HomeMy Public PortalAboutPRR 16-2359Renee Basel
From: Chris O'Hare <chrisoharegulfstream@gmail.com>
Sent: Friday, October 21, 2016 9:29 AM
To: Bill Thrasher; Rita Taylor; Renee Basel; Trey Nazzaro
Subject: Public Record Request - transcript of 7-24-13 meeting
Dear Custodian of Records,
I request to inspect certain public records' in the custody of the Town of Gulf Stream Florida' or in the custody of its agents or
associated entities.
While I am not statutorily obligated to explain why I want to inspect these records, I tell you it is for the
purpose of informing myself of the historic and current workings of the Town of Gulf Stream and its
associated entities, vendors, consultants, advisers, contractors and agents. The records I wish to
inspect may also be material to current, anticipated or presently unforeseen legal action. In addition,
inspection of these records may be essential to my ability to make informed comments in an
upcoming public hearing. The production of any and all responsive records is therefore urgent and
must be acted upon in compliance with Florida Statutes and established case law as soon as
possible.
Before making this public record request, I first searched online and in the public records portion of
your agency's website hoping I could locate the public records I seek without having to write you
directly. Unfortunately I cannot find the records I wish to inspect. Therefore I am writing you now and
requesting you make every effort as required by law to produce these public records without delay.
I make this request pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of
the Florida Statutes. I hereby reserve all rights granted to me under the Florida
Constitution and Florida Statutes.
I ask that you take the following action:
• Read this entire request carefully and respond accordingly.
• If you are not the custodian of the public records described herein please determine who that person is and
notify me immediately in order that I may make this request to the appropriate person without delay.
• Reference Florida Statutes and appropriate case law when responding to this record request.
• Do NOT produce any records other than records responsive to this request.
• Identify by name the person or persons responding to this request if that person is not the Custodian of
Records for your agency as required by 119.070)(b).
• Respond to this public record request in a singular manner and do not combine this
request with any other public record requests when responding to this request
Once you have determined that you do or don't have any records in your
custody responsive to this request, immediately act to obtain any responsive records
that may be in the custody of your contractor(s) or other parties.
Provide only those records for inspection that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes.
If records responsive to this request are not presently available but you expect that
they will soon be available I request that you produce the records as soon as they are
available.
I ask you to take note of §119.07(1)(c) Florida Statues and your affirmative obligation to (1)
promptly acknowledge receipt of this public records request and (2) make a good faith effort which
"includes making reasonable efforts to determine from other officers or employees within the agency
whether such a record exists and, if so, the location at which the record can be accessed." I am,
therefore, requesting that you notify every individual and entity in possession of records that may be
responsive to this public records request, including individuals and entities under contract with your
agency, to preserve and produce all responsive records on an immediate basis.
If you contend that any of the records I am seeking, or any portion thereof, are exempt from
inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida
Statutes and state in writing and with particularity the basis for your conclusions as required
by §119.07(1)(f) of the Florida Statutes. Produce for my inspection all responsive records and ONLY
redact that portion of the record that you consider exempt. To be clear, if you consider an entire
record to be exempt, produce that record in its entirety with all portions redacted that you consider
exempt. I specifically ask you to do this in order that I may inspect fully redacted records for the
purpose of challenging a particular redaction or establishing a reference for a future request of a
record that is only temporarily exempt, as in the case of a public record that was prepared by an
agency attorney exclusively for litigation and is only exempt from disclosure until the conclusion of the
litigation.
If the public records being sought are maintained by your agency or contactors for your agency, in an
electronic format please produce the records in the original electronic format in which they were
created or received. See §119.01(2)(f), Florida Statutes.
Again I ask that you provide only those records for inspection that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes. Take note
of §119.07(4)(a)3.(d) Florida Statues and if you anticipate that any records exist, the production for
inspection of which will require extensive use of information technologies or extensive staff time or
both in excess of 15 minutes, then please provide those records that can be produced within the first
15 minutes and advise me of the cost you anticipate to be incurred by your agency for the remaining
records prior to incurring this cost. Please do not incur any costs on my behalf without first obtaining
my written authorization to proceed. If you produce only a portion of all existing responsive records,
please tell me that your response includes only a portion of all existing records responsive to this
request.
If you anticipate the need to incur any costs that I would be statutorily required to pay in order to
inspect these public records which would exceed $1.00 please notify me in advance of your incurring
that cost with a written estimate of the total cost. Please be sure to itemize any estimates so as to
indicate the total number of pages and/or records, as well as to distinguish the cost of labor and
materials. Again, please do not incur any costs on my behalf without first obtaining my written
authorization to proceed.
A record that does not exist because of its disposition requires the creation of a disposition record. In
all instances where you determine a record does not exist please determine if the record once existed
and in its replacement provide the disposition record for my inspection.
As background to this request I call your attention to the Special Meeting Held by the Town
Commission at the call of the Mayor of the Town of Gulf Stream pursuant to Section
286.011(08), Florida Statutes, on Wednesday, July 24, 2013 at 3:30 P.M., in the Commission
Chambers of Town Hall.
I request to inspect the fully transcribed notes created by the certified court reporter who
recorded the portions of the above referenced meeting which were subsequently filed with the
Clerk for the Town of Gulf Stream as per Florida Statute 286.011(8)(c).
*The term public records, as used herein, has the same meaning and scope as the definition of
Public records adopted by the Florida Legislature as Statutes Chapter 119.
**The phrase Town of Gulf Stream when used herein refers to the Town in its entirety and all entities
of the Town including all employees, appointees, officials, assignees, counsel and consultants
including Town Manager, Town Clerk, Town Police Chief, Town Commissioners, Town Mayor, Town
Departments, Town Police Officers, Town Employees, Town Staff Attorney, Town Engineer, the law
firm (Jones Foster Johnston & Stubbs P.A.) that claims to be the Town Attorney including all attorney,
partner and employee members of that firm; the Town Counsel of Sweetapple, Broeker &
Varkus including all attorney, partner and employee members of that firm, the Town Counsel
of Richman Greer, P.A. including all attorney, partner and employee members of that firm and any
other entity associated with the Town and subject to public records law.
If you do not understand any part of this request or if you need clarification about this request, notify me as
soon as possible so I may further describe or clarify this request. Due to issues of delivery failure and occasional
rejection by your server this email is being sent to multiple recipients to insure prompt delivery.
3
All responses to this public records request should be made in writing to the following email address:
chrisoharegulfstream@gmail.com
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
October 24, 2016
Chris O'Hare [mail to: chrisoharegulfstreamagmail.coml
Re: GS #2359 (transcript of 7-24-13 meeting)
As background to this request I call your attention to the Special Meeting Held by the Town
Commission at the call of the Mayor of the Town of Gulf Stream pursuant to Section 286.01](08),
Florida Statutes, on Wednesday, July 24, 2013 at 3:30 P.M., in the Commission Chambers of Town
Hall.
I request to inspect the fully transcribed notes created by the certified court reporter who recorded
the portions of the above referenced meeting which were subsequently filed with the Clerk for the
Town of Gulf Stream as per Florida Statute 286.011(8)(c).
Dear Chris O'Hare [mail to: chrisoharegulfstream(oDgmail.coml:
The Town of Gulf Stream has received your public records requests dated October 21, 2016. The
original public records requests can be found at the following links:
http://www2.gulf-stream.org/weblink/O/doc/103206/Pagel.asvx
Please be advised that the Town of Gulf Stream is currently working on a large number of
incoming public records requests. The Town will use its very best efforts to respond to you in a
reasonable amount of time with the appropriate response or an estimated cost to respond.
Sincerely,
R6y.CC JZ"" &4d
As requested by Rita Taylor
Town Clerk, Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via a -mail
November 15, 2016
Chris O'Hare [mail to: chrisoharegulfstreamG�gmail.com]
Re: GS #2359 (transcript of 7-24-13 meeting)
I request to inspect the fully transcribed notes created by the certified court reporter who
recorded the portions of the above referenced meeting which were subsequently filed with the
Clerk for the Town of Gulf Stream as per Florida Statute 286.011(8)(c).
