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HomeMy WebLinkAbout2007 09 24 Regular 604 Settlement Agreement between City of Winter Springs and Tuscawilla Country Club CITY OF WINTER SPRINGS September 24, 2007 Regular Meeting 092407_ COMM_Regular_ _ Tuscawilla_Country _Club_Settlement_Agreement COMMISSION AGENDA ITEM 604 Consent Informational Public Hearin Re ular X September 24, 2007 Regular Meetmg Mgr. ~ / Dept. Authorization REQUEST: The City Manager requesting the City Commission to consider approval of a third modification of the Settlement Agreement between the City and the Tuscawilla Country Club to facilitate proposed development of Parcel 7, and the construction of a 150 foot cell tower and related conveyances of conservation lands to the City. PURPOSE: This agenda item is needed for the Commission to determine the terms and conditions under which it will be willing to allow development of Parcel 7 for condominium units, and the construction of a 150 foot cell tower on Parcel 8 of the Tuscawilla Country Club. CONSIDERATIONS: The Commission has approved construction of a 150 foot cell tower on Parcel 8 of the Tuscawilla Country Club, and construction of 60 condominium units on Parcel 7 of the Country Club based upon conveyances of conservation lands satisfactory to the Commission. The staff is continuing to negotiate the final terms of an agreement to recommend to the Commission in time for the September 24, 2007 Commission Meeting. To date we have not received final surveys from the Country Club necessary to complete the negotiations. We are continuing to complete the negotiations in time for the September 24,3007 Commission Meeting. We are attaching a draft agreement for Commission review. In all likelihood the continuing negotiations will cause some changes to the draft. A decision has to be made by October 2, 2007. The Commission could therefore elect to defer the matter to the October 2, 2007 Special Commission meeting if it chooses to do so. FUNDING: N/A RECOMMENDATIONS: 1. Review the draft agreement in order to become familiar with the sense of the agreement and act on the item Monday, September 24, 2007 if the negotiations can be completed in time, or 2. Review the draft agreement in order to become familiar with the sense of the agreement and defer the item to the October 2, 2007 Special Meeting agenda. ATTACHMENTS: Draft Agreement COMMISSION ACTION: Page 2 of2 ./" 0 , /0 Jr/\ /J . f" ~ f ~ DRAFT 9/2012007 --...." .': .. 0. r 9 , \///.4': ;(/ ./ ~'.' I ,/ . '! f. " t.,J . "'-lJ:iIS INSIRUMEN'fW AS PREPARED BY AND SHOULD BE RETURNED TO: ,.....-- Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 255 E. Robinson St., Suite 660 Orlando, FL 32802 (407) 425-9566 FOR RECORDING DEPARTMENT USE ONLY THIRD AMENDMENT TO SETTLEMENT AGREEMENT THIS THIRD AMENDMENT TO SETTLEMENT AGREEMENT (the "Agreement") is made and executed this day of , 2007, 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 REACT LAND, LLC, a Florida limited liability company and WINTER SPRINGS GOLF, LLC, a Florida Limited liability company ("Owner"), whose address is 375 Frontgate Drive, Monroe Township, New Jersey 08831. WITNESSETH: WHEREAS, this Third Amendment to Settlement Agreement is an amendment to that certain Settlement Agreement and Amended Settlement Agreement No.1 which are recorded at Book 3102, Page 1354, as amended by that certain Second Amendment to Settlement Agreement, which is recorded at Book 3146, Page 0454. All of said agreements are or will be recorded in the Public Records of Seminole County, Florida. (collectively referred to herein as "Settlement Agreement"); and WHEREAS, this Agreement is related to certain real property located in Seminole County, Florida which is commonly known as the Tuscawilla Golf and Country Club ("Club Property"); and WHEREAS, as the current fee simple owner of the Club Property, Owner IS the successor in interest ofthat certain Settlement Agreement, and WHEREAS, this Third Amendment to Settlement Agreement affects a portion of the Club Property, primarily Parcel 7 and Parcel 8 which are legally described in the Second Amendment to Settlement Agreement; and WHEREAS, the Settlement Agreement generally defines two categories of property, "Development Property" and "Golf Property," for purposes of specifically listing the uses that Third Amendment to Settlement Agreement Tuscawilla Golfand Country Club Property Page 1 01'9 are permitted on all the property referenced in the Settlement Agreement, including Parcel 7 and Parcel 8; and WHEREAS, in accordance with paragraph 5(b) of the Settlement Agreement, the use of the Golf Property is limited to the operation of a country club, golf course, tennis club, club house/restaurant, golf and tennis teaching and training facility/school/academy (with no on-site residences), storm water drainage retention and detention for the Development Property, effluent disposal and related uses; and WHEREAS, in accordance with paragraph 3 of the Settlement Agreement, the Development Property shall be developed with single- family, detached residences; and WHEREAS, Parcel 7 and Parcel 8 are designated Development Property under the Settlement Agreement; and WHEREAS, the Owner and the City desire to amend the Settlement Agreement to provide for the transfer and modification of certain development rights set forth in the Settlement Agreement related to Parcel 7 and parcel 8; and WHEREAS, in general, the transfer and modification of development entitlements include the placement of certain lands into a perpetual conservation