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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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CITY OF TAA,,1A AC
vMEETIING t.,i
_.
City Clerk
6/11/84
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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.
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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.
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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.
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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.
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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.
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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.
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6/11/84
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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
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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.
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___ ___....._ _
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
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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
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6/11/84
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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.
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CITY OF TAMAAC
APPROVED AT MEETING t;r >41,
City Clerk
6/11/84
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