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HomeMy WebLinkAbout1984-06-11 - City Commission Special Meeting MinutesMAIL REPLY TO: P.O. BOX 25010 TAMARAC. FLORIDA 33320 5811 NORTHWEST 88-FI-I AVENUE `iAMARAC, F�LORIDA 33321 1 ELEPH'ONE (305) 722-5900 NOTICE OF RESCHEDULED SPECIAL MEETING CITY COUNCIL TAMARAC, FLORIDA June 6. 1984 The Special Meeting of the City Council scheduled for Wednesday, June 6, 1984, at approximately 9:00 A.M., has been rescheduled for Monday, June 11, 1984 at 1:00 P.M., in the Council Chambers of City Hall, 5811 NW 88 Avenue, Tamarac. The purpose of this Special Meeting is discussion and possible action to cancel portions of site plans where Water and Sewer Developers Agreements are in default. a) Southgate Gardens East/Mission Lakes -- Temp. Reso. #3165 b) Woodmont TR 68 (Cypress III) - Temp. Reso. #3166 c) Woodview TR 38 - Temp. Reso. #3167 d) Fairways III - Tem . Reso. #3168 The public is invited to attend. Carol A. Evans Assistant City Clerk Pursuant to Section 286.0105, Florida Statutgs If a person decides to appeal any decision made by the city Council with respect to any matter considered at such meeting or hearing, he will need a record of the proceedings and for such purpose, he may need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is to be based. "An Equal Opportunity Employer" CITY OF TAMARAC, FLORIDA CITY COUNCIL SPECIAL MEETING JUNE 11, 1984 Tape CALL TO ORDER: Mayor Kravitz called the meeting to order at 1:00 1 P.M., on Monday, June 11, 1984, in the Council Chambers. ROLL CALL: PRESENT: Mayor Philip B. Kravitz Vice Mayor Sydney M. Stein Councilman Jack Stelzer Councilman Raymond J. Munitz Councilman John J. Dunne ALSO PRESENT: Laura Z. Stuurmans, City Manager Jon Henning, City Attorney Patricia Marcurio, Secretary PLEDGE OF ALLEGIANCE: Mayor Kravitz called for those present to join him in the Pledge of Allegiance. ^T of site plans where Discussion an possible action to cance _ p___or___ _tions _ Water and Sewer Developers Agreements are in default. a) Southgate Gardens East/Mission Lakes - Temp. Reso. #3165 b) Woodmont TR. 68 (Cypress III) - Temp. Reso. #3166 c) Woodview TR 38 - Temp. Reso. #3167 d) Fairways III -- Temp. Reso. #3168 SYNOPSIS OF ACTION: a), b), c) and d) TABLED indefinitely. a) City Attorney Henning read Temp. Reso. #3165, by title, and explained that the development is partially completed and occupied. He advised that those areas of the Site Plan where there are no Certificates of Occupancy and no water meters in line, and just vacant land be addressers. Vice Mayor Stein MOVED for adoption of Temp. Reso. #3165. C/M Stelzer SECONDED. The City Attorney advised that there have been discussions regarding this cancellation action. He stated that first the record should show that the Water and Sewer Agreement was not complied with and under those terms, it could or should be voided or defaulted because certain payments were not timely made by the developer. fie advised that the deadlines have passed and proper notices have been sent out. He continued that the second question is whether or not the Site Plan could or should be voided solely for lack of. Water and Sewer Agreements, and asked for the City Planner's input regarding any other conditions that may have been imposed at the time of Site Plan approval that have been violated. City Planner Richard Rubin reported that several years ago phasing regu- lations were established to assure that site plans are not kept valid indefinitely. He added that one of those regulations stated that no more than two years can pass from the issuance of the first Certificate of Occupancy and the pulling of the last building permit. He advised that the Recreation Building has been partially completed at Mission Lakes but the time period has been exceeded. -1- 6/11/84 /ct �J VOTE: ALL VOTED AYE The City Attorney requested that Council direct the Planner to prepare the appropriate exhibit delineating the areas of the Site Plan that have not been permitted and metered. The Mayor agreed. b) City Attorney Henning read Temp. Reso. #3166, by title, and explained that this is a two-phase project. He added that there were requirements in the Water and Sewer Agreement for certain payments by the developer; those payments were not timely made; and notices of default were sent out. He advised that the contract can be voided due to the lack of payment and called upon Mr. Rubin to report whether or not any phasing requirements may also have been defaulted. He stated that Council should consider all of these requirements in determining the effectiveness of the resolutions that granted the Site Plan and whether or not it should be partially voided. Mr. Rubin reported that the Site Plan does not clearly show where Phase One stops and Phase Two begins; and called upon the applicant's attorney for clarification. Mr. Myles Tralins advised that he could not offer any help with the Site Plan. Myles Tralins, Attorney for the developer, stated that his comments are applicable to both Temporary Resolutions. He advised that they have made their position clear previously that failure to pay guaranteed revenues is governed by ordinance and that the Ordinances of this City specifically provide for what the penalty is in the event that guaranteed revenues are not paid. He stated that historically and by definition, guaranteed revenues are nothing more than moratorium insurance, which a developer can buy by paying in advance for connections so that if the moratorium is put in place on the system, the developer has paid for them and is entitled to hook up. Mr. Tralins continued that the language of the developers agreement in _ ion St te_hat if the developer does not pay the -.guaranteed revenues. the ERC s that are reserved are lost and any monies paid are forfeited and liquidated; and that's the end of it. He continued that there is nothing in the agreement that says it can be voided; nothing that allows Council to revoke the sales office permits and nothing either in the agree- ment or the City's laws that allows Council to revoke the site plan. He stated that the action taken by Council in attempting to rescind the site pplan as well as declare the elements of the agreement outside the scope of the reservation for connection, is void, illegal and improper exercise of authority and violates fundamental due process of both the Constitution of the United States and of the State of Florida as well as the applicable Florida Statutes. He stated that notwithstanding the fact that this is a clear violation of the clear, unequivocal, and direct language of the City's own Ordinance which the Council is required to follow. Mr. Tralins pointed out that the language in the default letter sent to Mr. Toll specifically follows the language of the Ordinance. He added that the City Manager has apparently read the Ordinance, is aware of what it says, and has prepared a letter that addresses what the remedies are. Mr. Tralins advised that Mr. Toll has executed Water & Sewer Agreements for both Southgate and Cypress III which provide for everything in the City's current agreements and include contribution charges payable at the time of issuance. -2- 6/11/84 /cmt Mr. Tralins stated that his client, in the spirit of compromise as suggested by Council and Staff, has agreed to put aside whatever political or philosophical battles there are in an attempt to continue development and provide an additional tax base for the City. lie added that this action would allow the Cypress residents to have their develop- ment finished without exposing their condomonium documents or hampering their development or association costs; and would prevent the City from being involved in an extensive litigation from the potential damages accruing from revocation of site plans for the development of $10--12Mill.ion worth of building projects in the City. Mr. Tralins advised that toward this effort, Mr. Toll would execute the new Water & Sewer Agreements to provide for payment of guaranteed revenues and all the developer's obliga- tions expressed in the agreements; and would ask, in consideration for this, that the same required payments for the CIAC connections be at the time of the building permit. At that point the projects would be site planned and financed, and there would be money to pay the $170,000.00+ in fees for both projects. Mr. Tralins continued that the Water & Sewer Agreements have been executed for Southgate by Toll Development and by Coral Gables Federal Savings and Loan Association. He added that there is no lender at this point in time for Cypress III but Mr. Toll has executed the current Agreements. Mr. Tralins concluded that the offer of compromise and settlement is made in the spirit of attempting to compromise and settle. It is not a waiver of their .legal position that but for the reservation portion of the existing Developer's Agreement, that Agreement is in full force and effect. He added that if the City Council were to accept the current agreements with the request that payments of connection be deferred until issuance of building permits, then at that time all controversies pertaining to the pre-existing Developer's Agreements would be over and done with. City Attorney Henning recommended that Council