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HomeMy Public PortalAboutSettlement Agreement - Supporting Documents & draftsCODE ENFORCEMENT ORDER TOWN OF GULF STREAM, FLORIDA TOWN OF GULF STREAM, Petitioner, V. Case No. CE 2-13 MARTIN E. O'BOYLE, Respondent, ORDER DISMISSING WITH PREJUDICE Upon the Agreement of the Parties this case is hereby dismissed with prejudice. DONE AND ORDERED this 29�h day of July, 2013. TOWN OF GULF STREAM CODE ENFORCEMENT BY: / GLEN TORCIVIA, Special Magistrate Copies furnished to: John Randolph, Esq., Town Attorney, 505 S. Flagler Drive, West Palm Beach, FL 33402 Robert S. Gershman, Esq., Respondent's Attorney, 2160 W. Atlantic Ave, 2"d Floor, Delray Beach, FL 33445. p ldocs\13147%000131p1d11 9s7100.docx Page I of 2 Rita Taylor From: Bill Thrasher Sent: Tuesday, July 30, 2013 9:39 AM To: Rita Taylor Subject: FW: Town of Gulf Stream v. O'Boyle Attachments: ORDER DISMISSING .pdf From: Glen Torcivia [mailto:glen@torcivialaw.com] Sent: Tuesday, July 30, 2013 9:35 AM To: Baird, Thomas J. Cc: John Randolph (jrandolph@jones-foster.com); Robert Gershman (robert@rglawfirm.us); Bill Thrasher Subject: RE: Town of Gulf Stream v. O'Boyle Thomas, Please see the attached executed Order Dismissing with Prejudice. Glen Glen Torcivia The Law Offices of Glen J. Torcivia & Associates, P.A. Northpoint Corporate Center 701 Northpoint Parkway, Suite 209 West Palm Beach, FL 33407 glen@torcivialaw.com (561) 686-8700 (561) 686-8764 (fax) www.torcivialaw.com The information contained in this transmission is attorney-client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by telephone collect and return the original message to the sender at the above address via the U.S. Postal Service. The sender will reimburse you for your expenses. Thank you. From: Baird, Thomas J. fmailto:TBairdCobjonesfoster coml Sent: Monday, July 29, 2013 11:37 AM To: Glen Torcivia Cc: Robeft @rglawfirm us; Bill Thrasher (bthrasher(aa gulf -stream org); Richman, Ashlee A.; Matias, Sally Subject: FW: Town of Gulf Stream v. O'Boyle Importance: High Glen: Friday of last week the parties to this proceeding reached a settlement of various proceedings which have been pending, one of which is this code enforcement case. Please execute the attached Order and email copies to Mr. 7/30/2013 Page 2 of 2 Gershman and Town Manager Bill Thrasher. Thanks. JONESFOSTER Thomas J. Baird Florida Bar Board Certified Cite, CountY and Local Government Attorney Direct Dial: 561.650.8232 Fax: 561.746.6933 'tbaird@ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. 801 hlaplewood Drive, Suite 22-A, Jupiter, Florida 33458 561-659-3000 1 www.ionesfoster.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Green, Marilyn R. Sent: Monday, July 29, 2013 11:31 AM To: Baird, Thomas J. Subject: Town of Gulf Stream V. O'Boyle 7/30/2013 .,cuc.iuiuiy irausier Beneficiary Transfer Reference Number 20130726-00016640 is Pending Approval. Branch 6074980 WOOLBRIGHT OFFICE Payment Amount 180,000.00 USD Rate Debit Amount 180,000.00 USD Page 1 of 1 Contract Number Charge Party None Send Date 26)UL2013 Value Date 26JUL2013 Debit Party D/1000160073176 TOWN OF GULF STREAM MUNICIPAL OPERATING MONEY MARKET 100 SEA RD GULF STREAM FL 33483-7427 Beneficiary Is Beneficiary a Bank? No /5177704344 COMMERCE REALTY GROUP INC 1280 W NEWPORT CENTER DR DEERFIELD BEACH FL 33442 Beneficiary's Bank A/051503394 BB&T WEST VIRGINIA WILLIAMSON, WV Bank to Bank Originator to Beneficiary Information Information ATTN:ROBERT BODER PHONE 304-341-1043 http://frontofficewire.suntrust,com/fwi/entConfirmation.do 07/26/2013 COMMISSIONERS JOAN K. ORTHWEIN, Mayor THOMAS M. STANLEY, Vim Mayor MURIEL J. ANDERSON W. GARRETT OERING ROBERT W. GANGER July 26, 2013 SuntTrust Banks TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Telephone (561) 276-5115 Fax (561)737-6186 Town Manager WILLIAM H. THRASHER Town Clerk RITA L. TAYLOR We authorize a wire transfer $180,000.00 from account number 1000160073176 to : Branch Banking and Trust Company 300 Summers Street Charleston, WV 25301 Routing# 051503394 Commerce Realty Group Inc. Account# 5177704344 Attn: Robert Boder Phone: 304-341-1043 Authorized by: Orthwein Town Manager 100 SEA ROAD, GULF STREAM, FLORIDA 33483 MEMORY TRANSMISSION REPORT TIME FAX NO.1 NAME FILE NO. 953 DATE 07.26 15:58 TO : S 5617370188 DOCUMENT PAGES 1 START TIME 07.26 15:58 END TIME 07.26 15:58 PAGES SENT 1 STATUS OR *** SUCCESSFUL TX NOTICE *** Hene£vciary Trnrls£ r 07-26-'13 15:58 Pages 1 0£ 1 . BenefYciary Transfer BrancM1 60749BO WOOLBRIGMT OFFICE PaymenCAmeun! 180,000.00 U56 Rate Conlrac! Numb.r O.blt Amoun[ lso.oI 0.00 USO CM1arpe Party None Sand Oates 2WUL2013 ValYa Oat. 263uL 013 D®bit Party 0/3000 STR :;U 1Js TOF WN EAM Ml1N1CIP GULF 1PAL OPERATING MONEY MgRKET 1U0 SEA AO GULF STREAM FL 33483-7427 Beneficiary la Ban.Odary a Bank? Ne /5177704344 COMMERCE REALTY GROUP INC 3280 W NEWPORT CENTER UR DEER SLO BEACH PL 33442 Ban®ffclary'c Banfc ^/05350330, nnm. WEST VIRGINIA WILLIAMSON, WV Banlc to Bank Orlgfnator to Banaficiary Information Informatfon PH N: ROBERT p PHONE 304-341-30431043 tlnpv//frontot£rccwiresunrrosLcorN[wi/cniConRrnvation.do 07262013 Rita Taylor From: Matias, Sally [SMatias@jonesfoster.com] Sent: Friday, July 26, 2013 8:47 AM To: Rita Taylor Cc: Rizzardi, Keith W. Subject: Draft Settlement Agreement Attachments: 1GS2061 DOCX (2).pdf Rita, Page 1 of 1 Please print this for this for the Commission's consideration this morning. Sally JONESFOSTER lutssa %m%rt.da+.r.a. Sally Matias Secretary* to John C. Randolph and 11. Nfichael Eisler Direct Dial: 561.650.0458 1 Fax: 561.650.5300 I smatiasPionesfoster.com ]ones, Foster, Johnston & Stubbs, P.A. 11agler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 1 www.ionesfoster.