HomeMy WebLinkAboutDocumentation_Regular_Tab 11_6/11/2020Agenda Item #11 0
Regular Council
STAFF MEMO
Meeting: Regular Council -Jun 11 2020
Staff Contact: Keith Davis, Village Attorney
Department: Legal
Approval of Proposed Settlement Agreement for Presley Family Trust v. Village of Tequesta, Case
No. 50-2020-001861.
This proposed settlement agreement would resolve the Presley appeal of the denial of their generator
location variance. The next door neighbor has submitted written agreement with the generator
location and consent for the Presleys to settle the matter with the Village. The settlement would allow
the generator to remain in its location with the addition of greater landscape buffering; and would
dismiss the appeal with prejudice.
Presley-VOT Settlement Agreement FINAL
Generator Landscape Plan ada
Exhibit B to Settlement Agreement
Exhibit C to Settlement Petitioners Notice of Voluntary Dismissal with..
Passander Letter Generator ada
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into this day of June, 2020 by
and between Steven W. Presley and Pamela S. Presley, as Trustees of the Presley Family Trust
dated October 20, 2016 (the "Presleys") and the Village of Tequesta, Florida ("Village")
(collectively, the Presleys and the Village are the "Parties").
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WHEREAS, the Presleys own the Property located at 370 Riverside Drive, Tequesta,
Florida (the "Property") within the Village of Tequesta, Florida; and
WHEREAS, the Presleys submitted variance application VAR 1-20 to the Village for the
location of the generator on the Property (the "Variance"); and
WHEREAS, the Village's Planning and Zoning Board considered the Variance at a
public hearing on January 16, 2020; and
WHEREAS, on January 22, 2020, based on objections from the Presleys' neighbors, the
Village of Tequesta Planning and Zoning Board denied the Variance; and
WHEREAS, the Presleys are the Petitioners in the lawsuit captioned Steven W. Presley
and Pamela S. Presley, as Trustees of the Presley Family Trust dated October 20, 2016 v.
Village of Tequesta, Florida, Case No. 50-2020-001861, pending in the Appellate Division of
the 15th Judicial Circuit In and For Palm Beach County, Florida, in which the Presleys
challenged the denial of the Variance (the "Lawsuit"); and
WHEREAS, the Presleys desire to work with their neighbors and the Village to resolve
any concerns related to the Variance; and
WHEREAS, the Presleys neighbors have affirmed in writing that they have no objection
to the Presleys generator location and enhanced landscaping as proposed in this Agreement; and
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WHEREAS, the Parties desire to enter into this Agreement to resolve all issues and
disputes related to the Lawsuit.
NOW THEREFORE, for the good and valuable consideration set forth herein, to which
the Parties hereby stipulate and agree, the Parties agree as follows:
TERMS
1. Recitals. All of the foregoing recitals are true and correct and are incorporated
herein and by reference.
2. Revised Landscape Plan. The Presleys shall install and maintain an additional 12
Calusa hedges around the emergency generator as shown on the Revised Landscape Plan
attached hereto as Exhibit A.
3. Variance. The Village of Tequesta Council hereby grants the Variance to permit
the emergency generator location to remain in its existing location in accordance with the
Revised Landscape Plan by executing and filing the Order Granting Variance Application
attached hereto as Exhibit B .
4. Dismissal With Prejudice. No later than two (2) business days following the
Village's execution, filing, and delivery to the Presleys' counsel of the Order Granting Variance
Application, the Presleys shall dismiss the Lawsuit with prejudice by executing and filing the
Dismissal attached hereto as Exhibit C.
5. No Reliance. All of the Parties to this Agreement represent, covenant, and agree
that they have not relied upon any representations, statements, inducements, acts, or omissions of
any other Party, not expressed herein, in entering into this Agreement, and specifically waive and
release any claim to have done so, including, but not limited to, a claim of fraud or of reliance
due to fraudulent inducement. Each Party declares and represents that no promise, inducement,
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or agreement not explicitly expressed in this Agreement has been made to that Party, and that
this Agreement is fully integrated as stated in the next following paragraph.
6. Integration. This Agreement constitutes the entire and only agreement between
the Parties, and all prior negotiations, representations, agreements, statements, warranties,
guarantees, promises, and understandings between the Parties are suspended and merged into this
Agreement. This Agreement may only be modified by a writing executed by the Party against
whom the modification is sought to be enforced and shall bind and benefit the Parties and their
respective successors, legal representatives, and assigns.
7. Applicable Law. This Agreement is subject to and shall be construed and
enforced in accordance with the laws of Florida.