not void the Site Plan on the Water & Sewer Agreement alone but address other items or conditions that may have been placed on the Site Plan at the time that it was approved. He said that the Council is on firm ground up to this point and regardless of Mr. Tralins' or Mr. Toll's feelings on their rights under guaranteed revenues provisions, the fact is that they signed certain agreements in which they made a commitment for payments and the contract outlines the remedies to be taken in the event those payments are not made. Mr. Henning reported that he had met with Mr. Tralins to discuss Council actions and the issues with his client and there was an attempt to reach a compromise. He added that Mr. Tralins had brought back the executed contracts in an attempt to show good faith, yet one particular point was still an exception to the City's rules, which is in changing the way the City handles the connection charges. Mr. Henning 'mentioned Mr. Toll's previous correspondence wherein he objects to paying these charges up front and the County has a different method of collecting those fees. Mr. Henning stated that for a year or more the City's Ordinance has required collection of these fees up front, without financing, at the time of site plan or Water & Sewer Agreement approval, and he does not feel that this is the time to change the procedures because there are other developers who are living with those rules and complying with them. The City Attorney stated that the offer being made would not neces- sarily conform to the Agreement that the City uses at this time, but it could be called a compromise. Mr. Henning asked Mr. Tralins if the guaran- teed revenues portion was addressed in the contract being proffered and Mr. Tralins replied that the agreements were signed as they are, including the obligations for guaranteed revenues 6 months after, the execution. --3- 6/11/84 /cmt Mr. Tralins stated that practicality needs to be considered in that orderly development of projects in the City should go forward. He added that from a philosophical standpoint, he can appreciate the Council's and the City Attorney's desire to insure that the spirit and intent of the City's Ordinances are lived up to; however, from the developer's standpoint, the problem is in paying these charges at the time of site plan approval, without an available financing package. Mr. Tralins pointed out that litigating Council's action in voiding the existing agreements would be costly to everybody and would serve no real practical purpose, because with Council's current action, the project cannot be completed anyway. C/M Munitz asked what action had been taken by the City Attorney in response to Council's direction to collect the monies due the. City on these projects and the City Attorney replied that the default letters had been sent out under the City Manager's signature. Ile advised that these letters advised the owners that the contracts were considered null and void and that further development could not continue until arrangements were made to obtain valid Water & Sewer Agreements with the City. Mr. Henning advised that in the old contracts, the remedies called for forfeiture of payments in the event of default, and were cited as liquidated damages. He continued that the new contracts provide for liening the property for back payments, voiding the site plan, and much more tangible and strict remedies for failure of payment. He continued that the old contract does not provide a basis for voiding the site plan; the basis would have to come from a violation of the City Code or other regulations, or a violation of the stipulations or conditions that were made when the site plan was approved. C/M Munitz asked whether non-payment of monies due came under the category of this violation and the City Attorney replied that it did not. He added that if other deadlines or conditions required by Ordinance for the development were violated, it would be the basis of retrieving the approval that was granted. Mr. Tralins agreed with the City Attorney's advice to Council and added that the stated purpose of this special meeting was for discussion and possible action to cancel portions of the Site Plan where Water & Sewer Developers Agreements were in default, which is what the developer was prepared to address. He stated that they never received notice of viola- tions of site plan requirements, violation of time deadlines, or any phasing problems, and if these reasons were being considered in voiding the site plan, the developer should,by due process, be given such notice and the opportunity to respond. Vice Mayor Stein disagreed that the purpose of the meeting was limited to the Water & Sewer Agreement and added that the default of this agreement was not the reason for pulling the Site Plan, but that there is no question that they are in default. He stated that if there are other things wrong with the Site Plan, he does not know of any reason why they cannot be discussed. He said that it was his opinion that Council should not pull the Site Plan just because of that default; however, this default, plus other items, gives Council a perfect right to pull the Site Plan. Mayor Kravitz called a five minute recess. Mayor Kravitz asked that Mr. Rubin complete his report. -4- 6/11/84 /cmt 177 Mr. Rubin reported that the engineering drawing for Cypress III indicates three phases in the Site Plan. Phase I consisted of the first 10 buildings and of these, five have been issued a C/O with the first being issued on 5/11/81 and the last on 3/18/83. He added that under Chapter 7 of Tamarac City Code, Section 7e, Phase Development Requirements, sub -paragraph 2c requires that no more than two years may elapse between issuance of a C/O for the first unit and the last unit to be constructed in the phase. He continued that since the first C/O was issued in 1981, and there are at least four or five buildings that have not been issued a building permit, the developer has exceeded that two-year period. The City Attorney stated that he has been tring to work out an amicable solution so that some type of agreement can be reached to satisfy all concerned. He stated that the City is obviously interested in collecting the monies due and Mr. Toll is interested in the development of his project. He added that with a little flexibility from Council, a compromise can be reached. He asked for a short recess to meet with Mr. Tralins and Mr. Toll, to discuss a proposal for this compromise. C/M Munitz asked if Mr. Toll was prepared to make any payments at this time and Mr. Henning replied that it was possible but that he would have a more definite answer following the recess. Mayor Kravitz called for a recess at 1:55 P.M. The meeting reconvened at 2:05 P.M. Mr. Tralins recommended that the proffer of the current Water & Sewer Agreements executed on Mission Lakes and Cypress III be accepted and that formal acceptance of the Developers Agreement not be made by the Council until such time as the owner/developer pays for the connections. He added that as a result of the discussion and upon acceptance of the proposal, they will acknowledge that the new Water & Sewer Agreements are the agreements that will be binding on the property and the develop - Tape ment as they are written and accepted by Council. He advised that:.they 2 have acknowledged affirmatively that no development of these two projects can go forward until the contribution fees provided on page. 4 are paid and the Developers Agreements are accepted. He agreed that the defaults sent out by letter from the City on the old Agreements are in fact in default and are void and to be replaced by the new Agreements proffered at this time. He stated that this action was with the assumption that Council reconsider their action earlier in this meeting and leave the Site Plan intact and Table the matters indefinitely. He concluded that both of these projects are scheduled for hearing by the Broward County Commission and Mr. Toll has agreed that if this proposal is acceptable to the Council, he will ask the County not to consider his application for the bond funding for Cypress ITI for a period of one year. Vice Mayor Stein asked for clarification that no money is going to be offered and that this is a unilateral situation where Mr. Toll is agreeing that, when and if the agreement is signed, it will be the binding agree- ment. Mr. Henning replied that there are other concessions and pointed out that Mr. Tralins conceded that guaranteed revenues do apply under the new Water & Sewer Agreement and that they would pay the contribution charges in a lump sum upon Council's approval of the Agreement, not the alternative method of paying the charges when the building permits are pulled. Mr. Henning advised that these two arguments were present when this meeting started and have now been reconciled to the City's way of thinking by the concessions made by Mr. Tralins and Mr. Toll. -5- 6/11./84 /cmt Vice Mayor Stein asked Mr. Tralins if it was correct that they will pay when the agreement is signed, or when they get the first building permits. Mr. Tralins affirmed that they have agreed to pay at the time of Council's approval and added the third concession to be that the old agreement is actually in