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emids are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in eaor. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. 7/26/2013 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (Agreement) is entered into, by and between the parties listed on Exhibit A in the column titled "PARTIES" (hereinafter collectively referred to as "Plaintiffs") and the Town of Gulf Stream, a municipal corporation of the State of Florida, whose address is 100 Sea Road, Gulf Stream, Florida 33483 (the "Town") and is executed by the Town and the Plaintiffs this_ day of July, 2013 (the "Effective Date"). The Town and the Plaintiffs shall be collectively known as the "parties" WHEREAS, it is the desire of the parties to this Agreement to resolve all disputes, appeals and pending litigation relating to the cases referenced in the column titled "CASES" on Exhibit "A" attached hereto (the "Cases"); and WHEREAS, on behalf of the Plaintiffs, Martin E. O'Boyle (O'Boyle) presented to the Town Commission a proposal to settle the "Cases' ; and WHEREAS, the Town Commission has reviewed the proposal for settlement and wishes to settle the Cases and to resolve other matters as set forth herein on the terms set forth herein; and WHEREAS, it is the intention of the Plaintiffs and the Town to be bound to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein expressed, and for the other good and valuable consideration the receipt and sufficiency of which is acknowledged and confirmed, the parties, intending to be legally bound, hereby agree as follows: 1. The Town recognizes that the Plaintiff O'Boyle believes that the Town did not apply a correct interpretation of its Code of Ordinances (the Code) as it pertains to 23 North Hidden Harbour Drive, Gulf Stream, Florida (hereinafter the "Property") and the improvements on the Property (hereinafter the "Improvements'). In particular, Plaintiff, O'Boyle argues that the Town did not correctly apply its Code with respect to his request for Development Approval for, inter alia, a Level 3 Architectural/Site Plan (the Application) and such other permissions, approvals, interpretations, clarifications and authorizations relating to the Property (the "Approvals") to demolish and construct the Improvements upon the Property as contemplated. . 2. The Town recognizes that its interpretation of the Code, including, without limitation, the current setback regulations established therein may not enable the Plaintiff O'Boyle, or a subsequent purchaser to rebuild or renovate the Improvements, including, without limitation, the home; or enable O'Boyle or a subsequent purchaser to demolish the Improvements, including, without limitation, the home and construct Improvements, including, without limitation, a new home. Accordingly, in order to resolve the Cases between the Plaintiffs and the Town, the Town agrees that the lot coverage, floor area ratio, height, and setback of, inter alia, the home's entry feature shall be permitted in accordance with the plans submitted with the Application a bevel 3 (the "Plans'), which Application and Plans shall be an exhibit to the Development Agreement (the "Development Agreement"). The purpose of the Town's adoption of the 2 the Development Agreement is to permit, inter alia, the floor area ratio, height of the home's entry feature, and front setback in accordance with the interpretation advanced by O'Boyle counsel in the argument portion of O'Boyle's Petition for Writ of Certiorari. The Development Agreement will also recognize that the Property's (including its Improvement's) setbacks will not be measured from the point of measurement currently established in the Code; but will be measured in accordance with a survey attached to and incorporated into the Development Agreement which establishes 4GFn the actual Rproperty lines for building purposes. It is also the purpose of the Development Agreement to facilitate the Plaintiffs or subsequent owner's demolition, rebuilding or renovation of the Improvements, including, without limitation, the existing home, or the construction of Improvements, including, without limitation, a new home. The Development Agreement shall be substantially in the form provided for in Section 163.3220, Fla. Stat agreements of the paFties as GORtRinerl herein, The Development AgFeement, arnepq InIPFOverneRtS, withn,,t limitation A RRIM hQMR suph that the front setback k; net meas Fed as GUFFently established the rode. 3. Both the Town and O'Boyle agree to act in good faith to promptly enter into the Development Agreement , 3 tNs AgFeemeRt ._ie+ed to the o.^r by Y„a so as to facilitate the construction of the Improvements upon the Property as set forth in the Application; and such other terms which are customary for Development Agreements in the Town for similar type Properties and improvements contemplated under the Application. The Town_agrees to execute the Development Agreement as soon as practicable within Floirda Statutes but in no event later that within 60 days from the date of this Agreement. 