8. Severability. If any provision of this Agreement is held to be or becomes invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
9. Litigation of Disputes. In the event of a dispute as to the interpretation,
enforcement, application, or violation of this Agreement, it is understood and agreed by the
Parties that the Circuit Court for the Fifteenth Circuit in and for Palm Beach County, Florida
shall have jurisdiction to resolve such dispute and to enforce its terms.
10. Legal Contract. This Agreement shall be deemed to constitute a contract made
and entered into under the laws of the State of Florida, and not a mere recital. This Agreement
shall not be filed with a court unless it is necessary to enforce any term or condition of this
Agreement.
11. Amendments. No amendment or variation of the terms or provisions of this
Agreement shall be valid unless made in writing and signed by each of the Parties.
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12. No Admission. It is understood and agreed that this Agreement is provided in
connection with the compromise of disputed claims, and that the considerations made shall not
be construed as an admission of liability, wrongdoing, fault, coverage, or validation of any
claims or allegations made in the Lawsuits.
13. Survival. The representations, obligations, and warranties set forth herein shall
survive the execution of this Agreement and shall be binding upon the Parties and their heirs,
executors, administrators, successors, beneficiaries, and assigns.
14. Construction. The parties acknowledge that this Agreement is the product of joint
drafting efforts and that it shall not be construed in favor of or against any particular party based
on the manner in which the Agreement was drafted.
15. Headings. The headings of the sections and/or paragraphs of this Agreement are
inserted only for the purpose of convenience of reference, and the Parties recognize and agree
that these headings may not adequately or accurately describe the contents of the sections and/or
paragraphs which they head. Such headings shall not be deemed to govern, limit, modify, or in
any manner affect the scope, meaning, or intent of the provisions of this Agreement or any part
or portion thereof, nor shall they otherwise be given any legal effect.
16. Advice of Counsel. Each Party represents that it has reviewed the Agreement in
full. Each Party represents that it has relied upon, or had the opportunity to rely upon, the advice
of an attorney of their own choice before entering into this Agreement, and that the terms of this
Agreement have been completely read and that those terms are fully understood and voluntarily
accepted.
17. Discovery of Subsequent Facts. The Parties agree and acknowledge that they may
discover facts different from or in addition to the facts they now know or believe to be true with
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respect to the disputes that are the subject of this Agreement. This Agreement shall operate as a
full and complete release by the Parties, notwithstanding the discovery of any different or
additional facts.
18. Consideration. Each Party affirms that the promises contained in this Agreement
constitute adequate consideration to support the enforcement of this Agreement and each Party
hereby forever waives any claim that the consideration for this Agreement was inadequate or
otherwise renders the Agreement unenforceable.
19. Consent. If any consent or authorization, written or otherwise, is necessary to
execute this Agreement, each Party hereby warrants that such consent or authorization has been
received to make this Agreement binding and legally effective.
20. Counterparts. This Agreement may be executed in one or more counterparts and
such execution of any one or more counterpart(s) shall be equally sufficient as if made upon a
single original of this Agreement. A facsimile or electronically affixed signature shall be deemed
an original.
[Signature Page Follows]
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Agenda Item #11 0
IN WITNESS WHEREOF, the undersigned have executed this Agreement on behalf of
the Parties as of the date first written above.
By: Pamela S. Presley, Trustee of the
Presley Family Trust dated October
2012016
Date:
By: Steven W. Presley, Trustee of
the Presley Family Trust dated
October 20, 2016
Date:
By: Village of Tequesta, Florida
Name:
Title:
Date:
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EXHIBIT A
Revised Landscape Plan
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EXHIBIT
Order Granting Variance Application
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Agenda Item #11 0
EXHIBIT C
Notice of Voluntary Dismissal With Prejudice
ACTIVE 12016933.1
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Agenda Item #11 0
FILED: Village of Tequesta
Date:
Time:
VILLAGE OF TEQUESTA COUNCIL
CASE NO.: VAR-120
IN RE: Steven W. Presley and Pamela S. Presley, Trustees of the Presley Family Trust
dated October 20, 2016, Owners & Applicants
PROPERTY LOCATION: 370 Riverside Drive, Tequesta, FL 33469
LEGAL DESCRIPTION: RIVERSIDE ON THE LOXAHATCHEE LT 2 BLK 4
PARCEL CONTROL NO.: 60-42-40-36-04-004-0020
VARIANCE REQUESTED: Variance from Sec. 78-299(c)(1) to allow the location of the
48kW 60Hz emergency generator in the front yard of the residence
where the code prohibits placement in a residential front yard.