Dear Chris O'Hare [mail to: chrisoharegulfstream(a,gmail.coml:
The Town of Gulf Stream has received your public records request dated October 21, 2016. Your
original public records request and response can be found at the following link:
http://www2.gulf-stream.org/weblink/O/doc/I 03206/Pagel.asnx
We have also attached the response for your convenience. We consider this request closed.
Sincerely, F A
R"Id ROW"
As requested by Rita Taylor
Town Clerk, Custodian of the Records
Page 1
TOWN OF GULF STREAM
SPECIAL TOWN COMMISSION CLOSED -DOOR MEETING
ORIGINAL
JULY 24, 2013
4:04 p.m. to 5:45 p.m.
PRESENT:
MAYOR JOAN ORTHWEIN
ROBERT GANGER
THOMAS STANLEY
WILLIAM TRASHER
JOHN RANDOLPH and THOMAS BAIRD, Attorneys
JULIE ANDOLPHO, Court Reporter
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 2
( 1
MR. RANDOLPH: This is an attorney client
2
session as provided under Florida Statute relating
i
3
to the cases that were announced. The attorney
4
client closed -door session is limited to !
5
discussions relating to settlement and litigation
6
I
strategy related to costs. I want to read that to
7
you specifically. "The subject matter of the
i
8
meeting shall be defined to settlement negotiations
9
or strategy sessions related to litigation
10
expenditures. The entire session shall be recorded
11
by a court reporter. The reporter shall record the
12
times of commencement and termination of the
13
session, all discussion and proceedings, the names
14
of all persons present at any time and the names of j
15
i
all persons speaking. No portion of this session
16
I
shall be off the record. The court reporter's
I
17
notes shall be fully transcribed and filed with the
18
i
entity's clerk within a reasonable time after the
19
meeting. The session shall commence at an open
I
20
meeting at which the person sharing the meeting
I
21
shall announce the commencement and estimated
22
I
length of the attorney client session, and the
23
names of the persons attending. At the conclusion
24
of the session the meeting shall be reopened and
25
i
the person sharing the meeting shall announce the
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 3
I 1 termination of the session. The transcript shall
2 be made part of the public record upon conclusion
3 of the litigation."
4 One thing I want to announce to you, because
5 everything has to be on the record, make sure that
6 each
of you are speaking one person at a
time so
7 the
court reporter can get your comments
on the
8 public record.
9 It is also important for you to realize that
10
because a transcript
is being made of
this meeting
11
and because it will
ultimately become
public you do
12 not want to be saying anything that you would be
13 embarrassed to read about in the newspaper at a
14 later time or be embarrassed for any other person
15 to read. Sometimes people feel comfortable in
16
these
closed -door sessions because they're
in
17
closed
door and they
say things that they
wish they
18 had not said.
19
I think this session
is
primarily
to consider
20
settlement negotiations.
So
that you
know, there
21
was a
term sheet that
was negotiated
between George
22
Elmore
and Tom Ladone
(phonetic) and
Mr. O'Boyle
23
which
we started with,
and then Tom
Baird and I put
24 that term sheet into a draft that we proposed and
25 delivered last evening.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 4
1 One hour before my coming to this meeting Tom
2 and I were presented with a settlement agreement
3 from Mr. Ring's office on behalf of Mr. O'Boyle.
4 That is the agreement that you have before you. By
5 the way, I will collect those agreements as we
6 depart from this meeting because this agreement is
7 part of the closed -door session at this point in
8 time.
9 Some things I want to tell you, Mr. O'Boyle
10 indicated to me that Joel Chandler who is one of
11 the plaintiffs in the -- in a public records suit
12 should not be included as part of this settlement
13 agreement because he indicates that he doesn't have
14
control
over
him.
I don't
think he
used
the
word
15
control.
He
just
said he
shouldn't
be a
part
of
16 it. Joel Chandler is associated with an
17 organization called Fog Watch which has filed many
18 public records lawsuits against other entities
19 throughout the state. Mr. O'Boyle has also
20 indicated that Ryan Whitmer's (phonetic) public
21 records suit, one of which was just received a
22 couple of nights ago, should not be a part of this
23 settlement agreement. Ryan Whitmer announced at a
24 meeting the other day before the magistrate that he
25 is a paralegal for the Commerce Group which is
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 5
1 Mr. O'Boyle's organization. So I don't know why
2 Ryan Whitmer should not be included in these -- in
3 the settlement agreement.
4 You should also be aware that this settlement
5 agreement does not assure you that after the
6 settlement further public records requests will not
7 be made by Mr. O'Boyle or any of his companies, nor
8 does it assure you that further public records
9 lawsuits will not be filed. The difficulty in
10 putting language in a settlement agreement that
11 forbids someone to do that in the future is that
12
there is
a constitutional right for filing
public
13
records
requests and to file such suit. In
our
14 draft that we had sent to them, although we didn't
15 put in language which said you shall not file any
16
public records
suits, Tom
Baird came up with some
17
language that
said if you
are going to file a
18
public records
suit you should first mitigate with
19
the Town to see
if we can
resolve any issues that
20
you may
have --
you may have in regard to the
21
lawsuit,
which
I think was perfectly reasonable.
22
That is
not in
this settlement agreement.
23
There
is further
nothing
in
here to
assure
you
24
that future
lawsuits
will not
be
filed in
regard
to
25 other actions that the Town may have with Mr.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 6
1 O'Boyle
in
regard to other
homes
or other matters
2 that he
has
an interest in.
All
this settlement
3 agreement does is resolve the
pending lawsuits and
4 they'll take
a dismissal with
prejudice with regard
5 to all those
suits. They will
dismiss all current
6 public records requests and they will go ahead and
7 take down the signs on their property. They will
8 remove the paintings from the wall and return the
9 house to its original color. Having said that,
10 what this suit does do is attempt to effectuate a
11 good faith resolution of pending problems between
12 Mr. O'Boyle and the Town. When the issue was
13 discussed about not being able to assure you that
14 no further suits would be filed or no further
15
public records request filed
the discussion that
16
ensued in regard to that was
you're just going to
17
have to have good faith. In
fact, I think when we
18
had a session here regarding
settlement between
19
Mr. Elmore, Ladone and others
that was the feeling
20
of those at the table is that
once this goes away
21
there's a feeling that Mr. O'Boyle
will be
22
satisfied. He has not raised
his head in this
23
manner
for the
30
years that he
lived here and if
24
he can
resolve
the
issues that
he thinks are of
25 importance to him the Town will have to trust the
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 7
1 fact that we're not going to have continued
2 problems with him.
3 I want to take you through the settlement
4 agreement and answer any questions you may have in
5 regard to it. Basically what it does is provides
6 that there will be no variances needed in regard to
7 the matter that came before you with regard to the
8 renovation of his house. That interpretation would
9 be made as was discussed at the meeting that you
10
had before
you
that
there was not a
need
for
11
variances,
that
we
were not reading
the
code
12
properly
and if
that's
the case then
you
in this
13
agreement
would
make
a determination
that
there
14 would be no variances needed, that an
15 administrative decision would be made that the
16 variances are not needed and that the project could
17 go forward as presented.
18 Another matter of extreme importance to Mr.
19 O'Boyle is the effective lot area definition in
20 your code which provides that effective lot area,
21 which is the area upon which floor area ratio is
22 computed, does not include submerged land and does
23 not include public or private roads. He is asking
24 that that section, and I think for this we'd
25 probably need a variance, Tom, you can chime in as
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
1 we get to
this, but I think we'd
have to grant a
2 variance
from that portion of the
code to allow
3 that to take
place. What he has
included in here
4 is the fact
that -- and this developer's
agreement
5 idea came
from Tom -- that we'd have
a developer's
6 agreement
which would incorporate
all these things.
7 It would
incorporate the granting
of the approval
8
of the project that was before
you, and it
would
9
also include a provision that
the setbacks
to the
10
home and the building envelope
are going to
be from
11 the property lines rather than from the effective
12 lot area. The property line in his case on the
13 canal goes to the middle of the canal, and in the
14 case of the private road, goes to the other side of
15 the private road, so in the event you were to
16 resolve that the way he has asked he would be able
17 to use the whole area to figure the floor area
18 ratio and also, I believe, the setbacks.