4. The Town agrees to waive any fees the Plaintiff might normally incur which are associated with the Development Agreement, the Application, the Approvals and any fines or assessments resulting from any violations existing at the Property, including, without limitation, the alleged violations set forth on the attached Exhibit B. 5. The parties recognize that a complete settlement of the issues associated with renovation, reconstruction, or demolition and new construction ±;;asp- matte;,; defined as ^ "GentiRgent Matte ' cannot be achieved unless and until the Town Commission executes the Development Agreement, which the parties agree shall occur on the sooner to occur of sixty days from the day of this Agreement or the date that the Town Commission adopts exeGute-s the Development Agreement at a public meeting.The Plaintiffs agree not to proceed with discovery in any of the existing lawsuits, or file any further lawsuits, appeals, or to take any administrative enforcement actions, except in connection with the Plaintiffs enforcement of this Agreement, before the Development Agreement is adopted by the Commision and executed by the parties. 0 6. Upon the execution of this Agreement by the Plaintiffs, the Town agrees to (::ithin ?^ ", UFS) pay O'Boyle $180,000.00 within five days, in readily available funds by Federal Wire Transfer pursuant to Wire Transfer Instructions as designated by O'Boyle, which wire instructions are attached as Exhibit C. . [Bill — our understanding is that the wire must be to Mr. O'Boyle individual and not to one of his corporate entitites — can you confirm?l 7. Upon execution of this Agreement, the Town agrees that O'Boyle the Plans shall be deemed to have been approved and O'Boyle may with the Im provements as reflected in the Plans as-neEessafy. 8. Within five days after the execution of this Agreement, the Plaintiffs shall dismiss with prejudice the Cases. 9. Upon execution of the Agreement O'Boyle shall promptly (a) remove all signs from the Property other than approved address signs, and (b) within twenty days remove all murals on the exterior of his home and return the color of the paint on the home to the color that existed previously. 10. Plaintiffs agree that upon execution of this Agreement, all pending public record requests made to the Town shall be deemed withdrawn. 5 11. In the event any of the Plaintiffs or the Town are required to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees through the appellate level. 12. RELEASESIA11 (A) The Plaintiffs Release of the Town. On the Effective Date , the Plaintiffs shall execute and deliver a general release in favor of the Town, which release is attached as Exhibit "D1" attached hereto (the "Town Release"). (B) The Town's Release of Plaintiffs. On the Effective Date, the Town shall execute and deliver a general release in favor of the Plaintiffs, which release is attached as Exhibit "D2" attached hereto (the "Plaintiff's Release"). 13 Representations and Warranties of the Plaintiff's. Each of the Plaintiffs represents and warrants to the Town as follows: (a) that the representing Plaintiff has not sold, assigned, transferred or otherwise disposed of any claims that any of the Plaintiffs had against the Town before the Effective Date; C. (b) that the Plaintiffs each represent that they have the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement as they apply to such Plaintiff; and (c) this Agreement has been duly and validly executed and delivered by the Plaintiffs and constitutes a legal, valid and binding obligation, enforceable against the Plaintiffs in accordance with its terms. 14.. Representations and Warranties of Town. The Town represents and warrants to each of the Plaintiffs as follows: (a) that the Town has not sold, assigned, transferred or otherwise disposed of any claims that the Town had, before the Effective Date against all or any of the Plaintiffs; (b) that the Town has the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement; and 7 (c) this Agreement has been duly and validly executed and delivered by the Town and constitutes a legal, valid and binding obligation, enforceable against the Town in accordance with its terms. 15. Covenant Not to Sue. (a) Each of the Plaintiffs covenant and agree not to institute any litigation or arbitration against the Town for any matter or thing which is within the scope of the Town Release, as attached as D1. (b) The Town covenants and agrees not to institute any litigation or arbitration against any or all of the Plaintifs for any matter or thing which is within the scope of the Plaintiffs Release, as attached as D2. 16. Continuation and Survivability of Representations Warranties and Covenants. The representations, warranties and covenants contained in this Agreement shall survive the consummation of the transactions provided for in this Agreement 17. Indemnification. The Plaintiffs, jointly and severally, agree to defend, indemnify and hold the Town harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including 0 reasonable attorneys' fees) of any kind or nature (collectively, "Town Claims') which the Town may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Plaintiffs set forth in this Agreement; and (b) the breach by any of the Plaintiffs of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. 