default except for guaranteed revenues, and that they will be governed by the provisions of the new agreement. Vice Mayor Stein asked if the project is legally in default until the first permit is pulled and Mr. Henning affirmed that it was. Mr. Tralins replied that development cannot continue on these projects _ until there is an executed Developers Agreement accepted by the City and the contribution charges are paid. He continued that there is a closing on Southgate scheduled for the end of July and it is planned that at that time Mr. Toll would pay the $100,000.00+ to the City, the Council would accept the Developers Agreement, and the project could continue. In reply to the Vice Mayor's question, Mr. Henning asked Mr. Tralins if he agrees that the old Water & Sewer Agreements on these projects are in fact in default and Mr. Tralins replied that, assuming that their proposal is accepted by the City, that is correct. C/M Munitz stated that whether or not the proposal is accepted, the Agreement is either in default or not; one is not conditioned on the other. Vice Mayor Stein explained that if Council accepts this proposal, Mr. Tralins is waiving objections to the facts and agreeing that they are in default. The Vice Mayor added that his concern is that when this meeting is over, these projects will still be in default unless certain things are done. Mr. Tralins responded that it goes even further than that; the City has voided these agreements. He added that they are not in default because as far as the City is concerned, the Agreements no longer exist. He continued that assuming this can be resolved, they are acknowledging Council's action that the Agreement does not exist, and added that they will not litigate the action. Vice Mayor Stein asked for clarification that financing is available for Southgate and Council action would have no effect on this. Mr. Tralins replied that the mortgage has not been closed but they expect that to occur near the end of July. Vice Mayor Stein asked if there were any further hearings and if the project is closed subject to the closing date. Mr. Tralins confirmed. The Vice Mayor concluded that there was nothing to be discussed on the project and perhaps Council should re- consider their action. Bernie Hart, resident, asked for clarification of the statement that Mr. Toll has a guaranteed mortgage to proceed with a project that was opposed by the people of the City and if the money was being financed from a private institution for private construction or to be approved tomorrow by the housing authority. City Attorney Henning explained that Mr. Hart was mixing two points; Mission. Lakes was up before the housing authority a year ago and nothing is going to be done tomorrow. Mr. Hart asked if the financing is for the affordable housing or for regular apartments and Mr. Henning replied that he will ask for the answer to that but the point is that it is not on the agenda for tomorrow's hearing, and has no bearing on the hearing. Mr. Hart stated that he understands that Mr. Toll has not received the money for that and can't get it unless there is an approved plan for the balance of Southgate. He added his concern that if Council reconsiders and approves the Site Plan, the problem will start all over again. The Vice Mayor agreed that if there is no Site Plan the developer cannot get financing but the point is that Mission bakes is not up for discussion. He added that Cypress III is on the agenda and he is pleased that Cypress III is not going to be in the same situation as Mission Lakes, with develop- ment being stalled for financing. 00Me 6/11/84 /cmt C/M Munitz asked if there were confirmation that an agreement was signed with Coral Gables and Mr. Tralins.advised that Coral Gables has executed the Developers Agreement. C/M Munitz asked if that was in writing and Mr. Tralins affirmed and stated that a copy was given to the City Clerk. He added that the agreement was signed by Mr. Toll and the Bank, binding themselves to the agreement and to the payments. C/M Stelzer asked if this meant that the City would be paid in full by July 31st. Mr. Henning clarified that payment is to be in full for contribution charges required, and a commitment that guaranteed revenues would be paid in the future pursuant to the agreement. C/M Munitz asked about the interest and Mr. Henning replied that there is no interest on the new Agreement because the interest is for unpaid charges and under the old agreement the fees were paid up front; there- fore the interest on the old contract is lost. City Attorney Henning suggested that the offer outlined by Mr. Tralins is probably the best compromise that the Staff could offer Council at this time and encompasses both of these developments. C/M Stelzer asked if this meant the payment on Mission Lakes or the withdrawal on Woodmont and Mr. Henning confirmed that it would be a payment on Cypress II of Woodmont Tract 68. The City Attorney reiterated the problems that faced the meeting earlier and advised that those arguments were rescinded and payment would be made in a lump sum as soon as financing is approved, not when the permits are pulled. He added that this gives Council most of what they were looking for and that they should not expect realistically to recoup the unpaid interest on the old agreement. Vice Mayor Stein explained that his reason for asking that action on Temp. Reso. #3165 be reconsidered is that the resolution is incorrect. He said that if there is a default in the Site Plan, and if the site is subject to having to pull the last building permit within two years, then the payment of the fees under the Water & Sewer Agreement will not cure the problems. He agreed with the compromise with regard to the Water & Sewer Agreement, but the question now is if Council is willing to waive the default in the Site Plan requirements. C/M Stelzer MOVED to reconsider Temp. Reso. #3.165. C/M Dunne SECONDED. VOTE: ALL VOTED AYE Mr. Henning stated that Items a) and b) need to be discussed together, along with the settlement offer that has been placed before Council. He added that once a conclusion has been determined whether or not to accept this offer, then Council could go forward as to action to be taken. C/M Stelzer asked for confirmation that the offer made on the b) portion is that it would be postponed for a year. Vase Mayor Stein explained that they are agreeing to withdraw their petition for financing from the County; but the City still must take action on the Water & Sewer Agreements for both a) and b). Harold Newman, resident, asked if the developer would have the opportunity to make the balance of Mission Lakes into affordable housing. Mr. Henning pointed out that the financing by the Broward Housing Authority is by bonds that are issued through a bank; and in answer to Mr. Newman and Mr. Hart's questions, asked Mr. Tralins if the financing with Coral Gables was in the tax-free interest rate with the stipulation of 10 year rental housing. Mr. Tralins replied yes and no; and explained that one method of financing is being marketed by the Ulysses Capitol Corporation of New York as private placement and advised that the financing commitment to go along with that has been given to Coral Gables. Mr. Henning clarified his --7- 6/11/84 /cmt question to be if there is an obligation to have rental housing for the next 10 years under the stipulations of the financing by Coral. Cables. Mr. Tralins responded no, but there is an option that they could utilize that if they wanted to. Mr. Henning asked if that would have a bearing on the interest rate and Mr. Tralins replied that it would have a bearing on the financing costs, but that was approved a year ago. Mr. Henning asked Mr. Tralins to confirm that the determination has not been made because there are two options: one would allow for slightly higher costs but would go condomonium; and the other would be with slightly lower costs but have certain restric- tions regarding the 10 years rental property. Mr. Tralins confirmed and continued that once the financing is in place, whether it is by sale to private placement or Coral Gables picks up the commitment, then the lender will make the determination which is in its best interest to achieve a greater return. Mr. Henning reminded Council that this project was heard by the County a year ago and is not on the present agenda. He added that after al.l, the delays, discussions and input by the City, the Staff, residents, and Mr. Tralins, that project was approved by a 6/1 vote of the County Commission. Mr. Tralins pointed out that the agreement provides for three years of rentals and added that investors want a return on their investment and may not elect to bind themselves with a long range requirement. Vice Mayor Stein responded to Mr. Newman's question that if the Site Plan were in fact valid, then there is nothing to stop Mr. Toll from doing this because financing is available; but without the Site Plan Mr. Toll will be required to do certain things. Mr. Newman stated that he is concerned about a compromise where Woodmont becomes free and clear and the sacrifi- cial lambs are Sunflower-Heathgate. He stated that the mechanics of the compromise are one thing, and the funding could be worked out; but the moral