19 I think one weakness I see in this agreement
20
that,
again,
Tom and
I
just
saw today
and you're
21
seeing
now,
is that
he
doesn't
define
-- he
defines
22 the building envelope, but he defines the building
23 envelope from the middle of the canal to the other
24 side of the public road. It seems to me you need
25 to somehow resolve to his satisfaction and yours
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 9
I 1
what the building envelope within that should be,
2
otherwise it seems to me you're blindly going into
3
an agreement which allows him to put whatever he
4
wants on the property without any standard of
5
reasonableness.
6
Again, I think, according to Mr. O'Boyle, he
7
is dealing in good faith and he will be -- he says
8
he will be reasonable with the Town, so if you're
9
happy with the language as he proposed it and think
10
he will be reasonable then perhaps you can accept
11
that matter in the form that it has been presented,
12
but that's one of the problem areas I see in the
13
agreement.
14
I think there are other things in the
15
agreement which need to be tweaked. Quite frankly,
16
I know that Mr. Elmore and Mr. Ladone and others
17
are very anxious to have a settlement agreement,
18
and this settlement agreement I can't make a
19
judgment as to whether the settlement agreement is
20
good or bad, you're going to have to make the
21
determination, but this settlement agreement does
22
address the matters which were of concern.
23
He has taken off the table some of the things
24
that he has first talked about that he wanted to
25
see. He wanted to see an indemnification against
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 10
1 hurricane damage in the agreement, he's taken that
2 off. He wanted to see some other language
3 regarding people either employed with or elected to
4 the Town incorporated in here which he has not
5 incorporated.
6 He has taken off the table a provision that he
7 first had in where he said he would like to have a
8 sober house in there. I want to tell you that even
9 though that's been taken off the table the
10 discussions I've had with them are that they did
11 not want to see anything in this agreement which
12 would preclude the house from ever being used as a
13 sober house. He's taken it off the table for the
14 purposes of this settlement, but they'll be nothing
15 to preclude him or a subsequent purchaser from
16 making application for that if he wishes to, and
17
that's
something, you
know, you
need
to consider
18
from
the standpoint of
whether
if it's
allowed by
19
law then
it's
allowed by
law,
and perhaps it's
not
20
something
that
you need
to be
concerned about
in
21
this agreement.
Maybe
in the event
he ever files
22
or another person
ever
files you'll
have to just
23
deal with the law
as it
exists. You
heard about
24
the
cases in
Delray,
Tom's had
a lot
of experience
25
with
those.
There's
language
called
reasonable
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 11 I'
1 accommodation which under the state statute you're
2 supposed to allow.
3 I want to go through some more detail. I
4 think I've covered most of the substance except
5 that the initial document that we provided to them
6 in regard to the payment of $180,000 provided that
7 that money should be put in escrow and turned over
8 to Mr. O'Boyle subsequent to the developer's
9 agreement being completed and this being a full
10 settlement. His attorney told me right up front
11 when he received that that he did not think that
12 that would be acceptable to his client, and sure
13 enough in Paragraph 6 you see a provision which
14 says, "Upon the execution of this agreement by the
15 plaintiffs the Town agrees to immediately, within
16 24 hours, pay O'Boyle 180,000 in readily available
17 funds," etc., etc. This also has a provision in
18 Paragraph 7 which says, "Upon execution of this
19 agreement the Town agrees that O'Boyle can proceed
20 to improve the property in accordance with the
21 application, and to promptly provide O'Boyle with
22 such approvals as necessary." I don't know that
23 you're in a position to, upon execution of this
24 agreement, allow that to go forward. I think you
25 have to have a public hearing at which you make a
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 12
1
determination that the -- there are no variances
2
needed, that you agree with the argument of Charlie
3
Seiman (phonetic) as petition for writ of cert and
4
that under his interpretation of the code that no
5
variances are needed. That's a fairly easy thing
6
to do and should not take a lot of time, but I
7
think you need to do that at a public meeting, and
8
have a public meeting called for that purpose. I
9
realize we're coming back into a public meeting
10
after this, but you haven't noticed anybody in
11
regard to the terms of this -- of what he should be
12
doing with this house. I have a concern about
13
allowing him to begin work on his home prior to the
14
developer's agreement being completed.
15
It also has a provision that there will be 60
16
days in which to complete the developer's
17
agreement, and I believe still contains, Tom, a
18
standstill agreement during those 60 days that they
19
will not proceed -- I hope that's still in here --
20
that they will not proceed with these cases until
21
the --
22
MR. STANLEY: It's Item 8, I think.
23
MR. RANDOLPH: Is it eight?
24
MR. STANLEY: On Page 5.
25
MR. RANDOLPH: It says, "Within five days
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 13
1
after the execution of this agreement the plaintiff
2
shall dismiss with prejudice the cases."
3
MR. BAIRD: It's Paragraph 5, and he took out
4
the abatement and inserted a sentence that says,
5
"The plaintiffs agree not to file any further
6
lawsuits, appeals or to take any administrative
7
enforcement actions except in connection with the
8
plaintiff's enforcement of this agreement before
9
the development agreement is executed."
10
MR. RANDOLPH: So as you read that that
11
doesn't say anything about not proceeding with
12
cases that are pending.
13
MR. BAIRD: Correct.
14
MR. RANDOLPH: The document that we provided
15
them indicated that to show good faith that we are
16
all on the same page in trying to work out this
17
developer's agreement within the 60 days, that
18
during that 60 -day period that we would abate the
19
cases so that the Town is not continuing to -- nor
20
is he -- continuing to have the expenses of going
21
forward. It seems to be a reasonable provision to
22
me. We have included in here, and I think it's
23
fine, that the Town would waive any fees that he
24
might incur in going forward with either variances
25
or the developer's agreement. Although his
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 14
1 agreement doesn't say anything about variances, but
2 Tom and I have to talk about it more, I think if
3 you're going to -- going to
amend the provisions of
4 your code
as they relate --
you're not going to
5 amend the
provisions of the
zoning code as it
6 relates to
his house, you're
going to have to give
7 a variance
from that lot area
definition, I think,
8
so as to allow
him to do what he wants.
You can
9
certainly agree
to process it, but -- I
think that
10
can all be done
within the 60 -day period
he's
11 asking for here.
12 There's a provision on Page 8 which causes me
13 concern because it's an indemnification from the
14 Town to defend, indemnify and hold harmless the
i
15 plaintiffs from any actions by third parties.
16 Florida Statute 768.28, the sovereign immunity
17 section of the Florida statute provides that there
18 are certain limitations on actions that can be
19 filed against a municipality, and they have caps on
20 what your liability can be. If you were to agree
21 to this section the way it's drafted, if you got a
22 $1 million judgment or $2 million judgment against
23 you, you wouldn't be protected by the sovereign
24 immunity act. I always put in these agreements for
25 the municipalities I represent, and I believe Tom
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 15
1
does the same, on an indemnification clause a
2
sentence that says, in the beginning, subject to
3
the limitations -- subject to the provisions and
4
limitations set forth in Florida Statute 768.28 the
5
Town jointly and severely will indemnify.
6
The other thing is they talk about releases
7
here which they say were attached as exhibits. I
8
have not seen those releases. I think it's
9
important to read the releases before we sign an
10
agreement.
11
MR. STANLEY: I read them.
12
MR. RANDOLPH: Are they attached?
13
MR. STANLEY: They're attached. I got them.
14
MR. RANDOLPH: I didn't see them.
15
MR. STANLEY: They kind of dovetail on a lot
16
of your comments you just made. They look a little
17
nebulose. I can't tell -- if I read it like a
18
normal person, like a lay person, I can't tell
19
really what we're releasing if there were to be an
20
issue with regard to this agreement or some other
21
collateral matter in the future.
22
MR. RANDOLPH: Okay. All right.
23
MR. GANGER: You're referring to Exhibit D2?
24
MR. STANLEY: Dl and D2, yes.
25
MR. RANDOLPH: Where was that?
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
1
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MS. MAYOR ORTHWEIN:
Page 16
It's in the back of this
MR. GANGER: In the back stapled in.
MR. RANDOLPH: Tom, will you look at the
releases while we talk?