18. Indemnification. Subiect to Section 768.28 Fla Stat., The Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, the "Plaintiffs's Claims") which any of the Plaintiffs may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby.19. Notice of Default. No default shall have occurred under this Agreement until the defaulting party shall have been given 10 -days written notice to cure. If the cure is such that is will reasonably take longer than 10 -days and the defaulting party is pursuing the cure with diligence, then time within which to cure any such default shall be 0 extended for such period as may be necessary to complete the curing of the default, providing that diligence and continuity are being used. 20. No Third Party Beneficiaries. This Agreement shall not create rights in any third -party beneficiary nor confer any benefit upon or enforceable rights hereunder upon anyone other than the parties and the "Releasees" in the Plaintiffs Release and/or the Town Release. 21. Further Cooperation. The Plaintiffs and the Town agree, at any time and from time to time after the date hereof, upon reasonable request, to perform, execute, acknowledge and deliver all such further documents as may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement and any document, instrument, or agreement contemplated thereby. 22. Specific Performance. The parties each acknowledge and agree that any breach or threatened breach of the obligation to consummate the transactions contemplated by this Agreement will cause irreparable injury to the other parties hereto and the remedy at law for any breach of such obligations would be inadequate. The parties therefore, agree and consent that the remedy of specific performance should be granted in any proceeding which may be brought to enforce any party's obligations under this Agreement without the necessity of proof that such party's remedy at law is 10 inadequate. Such equitable relief shall not be the aggrieved party's sole remedy but shall be in addition to all other remedies available in law or equity. 23. Voluntary Execution of Agreement. Each of the parties affirms that they are represented by counsel in this matter, that they have read and fully understand all of the terms of this Agreement, and that they are entering into this Agreement voluntarily without having been threatened, coerced or intimidated into the signing of this Agreement. It is further agreed that no provision of this Agreement shall be construed presumptively against any party hereto. 24. Headings. The headings and sub -headings contained in the titles of this Agreement are for convenience only and shall not be interpreted to limit or alter any of the provisions of this Agreement. 25. Governing Law. This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida. 11 26. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. No party hereto may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other parties hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, other than the parties and their respective heirs, successors and assigns, any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof. All the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties and their respective heirs, successors and assigns. 27. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and shall be deemed to have been duly given or made: if delivered in person, immediately upon such in person delivery; if by nationally recognized overnight courier service with instructions to deliver the next business day, upon delivery to the receiving party; and if by registered or certified mail, return receipt requested, upon delivery to the receiving party. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section): If to the Town: 12 With a copy to: If to any of the Plaintiffs: Martin E. O'Boyle Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954-360-0807 With a copy to: William F. Ring, Jr., Esquire Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954-360-0807 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Agreement with all signatures reproduced shall be considered, for all purposes, as if it were an executed original counterpart of this Agreement. 29. Entire Aqreement. This Agreement contains the entire agreement of the parties with respect to the matters covered and the transactions contemplated hereby. No modification or waiver of any provision of this Agreement shall in any event be 13 effective unless the same shall be in writing and signed by the party to be charged, and then such waiver or consent shall be effective only as stated in writing. 30. Severability. If any term, covenant or condition of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition other than those which are held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. 31. R4aegn21 ApPFGval. Based GR the law and faGts, the Town FeGegnizes and agFees with O'Boyle that its aGtieRs in not aPPFGvinq the AppliGatien and in not O'Boyle the AppFGvals were without basis to suppeFtits deGisien on GORReGtion with n ,aline. its .. f t aGtians l ti to the asseFt d viel 32. Time is of the Essence. The dates and times for performance of all of the obligations hereunder shall be deemed of the essence of this Agreement. 33. Legal Action. In the event of any action taken by any party, including, without limitation, an appeal of this Agreement or any related applications or 14 agreements, or any part thereof, O'Boyle and the Town agree that they shall each use their best efforts to vigorously defend any such actions. 