obligation is his concern. Vickie Beech, resident, asked if this compromise is accepted, what it would cost the City and what the City would gain. The Vice Mayor replied that the City would be guaranteed that the revenues would be paid but the interest would be lost. He stated however that most important is that lawsuits cost money and in the long run a considerable amount could be spent in keeping the project in abeyance. Ms. Beech asked what the possibility was that the settlement could pertain to all developments so that the City does not get involved in the same type of compromise with the other agreements. The Vice Mayor stated that he does not know how feasibile that is. Bernie Hart referred to the Mission Lakes rental. housing project and stated that the residents are not opposed to the development of condominium property but are opposed to rental housing per se. He agreed with the City Attorney's statements that there were legal reasons at the beginning of this meeting for withdrawing the plans and the developer would not be able to continue with the rental project. He stated his concern over the results if Council reinstates the Site Plan which would again give Mr. Toll the option of developing either way. Mr. Tralins advised that a Declaration of Condominium was filed on this project and it is being developed as condominiums. He added that because of economics, they cannot be sold and the units are being rented until the market turns around and people are ready to buy again. He disagreed with Mr. Hart's characterization of the project as a rental project and stated that it is on public records and approved by Tallahassee as a condominium project. -8- 6/11/84 /cmt The Vice Mayor clarified for the record that Council does not have the authority to set guidelines for rentals, in any manner or fashion. With regard to the 38 units, Mr. Toll has a valid Site Plan and permits, and is entitled to do what he wants with them providing that he complies with the City Code. Vice Mayor Stein added that assuming that the Council was successful in pulling the Site Plan because of the valid technicalities, the only results would be another delay and a possible lawsuit. However, in this case Council action would not cancel the County approval and would accomplish nothing. He added that he knows the residents' feelings because he was involved with them in the County discussions but feelings have nothing to do with reality. The public must understand that someday there will be rental housing in this area because it has been approved by the County. C/M Munitz asked for confirmation that the City will only be losing the interest fees on the funds not paid for guaranteed revenues. Mr. Henning confirmed and added that the present guaranteed revenues will be paid up front under the new agreement and the developer is forfeiting the capacity and any unmetered contribution charges that have already been paid. C/M Munitz asked what the City is getting in return and Mr. Henning replied that the City is getting approval of the present Water & Sewer Agreements, with all provisions, including an agreement for the lien on the property in the event of past due payments for guaranteed revenues. He added that the City is getting contribution charges paid up front instead of the City acting as a bank and financing them at 14%. He continued that the City is also getting a more legally defensible position and an acquiescence that any request to the housing authority for publicly financed rental housing in Cypress III will be waived or forfeited for at least a year. C/M Munitz asked if there were any guarantees as to what will happen after that year and Mr. Henning replied no but there are opportunities to sell the property or develop differently in order to sell. 'Mr. Henning stated that he is sure that Mr. Toll will not want to leave that Cypress III, lot vacant for another year. C/M Munitz asked if this were putting the City in the Real Estate business, and if the City's collectibility is going to be subject to the fluctuations of the real estate market. Mr. Henning explained that the development of this City has been dependent on the market for over five years and the collectibility has been changed because this new agreement provides for up front payments. He added that not only will the City not be in the Real Estate business but this takes the City out of the Banking business, which is even a bigger step. He added that the City will not be collecting interest, only principal. Mayor Kravitz advised that part a) is on the table for reconsideration of Tape Temp. Reso. #3165 and asked for any motion to change. 3 C/M Stelzer referred to C/M Munitz's question on the money to be lost by the City and asked if that interest was .for the CIAC's which were not collected and Mr. Henning confirmed that it was on the unpaid CIAC charges. C/M Stelzer said if those contributions were never paid then the City is not out anything and if they had not reserved the CIAC's, the interest would not have accrued. Mr. Henning confirmed that they had no reservation for capacity. C/M Stelzer confirmed with the City Attorney that *the City is not out any actual money then and on the CIAC's that were not connected, the City did not lose any guaranteed revenues. Mr. Henning stated that under the circumstances since the lot was vacant and the contribution charges were not paid, what is more important is that they were uncollectible. C/M Stelzer asked if the City were actually out that $166,000.00. Mr. Henning explained that the City would eventually collect $103,000.00 and $62,000.00. C/M Stelzer asked for confirmation that this was for the ERCs that were not used and it would be just as though no application had been made and start at this point with a new application and payment to the City on July 31st for the CIAC with payment on guaran- teed revenues from that point. Mr. Henning explained that the contribution -9- 6/11/84 /cmt charges are not due until the 18th of this month and the default is based on the guaranteed revenues that were not paid, not the contribution charges. C/M Stelzer asked if the City is suffering any actual financial loss and Mr. Henning replied that there was a promise to pay but he does not know if any Engineering or Utility money was spent in anticipation of these connections. He added that the City is waiving those unpaid fees in exchange for cash up front and better remedies so this does not happen again, because there are no problems like these with the new agreements. C/M Munitz stated that when there are monies legally due and not received, there is a loss. C/M Stelzer responded that it is only a loss if the City gave something in advance for the money. He said that this agreement is one-sided because if the developer was guaran- teeing payment for the ERC's, they would be reserved; and that was not the case. Therefore, the City is not losing anything. Mr. Henning advised that action could not be taken on any of the resolutions until Council determines the posture on the settlement. At C/M Munitz's request, the City Attorney explained that the compromise: (1) is predicated on the fact that there is acknowledgment on both sides that the old Water & Sewer Agreement is in default, is null and void, and does not exist anymore; (2) that the developer has proffered executed copies of the new Water & Sewer Agreements with better remedies of collec- tion for the City; (3) that the developer has waived any argument that guaranteed revenues would not be due in the future; (4) that the developer has waived any argument that he would not have to pay contribution charges until he pulls the building permit; (5) that the developer agrees that as soon as financing is available, he will ask the. City to accept the Water & Sewer Agreements and pay for all of the connection charges for the un- metered portions of the Site Plans as they exist today. Mr. Henning continued that in exchange for that, the developer has asked that this action be Tabled indefinitely and that the Site Plans be left valid; and if Council is willing to consider those exchanges, the developer has agreed to withdraw his application for publicly financed housing for Cypress III Tract 68 for at least one year. At C/M Munitz's request, Mr. Tralins confirmed this. Mr. Henning suggested that Council move whether or not to accept this settlement. C/M Dunne MOVED to accept the settlement and C/M Stelzer SECONDED. C/M Munitz asked Mr. Tralins what this settlement does to the contention that the developer does not have to pay for the 8600 ERC's previously dis- cussed under the Marmon agreement. Mr. Henning advised that today's discussion concerned guaranteed revenues only. Mr. Tralins confirmed and added that this discussion concerned these two projects only and that the new agreements being proffered requires payment of guaranteed revenues for those two projects. He stated that insofar as the arguments were con- cerned pertaining to the vesting of rights concerning these two projects, the execution of this agreement waives those arguments, they are not the contention. The developer will comply with and follow all specific terms and conditions of the Water & Sewer Agreement being proffered. VOTE: ALL VOTED AYE _1.0- 6/11/84 /cmt J