HomeMy WebLinkAbout2012 04 09 Regular 600 Lexon Insurance Company Settlement Agreement and Release - Jesup's Landing
COMMISSION AGENDA
Informational
Consent
ITEM600
Public Hearings
Regular
X
April 09, 2012KS
Regular MeetingCity ManagerDepartment
REQUEST:
The City Attorney is requesting that the City Commission consider approving a Settlement
Agreement and Release of All Claims between the City and Lexon Insurance Company
related to the Surety Bonds that were provided for the Jesup’s Landing project by the
previous developer, Levitt & Sons of Seminole County, LLC.
SYNOPSIS:
About 2005, the City Commission approved a development project proposed by Levitt &
Sons of Seminole County, LLC to be located within the Town Center along Orange
Avenue. Levitt & Sons declared bankruptcy and abandoned the Jesup’s Landing project.
Site work was in progress at the time Levitt & Sons declared bankruptcy. Upon
abandonment, the City pursued claims against Lexon Insurance Company related to the
surety bonds required for the Jesup’s Landing project, as well as bonds required for another
companion Levitt & Sons’ project within the Town Center called Jesup’s Reserve. On or
about September 7, 2010, the City and Lexon entered into a Settlement Agreement and
Release of All Claims for bonds required for the Jesup’s Reserve project. The parties have
fully complied with said Agreement regarding Jesup’s Reserve. However, with respect to
the Jesup’s Landing project and the related bonds, the Agreement provided that the City
would reserve its rights against Lexon under the bonds given the uncertainty about the
future development of the Jesup’s Landing’s property. Jesup’s Landing is now be permitted
and under construction by a new developer, Mattamy Homes, in accordance with the terms
and conditions of a new developer’s agreement. Lexon has executed a proposed Settlement
Agreement regarding the Jesup’s Landing bonds and has tendered $30,000 to the City if the
City forever discharges and releases Lexon from any claims under the Jesup’s Landing
bonds.
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CONSIDERATIONS:
1. Pursuant to a developer’s agreement and plans approved by the City, Levitt
& Sons was to develop the Jesup’s Landing Townhome Project within the Town
Center along Orange Avenue.
2. Several performance bonds were required by the City for Jesup’s Landing to
ensure performance based on the agreement and plans approved by the City. The
bonds were provided by Lexon Insurance Company and the City is the obligee
(beneficiary). The total amount of the original bonds was $4,230,000, but that
amount was reduced to $3,100,000 after the City released a portion of the original
bond amount.
3. During the construction of the Project, Levitt & Sons filed for bankruptcy.
Prior to filing for bankruptcy, however, Levitt & Sons constructed water and sewer
systems and an offsite road improvement on Orange Avenue. Further, the site was
cleared of trees and vegetation at that time.
4. Levitt & Sons abandoned the Project in October of 2007. The City then sent
a timely notice of default to Lexon and Levitt & Sons and made demand for
completion of the subdivision improvements under the performance bonds.
However, Lexon and Levitt & Sons failed to complete the work and perform under
the agreement and bonds.
5. As a result, the City filed suit against Lexon seeking specific performance
and damages under the bonds.
6. Thereafter, for the past several years, the City has been successfully pursuing
claims against Lexon and another surety related to the bonds that were provided for
the two Town Center projects being constructed by Levitt & Sons, Jesup’s Reserve
and Jessup’s Landing.
7. On or about September 7, 2010, the City and Lexon Insurance Co. entered
into a Settlement Agreement and Release of All Claims for Jesup’s Reserve. The
parties have fully complied with said agreement regarding Jesup’s Reserve.
However, the agreement reserved the City's rights against Lexon regarding the
Jesup’s Landing project given the uncertainty about the future development of the
Jesup’s Landing’s property.
8. Since the City reserved its rights against Lexon to pursue the Jesup’s
Landing bonds, a new developer, Mattamy Homes, has acquired the Jesup’s Landing
property and has pursued the re-permitting of the Jesup’s Landing project pursuant
to a Stockpile Agreement and Developer’s Agreement by and between Mattamy
Homes and the City and final engineering recently approved by the City
Commission.
9. Mattamy Homes is now in the process of re-platting the Jesup’s Landing
property.
10. Under the circumstances and in negotiations with the City Attorney’s office,
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Lexon has tendered $30,000 (currently deposited in the City Attorney’s trust
account) to the City and executed the attached Settlement Agreement.
11. If the Settlement Agreement is approved, the City will accept the $30,000
and forever release and discharge any rights the City may have to pursue any claims
that the City may have under the bonds provided to the City in conjunction with the
Jesup’s Landing project previously proposed by Levitt & Sons.
12. If the City Commission rejects the Settlement Agreement, the $30,000 will
be returned to Lexon and the City will maintain any rights it may have to pursue any
claims under the bonds provided by Levitt & Sons.
FISCAL IMPACT:
If the City Commission approves the Settlement Agreement, the City will receive settlement
proceeds in the amount of $30,000. On the other hand, if the City Commission rejects the
settlement, the City may have to expend attorney’s fees and costs in the event the City
decides to pursue future claims under the bonds.
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney/Staff, and is available on the City’s Website, LaserFiche, and
the City’s Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City’s Website, LaserFiche, and the City’s
Server; has been sent to applicable City Staff, Media/Press Representatives who have
requested Agendas/Agenda Item information, Homeowner’s Associations/Representatives
on file with the City, and all individuals who have requested such information. This
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at five (5) different locations around the
City. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
The City Attorney and City Manager recommend that the City Commission approve the
Settlement Agreement and accept the $30,000.
ATTACHMENTS:
1. Proposed Settlement Agreement, executed by Lexon Insurance Company (3 pages)
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