34. Apology. The Town recognizes the stress and strife that the O'Boyle family has endured as a result of the Town's impmpef conduct. The Town recognizes that _the O'Boyle home has a value well in excess of $1,000,000, but is uninsurable against wind because of the non-existence of proper protection, which would have been part of the Improvements installed by O'Boyle had the Town not initially denied the Application" . The Town is fiifte indebted to O'Boyle for the many deficiencies in connection with the Town code that he has identified pointed out te the Town since his submission of the Application. The Town Commission believes that O'Boyle's actions will ultimately result in Gulf Stream being a better and friendlier place to live. 35[A3[. Resewafien of Rights NetWithEARREJiff ' th ^ 36. Building Envelope. The Development Agreement which will include a survey that shall provides fef a building envelope foren the pProperty, whish would and allow the construction of Improvements within the area between intercostal waterway, the private roads and the common property line to the west W IN WITNESS WHEREOF, the undersigned have executed this Agreement as of April , 2013. c:\users\ssm\aoodata\local\microsoft\windows\temooram intemet fileslcontenl outlook\c 3e7fei\1as2061 docz 2 .docz 16 Rita Taylor From: Matias, Sally [SMatias@jonesfoster.com] Sent: Friday, July 26, 2013 8:53 AM To: Rita Taylor Cc: Rizzardi, Keith W. Subject: Draft Settlement Agreement with revisions from O'Boyle Attachments: 1GS2061 DOCX MEO 1125pm (2).pdf Rita, Print this one too. It is the draft which I just sent you with revisions by O'Boyle. Sally JONESFOSTER pnmsurv&tin 111KI. t - Sally Matias Secretary to John C. Randolph and I I. Michael Faslec Direct Dial: 561.650.0458 1 Fax: 561.650.5300 I smatias6a ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33101 561-659-3000 1 wanv.ionesfoster.com Page 1 of 1 c/?r-& r r 2 . U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. 7/26/2013 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (Agreement) is entered into, by and between the parties listed on Exhibit A in the column titled "PARTIES" (hereinafter collectively referred to as "Plaintiffs") and the Town of Gulf Stream, a municipal corporation of the State of Florida, whose address is 100 Sea Road, Gulf Stream, Florida 33483 (the "Town") and is executed by the Town and the Plaintiffs this _ day of July, 2013 (the "Effective Date'). The Town and the Plaintiffs shall be collectively known as the "parties" WHEREAS, it is the desire of the parties to this Agreement to resolve all disputes, appeals and pending litigation relating to the cases referenced in the column titled "CASES" on Exhibit "A" attached hereto (the "Cases'); and WHEREAS, on behalf of the Plaintiffs, Martin E. O'Boyle (O'Boyle) presented to the Town Commission a proposal to settle the "Cases" ; and WHEREAS, the Town Commission has reviewed the proposal for settlement and wishes to settle the Cases and to resolve other matters as set forth herein on the terms set forth herein; and WHEREAS, it is the intention of the Plaintiffs and the Town to be bound to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein expressed, and for the other good and valuable consideration the receipt and sufficiency of which is acknowledged and confirmed, the parties, intending to be legally bound, hereby agree as follows: 1. The Town recognizes that the Plaintiff O'Boyle believes that the Town did not apply a correct interpretation of its Code of Ordinances (the Code) as it pertains to 23 North Hidden Harbour Drive, Gulf Stream, Florida (hereinafter the "Property") and the improvements on the Property (hereinafter the "Improvements"). In particular, Plaintiff, O'Boyle argues that the Town did not correctly apply its Code with respect to his request for Development Approval for, inter alia, a Level 3 Architectural/Site Plan (the Application) and such other permissions, approvals, interpretations, clarifications and authorizations relating to the Property (the "Approvals') to demolish and construct the Improvements upon the Property as contemplated. . 2. The Town recognizes that its interpretation of the Code, including, without limitation, the current setback regulations established therein may not enable the Plaintiff O'Boyle, or a subsequent purchaser to rebuild or renovate the Improvements, including, without limitation, the home; or enable O'Boyle or a subsequent purchaser to demolish the Improvements, including, without limitation, the home and construct Improvements, including, without limitation, a new home. Accordingly, in order to resolve the Cases between the Plaintiffs and the Town, the Town agrees that the lot coverage, floor area ratio, height, and setback of, inter alia, the home's entry feature shall be permitted in accordance with the plans submitted with the Application a—(the "Plans") (which Plans shall be substantially the same as the Plans), which Application and Plans shall be an exhibit to the Development Agreement (the "Development Agreement"). The purpose of the Town's adoption of the Development Agreement is 2 to permit, inter alia, the floor area ratio, height of the home's entry feature, and front setback in accordance with the interpretation advanced by O'Boyle counsel in the argument portion of O'Boyle's Petition for Writ of Certiorari. The Development Agreement will also recognize that the Property's (including its Improvement's) setbacks will not be measured from the point of measurement currently established in the Code; but will be measured in accordance with a survey attaGhed to and *RGOrpeFated