MR. BAIRD: Yes.
MR. RANDOLPH: I want to also point out as I
-- again, Tom and I looked at this, there is a word
in a paragraph here which talks about
contingencies. "The parties recognize as a
complete settlement of those matters defined as a
contingent matter cannot be achieved unless and
until the Town commission executes the development
agreement." I don't see what is defined as a
contingent matter.
MR. STANLEY: It's in all caps, too. I
circled it the first time through. I don't know.
MR. RANDOLPH: Yeah. Mine is in quotes.
MR. GANGER: Mine is in quotes, too.
MR. STANLEY: It's in caps.
MR. RANDOLPH: Is yours caps?
MR. STANLEY: Each word is capitalized and in
quotes.
MR. RANDOLPH: Paragraph 9 says, "O'Boyle
should promptly remove all signs from the property
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 17
1 other than
approved address signs" -- that comes
2 from us --
"And within 20
days remove all the
3 murals on
the exterior."
I think there, again, it
4 should be
immediately upon
approval of the
5 developer's
agreement as
opposed to the signing of
6 this agreement.
I don't
think he intended -- he
7 may have, but I'm not sure he intended that
8 everything would be removed upon signing of this
9 agreement before he knew what was going to be in
10 the developer's agreement, although he's drafted it
11 in such a way that he will expect to see the
12 wording that's in here in the developer's
13 agreement. Tom had initially in his provided a
14
developer's agreement as an
exhibit so
that when
15
parties sign the agreement
they would
know exactly
16
what was going to be in the
developer's
agreement.
17
From the standpoint of what
can be --
not the
18
standpoint of the application
that came
before us,
19
I think that's
an
easy
part of
this, but from the
20
standpoint of
what
the
developer's
agreement is
21
going
to
say about
what can
built in the
event that
22
house
is
demolished
within
the confines
of the
23
property
I
think it's
important for
you to have --
24
both of
you
-- he and
you to have an
understanding
25
of what
it
is that he
would like to
have built
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 18
1 there.
2 I turn to Paragraph 31, that to me is
3 unnecessary because the -- what it does is it says,
4 "The Town recognizes and agrees with O'Boyle that
5 its actions in not approving the application and
6 not issuing O'Boyle the approvals were without
7 basis to support his decision in connection
8 therewith." He further says that the violations
9 that we cited against him in regard to the
10 magistrate hearing that we're having now were
11
improperly asserted and
that
the Town acknowledges
12
it had no basis. Well,
the
settlement, the
13
dismissal of
these
case will
take care of
that
14
without you
having
to admit
in here that
you were
15 wrong in what you did. You know, the cases will be
16 dismissed and they'll be no further discussion in
17 regard to fault, in regard to the cases, and other
18 than him wanting an admission that you were wrong I
19 don't see any purpose of having that in there.
20 MR. STANLEY: Thirty-one, prior approval, is
21 that -- reading it if it's an admission or purpose
22 is to acknowledge something that the plaintiff
23 thought went on with all the proceedings, but can
24 that relate back? I mean it's in the settlement
25 agreement, it's sort of a statement, but can that
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 19
1 relate back if anything comes up?
2 MR. RANDOLPH: I think it could. I think
3 that's a good point. I think that could relate
4 back. It could be more than this that could be
5 used as an admission against you in regard to
6 future applications in regard to how you apply the
7 law. So, I think it's problematic.
8 MR. STANLEY: The issue, one of the issues I
9 think here with regard to the real estate was there
10
was a code
and was it rightfully
or wrongfully
11
applied.
There's still a basis,
you know, of what
12
was or was
not done depending on
which side that
13
you're looking at it.
14
MR. RANDOLPH: I think you're right. I think
15
this may be an admission in regard to some future
16
action you take in regard to the application of the
17
code this possibly could be used against you. Tom,
18
chime in anytime you need to. I think that's a
19
good point that Tom raises.
20
Thirty-four is an apology. Again, that's just
21
up to you. He's saying that the Town recognizes
22
that his home has a value in excess of 1 million
23
and it's uninsurable against wind which if he had
24
been granted this approval and not been prohibited
25
from making these installations he wouldn't have
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 20
1 had to bear the expense,
and he's
saying the
Town
2 commission believes that
O'Boyle's
actions --
in
3 addition to all that that the Town Commission
4 believes
that O'Boyle's actions will
ultimately
5 result in
Gulfstream being a better
and friendlier
6 place to live.
7 What's more important is 35, regarding the
8 language which says, "The baseline for his rights
9 and remedies related to the scope and size of
10 improvements which may be constructed on the
11 property will be the date that original
12 construction of O'Boyle home on the property took
13 place." Now maybe that's good from the standpoint
14 that it does give some reference, it does give a
15 baseline, and maybe that's saying that he just
16 wants to be able to build whatever he could have
17 built then before we put this effective lot area
18
provision into
effect. He feels that we
have hurt
19
him subsequent
to his building his home
by putting
20
that effective
lot area in. But I think
you ought
21
to know what
that baseline is,
and then building
22
envelope it
says, "Development
agreement shall
23
provide for
a building envelope
on the property,"
24
and he says,
"Which would allow
construction of
25
improvements
within the are between
the
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 21
want to see
1 intercoastal waterway, the private roads and the
go
2 common property line to the west." I suspect he's
22
3 not saying that he wants to build a house as big as
with
4 from the intercoastal waterway to the road, I think
O'Boyle. I'd like to see you
5 he's saying he wants to put a home within it, but
resolve it.
6 we don't know the size of it.
it
7 Having said all this, you should know that he
8 said that the terms of this settlement agreement he
9 wants to be completed this week. I think he was of
10 the impression, at least he stated, that he
11 expected this settlement agreement to be signed
12 this evening. In prior correspondence I think he
13 said that he wanted it completed by Thursday or
14 Friday. If you don't sign this agreement tonight,
15 or by tomorrow, you may be in some jeopardy of this
16 agreement being taken off the table, but I believe
17 from a legal standpoint that I would be remiss if I
18 told you to sign this agreement in the form that it
19 is in. I don't want to keep you from a settlement
20 agreement that you want to enter into. I don't
21
want to see
you
go
down a continued path of
22
litigation
with
Mr.
O'Boyle. I'd like to see you
23
resolve it.
But
it
seems to me from a
24
reasonableness
standpoint
that having
just seen
25
this agreement
tonight and
realize the
concerns
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 22
/-I
1 that are incorporated in here as have been
1
2 announced that the best course of action would be
3 for you to recommend that we get back with
4 Mr. O'Boyle and his attorneys to discuss those
5 concerns that you have with the agreement. You can
6 talk about what -- you've heard mostly from me and
7 I haven't heard from you, and Tom I don't know if
8 you wanted to add anything to what I discussed or
9 not. Is there anything else we needed to point out
10 to them that was a concern?
11 MR. BAIRD: I think the only -- on some of the
12 substantive matters the only difference between the
13 draft that we sent to them and they sent to us was
14 that they contemplate that this issue of effective
15 lot area would be resolved in the development
16 agreement, and on our end of things we haven't
17 settled on that as the method to resolve that.
18 Mr. Randolph and I believe that that may require a
19 variance. I don't know if that's important to
20 them, but from our perspective whether we do it in
21 the development agreement or we do it with respect
22 to a variance I believe we can still accomplish it
23 either way within 60 days. So from my perspective
24 that should not be a bar to -- that issue should
25 not be a bar to the settlement.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 23
1 MR. RANDOLPH: But the other things that we're
2 not -- that are different than our agreement is the
3 escrow. We had an escrow amount for the payment
4 and we had an abatement or a stay of legal
5 proceedings during this 60 -day period while this is
6 being completed. We had the escrow payment being
7 made at the time that the developer's agreement is
8 completed and that all parties are satisfied with
9
the development
agreement. So
there you are.
10
The cases,
as you know, are
costly going
11
forward. The bills to the Town
which used to be in
12
if
the neighborhood of
$5,000 a month
or less are
13
in
the neighborhood of
40,000 a month
at this point
14
in
time. We are very
well prepared to
continue to
15 litigate these matters. We don't choose to, but
16 we're very well prepared to do it. Remember, these
17 are public records suits. The public records suits
18 are, although may be expensive to try, I don't
19 believe that the attorney's fees if we lose are
20 awarded are going to be that high, they're not
21 going to be as high as the $180,000 asked for here.
