The URL can be used to link to this page

Home My WebLink AboutCentex Homes Binding Settlement Agreement -2004 04 23 /" This instrument prepared by and should be returned to: Anthony A. Garganese, Esq. City Attorney of Winter Springs Brown, Salzman, Weiss, & Garganese, P.A. dP 0 Box 2873 Orlando, FL 32802-2873 BINDING SETTLEMENT AGREEMENT THIS BINDING SETTLEMENT AGREEMENT (hereinafter referred to as the "Settlement Agreement"), is made and entered into this _ day of April, 2004, by and between THE CITY OF WINTER SPRINGS, a Florida Municipal Corporation (hereinafter referred to as "City"), and CENTEX HOMES, a Nevada general partnership,(hereinafterreferred to as "Centex"). WHEREAS, the City and Centex previously entered into that certain Binding Development Agreement, dated March 11, 2002 (hereinafter referred to as "Development Agreement"); and WHEREAS, pursuant to the Development Agreement, Centex is developing a multi-unit townhome project named Heritage Park, which is located on State Road 434 within the City of Winter Springs; and WHEREAS, in accordance with Paragraph 11 of the Development Agreement, Centex agreed to comply with the City's Arbor Ordinance and to cut and remove trees from the development property as required by the landscape plan approved by the City Commission; and WHEREAS, the City Commission approved a landscape plan submitted by Centex which required that a certain number of existing trees be preserved on the development property; and WHEREAS, during construction, Centex removed a certain number of trees from the development property which the City claims were removed in violation of the approved landscape plan and the Development Agreement; and WHEREAS, Centex disputes the City's claim; and Binding Settlement Agreement City of Winter Springs - Centex Homes 1 of 5 WHEREAS, Centex, by letter dated May 12, 2003 from Attorney Scott Clark to City Manager Ronald W. McLemore, declared that the City was in default ofthe Development Agreement based on Centex's claim that the City was withholding development permits and demanded that the City cure the breach (hereinafter referred to as "Centex's Claim"); and WHEREAS, the City disputes Centex's Claim; and WHEREAS, on May 14,2003, the City, by letter dated May 14, 2003 from City Attorney Anthony A. Garganese to Attorney Scott Clark, declared that Centex was in breach of the Development Agreement for removing trees in violation of the Development Agreement and demanded that Centex cure the breach (hereinafter "City's Claim"); and and WHEREAS, on June 3, 2003, Centex filed a written statement disputing the City's Claim; WHEREAS, rather than litigating the merits of Centex' s Claim and City's Claim under the Development Agreement, the parties believe it is in their best interests to settle their differences regarding the aforementioned claims so that the Heritage Park Townhome Development can proceed without further delay; and WHEREAS, the parties agree to settle their differences regarding Centex' s Claim and City's Claim under the terms and conditions of this Settlement Agreement. NOW, THEREFORE, in consideration ofthe mutual promises, covenants and agreements set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party, the parties agree as follows: 1.0 Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference. 2.0 Centex to City. In order to fully settle Centex's Claim and City's Claim, Centex agrees as follows: 2.1 Within five (5) days ofthe effective date ofthis Settlement Agreement, Centex shall deliver to the City a check made payable to the City of Winter Springs in the amount of One Hundred Twenty-Nine Thousand and Noll 00 Dollars ($129,000.00). 2.2 Within sixty (60) days from the effective date, or as otherwise mutually agreed by the parties, Centex shall properly install, at its cost, the trees and plant materials required by the remedial Binding Settlement Agreement City of Winter Springs - Centex Homes 2 of 5 landscape plan approved by the City Commission of Winter Springs and referenced in Paragraph 3.1 ofthis Settlement Agreement. Said remedial landscape plan is in addition to the tree and landscape planting requirements under the original landscape plan approved by the City Commission on November 11,2003. 