and understory plant material. The clearing was performed mechanically using a root rake or grapple assembly in order to extract the root ball material. The site soil was significantly disturbed and many areas had varying elevations of two to three feet below grade directly adjacent to the trees trunk flare (base of trunk). Roots typically grow and develop in the upper eight to twenty four inches of soil and tend to grow shallow in well-draining sandy soils. The structural roots that are responsible for upright integrity of a tree begin at the root flare and primarily grow 136 horizontally in the soil and taper in diameter as they elongate. The rule of thumb in construction is to stay nine to twelve inches away from the trunk for every inch of trunk diameter(diameter breast height or four and a half feet above grade). Example if a trees diameter is twenty inches them it is advised to preserve an area of 180-240 inches from the edge of trunk around the entire circumference.At this site there was visual evidence of roots torn and missing in the immediate trunk area. This type of root damage can cause long-term stress and potentially complete decline in trees. pip Above pictures show soil and root disturbance • There were trees that were in varying stages of decline and decay on site. Many of them had poor form due to the past encroachment of close neighboring trees.Many had wounds created from crossing branches and palms/trees located too close to each other. There was also evidence of some recently shed dead limbs and limbs damaged by construction equipment. There were not many viable trees for preservation. Levels of decay and decline • The last observation was I reexamined the easement trees due to the root disturbance and made a decay cavity discovery with the Live Oak located right of the main entrance. I added removals to the 137 list due to the risk associated with Orange Avenue traffic. I updated the spreadsheet and will include in this report. Live Oak right of main entrance Mary L.Edwards Registered Consulting Arborist RCA#451 ISA Certified Arborist F1-0116 Tree Risk Qualification Florida Certified Landscape Contractor mary@maryedwardsarborist.com 138 rn M r `w W O � W R E R y ° O CL CL O0 CL CL a 2 Q O R p 2� W m C 0 C R (j Q Q 2 3 W U N N W U R ` O1 O1 0 W W `0 3 c u 3 WEE c Q Q c C W o ` W W U O` •� 0 0 _ sCL 3 W 3 O m y a Q ` W c `w Y s s W m ` m E p10 E m a t v °- w 0 2 c c a� u p c m o 3 c > > 3 In'O O `! 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