22 In regard to the petition for writ of -- we're not
23 talking about that one, excuse me, at this hearing.
24 The federal lawsuit, we believe we have a very good
25 case with regard to the federal lawsuit, we don't
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 24
1
see damages being sustained in that regard even if
2
there was a declaratory judgment that the Town sign
3
ordinance was unconstitutional and, therefore, if
4
he were to prevail I don't see damages with that
5
regard.
6
Those are all the things you have to take into
7
consideration, the timeliness of this and his
8
insistence that it be done now, the costs in going
9
forward with this litigation and all those things I
10
discussed.
11
MS. MAYOR ORTHWEIN: The federal lawsuit is
12
not included in this --
13
MR. RANDOLPH: Yes, it is. The federal
14
lawsuit is included in those cases that you're
15
discussing here as are the O'Boyle public records
16
cases. You'll see on there --
17
MR. STANLEY: Which one is the federal
18
lawsuit?
19
MR. RANDOLPH: The last one.
20
MR. STANLEY: Everything else is in the
21
Circuit Court of Palm Beach County?
22
MR. RANDOLPH: Yeah.
23
MR. GANGER: I thank you for a very thorough
24
and very professional assessment. When you
25
announced this meeting you said you really want to
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
2
3
4
5
Page 25
hear how the Commission feels, and, of course, I
don't know how the Commission feels I know how a
Commissioner feels.
I believe that we were very fortunate to have
someone working on our behalf to negotiate and that
6 the -- what was achieved was extremely beneficial
7 in the final -- in the long term for the Town that
8 a deal is a deal and I think that to talk about the
9 settlement amount, that is the -- what was -- where
10 we started and where it ended is behind us. I
11
think that
if that falls apart
the whole deal falls
12
apart, so
I think, you know, bite the bullet and
13
live with
it. I think we have
every right to
14 define several -- a sentence here, a paragraph
15
there and clarify.
That's not
saying necessarily
16
that we disagree,
but if you can't
agree or
17
disagree, if you don't really
understand what is
18
it, what
does it really
mean. This document was
19
prepared
in haste. It's
filled with typographical
20
errors.
Some of the --
you have a heading and the
21
next one
you don't. It
was something obviously
22
they were
doing to respond
to what you did last
23
night, and
that's in the
natural course of these
24 kind of things. I would like to concentrate, at
25 least at the outset, of what we agree with and get
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 26
1
that behind us.
2
MR. RANDOLPH: That would be good.
3
MR. GANGER: And what's left over we could,
4
maybe we can rack it up -- I don't think we're
5
going to rack it up by 5:00, but I think we can
6
probably give you a very short list of things that
7
need to be resolved. One of them, I would hope, is
8
not the so-called drop dead date, whatever -- I
9
think when he said tonight, that's different than
10
what he said just a day ago, and I think we have
11
every right to say we'll do it by a date certain.
12
MR. RANDOLPH: A day ago he did talk about
13
getting it done by tomorrow or the next day.
14
MR. GANGER: That's right.
15
MR. RANDOLPH: I would do everything in my
16
power to do that, but I --
17
MR. GANGER: I would be very uncomfortable
18
agreeing to something where there is loose dangling
19
ends. If we could make it very clear that we're
20
99 percent there. If I were him and this was good
21
faith, I would accept that. I also think that
22
several things he did in good faith are meaningful,
23
that they're not frivolous things, he had to think
24
about them and he decided, I hope, the right way.
25
Tom, you're -- how do you feel?
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 27
I 1
MR. STANLEY: Well, the -- I mean as far as
2
the timing goes on these things and the drop dead
3
dates, I think that's important because I had
4
actually -- we set the date certain for the closed
5
door, an hour, I had thought we'd maybe go three
6
hours. You know, you don't -- obviously you're
7
relying on our counsel who has done a good job of
8
pretty much answering most of the questions I think
9
I had when this -- I think when it first came
10
about, but, you know, it takes awhile to do it and
11
then you've got a responsibility, which is what
12
you're hearing from our counsel that, you know, if
13
you don't get everything you want or cover every
14
single issue you at least need to demonstrate
15
especially when these proceedings, if there is a
16
resolution or public record issues, that you
17
address everything even though you couldn't get
18
everything you needed for the Town and residents,
19
that goes back to things like limiting under the
20
sovereign immunity. What is it, 300,000 now?
21
MR. RANDOLPH: Right.
22
MR. STANLEY: Raised from 150 a few years ago.
23
Some of these other things in here, I'm just
24
generally speaking, I don't know how far we're
25
going here in 15 minutes, some of these other
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 28
1 things if you're
a lay person
and not counsel or a
2 commissioner versus a counsel,
great, you know we
3 don't like it,
it's in here, is
it really going to
4 mean anything
in the long run
if it's going to make
5 the plaintiff
more agreeable to
signing something.
6 You know, we talked
about, you
know, things
7 relating back
in Paragraph 31,
do we have the time
8 right now to trace
what that would
mean? I wasn't
9 really thinking in regard to future applications by
10 other parties. I was more thinking of, you know,
11 if God forbid, you know, all the good work goes
12
nuclear and we
can't
agree on a developer
agreement
13
or litigating
over
this agreement if it's
used
14 against us or not, the Town is not so worried about
15 a resident pulling this out, the recorded developer
16
agreement
against this
property and they're
years ago.
17
bringing
an application
five years now to
build a
18
house in
Hidden Harbor
and pull this out
and say
19
look what you
guys
did ten
years ago.
I'm
not
20
worried about
that.
Maybe
I should be
more
than I
21
am, but
I'm not.
Typically I
thought this would be
22
a closed
loop.
I thought the
developer's agreement
23
would be
a good
idea because
I originally thought
24
how the
heck are
we going to
memorialize what's
25
supposed
to satisfy
the plaintiff
with regard to
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 29
1 the crux of the matter which is the house in a
2 settlement agreement within a week without having
3 lead time to accomplish the other issues which I
4 guess --
the concern -- the other
concern other
5 than the
things
you outlined here,
Skip, would be
6 the whole
basis
of this is what is
he doing other
7 than the money which Commissioner Ganger said we're
8 probably
going to
go with that. I
don't want
to
9 reinvent
the wheel
and spend hours
on that.
As far
10
as
the developer's agreement and
what we're
doing,
11
if
you got 60 days, don't we have
to know --
you
12
got
a bunch of different concepts
here which
is
13 very hard for the average person no matter how many
14 words you sat on, you got the building envelope,
15 you got pending application which would be resolved
16 by this agreement with the entry features and all
17 that stuff related to the project file we have and
18 what was voted down and it's also all in the
19 lawsuit, I assume, as part of the record, and then
20 you got -- the building envelope, the variances and
21 then what's -- the building envelope, what is the
22 baseline and -- to me those are all -- and then --
23 the actual application. Then below that you've
24 got, you know -- you got, okay, would the plaintiff
25 go ahead and do what he proposed in the application
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 30
r 1
that we would -- that he already submitted that
2
would be accepted in this agreement which would be
3
there's no variances, two-story entry feature, do
4
everything he presented months ago, or, you know,
5
is it -- it's also supposed to work in the event
6
that there's a total demolition or the property is
7
sold or there's a future owner, so there's two
8
levels there with regard to the property. I
9
realize that if you want to get this done you're
10
going to be like, well, this lot may not be what
11
everybody wants, but we got to deal with it. You
12
got two layers there. Maybe Mr. Baird can
13
elaborate. I know you gentlemen invested a lot
14
more time.
15
MR. RANDOLPH: I think you do have two levels,
16
but I think the effect of the agreement is that the
17
first level would apply to the second that he'd
18
want to make sure the heights and the way you
19
interpret it would apply to any subsequent house
20
that he develops under phase two.
21
MR. STANLEY: It would look like -- it could
22
look exactly like what he proposed with the
23
existing house, or he can reconstruct something
24
very similar.
25
MR. RANDOLPH: Right.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 31
1
MR. STANLEY: And then the -- then the
2
baseline. I don't know what that means, you know.
