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Item #02 Approval of Settlement Agreement between the City of Ocoee and Laura Gleason. t�W?l ocoee Hondo AGENDA ITEM COVER SHEET Meeting Date: May 16, 2017 Item # c� Reviewed By: Contact Name: Scott Cookson, City Department Director: Attorney Contact Number: 407-581-9800 City Manager: Rob Fra c Subject: Settlement Agreement between the City of Ocoee and Laura Gleason Background Summary: Ocoee resident, Laura Gleason, owns real property located at 1433 Spring Lake Terrace. In 2014, the City commenced Code Enforcement action against Ms. Gleason for performing construction without a permit. Eventually, the Code Enforcement Board rendered an order imposing a fine and a lien on the Gleason property in Case No. 14-064. This Order is recorded at Official Records Book 10834, Page 9091. On September 16, 2016, Ms. Gleason remitted notice to the City in accordance with section 768.28, Florida Statutes ("Notice"), wherein Ms. Gleason stated a claim against the City relating to drainage issues on her property. Since receiving the Notice from Ms. Gleason, the City and Ms. Gleason have been negotiating a Settlement Agreement ("Agreement") to resolve all issues between them. The City has obtained a permit for the Flewelling Avenue Stormwater Treatment System Project ("Project") and completion on construction of this Project should result in a drainage system that is capable of accepting and processing all water runoff from the right-of-way adjacent to Ms. Gleason's property. Under the terms of the Agreement, the City agrees to commence construction on the Project within 9 months of execution of this agreement. The Project should be completed within 6 months of the start of construction. If drainage issues recur following construction of the Project, Ms. Gleason must provide written notice to the City and the City will have 90 days to cure any remaining drainage issues. Also, under the terms of the Agreement, the City agrees to dismiss the Code Enforcement case against Ms. Gleason and, within 30 days of the date of execution of the Settlement Agreement, the City will record the documentation necessary to reflect the release and satisfaction of the Code Enforcement Order. This Agreement reflects settlement of all matters between the City and Ms. Gleason. Issue: Should the City Commission approve for execution the Settlement Agreement between Ms. Laura Gleason and the City of Ocoee? Should the City Commission approve the release and satisfaction of the Code Enforcement Order/lien in Case No. 14-064? Recommendations The City Attorney and City staff recommends that the City Commission approve and execute the Settlement Agreement. The City Attorney and City staff recommends that the City Commission approve the release and satisfaction of the Code Enforcement Order/lien in Case No. 14-064. Attachments: Settlement Agreement. Financial Impact: Release of Code lien in the amount of$233,250.00 (as of 5/9/2017) ($250.00 per day). Type of Item: (please marc with an"x, Public Hearing For Clerk's Dept Use: Ordinance First Reading V Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda x Commission Approval Discussion&Direction V Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney Dana Crosby-Collier, Asst. City Atty. N/A Reviewed by Finance Dept. N/A Reviewed by 0 N/A 2 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (herein called this "Settlement Agreement"), is made this day of May 2017, by and between CITY OF OCOEE, a municipal corporation established under the laws of the State of Florida ("Ocoee"), and LAURA GLEASON ("Gleason") (Ocoee and Gleason are hereafter referred to each as a"Party" and collectively as the "Parties"). WHEREAS, Gleason owns real property located at 1433 Spring Lake Terrace, Ocoee, Florida 34761 (the"Real Property"); WHEREAS, the Real Property has shoreline on Spring Lake and Gleason previously improved and renovated an existing storage shed which was previously constructed within the one-hundred(100) year flood plain of Spring Lake; WHEREAS, Ocoee previously installed and currently maintains a drainage system for the purposes of capturing water which would otherwise flow from the public right of way onto the Real Property; WHEREAS, Gleason has alleged that Ocoee has been negligent in the design and/or maintenance of the drainage system and that on account of such negligence the drainage system is insufficient to accept and process the amount of water runoff from the public right of way onto the Real Property (hereinafter the"Drainage Problem"); WHEREAS, Gleason has further alleged that as a result of the Drainage Problem she has sustained damages to the Real Property including but not limited to erosion around and under her driveway, her driveway sinking and cracking, holes in the Real Property, and soil and sod washout into Spring Lake; Page 1 of 10 WHEREAS, on September 21, 2016, Gleason remitted notice to Ocoee in accordance with section 76828(6), Florida Statutes, wherein Gleason set forth her claim against Ocoee arising from the Drainage Problem; WHEREAS, in 2014 Ocoee commenced code enforcement proceedings against Gleason as more particularly set forth in Case No. 14-064 for her alleged violation of Ocoee Code of Ordinances s. 15-13 (the"Code Violation"); WHEREAS, on September 23, 2014, Ocoee entered a Compliance Order wherein it required Gleason to cure the Code Violation by October 3, 2014; WHEREAS, Gleason failed to cure the Code Violation on or before October 3,2014 and consequently on October 18, 2014 the Code Enforcement Board of the City of Ocoee entered an Order Imposing Fine and Lien against Gleason in Case No. 14-064 which Order was thereafter recorded in OR. Book 10834 Page 9091 Public Records of Orange County, Florida(the "Order"); WHEREAS,the Order provides that Gleason is to pay Ocoee