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
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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