3
We're -- you don't have a variance, but you've
4
agreed to -- you agreed to go back to 1983 in the
5
developer's agreement, you know -- these are all
6
things that maybe I'm blowing up out of proportion
7
because in order to make a resolution to benefit
8
all the residents you have to say well this is what
9
we had, we did the best we could, this is going to
10
be a structure that's going to be different from
11
everything else. It is what it is. I don't know.
12
But these are just a few things that if we were
13
deliberating for four hours over this stuff and had
14
the project file out and you were going to attach a
15
developer's agreement to this, even though we have
16
the 60 -day lead time which we'll have that in there
17
no matter what, I don't know then procedurally like
18
we'll give you direction to go ahead and then
19
within the 60 days all this stuff comes up. Does
20
it come back? Are we locked in?
21
MR. RANDOLPH: I think what we -- if you
22
decide that it's premature to sign this agreement
23
tonight, and if you give direction to the attorneys
24
to go back and say that you believe that
25
substantively we have an agreement but that there
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 32
1 are certain things that we'd like our attorneys to
2 iron out, that would
be the
approach.
3 If you wanted to
spend
a lot of time on it
4 tonight we could break and go back into session and
5 then say this session has been extended by another
6 two hours, but you know that we're not going to be
7 able to work out the details of the developer's
8 agreement tonight without having input from them.
9 My hope would be, and I haven't checked with
10 Tom on this, I know that they're going to be
11 pressing us for this to be done. If they say that
12 it's got to be done by tomorrow or Friday neither
13
Tom Baird nor I are
available in that time to try
14
to work this out.
We'd have to
educate someone
15
from our office to
try to work
it out. But it
16 seems to me that a reasonable person would give a
17 reasonable amount of time to work out the details
18
as opposed
to say take
it or
leave
it by
the drop
19
dead date.
Tom Baird,
this
is the
part I
haven't
20 checked with Tom, he's here next week and he's
21
listening to
all
your concerns, and we could get
22
back to
them
and
say you know
what substantively we
23
think we
have
an
agreement but
there's things we
24
need to
get back
to you on and
could we discuss
25
those --
get
together in each
other's offices on
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 33
I 1
Monday and work these out, and then you could call
2
a special meeting once -- if those things have been
3
worked out for us to report back to you, but that
4
special meeting won't be the meeting at which the
5
variances are given subsequent to our getting these
6
details worked out then we have to have a 60 -day
7
period to get the developer's agreement drafted and
8
passed so --
9
MR. GANGER: Excuse me, I didn't -- we're not
10
supposed to interrupt. I thought you were pausing.
11
MR. RANDOLPH: I'm done.
12
MR. GANGER: Okay. Two questions. First, did
13
you say, or did I misunderstand, that you did give
14
a draft development agreement as an exhibit in what
15
you presented yesterday?
16
MR. RANDOLPH: Yes.
17
MR. GANGER: Okay. Did they respond to it in
18
anyway?
19
MR. RANDOLPH: They incorporated some of what
20
was in that in this document, but it's still -- our
21
developer's agreement that we attached did not
22
define -- all it did was talk about two things;
23
one, the fact that there were -- we would interpret
24
the code provisions the way Charlie Seiman
25
interpreted them in his petition for writ of cert,
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 34
I 1
so in agreeing for that there wouldn't be variances
2
for this project. We also incorporated language
3
and, you know what, Tom, I didn't give them the
4
second part of it, but we talked about language
5
which would allow him to set back from the private
6
road -- excuse me, set back from his property line
7
which is the other side of the private road as
8
opposed to from the private road, and that's all we
9
incorporated in there. I sent something to
10
Mr. Ring which said please get back to me in regard
11
to what you would like to see in that regard. He
12
has, indeed gotten back to us in regard to what
13
he'd like to see in that regard, but it's not
14
definitive. I believe you need something more
15
definitive.
16
MR. GANGER: That's exactly what you said, you
17
know, a reason not to sign on the dotted line until
18
it's clarified. It's not --
19
MR. RANDOLPH: It's clarified.
20
MR. GANGER: It's not an objection, it's
21
clarified. Just one other thing and I'll shut up.
22
With respect to the decision to have it --
23
administrative decision to not require variances
24
per say, can't that be done?
25
MR. RANDOLPH: I think we can do that at a
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 35
1
meeting of the Commission. Typically you go back
2
before ARPD, I don't think it serves any purpose in
3
this case. ARPD has already acted. We acted at a
4
public meeting. I think you can reverse your
5
decision at a public meeting. That could be done
6
relatively quickly, but I think you'd want to make
7
sure you have all these loose ends tied up before
8
you did that at a public meeting.
9
MR. GANGER: We could make that clear, that's
10
--
11
MR. RANDOLPH: You can make that clear, and
12
you can sit down with them and say show us the size
13
of the home you want to build on this property so
14
we can incorporate that into the developer's
15
agreement, and that would be recorded so anybody
16
that purchases that house or that lot could know,
17
despite what the Town code says, I can build a
18
house this big.
19
MR. GANGER: As a practical matter, he's got
20
water on one side, he can't build his house over
21
the water -- I suppose you could -- and then a road
22
on the other side -- was that road there before --
23
before he built his house?
24
MR. RANDOLPH: The road was there, I believe.
25
I can't -- I think the only thing that changed was
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 36
our definition of effective lot area. That's what
has concerned him is that we changed the rules on
him, but that happens often when zoning codes
change, and certain things that are already built
are grandfathered in and if they're not the zoning
code applies to them.
MS. MAYOR ORTHWEIN: I think that --
MR. RANDOLPH: You can certainly give the
encouragement that you believe that the substantive
terms of this agreement are something that -- I'm
putting words in your mouth, I don't want to do
that. You guys have to decide on that, but I'm
kind of jumping on what you're saying.
MR. GANGER: Finally, and I promise to shut
up.
MR. RANDOLPH: You don't have to.
MR. GANGER: Is it a -- in the business world
sometimes we had an agreement to agree. In other
words, this is an agreement, we're going to work on
it, but we have an agreement that we'll come to an
agreement. Sometimes that would, you know, buy us
a little time because we'd indicate what were the
areas that we still need to deal with, but that
overall we're in agreement.
MS. MAYOR ORTHWEIN: I think he's saying in
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 37
1 good faith --
2 MR. RANDOLPH: You can have an
agreement
to
3 agree in your public session, but I
think at
the
4 public session you could say that overall you
are
5 in agreement with the terms of this
proposal
but
6 that there are some provisions that you would like
7 your attorneys to clarify with them and perhaps to
8 redraft. I think what would be important for Tom
9 and I is to hear from you is what provisions you
10 believe are important for us to go back and
11
clarify.
For example, if you don't
have a
concern
12
about the
escrow you should tell us
so that
we
13 could go back and tell them that's not a concern.
14
If
you feel it
is a good faith agreement, give them
15
the
money now.
That's just given as an example.
16 I'm just trying to give examples. If you feel the
17 apology section is not important, these are things
18 you need to let us know. The other area remember
19 is that this agreement does not stay proceedings.
20 They won't file anymore proceedings, but it doesn't
21 stay any of the proceedings, so we'll continue to
22 do depositions and file motions and move forward,
23 and that's okay. We can continue because we're --
24
and
it's
just going
to
be 60
days
of
continuing
25
down
that
path, but
you
all
need
to
let us know.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 38
1 MS. MAYOR ORTHWEIN: I think under this
2 agreement, I have to say something, that the
3 180,000 is on the table for this day and they're
4 trying to execute this as quickly as possible, so
5 if we -- you know, I think if we can do something
6 in good faith that we want to work through this and
7
stay
everything for the 60
days to quit spending
8
money, them spending money
and we're spending money
9
both
ways. If we sign -- we're
not going to sign
10
this
-- I'm not saying this
correctly. Bob Ganger
11
said
we agree with most of
this, we just have to
12
fine
tune it. If we could
get it done on a timely
13 basis and get everyone in agreement then we will
14 not go forward with spending more money to defend
15 ourselves and they will -- we'll have a break --
16 MR. RANDOLPH: A break at least until next
17
week when you can have
a meeting after Mr. Baird
18
has met
with them and
come back to
you at a special
19
meeting.