Mr. Henning suggested that Council entertain a motion to Table the a), b), c), and d) portion of the agenda indefinitely. C/M Munitz MOVED to Table Items a) through d). C/M Dunne SECONDED. Mr':Henning advised that a written report would be provided to Council on items c) and d). VOTE: ALL VOTED AYE Mayor Kravitz adjourned the meeting at 3:00 P.M. ATTEST: ASSISTANT CITY CLERK This public document was promulgated at a cost of $198.44 or $5.52 per copy to inform the general public and public officers and employees about recent opinions and considerations by the Council of the City of Tamarac. -11- CITY OF TAA,,1A AC vMEETIING t.,i _. City Clerk 6/11/84 /cmt CITY OF TAMARAC, FLORIDA CITY COUNCIL SPECIAL MEETING JUNE 11, 1984 Tape CALL TO ORDER: Mayor Kravitz called the meeting to order at 1:00 1 P.M., on Monday, June 11, 1984, in the Council Chambers. ROLL CALL: PRESENT: Mayor Philip B. Kravitz Vice Mayor Sydney M. Stein Councilman Jack Stelzer Councilman Raymond J. Munitz Councilman John J. Dunne ALSO PRESENT: Laura Z. Stuurmans, City Manager Jon Henning, City Attorney Patricia Marcurio, Secretary PLEDGE OF ALLEGIANCE: Mayor Kravitz called for those present to join him in the Pledge of Allegiance. Discussion and possible action to cancelportions of site plans where Water and Sewer Developers Agreements are in default. a) Southgate Gardens East/Mission Lakes Temp. Reso. #3165 b) Woodmont TR 68 (Cypress III) - Temp. Reso, #3166 c) Woodview TR 38 - Temp. Reso. #3167 d) Fairways III - Temp. Reso. #3168 SYNOPSIS OF ACTION: a), b), c) and d) TABLED indefinitely. a) City Attorney Henning rea Temp. peso. #3165, by title, an�c explained that the development is partially completed and occupied. He advised that those areas of the Site Plan where there are no Certificates of Occupancy and no water meters in line, and just vacant land be addressed. Vice Mayor Stein MOVED for adoption of Temp. Reso. #3165. C/M Stelzer SECONDED. The -City Attorney advised that there have been discussions regarding this cancellation action. He stated that first the record should show that the Water and Sewer Agreement was not complied with and under those terms, it could or should be voided or defaulted because certain payments were not timely made by the developer. Ile advised that the deadlines have passed and proper notices have been sent out. He continued that the second question is whether or not the Site Plan could or should be voided solely for lack of Water and Sewer Agreements, and asked for the City Planner's input regarding any other conditions that may have been imposed at the time of Site Plan approval that have been violated. City Planner Richard Rubin reported that several years ago phasing regu- lations were established to assure that site plans are not kept valid indefinitely. He added that one of those regulations stated that no more than two years can pass from the issuance of the first Certificate of Occupancy and the pulling of the last building permit. He advised that the Recreation Building has been partially completed at Mission Lakes but the time period has been exceeded. -1- 6/11/84 /ct I J VOTE: ALL VOTED AYE The City Attorney requested that Council direct the Planner to prepare the appropriate exhibit delineating the areas of the Site Plan that have not been permitted and metered. The Mayor agreed. b) City Attorney Henning read Temp. Reso. #3166, by title, and explained that this is a two-phase project. He added that there were requirements in the Water and Sewer Agreement for certain payments by the developer; those payments were not timely made; and notices of default were sent out. He advised that the contract can be voided due to the lack of payment and called upon Mr. Rubin to report whether or not any phasing requirements may also have been defaulted. He stated that Council should consider all of these requirements in determining the effectiveness of the resolutions that granted the Site Plan and whether or not it should be partially voided. Mr. Rubin reported that the. Site Plan does not clearly show where Phase One stops and Phase Two begins; and called upon the applicant's attorney for clarification. Mr. Myles Tralins advised that he could not offer any help with the Site Plan. Myles Tralins, Attorney for the developer, stated that his comments are applicable to both Temporary Resolutions. He advised that they have made their position clear previously that failure to pay guaranteed revenues is governed by ordinance and that the Ordinances of this City specifically provide for what the penalty is in the event that guaranteed revenues are not paid. He stated that historically and by definition, guaranteed revenues are nothing more than moratorium insurance, which a developer can buy by paying in advance for connections so that if the moratorium is put in place on the system, the developer has paid for them and is entitled to hook up. Mr. Tralins continued that the language of the developers agreement in.- _auestion state that if the developer does not pay the guarante.ed_s�venuP�_.. the ER�s �t a�i t are reserved are lost and any monies paid are forfeited and liquidated; and that's the end of it. He continued that there is nothing in the agreement that says it can be voided; nothing that allows Council to revoke the sales,office permits and nothing either in the agree- ment or the City's laws that allows Council to revoke the site plan. He stated that the action taken by Council in attempting to rescind the site plan as well as declare the elements of the agreement outside the scope of the reservation for connection, is void, illegal and improper exercise of authority and violates fundamental due process of both the Constitution of the United States and of the State of Florida as well as the applicable Florida Statutes. He stated that notwithstanding the fact that this is a clear violation of the clear, unequivocal, and direct language of the City's own Ordinance which the Council is required to follow. Mr. Tralins pointed out that the language in the default letter sent to Mr. Toll specifically follows the language of the Ordinance. He added that the City Manager has apparently read the Ordinance, is aware of what it says, and has prepared a letter that addresses what the remedies are. Mr. Tralins advised that Mr. Toll has executed Water & Sewer Agreements for both Southgate and Cypress III which provide for everything in the City's current agreements and include contribution charges payable at the time of issuance. -2- 6/11/84 /cmt J Mr. Tralins stated that his client, in the spirit of compromise as suggested by Council and Staff, has agreed to put aside whatever political or philosophical battles there are in an attempt to continue development and provide an additional tax base for the City. He added that this action would allow the Cypress residents to have their develop- ment finished without exposing their condomonium documents or hampering their development or association costs; and would prevent the City from being involved in an extensive litigation from the potential damages accruing from revocation of site plans for the development of $10-12Million worth of building projects in the City. Mr. Tralins advised that toward this effort, Mr. Toll would execute the new Water & Sewer Agreements to provide for payment of guaranteed revenues and all the developer's obliga- tions expressed in the agreements; and would ask, in consideration for this, that the same required payments for the CIAC connections be at the time of the building permit. At that point the projects would be site planned and financed, and there would be money to pay the $170,000.00+ in fees for both projects. Mr. Tralins continued that the Water & Sewer Agreements have been executed for Southgate by Toll Development and by Coral Gables Federal Savings and Loan Association. He added that there is no lender at this point in time for Cypress III but Mr. Toll has executed the current Agreements. Mr. Tralins concluded that the offer of compromise and settlement is made in the spirit of attempting to compromise and settle. It is not a waiver of their legal position that but for the reservation portion of the existing Developer's Agreement, that Agreement is in full force and effect. He added that if the City Council were to accept the current agreements with the request that payments of connection be deferred until issuance of building permits, then at that time all controversies pertaining to the pre-existing Developer's Agreements would be over and done with. City Attorney Henning recommended that Council not void the Site Plan on the Water & Sewer Agreement alone but address other items or conditions that may have been placed on the Site Plan at the time that it was approved. He said that the Council is on firm ground up to this point and regardless of Mr. Tralins' or Mr. Toll's feelings on their rights under guaranteed revenues provisions, the fact is that they signed certain agreements in which they made a commitment for payments and the contract outlines the remedies to be taken in the event those payments are not made. Mr. Henning reported that he had met with Mr. 