easements, the re- designation of certain areas of Parcel 7 and Parcel 8 as Golf Property, the re-designation of a small portion of Golf Property as Development Property to accommodate the condominium proposal for Parcel 7, and allowing a condominium project (rather than single-family, detached residences) on Parcel 7 under the terms and conditions set forth herein; and WHEREAS, the Owner and the City also desire to amend the Settlement Agreement for purposes of allowing a 150 foot unipole telecommunications tower and related ground equipment on a small portion (approximately 50' x 50' or an equivalent area) of Parcel 8 in accordance with that certain Development Order approved by the City Commission on September 10, 2007; and WHEREAS, the City and Owner have determined that it is in their mutual interest to modify the Settlement Agreement for purposes of enhancing and preserving the Tuscawilla Golf and Country Club and the Tuscawilla community. NOW THEREFORE, in consideration of the recitals and other good and valuable consideration, the Owner and the City agree to modify the Settlement Agreement as follows: 1.0 Acknowled2ement. The Owner and City acknowledge and agree that the 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 by the Third Amendment to Settlement Agreement, and intend to be bound by this Third Amendment to Settlement Agreement. 2.0 Recitals: Effective Date. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. The Effective Date of this Third Amendment to Third Amendment to Settlement Agreement Tuscawilla Golfand Country Club Property Page 2 of9 Settlement Agreement shall be the date that it is fully executed and recorded in the Public Records of Seminole County, Florida ("Effective Date"). 3.0 Parcel 7. Subject to the issuance of additional permits m accordance with Paragraph 8.0, the future development of Parcel 7 shall be as follows: (a) In lieu of single-family, detached residences, Owner shall be permitted to construct up to sixty (60) high-end, luxury residential condominium units on the eastern portion of Parcel 7 which is legally described on EXHIBIT "A." which is attached hereto and fully incorporated herein by this reference ("Condominium Property"). While the Owner and the City acknowledge that there are wetland, floodplain, and floodway mitigation issues on the Condominium Property which must be satisfactory addressed in order to permit the sixty residential condominium units to be constructed, Owner agrees to diligently pursue the permitting of the sixty residential condominium units. The residential condominium units shall be constructed on the Condominium Property in substantial conformance with the conceptual plans and elevations approved by the City Commission on September 10, 2007 (Regular Agenda Item 601) ("Condominium Conceptual Plan"). The Condominium Conceptual Plan is hereby fully incorporated herein by this reference, and shall be kept on file at the Winter Springs' City Hall. The following restrictions shall apply to the proposed residential condominium project: (1) Short term transient rentals of the condominium units on the Condominium Property shall be strictly prohibited. In furtherance of this restriction, Owner agrees to deed restrict the residential condominium units and provide that the rental of any of the residential condominium units on the Condominium Property for a period of less than one 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 restriction shall be a condition of fmal engineering approval by the City. (2) The City acknowledges that the Condominium Conceptual Plan requires that one battery of tennis courts (alk/a two tennis courts) currently located on Parcel 7 be relocated elsewhere on Parcel 7 at a location near the club's current tennis court facility. However, in conjunction with this relocation, Owner agrees to construct an additional battery of tennis courts on Parcel 7at a location near the club's current tennis court facility. The two new batteries oftennis courts shall be constructed and made ready for play before the relocated tennis court is discontinued for play and demolished. (3) All purchasers of the residential condominium units on the Condominium Property 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 condominium unit owners to use the recreation amenities at the Tuscawilla Golf and Country Club (e.g. pool, tennis courts, golf course, and gym facility) under membership terms and conditions established by the Tuscawilla Golf and Country Club. (b) 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 floodplain and floodway, as said areas are defined by law. For reference purposes only, the Third Amendment to Settlement Agreement Tuscawilla Golfand Country Club Property Pagc3 of9 location of the floodplain and floodway is generally depicted in the Condominium Conceptual Plan. All such encroachments are subject to review and approval by the City and FEMA. Owner shall submit such engineering data that is necessary to satisfy the City and FEMA. Ifthe City requires the services of an engineering consultant to review the engineering data submitted by Owner, Owner shall reimburse the City for all such services. In the event that the Owner fails to obtain building permits to construct the residential condominium unit buildings requiring an LOMR within five (5) years from the Effective Date of this Third Amendment to Settlement Agreement, Owner shall convey to the City, and any other third party designated by the City, a perpetual statutory conservation easement over, under, and upon said