2.3 Centex does hereby for itself, its shareholders, heirs, executors, administrators, successors, subrogees, privies and assigns, release, hold harmless, discharge and acquit the City and its Commissioners, officers, managers, attorneys and employees, both past and present, of and from any and all claims, actions, causes of action, damages, demands, attorneys' fees, claims for punitive and civil rights damages, costs, interests, liens, expenses and any compensation whatsoever which Centex and its shareholders, heirs, executors, administrators, successors, subrogees, privies, and assigns now have or which may hereafter accrue on account of or in any way growing out of Centex's Claim and City's Claim. 3.0 as follows: City to Centex. In order to fully settle Centex's Claim and City's Claim, City agrees 3.1 The City hereby approves the remedial landscape plan for the Heritage Park Townhome Development, and the Remediation Plant List which are attached hereto as Composite Exhibit "1" and fully incorporated herein by this reference. 3.2 City does hereby for itself, its Commissioners, officers, managers, attorneys and employees, both past and present, release, hold harmless, discharge and acquit Centex and its shareholders, heirs, executors, administrators, successors, subrogees, privies and assigns, of and from any and all claims, actions, causes of action, damages, demands, attorneys' fees, claims for punitive and civil rights damages, costs, interests, liens, expenses and any compensation whatsoever which City and its Commissioners, officers, managers, attorneys and employees, both past and present, now have or which may hereafter accrue on account of or in any way growing out of Centex' s Claim and City's Claim. 4.0 No Admission of Liability. By entering into this Settlement Agreement, neither Centex nor City are admitting or agreeing that liability exists with respect to Centex's Claim and City's Claim mentioned above. 5.0 Interpretation. This Settlement Agreement has been fully negotiated in an arm's length transaction and it shall not be construed against any party. No party has been coerced in any manner to execute this Settlement Agreement and each party has had the opportunity to employ legal counsel and seek the advice from such counsel with respect to this Settlement Agreement, its obligations, terms and implications. Binding Settlement Agreement City of Winter Springs - Centex Homes 3 of 5 , ' 6.0 Severability. If any provision of this Settlement Agreement is declared or deemed invalid, unenforceable or unlawful by any tribunal or court of competent jurisdiction, such provision shall be deemed automatically modified to conform to the requirements for validity as declared at the time, and as so modified, shall be deemed a provision of this Settlement Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so modified, the provision shall be deemed deleted and withdrawn from this Settlement Agreement as though the provision had never been included herein. In either event, the remaining provisions of this Settlement Agreement shall remain in full force and effect. 7.0 Entire A~reement. This Settlement Agreement supercedes all prior agreements by and between the parties only with respect to Centex's Claim and City's Claim which are hereby settled under this Settlement Agreement. This Settlement Agreement constitutes the entire agreement and understanding between the parties regarding said claims, and any oral communications and understandings regarding Centex' s Claim and City's Claim are hereby deemed void and merged into this Settlement Agreement. This Settlement Agreement is not effective until executed by all parties to this Settlement Agreement. 8.0 Modifications. This Settlement Agreement may only be modified, altered or amended, in whole or in part, by a written instrument setting forth such changes and signed by all parties hereto and, where applicable, their respective counsel. 