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HomeMy WebLinkAboutItem # 03 Approval of Settlement Agreement for Past Due Development Review Fees ocoee florida AGENDA ITEM COVER SHEET Meeting Date: December 5, 2017 Item # 3 Reviewed By: Dana Crosby Collier, Scott Cookson, City Contact Name: Assistant City Attorney Department Director: Attorney Contact Number: 407-581-9800 City Manager: Rob Frank Subject: Settlement Agreement for past due Development Review Fees Background Summary: In conjunction with the City's review of project LS-07-024, Diplomat Tower (parcel 30-22-28-0000- 00-017), Diplomat Development Group, LLC (Diplomat) incurred development review fees. The City's records show a current balance due in the amount of $24,978.93 for development review fees for Diplomat Tower in association with project LS-07-024. • As part of the City's collection efforts, on September 29, 2015, the City Attorney's office sent a letter to Diplomat requesting payment of the past due development review fees. Diplomat responded directly to City staff in response to the City Attorney's 2015 letter and requested fees be reduced and settled due to a dispute between City and Diplomat as to the amount of the balance due. A standard settlement agreement was drafted by the City Attorney's office; however, Diplomat requested the City add language including as a part of the settlement a 2015 discussion and agreement between City staff and Diplomat relating to the City's commitment to contribute to the development of Northbrooke Boulevard. The attached agreement contains two major provisions. First, the agreement contains a provision settling the disputed fees in the amount of $15,000.00. Secondly, the agreement contains a provision whereby Diplomat will agree to design and construct Northbrooke Boulevard and the City will agree to pay the lesser of 60% of the cost of the design and construction or $252,000.00 in transportation impact fee credits (whichever is less). (This latter provision is subject to the City and Diplomat entering into a separate road construction and impact fee agreement.) Issue: Should the City Commission approve the Settlement Agreement with Diplomat settling past due development review fees for $15,000.000 and agreeing to reimburse Diplomat for the lesser of 60% of the cost of the design and construction by Diplomat of Northbrooke Boulevard or $252,000.00 in transportation impact fee credits subject to a separate agreement between Diplomat and the City? Recommendations Staff recommends that the City Commission approve the Settlement Agreement with Diplomat settling past due development review fees for $15,000.000 and agreeing to reimburse Diplomat the lesser of 60% of the cost of the design and construction by Diplomat of Northbrooke Boulevard or $252,000.00 in transportation impact fee credits subject to a separate agreement between Diplomat and the City. Attachments: Settlement Agreement between Diplomat and the City of Ocoee. 2015 letter from City Manager to Diplomat regarding past due fees and road design and construction (exhibit A to agreement). Financial Impact: The settlement of development review fees is at about 60% of the balance due; however, settling the matter at 60% will avoid additional collection costs to the City, including possible litigation costs. The agreement for City reimbursement of road design and construction fees is based on the 2015 discussions and is subject to finalization in a subsequent agreement. Type of Item: [ ] Public Hearing For Clerk's Dept Use: ❑ Ordinance First Reading x❑ Consent Agenda ❑ Ordinance First Reading [ ] Public Hearing ❑ Resolution ❑ Regular Agenda [x] Commission Approval O Discussion& Direction [x] Original Document/Contract Attached for Execution by City Clerk ❑ Original Document/Contract Held by Department for Execution Reviewed by City Attorney Scott A. Cookson, Esq. ❑ N/A Reviewed by Finance Dept. ❑ N/A Reviewed by ( ) ❑ N/A SETTLEMENT AGREEMENT PARTIES This Settlement Agreement(the"Agreement") is made and entered into on the last day set forth on the signature page hereto by Diplomat Development Group, LLC, a Florida limited liability company ("Owner"), and the City of Ocoee, Florida ("City") for the purpose of resolving by compromise settlement, all claims, liabilities, and disputes between the Parties as it relates to Project#LS-07-024. In the remainder of this Agreement, Owner and City shall be referred to collectively as the"Parties." RECITALS This Agreement is entered into with reference to the following facts: A. Development Review Fees ("Fees") were incurred during the review of an application for Diplomat Tower, Project#LS-07-024,for development of property with parcel identification numbers 30-22- 28-0000-00-017. B. Owner and City have a disputed issue relating to outstanding fees due to the City. C. Neither Owner nor City have filed a lawsuit based upon this issue and desire, without admission of liability, to re solve all claims relating to review of Project #LS-07-024 in order to avoid the uncertainty and expense of litigation. D. The Parties deem it to be in their respective best interests to settle and compromise disputed fees and to enter into this Agreement. The Parties, without in any way conceding the validity or sufficiency of any claim or contention of any