the sum of$250.00 per day for each day from October 3,2014 until the Code Violation is corrected; WHEREAS, an ancillary issue related to the storage shed is the City's request that Gleason install weep holes on the shed; WHEREAS, Gleason has obtained the certification from a licensed engineer, which is attached hereto as Exhibit "A" and which certification provides that the installation of weep holes in the shed is not necessary; WHEREAS, neither Gleason nor Ocoee has filed a lawsuit based on Drainage Problem, the Code Violation, the Order, or the shed and both Gleason and Ocoee, without Page 2 of 10 admission of liability, desire to resolve all claims set forth herein in order to avoid the uncertainty and expense of litigation; WHEREAS, the Parties intend for this Settlement Agreement to be the final formal settlement agreement between the Parties of all claims related to the Drainage Problem, the Code Violation,the Order, and the shed. NOW THEREFORE, in consideration of the above recitals and the provisions set forth in this Settlement Agreement, the receipt and sufficiency of which is acknowledged and agreed to by the parties,the Parties agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein as material provisions of this Settlement Agreement by this reference. 2. Drainage Problem. Ocoee agrees to undertake reasonable good faith efforts to perform improvements on and adjacent to the Real Property in accordance with construction plans for Flewelling Avenue Stormwater Treatment System Project, prepared May 2014, and on file with the St. Johns River Water Management District, permit 42-095- 46604-2. Such efforts shall ensure that the drainage system is capable of accepting and processing all water runoff from the right of way adjacent to the Real Property so that the water runoff drains properly into Spring Lake and does not damage the Real Property (the "Drainage Plans"). Ocoee agrees to commence construction in accordance with the Drainage Plans within nine (9) months from the date of execution of this Settlement Agreement and further agrees to complete the construction within six (6) months from the start of construction. Ocoee agrees to bear all expenses related to the construction in accordance with the Drainage Plans. Ocoee shall keep Gleason reasonably informed of the progress of the construction. Gleason agrees to not interfere with Ocoee's construction work Page 3 of 10 in accordance with the Drainage Plans, to allow Ocoee access to the Real Property for the construction in accordance with the Drainage Plans, and to cooperate as necessary with the construction work. At the conclusion of the construction, Ocoee shall restore any damage to the Real Property caused by the construction activities. 3. Recurring Drainage Issues. In the event that the improvements fail to cure the Drainage Problem, Gleason shall provide Ocoee with written notice of the same. Thereafter, Ocoee shall have ninety (90) days to cure any such drainage issues at its sole cost and expense and agrees to keep Gleason reasonably informed of its progress of the same. 4. Order. Subject to approval by the City Commission, Ocoee agrees to dismiss Case No. 14-64 and further agrees to waive all monetary fines due and owing from Gleason to Ocoee under the Order. Within thirty (30) days from the date this Settlement Agreement is approved by the City Commission, Ocoee agrees to record documentation necessary to reflect a release and satisfaction of the Order relating to any lien imposed therein. Approval of this Settlement Agreement by the City Commission and agreement to release and satisfy the Order is a condition precedent to performance by the parties under this Settlement Agreement. In the event that the City Commission does not approve this Settlement Agreement, the Settlement Agreement shall be null,void and of no further force or effect. 5. Shed. Gleason has provided to Ocoee the certification of Luis. R. Perez, P.E. of LRP Engineering, Inc., which states that the installation of weep holes is not necessary for the shed. A true and correct copy of the certification is attached hereto and marked Exhibit A. Ocoee has accepted the certification as resolution of this issue. Page 4 of 10 6. Fees and Costs. Unless otherwise set forth herein, each Party shall be responsible for its own attorneys fees and costs incurred related to the claims set forth herein. 7. Default. Following completion of any conditions precedent to performance under this Settlement Agreement, the failure of any Party to abide by the terms herein will constitute a default. In the event of default, the non-defaulting party shall be entitled to damages and specific performance in accordance with this Settlement Agreement. Furthermore, should the non-defaulting party employ an attorney to enforce any provision hereof or to protect its interests in any matter arising out of or related to this Settlement Agreement, it shall be entitled to all reasonable costs, charges, expenses, including attorneys fees,through any appellate proceeding, expended or incurred in connection therewith. 8. Mutual General Release. Following performance of any conditions precedent to performance under this Settlement Agreement, and following execution of this Settlement Agreement, the Parties do hereby provide a Mutual General Release in favor of each other, together with each others' heirs, executors, administrators, officers, directors, shareholders, employees, partners, partnerships, joint ventures, agents, insurers, attorneys, parents, subsidiaries, related companies, affiliates, predecessors, successors, assigns (whether express or by legal implication or operation of law), and legal representatives. This Mutual General Release shall not apply to or serve to release any duties, responsibilities, obligations or liabilities arising out of this Settlement Agreement. Claims herein shall mean all claims which were brought or which could have been brought against all parties herein from the beginning of time though the Parties' execution of this Settlement Agreement and performance of conditions precedent to performance under this Settlement Agreement. Page 5 of 10 9. Entire Agreement. This Settlement Agreement and the Exhibit(s) attached hereto (if any) contains the entire understanding and agreement between the Parties hereto with respect to the subject matter hereof The Settlement Agreement may be modified only by written instrument(s) signed by all Parties hereto. 