'Tralins to discuss Council actions and the issues with his client and there was an attempt to reach a compromise. He added that Mr. Tralins had brought back the executed contracts in an attempt to show good faith, yet one particular point was still an exception to the City's rules, which is in changing the way the City handles the connection charges. Mr. Henning mentioned Mr. Toll's previous correspondence wherein he objects to paying these charges up front and the County has a different method of collecting those fees. Mr. Henning stated that for a year or more the City's Ordinance has required collection of these fees up front, without financing, at the time of site plan or Water & Sewer Agreement approval, and he does not feel that this is the time to change the procedures because there are other developers who are living with those rules and complying with them. The City Attorney stated that the offer being made would not neces- sarily conform to the Agreement that the City uses at this time, but it could be called a compromise. Mr. Henning asked Mr. Tralins if the guaran- teed revenues portion was addressed in the contract being proffered and Mr. Tralins replied that the agreements were signed as they are, including the obligations for guaranteed revenues 6 months after the execution. -3-- 6/11/84 /cmt i V' Mr. Tralins stated that practicality needs to be considered in that orderly development of projects in the City should go forward. He added that from a philosophical standpoint, he can appreciate the Council's and the City Attorney's desire to insure that the spirit and intent of the City's Ordinances are lived up to; however, from the developer's standpoint, the problem is in paying these charges at the time of site plan approval, without an available financing package. Mr. Tralins pointed out that litigating Council's action in voiding the existing agreements would be costly to everybody and would serve no real practical purpose, because with Council's current action, the project cannot be completed anyway. C/M Munitz asked what action had been taken by the City Attorney in response to Council's direction to collect the monies due the City on these projects and the City Attorney replied that the default letters had been sent out under the City Manager's signature. He advised that these letters advised the owners that the contracts were considered null and void and that further development could not continue until arrangements were made to obtain valid Water & Sewer Agreements with the City. Mr. Henning advised that in the old contracts, the remedies called for forfeiture of payments in the event of default, and were cited as liquidated damages. He continued that the new contracts provide for liening the property for back payments, voiding the site plan, and much more tangible and strict remedies for failure of payment. He continued that the old contract does not provide a basis for voiding the site plan; the basis would have to come from a violation of the City Code or other regulations, or a violation of the stipulations or conditions that were made when the site plan was approved. C/M Munitz asked whether non-payment of monies due came under the category of this violation and the City Attorney replied that it did not. He added that if other deadlines or conditions required by Ordinance for the development were violated, it would be the basis of retrieving the approval that was granted. Mr. Tralins agreed with the City Attorney's advice to Council and added that the stated purpose of this special meeting was for discussion and possible action to cancel portions of the Site Plan where Water & Sewer Developers Agreements were in default, which is what the developer was prepared to address. He stated that they never received notice of viola- tions of site plan requirements, violation of time deadlines, or any phasing problems, and if these reasons were being considered in voiding the site plan, the developer should,by due process, be given such notice and the opportunity to respond. Vice Mayor Stein disagreed that the purpose of the meeting was limited to the Water & Sewer Agreement and added that the default of this agreement was not the reason for pulling the Site Plan, but that there is no question that they are in default. He stated that if there are other things wrong with the Site Plan, he does not know of any reason why they cannot be discussed. He said that it was his opinion that Council should not pull the Site Plan just because of that default; however, this default, plus other items, gives Council a perfect right to pull the Site Plan. Mayor Kravitz called a five minute recess. Mayor Kravitz asked that Mr. Rubin complete his report. -4- 6/11/84 /cmt Mr. Rubin reported that the engineering drawing for Cypress III indicates three phases in the Site Plan. Phase I consisted of the first 10 buildings and of these, five have been issued a C/o with the first being issued on 5/11/81 and the last on 3/18/83. He added that under Chapter 7 of Tamarac City Code, Section 7e, Phase Development Requirements, sub -paragraph 2c requires that no more than two years may elapse between issuance of a C/o for the first unit and the last unit to be constructed in the phase. He continued that since the first C/O was issued in 1981, and there are at least four or five buildings that have not been issued a building permit, the developer has exceeded that two-year period. e City Attorney stated that he has been tring to work out an amicable solution so that some type of agreement can be reached to satisfy all concerned. He stated that the City is obviously interested in collecting the monies due and Mr. Toll is interested in the development of his project. He added that with a little flexibility from Council, a compromise can be reached. He asked for a short recess to meet with Mr. Tralins and Mr. Toll to discuss a proposal for this compromise. C/M Munitz asked if Mr. Toll was prepared to make any payments at this time and Mr. Henning replied that it was possible but that he would have a more definite answer following the recess. _ Mayor Kravitz called or a recess at 155 P.M. The meeting reconvened at 2:05 P.M. Mr. Tralins recommended that the proffer of the current Water & Sewer Agreements executed on Mission Lakes and Cypress III be accepted and that formal acceptance of the Developers Agreement not be made by the Council until such time as the owner/developer pays for the connections. He added that as a result of the discussion and upon acceptance of the proposal, they will acknowledge that the new Water & Sewer Agreements are the agreements that will be binding on the property and the develop - Tape ment as they are written and accepted by Council. He advised thatc.they:: 2 have acknowledged affirmatively that no development of these two projects can go forward until the contribution fees provided on page 4 are paid and the Developers Agreements are accepted. He agreed that the defaults sent out by letter from the City on the old Agreements are in fact in default and are void and to be replaced by the new Agreements proffered at this time. He stated that this action was with the assumption that Council reconsider their action earlier in this meeting and leave the Site Plan intact and Table the matters indefinitely. He concluded that both of these projects are scheduled for hearing by the Broward County Commission and Mr. Toll has agreed that if this proposal is acceptable to the Council, he will ask the County not to consider his application for the bond funding for Cypress IIl for a period of one year. Vice Mayor Stein asked for clarification that no money is going to be offered and that this is a unilateral situation where Mr. Toll is agreeing that, when and if the agreement is signed, it will be the binding agree- ment. Mr. Henning replied that there are other concessions and pointed out that Mr. Tralins conceded that guaranteed revenues do apply under the new Water & Sewer Agreement and that they would pay the contribution charges in a lump sum upon Council's approval of the Agreement, not the alternative method of paying the charges when the building permits are pulled. Mr. Henning advised that these two arguments were present when this meeting started and have now been reconciled to the City's way of thinking by the concessions made by Mr. Tralins and Mr. Toll. -5- 6/11/84 /cmt Vice Mayor Stein asked Mr. Tralins if it was correct that they will pay when the agreement is signed, or when they get the first building permits. Mr. Tralins affirmed that they have agreed to pay at the time of Council's approval and added the third concession to be that the old agreement is actually in default except for guaranteed revenues, and that they will be governed by the provisions of the new agreement. Vice Mayor Stein asked if the project is legally in default until the first permit is pulled and Mr. Henning affirmed that it was. Mr. Tralins replied that development cannot continue on these projects until there is an executed Developers Agreement accepted by the City and the contribution charges are paid. He continued that there is a closing on Southgate scheduled for the end of July and it is planned that at that time Mr. Toll would pay the $100,000.00+ to the City, the Council would accept the Developers Agreement, and the project could continue. In reply to the Vice Mayor's question, Mr. Henning asked Mr.