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2021-08-17 Ex 05To: From: Subject Date: City of Okeechobee Code Enforcement 50 SE 2nd Street Okeechobee, Florida 34974 (863)763-9795 City Council Chief Robert Peterson and Assistant Chief Donald Hagan Code enforcement case settlement proposal regarding Bella Rose Day Spa August 10, 2021 Following a code enforcement hearing, the City recorded a lien/order issued by the magistrate. After the City recorded the lien, the property owner timely filed an appeal of the magistrate's order with the Circuit Court. The property is now in compliance. The City staff, through the City attorney and the attorney for the property owner have negotiated a settlement of the lien/order with the purpose of avoiding legal fees and costs of an appeal. The proposed settlement amount is $4,500 and will cover the City's attorneys' fees and costs. A copy of the proposed Settlement Agreement is attached. 1N THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE, COUNTY, FLORIDA BELLA ROSE DAY SPA & SALON, LLC, a/b/a BELLA ROSE DAY SPA, Respondent/Appellant, CASE NO.: 2021-AP-100 LOWER CASE NO.: 200312003 v. CITY OF OKEECHOBEE, FLORIDA, a municipal corporation existing under the laws of the State of Florida, Petitioner, Appellee. / SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement") is deemed made and entered into on August , 2021, by and between the parties, CITY OF OKEECHOBEE, FLORIDA ("City"), BELLA ROSE DAY SPA & SALON, LLC d/b/a BELLA ROSE DAY SPA ("Bella Rose") (collectively the City and Bella Rose are the "Parties"), in Okeechobee County, Florida. WITNESSETH WHEREAS, this Agreement concerns the property owned by Bella Rose located at 311 N.E. 2"d Street, Okeechobee, Florida 34972 ("Property"); and WHEREAS, the Special Magistrate conducted a hearing in Case No. 200312003 relative to the Property on March 9, 2021 resulting in a Report and Recommendation to the City Council of Okeechobee ("Recommendation") which recommended that Bella Rose's fines of $14,600.00 be reduced by fifty percent together with applicable administrative fees; and, WHEREAS, at the April 20, 2021 City Council Meeting, the City approved the Special Magistrate's Recommendation against Bella Rose which thereafter iiled its Notice of Appeal to the Nineteenth Judicial Circuit in and for Okeechobee County, Florida on May 19, 2021; and, WHEREAS, the Parties mutually desire to resolve their differences by entering into this Agreement and believes that this Agreement is fair and reasonable, and each has assented freely and voluntarily to all of its terms without pressure, duress or coercion. NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and conditions herein contained, and for other good and valuable considerations each to the other given, receipt and sufficiency of which is acknowledged, it is mutually covenanted, promised and agreed as follows: 1. RECITALS. The above recitals are true and correct and are incorporated in their entirety by reference into this Agreement. 2. ADEQUACY OF CONSIDERATION. The consideration for this Agreement is the mutual benefits obtained by the Parties and the promises made by each to the other. The Parties admit the adequacy of consideration for this Agreement. 3. REPRESENTATION BY COUNSEL. Each party has had the opportunity to be represented by independent legal counsel of their own selection in the negotiation of this Agreement. The City is represented by R. Gregory Hyden, Esq. and Bella Rose is represented by Donn S. Dutton, Esq. The Parties understand the facts and terms of this Agreement and have had adequate opportunity to become fully informed as to their legal rights and obligations and each is signing this Agreement intending to be bound by it. 4. REMEDIATION OF THE PROPERTY. As of the date of this Agreement, Bella Rose has fully remediated the property and it is in compliance with the City's Code of Ordinances. 5. SETTLEMENT SUM. The Parties acknowledge and agree that the Bella Rose shall pay the City the sum of $4,500.00 ("Settlement Sum") as and for its settlement of the accumulated fines and administrative costs inclusive of attorney's fees incurred in this action. Settlement Sum shall be paid by certified funds no later than August , 202 L If the Settlement Sum is not received by that date, this Agreement is deemed null and void. 6. FUTURE NON-COMPLIANCE. Bella Rose agrees that the Property shall remain in compliance during their period of ownership. The Parties acknowledge and agree that should the City issue a Notice of Violation relative to the property, Bella Rose shall remediate the property in no less than 24 hours from the date of receipt of the Notice of Violation. 