Will they at
least honor
that until we
20
can get
some clarification,
right,
is that what
21 you're asking?
22 MS. MAYOR ORTHWEIN: Thank you. You're a
23 lawyer for good reason.
24 MR. RANDOLPH: We can certainly ask that.
25 MS. MAYOR ORTHWEIN: I think it's very
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 39
15
I 1 important for them to get this signed and
public meeting
to tell you what has
16
2 everything worked out on a timely fashion that came
in regard to the
3 into play with the $180,000. And I think we should
4 proceed in getting everything fine tuned and go
5 forward and ask for clarification as quickly as
6 possible.
7 MR. RANDOLPH: You've heard our concerns and
8 we can certainly go back to them with our concerns
9 and they can either accept them or reject them or
10 modify some language, and we would come back to you
11 at -- probably a public meeting, I don't -- to do
12 another closed -door session means you'll have to
13 have a meeting to call the closed -door session.
A
114
You'll have to work that out. I think we can come
15
back to a
public meeting
to tell you what has
16
happened
in regard to the
clarification process.
17 MS. MAYOR ORTHWEIN: I think what's important
18 here, too, is the 180,000 should, to be responsible
19 for the Commission, be put in escrow account until
20 everything is worked out, I think.
21 MR. GANGER: Until you have an agreement.
22 MR. RANDOLPH: Right. That's a good point.
23 She is saying, I think, the 180 put in escrow until
24 we got the developer's agreement and everything
25 completed within the 60 days. Your alternative to
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 40
1
that is the 180,000 gets paid to him upon execution
2
of the agreement which is what he wants?
3
MR. GANGER: Correct. I agree with that. If
4
this is good faith and we have an agreement then
5
the timing -- from a cash flow point of view it
6
isn't good for the Town, but it's realistic --
7
MR. RANDOLPH: We're not taking votes at this
8
meeting, but I'd like to hear how other people feel
9
about that, so that Tom and I can have some
10
direction in regard to that particular --
11
MS. MAYOR ORTHWEIN: You want to pay exactly
12
when we execute in good faith --
13
MR. RANDOLPH: They think that's very
14
important.
15
MS. MAYOR ORTHWEIN: Okay.
16
MR. RANDOLPH: They think it's very important
17
for the settlement.
18
MS. MAYOR ORTHWEIN: Okay.
19
MR. BAIRD: Can I explain -- there's a --
20
there was a different approach taken between
21
ourselves and the plaintiff. The approach that I
22
took was we're going to have these terms in this
23
settlement agreement, and the details of what can
24
be built are going to be in the development
25
agreement. And then we were going to get 60 -- we
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 41
1 were going to sign the settlement agreement, but
2 the settlement agreement was similar to your
3 agreeing to agree. So that's why we wanted, of
i
4 course, the money in escrow until the final
5 agreement was in place. The approach that Attorney
6 Ring took in the settlement agreement was to put
7 all the terms, including the details that I
8 envisioned would go into the development agreement,
i
i
9 into his settlement agreement. His vision for this
10 is a fast track vision which can probably be
11 addressed except for the issue with respect to
12 whether or not a variance is needed for the
i
13 measurement and fleshing out the details of that
14 lot coverage. I think it still makes sense to go
15 forward with the development agreement because it's
16 going to contain the details on lot coverage and
{
17 how we're going to measure things, but the reason
18 for the 60 days is that there is a requirement in
19 the statute about development agreements that says
20 you have to have two public hearings on that
21 developer's agreement, and that usually is going to
22 take place depending on how often the Commission
23 meets over a 30 or 60 -day time period.
24 MR. RANDOLPH: One of the things that has
25 popped into my head is we'd also want your
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 42
1 direction in regard to his demand that his employee
2 Ryan Whitmer not be a part of this settlement
3 agreement. He suggested that once this settlement
4 agreement is reached we can deal with Ryan Whitmer
5 in regard to his suits. I don't know how important
6 that is to you when considering the fact that if
7 you enter into this settlement agreement the way it
8 is now anyway that O'Boyle can file a public
9 records request the next day and have a public
10 records lawsuit the next day, you would just be
11 relying in good faith that he would not do that
12 because he's gotten what he wants out of the
1
13 agreement, so it may not be that important to you
14 that the Ryan Whitmer litigation be -- you know
15 what, again, I haven't listed the Ryan Whitmer
16 litigation in this closed -door session so I don't
17 want to talk about it here. I'd rather have you
18 talk about that at the public session. Just ignore
19 that for right now.
20 MS. MAYOR ORTHWEIN: Do you believe some of
21 these can be tweaked within a reasonable -- like a
22 week or next week or so? Do you believe we can go
23 ahead and get some kind of agreement signed within
24 a week?
25 MR. BAIRD: I believe if their counsel is
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 43
1
available next week, that I'm available all week,
2
and it can get done from my end.
3
MS. MAYOR ORTHWEIN: Okay.
4
MR. BAIRD: With respect to some of these
5
details and the development agreement I would hope
6
that Mr. O'Boyle would involve Mr. Seiman in that
7
because Mr. Seiman and I have a long and storied
8
history together both on the same side of issues
9
and on other sides of -- opposing one another, but
10
he's a very, very competent land use counsel and I
11
think Mr. O'Boyle would be well -served by allowing
12
him rather than his in-house counsel to resolve
13
these issues because we're going to -- land use
14
counsels are going to get to the resolution of the
15
issues in the developer's agreement much quicker
16
than anyone else will.
17
MS. MAYOR ORTHWEIN: Okay.
18
MR. RANDOLPH: Did you say you made a list?
19
You have some notes there of things we discussed
20
for clarification?
21
MR. BAIRD: Yeah. I just want to go back
22
through those. I'm just going to go paragraph by
23
paragraph and note some of the comments you all
24
made which require clarification.
25
In Paragraph 5, contingent matter, I think
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 44
that either needs to be clarified or taken out
because we don't know what is being referred to as
a contingent matter at this point.
Number 6, I've heard at least one expression
that the money, the 180,000, should go into escrow.
MR. RANDOLPH: You heard one say that they
thought it could be paid on the execution of the
agreement in good faith.
MR. BAIRD: So I'm kind of --
MS. MAYOR ORTHWEIN: I had said something
about the escrow. I mean I mentioned putting it in
escrow until a certain time, maybe not 60 days, but
until some of the lawsuits are withdrawn and, you
know, some of the things are accomplished. That
was my only concern.
MR. RANDOLPH: We can certainly take it back
as an issue regardless of what the majority think
here.
MS. MAYOR ORTHWEIN: But I do believe --
MR. RANDOLPH: And find out where they are.
MS. MAYOR ORTHWEIN: I do believe they want to
settle in good faith, and I think they want it done
as quickly as possible. I think it's a good
agreement, the 180,000 is behind us, and I don't
want to see it grow. So I would be very much for
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
1
1 trying to get this accomplished as quickly as we
2 can in a timely fashion if they will -- we
3 obviously can't get it done tonight because we
4 don't know how they feel about some of this stuff.
5
6
7
8
9
10
11
12
13
14
15
16
17
Page 45 I1
MR. STANLEY: If you -- I agree that you
probably need to split the difference on it. I'm
on the fence about it, but if you step back out and
you're pretty objective on the money if the -- if
you're using public funds from the Town's reserve
account to make the settlement and you pay the
money when you sign this and then all of a sudden a
week later, whether it's Mr. Ring or Mr. Seiman and
Mr. Baird get together and it falls apart, what are
we going to do to get the money back? What are we
going to get, a judgment? I mean --
MR. RANDOLPH: We originally had a provision
that the settlement is null and void if the
18 developer's agreement doesn't go forward. That
19 language is not there. You'd at the very least
20 have to have that so that if you had to go to court
21 to get a judgment you can show that the agreement
22 was null and void in order to get the money back.