SUPPLEMENTAL ORDER APPROVING VARIANCE APPLICATION IN
ACCORDANCE WITH SETTLEMENT AGREEMENT
The Village of Tequesta Council has considered the Variance Application, the evidence
presented by the Applicants and other interested persons, and being otherwise duly advised,
THEREUPON, THE VILLAGE OF TEQUESTA COUNCIL FINDS AS FOLLOWS:
1. The Applicants applied for a variance from Section 78-299(c)(1), Village Code of
Ordinances to allow the location of the 48 kW 60Hz emergency generator in the front
yard of the residence.
2. The subject property is located in the R-1 zoning district in the Village of Tequesta.
3. The Village of Tequesta Planning and Zoning Board considered the Application at a
public hearing on January 16, 2020.
4. The Applicants' neighbors appeared at the public hearing in opposition to the Variance.
The Village of Tequesta Planning and Zoning Board denied the Variance on January 22,
2020, which the Applicants timely appealed. Such litigation identified as CASE NO.:50-
2020-CA001861 remains pending in the Circuit Court of Palm Beach County, Florida.
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Agenda Item #11 0
5. The Applicants have worked with the Village and their neighbors to resolve any concerns
related to the Variance, including the submittal of the Revised Landscape Plan attached
hereto as Exhibit "A."
6. The Applicants have submitted all documents required by the Village's Code of
Ordinances for review and final action.
7. The application and all supporting documents were reviewed by the Village of Tequesta
Council, and as kept by the Village, are made a part of this order and are hereby
incorporated by reference.
8. The Applicants and the Village have agreed to settle the pending litigation identified as
CASE NO.: 50-2020-CA001861, and the Applicant's neighbors have agreed in writing to
the location of the Applicant's generator with the additional landscape screening in
accordance with the Revised Landscape Plan attached hereto as Exhibit "A."
9. The Village of Tequesta Council has the right, power, and authority to act upon the
Applicants' request.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED BY THE VILLAGE
OF TEQUESTA COUNCIL AS FOLLOWS:
The Application for Variance Case No. VAR 1-20 with reference to the above -described
property within the Village of Tequesta, Palm Beach County, Florida, to permit the location of a
481,c-W 60hZ emergency generator in the front yard of the residence in accordance with the
Revised Landscape Plan attached hereto as Exhibit "A" and in accordance with the Settlement
Agreement in CASE NO.: 50-2020-CA001861 to resolve the pending litigation is hereby
GRANTED.
Done and ordered on , 2020.
LORI McWILLIAMS, MMC
VILLAGE CLERK
MAYOR ABIGAIL BRENNAN,
VILLAGE OF TEQUESTA
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
STEVEN W. PRESLEY and PAMELA S. APPELLATE DIVISION
PRESLEY, as Trustees of the Presley Family
Trust dated October 20, 20161
Petitioners,
vs.
VILLAGE OF TEQUESTA, FLORIDA,
Respondent.
CASE NO.: 50-2020-CA001861
NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE
Petitioners, Steven W. Presley and Pamela S. Presley, as Trustees of the Presley Family
Trust dated October 20, 20161 by and through its undersigned counsel, and pursuant to Florida
Rule of Civil Procedure 1.420(a)(1), hereby give notice of the voluntary dismissal of the above -
captioned action with prejudice against Respondent, Village of Tequesta, Florida.
Dated this day of May, 2020.
Respectfully submitted,
/s/
S. KAITLIN GUERIN, ESQ .
Florida Bar No. 124973
BRIAN M. SEYMOUR, ESQ.
Florida Bar No. 120308
Counsel for Steven W. and Pamela S. Presley
GUNS TER, YOAKLEY & S TEWART, P.A.
777 South Flagler Drive, Suite 500 East
West Palm Beach, Florida 33401-6194
Telephone: 561-650-0557
Facsimile: 561-655-5677
Primary: k uerinkgunster.com
Primary: bseymourggunster.com
Secondary: aalfaroggunster.com
Secondary: eservice(kgunsterxom
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Agenda Item #11 0
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing document is being served on all persons on the
below service list on this day of May, 2020, via automatic email generated by the Florida
Courts E-Filing Portal.
CERTIFICATE OF FONT COMPLIANCE
I hereby certify that the foregoing document was prepared in Times New Roman 14-
point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.
/s/
S. KAITLIN GUERIN, ESQ.
Florida Bar No. 124973
SERVICE LIST
Attorneys for Village of Tequesta
Davis & Ashton, P.A.
701 Northpoint Parkway, Suite 205
West Palm Beach, FL 33407
Keith W. Davis, Esq.: keithkdavisashtonlaw.com
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Agenda Item #11.
oa/3a/2oza
Steve,
Thanks for the open conversation tatry and put all of phis to
bed. As we discussed, we are fine with the generator in place
As it is, and would not protest any settlement between you
guys and the village related to the generator.,
If you need anything else from us please don't hesitate ta let us
Thanks
Rob
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