Floodplain and Floodway area. The conservation easement shall be granted under the provisions of section 704.06, Florida Statutes, and shall be for purposes of maintaining said area in its current natural and wooded condition. The conservation easement shall be in a form deemed acceptable by the City Attorney. The easement shall also be conveyed within thirty (30) days from the date that the Owner: (i) receives a formal written or other final determination by FEMA or the City that the development within the Floodplain or Floodway is not permitted, or (ii) determines that construction of the buildings within the Floodplain and Floodway is not financially feasible or practicable based on the constraints caused by the Floodplain and Floodway areas. Owner shall be responsible for having all mortgages existing at the time of the conveyance of the conservation easement subordinated to the easement. (c) The remaining, western portion of Parcel 7 (the area excluding the Condominium Property which generally contains the existing tennis courts, swimming pool, and gym facilities) shall hereinafter be deemed Golf Property under the terms and conditions of the Settlement Agreement. Said remaining portion is legally described on EXHIBIT "B." which is attached hereto and fully incorporated herein by this reference. (d) In order to accommodate one condominium building located in the southwest comer of the Condominium Conceptual Plan, the real property legally described on EXHIBIT "C." which is attached hereto and fully incorporated herein by this reference, is hereby deemed Development Property under the terms and conditions ofthe Settlement Agreement. (e) In the event that Owner is unsuccessful in obtaining final approval for at least forty-eight residential condominium units on the Condominium Property, the Owner may elect to construct less than forty-eight residential condominium units, or not more than nineteen (19) single- family detached residences, on the Condominium Property. In addition, if unsuccessful, Owner may also construct single-family detached residences on the Parcel 8 Remainder, which is legally defmed in Paragraph 4.0(c). However, under no circumstances shall the total number of residential units constructed on the Parcel 8 Remainder and the Condominium Property exceed sixty (60) units. In addition, the maximum number of single- family detached residences that can be constructed on the Parcel 8 Remainder shall not exceed forty-six (46) as provided in Paragraph 4.0. 4.0 Parcel 8. Subject to the issuance of additional permits in accordance with Paragraph 8.0, the future development of Parcel 8 shall be as follows: Third Amendment to Settlement Agreement Tuseawilla Golfand Country Club Property Page 4 of9 (a) A telecommunications tower shall be constructed and a perpetual conservation easement granted over, under, and upon a portion of Parcel 8 in accordance with Paragraph 5.0 of this Third Amendment to Settlement Agreement. (b) For purposes of accommodating a golf instruction training facility, the portion of Parcel 8 that is legally described on EXHIBIT "D." which is attached hereto and hereby fully incorporated herein by this reference, is hereafter designated Golf Property under the terms and conditions ofthe Settlement Agreement. (c) If the Owner obtains final permit approval by the City and St. Johns River Water Management District for a minimum of forty-eight (48) condominium units on the Condominium Property, the Owner shall convey to the City, and any other third party designated by the City, a perpetual statutory conservation easement over, under, and upon the entire remaining portion of Parcel 8 that is legally described on EXHIBIT "E." which is attached hereto and fully incorporated herein by this reference ("Parcel 8 Remainder"). The conservation easement shall be granted under the provisions of section 704.06, Florida Statutes, and shall be for purposes of maintaining said area in its current natural and wooded condition. The conservation easement shall be in a form deemed acceptable by the City Attorney. The easement shall also be conveyed within thirty (30) days from the date that said final engineering plans are approved by the City and St. Johns River Water Management District for at least forty-eight residential condominium units. Owner shall be responsible for having all mortgages existing at the time ofthe conveyance of the conservation easement subordinated to the easement. (d) During the entire time period in which Owner is pursuing final approval of the residential condominium project on the Condominium Property, Owner hereby grants to the City a temporary conservation easement over, under, and upon Parcel 8, excluding that portion of Parcel 8 which will be designated Golf Property pursuant to Paragraph 4 (b) and that portion that is designated the Tower Site pursuant to Paragraph 5 (a) ("Temporary Conservation Area"). The Temporary Conservation Area shall be maintained in its natural and wooded condition for the duration of the temporary conservation easement. The temporary conservation easement shall terminate at such time that a perpetual conservation easement is granted to the City in accordance with Paragraph 4(c) for purposes of replacing the temporary conservation easement, or at such time that Owner fails to obtain final approval of at least forty-eight residential condominium units on the Condominium Property. If Owner fails to obtain [mal approval of at least forty-eight residential condominium units on the Condominium Property, the Parcel 8 Remainder shall remain Development Property under the Settlement Agreement, subject to the terms and conditions ofthis Third Amendment to Settlement Agreement. 