7. MUTUAL REPRESENTATIONS. The Parties represent to each other that each understands and agrees that this Agreement constitutes the entire contract of the Parties. It supersedes any prior understanding or oral agreements between them. Thus, any addendum modification or waiver of any of the terms of this Agreement shall not be effective unless it is expressed in an instrument of equal dignity by the Parties. 8. BENEFIT. All of the provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties, unless otherwise stated herein. 9. JURISDICTION AND VENUE. Flarida law shall govern the validity, construction, interpretation and effect of this Agreement. The Parties agree that the courts of competent jurisdiction sitting in the Circuit Court of the Nineteenth Judicial Circuit, in and for Okeechobee County, Florida shall have exclusive jurisdiction in any suit by the Parties to enforce their rights hereunder, and that venue is proper in that court. 10. COUNTERPARTS. This Agreement may be signed in one counterpart signature ar more counterparts each of which, when executed with the same formality and the same manner as the original, shall constitute an ariginal. 11. FAILURE TO ENFORCE. Each of the provisions of this Agreement are separate and independent of one another. Either party may insist upon the waiver of or the right of any party to compel performance of another provision of this Agreement. If any provision of this Agreement is held by a Court of competent jurisdiction to be valid or unenforceable, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. However, the Court having jurisdiction may adjust the equities herein to accomplish the intent of the Parties as to any provision held invalid or unenforceable. 12. SEVERABILITY. Each of the provisions of this Agreement are separate and independent of one another. Either party may insist upon the enforcement of any provision of this Agreement without insistence upon the waiver of or the right of any party to compel performance of another provision of this Agreement. If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. However, the Court having jurisdiction may adjust the equities herein to accomplish the intent of the Parties as to any provision held invalid or unenforceable. 13. SURVIVAL. Any and all of the terms and provisions of this Agreement shall survive the execution and delivery of this Agreement and shall continue in force and effect indefinitely. 14. ENFORCEMENT OF AGREEMENT. The Circuit Court having jurisdiction over this cause shall retain jurisdiction to enforce all of the terms and provisions of this Agreement and the Final Judgment in this cause shall contain an express provision for the Court to retain jurisdiction for that purpose. 15. ENTIRE AGREEMENT. The parties acknowledge that this Agreement contains the full and complete agreement between and among them, and that there are no oral or implied agreements or understandings not specifically set forth herein. Each party acknowledges that no other party, or attorney of any other party, or any person, firm, corporation or any other entity has made any promise, representation, or warranty, whatsoever, express, implied, or statutory, not contained herein, concerning the subject matter hereof, to induce the execution of this Agreement. 16. MODIFICATION. The parties agree that no modifications of this Agreement may be made unless expressly agreed to in writing by the Parties. 17. PARAGRAPH HEADINGS. The headings of the paragraphs of this Agreement are inserted only for the purpose of convenience of reference, and the parties recognize and agree that these headings may not adequately or accurately describe the contents of the paragraphs which they head. Such headings shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement or any part or portion thereof, nor shall they otherwise be given any legal effect. IN WITNESS WHEREOF, the parties hereto have personally executed this Agreement or have caused this Agreement to be executed by a duly authorized officer and/ar agent. DATED: BELLA ROSE DAY SPA & SALON, LLC Print Name: Its: DATED: CITY OF OKEECHOBEE, FLORIDA DATED: DONN S. DUTTON, ESQ., Counsel far Bella Rose Day Spa & Salon, LLC DATED: R. GREGORY HYDEN, ESQ., Counsel for City