---Tralins _if he agrees that the old Water & Sewer Agreements on these projects are in fact in default and Mr. Tralins replied that, assuming that their proposal is accepted by the City, that is correct. C/M Munitz stated that whether or not the proposal is accepted, the Agreement is either in default or not; one is not conditioned on the other. Vice Mayor Stein explained that if Council -accepts this proposal, Mr. Tralins is waiving objections to the facts and agreeing that they are in default. The Vice Mayor added that his concern is that when this meeting is over, these projects will still be in default unless certain things are done. Mr. Tralins responded that it goes even further than that; the City has voided these agreements. He added that they are not in default because as far as the City is concerned, the Agreements no longer exist. He continued that assuming this can be resolved, they are acknowledging Council's action that the Agreement does not exist, and added that they will not litigate the action. Vice Mayor Stein asked for clarification that financing is available for Southgate and Council action would have no effect on this. Mr. Tralins replied that the mortgage has not been closed but they expect that to occur near the end of July. Vice Mayor Stein asked if there were any further hearings and if the project is closed subject to the closing date. Mr. Tralins confirmed. The Vice Mayor concluded that there was nothing to be discussed on the project and perhaps Council should re- consider their action. Bernie Hart, resident, asked for clarification of the statement that Mr. Toll has a guaranteed mortgage to proceed with a project that was opposed by the people of the City and if the money was being financed from a private institution for private construction or to be approved tomorrow by the housing authority. City Attorney Henning explained that Mr. Hart was mixing two points; Mission Lakes was up before the housing authority a year ago and nothing is going to be done tomorrow. Mr. Hart asked if the financing is for the affordable housing or for regular apartments and Mr. Henning replied that he will ask for the answer to that but the point is that it is not on the agenda for tomorrow's hearing, and has no bearing on the hearing. Mr. Hart stated that he understands that Mr. Toll has not received the money for that and can't get it unless there is an approved plan for the balance of Southgate. He added his concern that if Council reconsiders and approves the Site Plan, the problem will start all over again. The Vice Mayor agreed that if there is no Site Plan the developer cannot get financing but the point is that Mission Lakes is not up for discussion. He added that Cypress III is on the agenda and he is pleased that Cypress III is not going to be in the same situation as Mission Lakes,__ with__develo..p=. ment being stalled for financing. MGM 6/11/84 /cmt C/M Munitz asked if there were confirmation that an agreement was signed with Coral Gables and Mr. Tralins advised that Coral Gables has executed the Developers Agreement. C/M Munitz asked if that was in writing and Mr. Tralins affirmed and stated that a copy was given to the City Clerk. He added that the agreement was signed by Mr. Toll and the Bank, binding themselves to the agreement and to the payments. C/M Stelzer asked if this meant that the City would be paid in full by July 31st. Mr. Henning clarified that payment is to be in full, for contribution charges required, and a commitment that guaranteed revenues would be paid in the future pursuant to the agreement. C/M Munitz asked about the interest and Mr. Henning replied that there is no interest on the new Agreement because the interest is for unpaid charges and under the old agreement the fees were paid up front; there- fore the interest on the old contract is lost. City Attorney Henning suggested that the offer outlined by Mr. Tralins is probably the best compromise that the Staff could offer Council at this time and encompasses both of these developments. C/M Stelzer asked if this meant the payment on Mission Lakes or the withdrawal on Woodmont and Mr. Henning confirmed that it would be a payment on Cypress II of Woodmont Tract 68. The City Attorney reiterated the problems that faced the meeting earlier and advised that those arguments were rescinded and payment would be made in a lump sum as soon as financing is approved, not when the permits are pulled. He added that this gives Council most of what they were looking for and that they should not expect realistically to recoup the unpaid interest on the old agreement. Vice Mayor Stein explained that his reason for asking that action on Temp. Reso. #3165 be reconsidered is that the resolution is incorrect. He said that if there is a default in the Site Plan, and if the site is subject to having to pull the last building permit within two years, then the payment of the fees under the Water & Sewer Agreement will not cure the problems. He agreed with the compromise with regard to the Water & Sewer Agreement, but the question now is if Council is willing to waive the default in the Site Plan requirements. C/M Stelzer MOVED to reconsider Temp. Reso. #3165. C/M Dunne SECONDED. VOTE: ALL VOTED AYE Mr. Henning stated that Items a) and b) need to be discussed together, along with the settlement offer that has been placed before Council. He added that once a conclusion has been determined whether or not to accept this offer, then Council could go forward as to action to be taken. C/M Stelzer asked for confirmation that the offer made on the b) portion is that it would be postponed for a year. Vice Mayor Stein explained that they are agreeing to withdraw their petition for financing from the County; but the City still must take action on the Water & Sewer Agreements for both a) and b). _ _. _.... Harold Newman, resident, asked if the developer would have,the opportunity to make the balance of Mission Lakes into affordable housing. Mr. Henning pointed out that the financing by the Broward Housing Authority is by bonds that are issued through a bank; and in answer to Mr. Newman and Mr. Hart's questions, asked Mr. Tralins if the financing with Coral Cables was in the tax-free interest rate with the stipulation of 10 year rental housing. Mr. Tralins replied yes and no; and explained that one method of financing is being marketed by the Ulysses Capitol Corporation of New York as private placement and advised that the financing commitment to go along with that has been given to Coral Gables. Mr. Henning clarified his -7- 6/11/84 / cm t question to be if there is an obligation to have rental housing for the next 10 years under the stipulations of the financing by Coral Gables. Mr. Tralins responded no, but there is an option that they could utilize that if they wanted to. Mr. Henning asked if that would have a bearing on the interest rate and Mr. Tralins rep lied .that it would have a bearing on the financing costs, but that was approved a year ago. Mr. Henning asked Mr. Tralins to confirm that the determination has not been made because there are two options: one would allow for slightly higher costs but would go condomonium; and the other would be with slightly lower costs but have certain restric- tions regarding the 10 years rental property. Mr. Tralins confirmed and continued that once the financing is in place, whether it is by sale to private placement or Coral Gables picks up the commitment, then the lender will make the determination which is in its best interest to achieve a greater return. Mr. Henning reminded Council that this project was heard by the County a year ago and is not on the present agenda. He added that after all the delays, discussions and input by the City, the Staff, residents, and Mr. Tralins, that project was approved by a 6/1 vote of the County Commission. Mr. Tralins pointed out that the agreement provides for three years of rentals and added that investors want a return on their investment and may not elect to bind themselves with a long range requirement. Vice Mayor Stein responded to Mr. Newman's question that if the Site Plan were in fact valid, then there is nothing to stop Mr. Toll from doing this because financing is available; but without the Site Plan Mr. Toll will be required to do certain things. Mr. Newman stated that he is concerned about a compromise where Woodmont becomes free and clear and the sacrifi- cial lambs are Sunflower-Heathgate. He stated that the mechanics of the compromise are one thing, and the funding could be worked out; but the moral obligation is his concern. Vickie Beech, resident, asked if this compromise is accepted, whatit would cost the City and what the City would gain. The Vice Mayor replied that the City would be guaranteed that the revenues would be paid but the interest would be lost. He stated however that most important is that lawsuits cost money and in the long run a considerable amount could be spent in keeping the project in abeyance. Ms. Beech asked what the possibility was that the settlement could pertain to all developments so that the City does not get involved in the same type of compromise with the other agreements. The Vice Mayor stated that he does not know how feasibile that is. Bernie