5.0 Telecommunications Tower and Related Conservation Easement. (a) Pursuant to the terms and conditions ofthe Development Order issued by the City Commission of Winter Springs, dated September 10,2007, a unipole telecommunications tower and related ground equipment shall be constructed on the real property legally described on EXHIBIT "F," which is attached hereto and fully incorporated herein by this reference ("Tower Site"). No other development shall be permitted on the Tower Site other than the development authorized by said Development Order. Should the use of the tower and related ground Third Amendment to Settlement Agreement Tuscawilla Golfand Country Club Property Page 5 of9 equipment be discontinued for any reason, the tower and equipment shall be removed by Owner within three (3) months of discontinuance. (b) Prior to the City issuing a building permit for the telecommunications tower, Owner shall convey to the City, and any other party designated by the City, a perpetual statutory conservation easement over, under, and upon the Tower Site. The conservation easement shall be granted under the provisions of section 704.06, Florida Statutes, and shall be for purposes of maintaining said area in its current natural and wooded condition, except for the telecommunications facilities permitted by the Development Order referenced in paragraph 5(a). The conservation easement shall be in a form deemed acceptable by the City Attorney. Owner shall be responsible for having all mortgages existing at the time of the conveyance of the conservation easement subordinated to the easement. 6.0 TLBD Beautification Supplemental Contribution. In addition to any special assessment imposed on the Property as required by the City's Tuscawilla Lighting and Beautification District, Owner agrees to contribute an additional Twenty-Five Thousand and Noll 00 Dollars to be used for District beautification purposes. Said contribution shall be paid to the City in full within thirty (30) days of the date that City Commission approves the final engineering plans for the Parcel 7 residential condominium project or one year from the Effective Date of this Third Amendment to Settlement Agreement, which ever occurs first. 7.0 Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. 8.0 Development Permits. As required by City Code and other applicable law, Owner acknowledges and agrees that any development of the Golf Property, Development Property, Tower Site, and Condominium Property will require Owner to apply for additional development permits from the City and other government agencies with jurisdiction over said property. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the Effective Date of this Settlement Agreement. The failure of the Settlement Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Owner or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Owner is in breach of any term and condition of the Settlement Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. Third Amendment to Settlement Agreement Tuscawilla Golf and Country Club Property Page 6 of9 CITY OF WINTER SPRINGS By: John F. Bush, Mayor ATTEST: By: Andrea Lorenzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. CITY SEAL Date: By: Anthony A. Garganese, City Attorney for the City of Winter Springs, Florida Signed, sealed and delivered in the presence ofthe following witnesses: REACT LAND, LLC, a Florida limited liability company By: Signature of Witness , Member/Manager Printed Name of Witness Date: Signature of Witness Printed Name of Witness Third Amendment to Settlement Agreement Tuseawilla Golfand Country Club Property Page 7 of9 STATE OF COUNTY OF The foregoi'ng instrument was acknowledged before me this day of , 2007, , as Member/Manager of REACT LAND, LLC, a Florida limited liability company, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Signed, sealed and delivered in the presence ofthe following witnesses: WINTER SPRINGS GOLF, LLC, a Florida limited liability company Signature ofWitncss By: , Member/Manager Printed Name of Witness Date: Signature of Witness Printed Name of Witness STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2007, , as Manager/Member of WINTER SPRINGS GOLF, LLC, a Florida limited liability company, on behalf of said company. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: _ Third Amendment to Settlement Agreement Tuscawilla Golf and Country Club Property Page 8 of9 EXHIBIT LIST A. Legal Description Condominium Property B. Legal Description of Remainder of Parcel 7 re-designated GolfProperty C. Legal Description of Go If Property to Condominium Property D. Legal Description ofthe portion of Parcel S re-designated GolfProperty E. Legal Description of ParcelS Remainder (excluding portion re-designated Golf Property, and Tower Site Property) F. Legal Description of Tower Site Property. Third Amendment to Settlement Agreement Tuscawi\la Golfand Country Club Property Page 9 of9 Date: September 24, 2007 The attached was shown during the discussion of Regular Agenda Item "604" at the September 24, 2007 City Commission Regular Meeting. ~'" \,() -......... ~ r{ ............... tJ i-: t8 r/J Z O. .....U f--Z ~..... ;:2~ U~ r/JO ~~ ot) <+-<~ o~ ::r:o ut) f--u ~~ ~ \S) "J) I IJ .., . -~-~ " i f :j I ~ !JjHJjJJiJ . - I , I! ! I! J 1I,;I~fl,l!lIl!! IN!tl;l! Lii!llil!1l11!1 '.. '..' 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