into the Deve!OpMeRt AgreeMeRt whiGh tab —the actual PE!roperty lines for building purposes among other purposes. It is also the purpose of the Development Agreement to facilitate the Plaintiffs or subsequent owner's demolition, rebuilding or renovation of the Improvements, including, without limitation, the existing home, or the construction of Improvements, including, without limitation, a new home. The Development Agreement shall be substantially in the form provided for in Section 163.3220, Fla. Stat. The Development Agreement shall include terms customarily used in the Town (but adapted to reflect the agreements of the parties as contained herein) The Development Agreement, among other things shall allow the Plaintiff or a subsequent owner to demolish, rebuild or renovate the Improvements including without limitation the home or to construct Improvements, including, without limitation a new home such that the front setback is not measured as currently established in the Code.. . 3. Both the Town and O'Boyle agree to act in good faith to promptly enter into the Development Agreement,_ which Development Agreement shall contain terms consistent with the terms set forth herein as they relate to the Property, including those 3 necessary or appropriate - so as to facilitate the construction of the Improvements upon the Property as set forth in the Application; and such other terms which are customary for Development Agreements in the Town for similar type Properties and improvements contemplated under the Application. The Town agrees to execute the Development Agreement as soon as practicable within Floiridda Statutes, but in no event later that 60 days from the date of this Agreement. 4. The Town agrees to waive any fees the Plaintiff might normally incur which are associated with the Development Agreement, the Application, the Approvals and any fines or assessments resulting from any violations existing at the Property, including, without limitation, the alleged violations set forth on the attached Exhibit B. 5. The paFties FeGognize that a ..,p ■ agree•d;SGGVBFy any of existing lawsuits, or file any fLIFtheF lawsuits, appeals, 9F to take aRy adminis'" exeGuted by the pa#L-s n 6. Upon the execution of this Agreement by the Plaintiffs, the Town agrees to pay O'Boyle $180,000.00 WithiR five days, in readily available funds by Federal Wire Transfer pursuant to Wire Transfer Instructions as designated by O'Boyle, which wire instructions are attached as Exhibit C. 'Bill understanding that the wiFe must. i ovr anvc......��.. ��y .. 7. Upon execution of this Agreement, the Town agrees that O'Boyle can proceed to improve the Property in accordance with the Application and to promptly Provide O'Boyle with such Approvals as necessarvthe Pans she!! be deprnprl to have No Mr.T. Kam TTZM 1:0 8. Within five days after the execution of this Agreement, the Plaintiffs shall dismiss with prejudice the Cases. 9. Upon execution of the Agreement, O'Boyle shall promptly (a) remove all signs from the Property other than approved address signs, and (b) within twenty days remove all murals on the exterior of his home and return the color of the paint on the home to the color that existed previously. 10. Plaintiffs agree that upon execution of this Agreement, all pending public record requests made to the Town shall be deemed withdrawn. 11. In the event any of the Plaintiffs or the Town are required to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees through the appellate level. 5 12. RELEASESIA11 (A) The Plaintiffs Release of the Town. On the Effective Date , the Plaintiffs shall execute and deliver a general release in favor of the Town, which release is attached as Exhibit "D1" attached hereto (the "Town Release"). (B) The Town's Release of Plaintiffs. On the Effective Date, the Town shall execute and deliver a general release in favor of the Plaintiffs, which release is attached as Exhibit "D2" attached hereto (the "Plaintiffs Release") 13 Representations and Warranties of the Plaintiffs. Each of the Plaintiffs represents and warrants to the Town as follows: (a) that the representing Plaintiff has not sold, assigned, transferred or otherwise disposed of any claims that any of the Plaintiffs had against the Town before the Effective Date; (b) that the Plaintiffs each represent that they have the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement as they apply to such Plaintiff; and 0 (c) this Agreement has been duly and validly executed and delivered by the Plaintiffs and constitutes a legal, valid and binding obligation, enforceable against the Plaintiffs in accordance with its terms. 14.. Representations and Warranties of Town. The Town represents and warrants to each of the Plaintiffs as follows: (a) that the Town has not sold, assigned, transferred or otherwise disposed of any claims that the Town had, before the Effective Date against all or any of the Plaintiffs; (b) that the Town has the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement; and (c) this Agreement has been duly and validly executed and delivered by the Town and constitutes a legal, valid and binding obligation, enforceable against the Town in accordance with its terms. 15. Covenant Not to Sue. 7 (a) Each of the Plaintiffs covenant and agree not to institute any litigation or arbitration against the Town for any matter or thing which is within the scope of the Town Release, as attached as D1. (b) The Town covenants and agrees not to institute any litigation or arbitration against any or all of the Plaintifs for any matter or thing which is within the scope of the Plaintiffs Release, as attached as D2. 