Hart referred to the Mission Lakes rental housing project and stated that the residents are not opposed to the development of condominium property but are opposed to rental housing per se. He agreed with the City Attorney's statements that there were legal reasons at the beginning of this meeting for withdrawing the plans and the developer would not be able to continue with the rental project. He stated his concern over the results if Council reinstates the Site Plan which would again give Mr. Toll the option of developing either way. Mr. Tralins advised that a Declaration of Condominium was filed on this project and it is being developed as condominiums. He added that because of economics, they cannot be sold and the units are being rented until the market turns around and people are ready to buy again. He disagreed with Mr. Hart's characterization of the project as a rental project and stated that it is on public records and approved by Tallahassee as a condominium project. -8- 6/11/84 /cmt ___ ___....._ _ The Vice Mayor clarified for the record that Council does not have the authority to set guidelines for rentals, in any manner or fashion. With regard to the 38 units, Mr. Toll has a valid Site Plan and permits, and is entitled to do what he wants with them providing that he complies with the City Code. Vice Mayor Stein added that assuming that the Council was successful in pulling the Site Plan because of the valid technicalities, the only results would be another delay and a possible lawsuit. However, in this case Council action would not cancel the County approval and would accomplish nothing. He added that he knows the residents' feelings because he was involved with them in the County discussions but feelings have nothing to do with reality. The public must understand that someday there will be rental housing in this area because it has been approved by the County. C/M Munitz asked for confirmation that the City will only be losing the interest fees on the funds not paid for guaranteed revenues. Mr. Henning confirmed and added that the present guaranteed revenues will be paid up front under the new agreement and the developer is forfeiting the capacity and any unmetered contribution charges that have already been paid. C/M Munitz asked what the City is getting in return and Mr. Henning replied that the City is getting approval of the present Water & Sewer Agreements, with all provisions, including an agreement for the lien on the property in the event of past due payments for guaranteed revenues. He added that the City is getting contribution charges paid up front instead of the City acting as a bank and financing them at 14%. He continued that the City is also getting a more legally defensible position and an acquiescence that any request to the housing authority for publicly financed rental housing in Cypress III will be waived or forfeited for at least a year. C/M Munitz asked if there were any guarantees as to what will happen after that year and Mr. Henning replied no but there are opportunities to sell the property or develop differently in order to sell. 'Mr. Henning stated that he is sure that Mr. Toll will not want to leave that Cypress III lot vacant for another year. C/M Munitz asked if this were putting the City in the Real Estate _ business, and if the City's collectibility is going to be subject to the fluctuations of the real estate market. Mr. Henning explained that the development of this City has been dependent on the market for over five years and the collectibility has been changed because this new agreement provides for up front payments. He added that not only will the City not be in the Real Estate business but this takes the City out of the Banking business, which is even a bigger step. He added that the City will not be collecting interest, only principal. Mayor Kravitz advised that part a) is on the table for reconsideration of Tape Temp. Reso. #3165 and asked for any motion to change. 3 C/M Stelzer referred to C/M Munitz's question on the money to be lost by the City and asked if that interest was for the CIAC's which were not collected and Mr. Henning confirmed that it was on the unpaid CIAC charges. C/M Stelzer said if those contributions were never paid then the City is not out anything and if they had not reserved the CIAC's, the interest would not have accrued. Mr. Henning confirmed that they had no reservation for capacity._ C/M e confirmed- with the City Attorney- that the City is not out any actual money then and on the CIAC's that were -"no connecte3, the City did not lose any guaranteed revenues. Mr. Henning stated that under the circumstances since the lot was vacant and the contribution charges were not paid, what is more important is that they were uncollectible. C/M Stelzer asked if the City were actually out that $166,000.00. Mr. Henning explained that the City would eventually collect $103,000.00 and $62,000.00. C/M Stelzer asked for confirmation that this was for the ERCs that were not used and it would be just as though no application had been made and start at this point with a new application and payment to the City on July 31st for the CIAC with payment on guaran- teed revenues from that point. Mr. Henning explained that the contribution -9- 6/11/84 /cmt charges are not due until the 18th of this month and the default is based on the guaranteed revenues that were not paid, not the contribution charges. C/M Stelzer asked if the City is suffering any actual financial loss and Mr. Henning replied that there was a promise to pay but he does not know if any Engineering or Utility money was spent in anticipation of these connections. He added that the City is waiving those unpaid fees in exchange for cash up front and better remedies so this does not happen again, because there are no problems like these with the new agreements. C/M Munitz stated that when there are monies legally due and not received, there is a loss. C/M Stelzer responded that it is only a loss if the City gave something in advance for the money. He said that this agreement is one-sided because if the developer was guaran- teeing payment for the ERC's, they would be reserved; and that was not the case. Therefore, the Citv is not losing anvthing. Mr. Henning advised that action could not be taken on any of the resolutions until Council determines the posture on the settlement. At C/M Munitz's request, the City Attorney explained that the compromise: (1) is predicated on the fact that there is acknowledgment on both sides that the old Water & Sewer Agreement is in default, is null and void, and does not exist anymore; (2) that the developer has .proffered executed copies of the new Water & Sewer Agreements with better remedies of collec- tion for the City; (3) that the developer has waived any argument that guaranteed revenues would not be due in the future; (4) that the developer has waived any argument that he would not have to pay contribution charges until he pulls the building permit; (5) that the developer agrees that as soon as financing is available, he will ask the City to accept the Water & Sewer Agreements and pay for all of the connection charges for the un- metered portions of the Site Plans as they exist today. Mr. Henning continued that in exchange for that, the developer has asked that this action be Tabled indefinitely and that the Site Plans be left valid; and if Council is willing to consider those exchanges, the developer has agreed to withdraw his application for publicly financed housing for Cypress III Tract 68 for at least one year. At C/M Munitz's request_,_ Mr. Tralins confirmed this. Mr. Henning suggested that Council move whether ._.ornot to accept ._ this settlement. C/M Dunne MOVED to accept the settlement and C/M Stelzer SECONDED. C/M Munitz asked Mr. Tralins what this settlement does to the contention that the developer does not have to pay for the 8600 ERC's previously dis- cussed under the Marmon agreement. Mr. Henning advised that today's discussion concerned guaranteed revenues only. Mr. Tralins confirmed and added that this discussion concerned these two projects only and that the new agreements being proffered requires payment of guaranteed revenues for those two projects. He stated that insofar as the arguments were con- cerned pertaining to the vesting of rights concerning these two projects, the execution of this agreement waives those arguments, they are not the contention. The developer will comply with and follow all specific terms and conditions of the Water & Sewer Agreement being proffered. VOTE: ALL VOTED AYE -10- 6/11/84 /cmt Mr. Henning suggested that Council entertain a motion to Table the a), b), c), and d) portion of the agenda indefinitely. C/M Munitz MOVED to Table Items a) through d). C/M Dunne SECONDED. Mr,..' Henning advised that a written report would be provided to Council on items c) and d). VOTE: ALL VOTED AYE Mayor Kravitz adjourned the meeting at 3:00 P.M. ATTEST: ASSISTANT CITY CLERK This public document was promulgated at a cost of $198.44 or $5.52 per copy to inform the general public and public officers and employees about recent opinions and considerations by the Council of the City of Tamarac. -11- CITY OF TAMAAC APPROVED AT MEETING t;r >41, City Clerk 6/11/84 /cmt