10. Advice of Counsel. The Parties to this Settlement Agreement each acknowledge that they have entered into this Settlement Agreement voluntarily and with full knowledge and understanding of is terms. Each Party further represents that it/they have had a reasonable time period within which to review this Settlement Agreement and to seek any guidance or advice that may be necessary or desirable. Upon advice of counsel of their choosing, the Parties have read and fully understand the terms of this Settlement Agreement and voluntarily agree to be bound hereby. 1 1. Successors and Assigns. This Settlement Agreement shall be binding upon the Parties hereto and their respective proper affiliates, heirs, representatives, agents, successors, and assigns. 12. Governing Law and Jurisdiction. This Settlement Agreement is to be governed by, and construed and enforced in accordance with, the laws of the State of Florida. In the event any litigation or other formal legal or equitable proceeding (collectively, the "Litigation") between any of the Parties hereto, or their affiliates, heirs, agents, successors, or assigns, is instituted in connection with the construction, interpretation, or enforcement of this Settlement Agreement, the party commencing such litigation shall be required to institute the same in state courts within the jurisdiction and venue of Orange County, Florida. Each Party hereto hereby consents to the exclusive personal jurisdiction and venue in the state courts with jurisdiction in Orange County, Page6 of 10 Florida, for resolution of all disputes arising out of the construction, interpretation, or enforcement of any term or provision of this Settlement Agreement, and each Party hereby waives the claim or defense that any such court in which any such Litigation is properly commenced as provided for herein constitutes an inconvenient forum. Nothing contained herein shall be construed as a waiver of Ocoee's right to the defense of sovereign immunity under the law. 13. Severability. If any provision of this Settlement Agreement is ultimately determined to be invalid or unenforceable, such provision shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same valid and enforceable, and, in the event no such limiting construction is possible, such invalid or unenforceable provision shall be deemed severed from this Settlement Agreement without effecting the validity of any other provision hereof. 14. Counterparts, This Settlement Agreement may be executed in any number of counterparts, each of which shall be original as against any party whose signature appears thereon, and all of which together shall constitute one and the same Settlement Agreement. 15. Construction of Agreement. This Settlement Agreement has been negotiated by the respective Parties hereto, and the language hereof shall not be construed for or against any party. The titles and headings contained herein are for reference purposes only, and shall not in any manner limit the construction of this Settlement Agreement which shall be considered as a whole. All additions and deletions of provisions from and all drafts of disagreement shall be of no force or effect in interpreting the terms of this Settlement Agreement or the intentions of the Parties hereto. Page 7 of 10 16. Attorney Fees. If either Party brings legal action to enforce its rights under this Settlement Agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorneys'fees) incurred in connection with the action and any appeal. 17. Execution Authority. The undersigned confirm and warrant that they have the requisite authority to bind the parties to this Settlement Agreement. Page 8 of 10 MUTUALLY AGREED TO THIS J day of May, 2017 Witness: " C. Nick hSnie / WitnS s: Elizabeth Millan .um Gleason CITY OF OCOEE, a Florida municipal corporation By Print Name: RUSTY JOHNSON Witness Mayor Print Name: Attest: Witness MELANIE SIBBITT City Clerk APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2017 UNDER AGENDA ITEM FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of 2017. SHUFFIELD LOWMAN & WILSON, P.A. By: City Attorney Page 9 of 10 Certificate of Authorization CA 31174 LRP ENGINEERING, INC. 14552 Driftwood 3467 R'ivt1 Garden. 34767 731374.0776 CONSULTANTS•DESIGNERS•ENGINEERS pmelmcnpvecdnn.•nm STRUCTURAL•MECHANICAL February 3, 2017 Ms. Laura Gleason 1433 Spring Lake Terrace Ocoee, FL 34781 Subject: Shed verification Dear Ms. Gleason: On Friday, February 3, 2017 at 9:30 AM, we visited your home at the above address. The purpose of the visit was to evaluate the shed structure location and elevation. Conclusion: The FEMA Base Flood Elevation(BEE)for this property is 117.3 ft. and the effective Flood Zone Is AE. This flood zone is rated at less than 3 ft.The two vertical opening garage doors in different walls of the shed will allow for adequate water infiltration. We certify that flood gates will not be required In this shed. The shed Is a distance 27'4"from the main home. We respectfully ask that you approve the construction of the shed. g R I rPt"?' Sincerely: i J� • ••.,. F � �.••ENSB � 0 6065 ;O . An igJd Luis R. Perez, P.E. &OM14 FL LIc.#80653 11 sr .......WON \%%A 42� '�f1,11 Ill Cc:capa40©yahoo.com EXHIBIT"A"