16. Continuation and Survivability of Representations .Warranties and Covenants. The representations, warranties and covenants contained in this Agreement shall survive the consummation of the transactions provided for in this Agreement 17. Indemnification. The Plaintiffs, jointly and severally, agree to defend, indemnify and hold the Town harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, "Town Claims") which the Town may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Plaintiffs set forth in this Agreement; and (b) the breach by any of the Plaintiffs of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. 3 18. Indemnification. Subject to Section 768.28, Fla. Stat., The Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, the "Plaintiffs's Claims") which any of the Plaintiffs may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. In addition, the Town, jointly and severally, agree to defend indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims suits losses, liabilities taxes damages deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively the "Plaintiffs's Claims") which any of the Plaintiffs may suffer, sustain or become subject to by reason of arising out of or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document instrument or agreement contemplated hereby. 19. Notice of Default. No default shall have occurred under this Agreement until the defaulting party shall have been given 10 -days written notice to cure. If the cure is 9 such that is will reasonably take longer than 10 -days and the defaulting party is pursuing the cure with diligence, then time within which to cure any such default shall be extended for such period as may be necessary to complete the curing of the default, providing that diligence and continuity are being used. 20. No Third Party Beneficiaries. This Agreement shall not create rights in any third -party beneficiary nor confer any benefit upon or enforceable rights hereunder upon anyone other than the parties and the "Releasees" in the Plaintiffs Release and/or the Town Release. 21. Further Cooperation. The Plaintiffs and the Town agree, at any time and from time to time after the date hereof, upon reasonable request, to perform, execute, acknowledge and deliver all such further documents as may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement and any document, instrument, or agreement contemplated thereby. 22. Specific Performance. The parties each acknowledge and agree that any breach or threatened breach of the obligation to consummate the transactions contemplated by this Agreement will cause irreparable injury to the other parties hereto and the remedy at law for any breach of such obligations would be inadequate. The parties therefore, agree and consent that the remedy of specific performance should be granted in any proceeding which may be brought to enforce any party's obligations 10 under this Agreement without the necessity of proof that such party's remedy at law is inadequate. Such equitable relief shall not be the aggrieved party's sole remedy but shall be in addition to all other remedies available in law or equity. 23. Voluntary Execution of Agreement. Each of the parties affirms that they are represented by counsel in this matter, that they have read and fully understand all of the terms of this Agreement, and that they are entering into this Agreement voluntarily without having been threatened, coerced or intimidated into the signing of this Agreement. It is further agreed that no provision of this Agreement shall be construed presumptively against any party hereto. 24. Headings. The headings and sub -headings contained in the titles of this Agreement are for convenience only and shall not be interpreted to limit or alter any of the provisions of this Agreement. 25. Governing Law. This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida. 11 26. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. No party hereto may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other parties hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, other than the parties and their respective heirs, successors and assigns, any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof. All the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties and their respective heirs, successors and assigns. 27. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and shall be deemed to have been duly given or made: if delivered in person, immediately upon such in person delivery; if by nationally recognized overnight courier service with instructions to deliver the next business day, upon delivery to the receiving party; and if by registered or certified mail, return receipt requested, upon delivery to the receiving party. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section): If to the Town: 12 With a copy to: If to any of the Plaintifrs: Martin E. O'Boyle Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954-360-0807 With a copy to: William F. Ring, Jr., Esquire Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954-360-0807 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Agreement with all signatures reproduced shall be considered, for all purposes, as if it were an executed original counterpart of this Agreement. 29. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters covered and the transactions contemplated hereby. No modification or waiver of any provision of this Agreement shall in any event be 13 effective unless the same shall be in writing and signed by the party to be charged, and then such waiver or consent shall be effective only as stated in writing. 30. Severability. If any term, covenant or condition of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition other than those which are held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. 31. Prior Approval. Based on the law and facts the Town recognizes and agrees with O'Boyle that its actions in not approving the Application and in not issuing O'Boyle the Approvals were without basis to support its decision in connection therewith. Further. the Town agrees that the asserted violations as set forth on Exhibit B were improperly asserted and the Town further acknowledges that the Town has no basis to sustain the asserted violations and agrees to immediately withdraw and dismiss with prejudice its enforcement actions relative to the asserted violations 1A21 32. Time is of the Essence. The dates and times for performance of all of the obligations hereunder shall be deemed of the essence of this Agreement. 33. Legal Action. In the event of any action taken by any party, including, without limitation, an appeal of this Agreement or any related applications or M agreements, or any part thereof, O'Boyle and the Town agree that they shall each use their best efforts to vigorously defend any such actions. 34. Apology. The Town recognizes the stress and strife that the O'Boyle family has endured as a result of the Town's conduct. The Town recognizes that the O'Boyle home has a value well in excess of $1,000,000, but is uninsurable against wind because of the non-existence of proper protection, which would have been part of the Improvements installed by O'Boyle had the Town not initially denied the Application. The Town is indebted to O'Boyle for the many deficiencies in connection with the Town code that he has identified since his submission of the Application. The Town Commission believes that O'Boyle's actions will ultimately result in Gulf Stream being a better and friendlier place to live. MIMI. Reservation of Rights. Notwithstanding language in this Agreement (including the attached Release) O'Boyle reserves all rights and remedies related to any claims which he may have related to the scope and size of Improvements which may be constructed upon the Property, to the extent that the scope and\or size of Improvements are less than the scope and size of the improvements which could have been constructed on the Property on the date when the permits for the existing Improvements (including, without limitation the home on the Property was originally issued which date was approximately 1981 fb7 36. Building Envelope. The Development Agreement which -will: (a) include a survey provided by O'Boyle which survey shallthat provides- a building envelope for the Property (as designated by O'Boyle pursuant to the preceding paragraph): and mallow the construction of Improvements within the area between intercostal waterway, the private roads and the common property line to the west IN WITNESS WHEREOF, the undersigned have executed this Agreement as of April , 2013. c:\users\ssm\aopdata\local\microsoft\windows\temuoraw internet files\content outlook\c 3e7fei\1gs2661 docx meo 1125om 2 .docx 44gr673�doox IrP. 17 Page 1 of 1 Rita Taylor From: Matias, Sally [SMatias@jonesfoster.com] Sent: Monday, October 21, 2013 11:20 AM To: Rita Taylor Subject: O'Boyle Settlement Agreement Attachments: 1GW0308-settlement agreement fully executed.pdf Rita, Attached is an executed copy of the Settlement Agreement. The Settlement Agreement was attached to the Development Agreement as Exhibit "B" and was recorded as a part of the Development Agreement. The Settlement Agreement was not recorded as an a separate document. Sally JONESFOSTER Joum I( IS K %l t, Ims, PA. Sally Matias Secretary to John C. Randolph and f -I. rlichael Easley Direct Dial: 561.650.0458 1 Fax: 561.650.5300 I smadas .ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Hagler Center Tower, 505 South Hagler Drive, Suite 1100,'%Vest Palm Beach, Florida 33401 561-659-3000 1 www.ionesfoster.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. 10/21/2013 Town of Gulf Stream Transmission Letter FAXCoverSheet ToI�;II�G�n�nc/ Phone: Fax: T,G/ -�&-0 c��7 REMARKS: (Date: July 26, 2013 Number of pages including cover sheet: From w con o4—' lT—� Phone: Fax: 75-Z,f_ 7?37-0/ F< - Transmission Report Date/Time 07-26-2013 02:19:24 p.m. Transmit Header Text Local ID 1 5617370188 Local Name 1 Fax Total Pages Scanned: 22 This document : Confirmed (reduced sample and details below) Document size : 8.5"x11 " Town of Gulf Stream Transmission Letter FAXCoverSh n To lk);01gr11vlo°I IDate: July 26, 2013 Number or pages including cover sheet: Total Pages Confirmed - 22 i o ion o -F 65 Phone: Fax: S7a1-737-01 FS - No. lJob I Remote Station StartTlme Duration Pages June lMode lJobType I Results 001 348 19543600807 02:11:04 p.m. 07-26-2013 00:04:12 22/22 1 EC HS CP21600 Abbreviations: HS: Host send PL: Polled local HR: Host receive PR: Polled remote WS: Waiting send MS: Mailbox save MP: Mailbox print CP: Completed TS: Terminated by system RP: Report FA: Fall G3: Group 3 FF: Fax Forward TU: Terminated by user EC: Error Correct