or all the Parties, now desire to fully compromise,finally settle and fully release all claims, disputes and differences between the Parties. AGREEMENTS, RELEASES AND PROMISES THEREFORE, in consideration of the facts and mutual general releases and promises contained herein, and for other good and valuable consideration, the receipt of which is acknowledged by each party hereto, the Parties promise and agree as follows: 1. SETTLEMENT FUNDS. On November 10, 2017, Owner paid to the City of Ocoee the total sum of Fifteen Thousand Dollars ($15,000.00)(the"Settlement Funds"). Upon payment of the Settlement Funds and acceptance of this Agreement by the City Commission, the Settlement Funds will be accepted as full and final settlement and satisfaction of all claims against Owner, arising or occurring solely in relation to review of Project LS-07-024. 2. CITY RELEASE. City does further release and forever discharge Owner, successors, and assignees, and all persons acting by, through or in any way on behalf of Owner, of and from any and all claims and debts and causes of action of any kind or nature that City may now have or claim to have against Owner which arise from or are connected with or which could have been asserted in connection with past due fees incurred during the review of Project LS-07-024. 3. OWNER RELEASE. Owner does further release and forever discharge City and each of the officers, attorneys, representatives, assignees, agents, employees, and all persons acting by, through or in any way on behalf of City, of and from any and all claims or debts, that Owner may now have or claim to have against City,which arise from or are connected with or which could have been asserted in connection with this matter. 4. NORTHBROOKE BOULEVARD CONSTRUCTION AND IMPACT FEE CREDIT. City and Owner hereby agree to work together in good faith to agree to, finalize, and present for execution an agreement for Owner's design and construction of Northbrooke Boulevard wherein the Owner will design and construct Northbrooke Boulevard and City will agree to pay to the Owner the lesser of sixty percent (60%) of the cost of design and construction of Northbrooke Boulevard or Two Hundred Fifty Two Thousand and no/00 dollars ($252,000.00) in transportation impact fee credits only(no cash value), in accordance with the terms stated in the letter set forth as Exhibit"A"hereto. Transportation impact fee credits will be determined and applied after construction of Northbrooke Boulevard is completed. Any agreement for Owner's design and construction of Northbrooke Boulevard shall be valid for any approved project for Owner, its successors and assigns. 5. MISCELLANEOUS. a. ft is expressly understood by the Parties that each Party shall bear its own costs in connection with the Dispute and this Agreement, and the Parties waive and release any claims they otherwise have or may have had to such costs and attorneys fees. b. This Agreement is entered into in the State of Florida and the Agreement and any rights, remedies or obligations provided for in this Agreement shall be construed and enforced in accordance with the laws of the State of Florida.Venue in Orange County, Florida. c. This Agreement shall be construed as if all Parties jointly prepared it, and any uncertainty or ambiguity in the Agreement shall not be interpreted against any one Party. d. The provisions of this Agreement are severable. If any portion, provision or part of this Agreement is held, determined or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts. e. This Agreement shall not be altered, amended or modified by oral representation made before or after the execution of this Agreement. All modifications must be in writing and duly executed by all Parties. f. The Parties acknowledge that this Agreement is executed voluntarily by each of them, without duress or undue influence on the part of, or on behalf of any of them. The Parties further acknowledge that they have or had the opportunity for representation in the negotiation for, and in the performance of, this Agreement by counsel of their choice and that they have read this Agreement, and have had it fully explained to them by their counsel and that they are fully aware of the contents of this Agreement and its legal effect. g. This Agreement shall be effective as a full and final accord and satisfaction and release of each matter in connection with those matters set forth herein above. h. This Agreement shall be binding on and shall inure to the benefit of the Parties and their respective heirs, executors, administrators, agents, representatives, successors and assignees. i. This Agreement may be executed in counterpart facsimile signatures and all such counterparts shall constitute a single form of this Agreement. SIGNATURES ON FOLLOWING PAGE ; � IN WITNESS WHEREOF, the Parties hereto have caused this document to be executed on the last day set forth below. Witness: OWNER: DIPLOMAT DEVELOPMENT GROUP, LLC Print Name: By: Raimundo D. Veloso Its: Manager Print Name: CITY: CITY OF OCOEE, FLORIDA By: Rusty Johnson, Mayor ATTEST: Melanie Sibbitt, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING APPROVED AS TO FORM AND HELD ON , 20_ LEGALITY this day of UNDER AGENDA ITEM NO. , 20 Shuffield Lowman &Wilson P.A. By: Scott A. Cookson, City Attorney