9.0 Jurisdiction: Venue. This Settlement Agreement shall be construed and enforced pursuant to the laws of the State of Florida. Exclusive venue for any dispute arising regarding this Settlement Agreement or any alleged breach thereof shall be in a court of competent jurisdiction in Seminole County, Florida. 10.0 Time of the Essence. It is agreed that time is of the essence in the performance of this Settlement Agreement. 11.0 Soverei~n Immunity. Nothing herein is intended to waive the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other applicable law. 12.0 Counterparts. This Settlement Agreement maybe signed in counterparts and each counterpart shall be deemed to be an original. Each ofthe parties has read the foregoing Settlement Agreement and fully understands it and agrees that all doubts and ambiguities in connection with this Settlement Agreement shall be construed as ifthe parties jointly drafted the Settlement Agreement. 13.0 Attorneys Fees. The parties agree to bear their own attorneys' fees, costs and expenses resulting or incurred in connection with their claims or defenses and alleged injuries, Binding Settlement Agreement City of Winter Springs - Centex Homes 4 of 5 . . damages or losses resulting or to result from Centex's Claim and City's Claim which are settled under this Settlement Agreement. IN WITNESS WHEREOF, the parties have executed this Settlement Agreement as ofthe date first written above. LORENZO-LUACES I rk CITY OF WINTERSPRI~GS; a Florida Municipal Corporation.- ~..~ /J I Jf~ WITNESSES: CENTEX HOMES, a Nevada general partnership, By: CENTEX REAL EST A TE CORPORATION, a Nevada corporation, Managing General partner n BYM~ Lut%- P TRICK J. KNIGHT Division President STATE OF FLORIDA COUNTYOF ~ The foregoing instrument was acknowledged before me this '2~ ~ay of Ar~ 2004, ~T.RICK J. KNIGHT, as President of the CENT EX HOMES, a Nevada general partnership ] who is personally known to me, or [ ] who has produced as ide . lcation. Date: \.tj 2. ~ 10'1. H..H....H.HH.' I<JMBERL Y A. BROWN (SEAL) Binding Settlement Agreement City of Winter Springs - Centex Homes 5 of 5 Wagner's Curve Remediation PLANT LIST Otv Code Common Name Latin Name Size 12 BC Bald Cypress Taxodium distichum 30 gal. 52 CP Cabbage Palm* Sabal palmetto* 30 gal. 14 LIN Crape Myrtle- White Lagerstroemia indica 'Natchez' 30 gal. 15 LIT Crape Myrt1e- Watermelon Lagerstroemia indica 'Tuscarora' 30 gal. 15 DH Dahoon Holly Hex cassine 30 gal. 20 FP F1atwoods Plum Prunus umbellate 30 gal. 22 IW Ironwood Carpinus Carolina 30 gal. 3 LB Loblolly Bay Gordonia lasianthus 30 gal. 3 NP Needle Palm Rhapidophyllum hystrix 30 gal. 26 LJT Privet, Japanese Ligustrumjaponicum Tree 30 gal. 30 CC Red Bud Cercis Canadensis 30 gal. 13 RM Red Maple Acer rub rum 30 gal. 50 SS Simpson's Stopper Myrcianthes fragrans 30 gal. 10 BG Swamp Black Gum Nyssa sylvatica 30 gal. 7 SM Sweetbay Magnolia Magnolia virginiana 30 gal. 32 WV Viburnum, Walter's Standard Viburnum obovatum 'Standard' 30 gal. 10 WE Winged Elm Ulmus alata 30 gal. 10 YH Yaupon Holly, Weeping Hex vomitora 'Pendula' 30 gal. * All Sabal palmetto will have intact trunks with remaining boots (none trimmed by chain saws.) NOTES: 1. Individual size specifications will be supplied and verified by the City. 2. Prior to acceptance by the City, materials must be verified as being contract- grown, by paid deposit receipt. 3. These varied plant materials may need to be from more than one source. 4. No substitutions will be accepted. 13 May 2003 Composite Exhibit "1 " ~. -... " __JO!uiM aAln~ s,Jau6sM sueld UCl1~6!,L11 'i edeosputl1 UBId eoSPUBl , . ~., ...'1 ,,-,' ",\, . ~. .~ . ~ . ..,~ .Il ~,: ;t . ~ ~ N '."'.. / I . . I ( ~ .. ! ~.\ ~ ~~~. ~ ~. -~- . aAlno s I 6 SU81d UOIJ86 ...a~ eM... . uetd IJ.Il 'l1 edeospuel eoSPU81 ..,. ~~ ~~,~- . c~ ! i I ./ .I ! / I I ~ " ~~ . ~"k; '~.i", ,~. <' ,'.. ~' '~ "'.. , !f , . , ' " -', ".,' I 'k ,~~ b :11 ~. " !~" \ '~ ,cl; ~ .;:. :r ~" t! ~\ ..; ~f.~" .) '" ~