23 MR. STANLEY: For the record, how is that
24 going to play if -- I think we identified just
25 about all of the global issues for the developer's
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 46
I 1
agreement, if we're probably going to go that
2
route. I mean in good faith what you would -- to,
3
you know, I guess state again what the Mayor said,
4
you'd have to sign the final tweaked settlement
5
agreement and then the money, you know, if the Town
6
is paying 90 percent or 80 percent of the
7
settlement funds you're going to have to pay the
8
money when you've got your pro forma developer's
9
agreement pretty much done. I don't know whether
10
it's Tuesday, Wednesday or Thursday of next week or
11
the following week, but you -- I don't think you
12
can -- I don't know right now because they're not
13
across the table from us, which obviously at some
i
14
point it would make it a little easier if the
15
plaintiff and his counsel --
16
MR. RANDOLPH: What you're saying is that in
17
the event in this week's period of time we can get
18
more definite in regard to the developer's
19
agreement and what can be built on the property
20
that you might feel more -- you might feel better
21
about paying that 180 on the execution of the
22
agreement because the terms of the developer's
23
agreement would have been spelled out at that point
24
in time.
25
MR. STANLEY: This is important, so if --
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 47
1 almost more than -- almost more than some of the
2 other stuff other than, you know, whether there
3 could be a 30,000 square foot house on a 18,000
4 square foot lot or something of that nature, I'm
5 just hypothetically speaking, that's kind of the
6 two issue I mentioned before.
7 As far as the funds go, because it's the 160
8 in public funds, you know, I don't -- you know, you
9 have a duty to say okay we're going to make -- if
10 the Town pays the money to the plaintiff as part of
11
the
settlement and the
developer's agreement and
12
the
thing breaks down,
then, for the record, where
13
are
we? We're now back
into litigation either over
14 the substance of this agreement, and then, you
15 know, the money is out the door, so we're back to
16 getting a judgment. Now I don't know if that
17 changes things if we wait a week or two and you
18 still haven't really formalized the agreement, we
i
19 haven't had our public hearings, but then
20 eventually next Friday or the Friday after we have
21 to wire the money while this is still pending, but
22 at least we'll know more when we had a greater
23 meeting of the minds which is what the Mayor said.
24 I guess I'm trying to accurately state, weighing
25 our options on disbursing the public funds with a
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
��t
1 l i m i t e d o r n o e s c r o w a n d j u s t d e f e r r i n g i t f o r 1 4
2
d a y s a f t e r s i g n i n g
t h e a g r e e m e n t .
3
M R . R A N D O L P H :
I t h i n k t h a t g i v e s u s e n o u g h t o
4
g o b a c k a n d d i s c u s s
t h e i s s u e s , d o n ' t y o u , T o m ?
5
M S . M A Y O R O R T H W E I N :
C a n y o u g e t i t d o n e i n
6
s e v e n d a y s i n s t e a d
o f 1 4 ? N o t t h a t I ' m p u s h i n g - -
7
M R . R A N D O L P H :
W e a r e t r y i n g t o - - M a y o r ,
8
M a y o r , w e ' r e t r y i n g
t o g e t t h e a g r e e m e n t c o m p l e t e
9
b y n e x t w e e k , n o t 1 4
d a y s . W e ' r e g o i n g t o t r y t o
1 0
g e t i t d o n e a s s o o n
a s i t c a n b e d o n e n e x t w e e k .
1 1
I f t h e y c a n s i t d o w n
w i t h C h a r l i e S e i m a n a n d B i l l
1 2 R i n g a n d M r . O ' B o y l e a n d T o m w e ' l l g e t i t d o n e a s
1 3 q u i c k l y a s p o s s i b l e . W e ' l l c o m e b a c k t o y o u a t a
1 4 p u b l i c m e e t i n g a n d d i s c u s s w h a t w e a c c o m p l i s h e d ,
1 5 a n d a t t h a t t i m e y o u c a n d e c i d e w h e t h e r t o s i g n t h e
1 6 a g r e e m e n t o r n o t . I t h i n k w e c a n d o t h a t a t a
1 7 p u b l i c m e e t i n g .
1 8 M S . M A Y O R O R T H W E I N : O k a y .
1 9 M R . B A I R D : I t s e e m s t o m e i f w e k e e p t h e
2 0 f o r m a t t h a t w e o r i g i n a l l y s t a r t e d w i t h w h i c h i s a
2 1 s e t t l e m e n t a g r e e m e n t f o l l o w e d b y a d e v e l o p m e n t
2 2 a g r e e m e n t t h a t i f y o u w a n t e d t o p a y t h e m o n e y u p o n
2 3 e x e c u t i o n o f t h e s e t t l e m e n t a g r e e m e n t , w h i c h j u s t
2 4 f o r g u i d a n c e p u r p o s e s , l e t ' s s a y t h a t ' s w i t h i n a
2 5 w e e k , o n e o f t h e p r o v i s i o n s t h a t ' s i n t h e
L E Y & M A R S A A C O U R T R E P O R T E R S , I N C .
( 5 6 1 ) 6 8 6 - 0 4 0 0
Page 49
1 settlement agreement is that in the event the
2 plaintiffs or the Town
are required to
enforce the
3 terms of the agreement
the prevailing
party shall
4 be entitled to recover
their attorney
fees and
5 costs, so if the settlement
agreement
is executed,
6 the money is paid, and
then they don't
follow
7 through on the other parts
that they're
required to
8 follow through as part
of the development
agreement
9 then you would have the
ability to enforce
the
10 terms of the settlement agreement.
11 MR. STANLEY: And you got a fundamental
12 problem with -- it's hard for me to do this in an
13 hour and a half -- or an hour, whatever, you got a
14 fundamental problem in the wiring instructions
15
because
they
need
to go to
a personal account of
16
O'Boyle
not
to the
Commerce
Group. The Commerce
17 Group is not signing the agreement. I don't want
18 to see these (Indicating). We got to have
19 something for a personal account. And the other
20 direction would be, if the other two Commissioners
21 have additional comments on it, where you pay part
22 now and part when the developer agreement is
23 somewhat memorialized. But the wiring instructions
24 are wrong regardless. I don't know if that's a
25 bone of contention with the plaintiff, but I think
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 50
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1 that's just banking. I think you got to have the
2 right adequate direction on that, which is
3 important, the flow of the funds, it's public
4 funds.
5 MR. RANDOLPH: It's a fiduciary
6 responsibility.
7 MR. STANLEY: Exactly. We have to have it on
8 the record that we discussed it.
9 MS. MAYOR ORTHWEIN: I think we want to make
10 clear that we are in agreement that we want to
11 settle, that's first and foremost. We want to
12 settle. Everybody is on the same team. We think
13 it's good and we just need to clarify it.
14 MR. RANDOLPH: We will talk at the conclusion
15 of this of what you want to announce at the public
16 session. It may well be that you want to say that
17 we've reviewed the terms of the settlement
18 agreement, that we're in agreement with the
19 substantive terms, but that there's clarifications
20 that we need and we'd like to give our attorneys
21 direction to go back and clarify and modify these
22 items and come back to us next week with a modified
23 agreement.
24 MS. MAYOR ORTHWEIN: Okay.
25 MR. RANDOLPH: I want to be careful a little
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 51
1
bit about saying that we've agreed. I don't like
2
the word, it connotates an offer of acceptance, so
3
if you come out of this session -- you've come to
4
some sort of a conceptual understanding.
5
MR. STANLEY: Well, so -- you've got our
6
laundry list. You got direction on Item 6 which is
7
the money, settlement funds. We got other
8
collateral fees that will keep going on our side.
9
If the plaintiff and the team says we got to have
10
this signed by Thursday still, and we got probably
11
ten items give or take, what would we do to sign
12
it? We have to adjourn to agree to an agreement
13
even if one letter is changed at the public session
14
following this.
15
MR. RANDOLPH: If they say Thursday, tomorrow,
16
it has to be signed?
17
MR. STANLEY: Or Friday or Monday. I'm trying
18
-- they want it signed. What -- we got ten items,
19
maybe most of which can be worked on. They don't
20
seem overly complexed in this agreement. If you
21
dovetail into more complexed things with the
22
developer's agreement, how would we do that?
23
MR. RANDOLPH: I don't know.
24
MR. BAIRD: You could, at the conclusion of
25
i
the attorney client session, you'll be back into
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 52
I 1
your special meeting, your regular open special
2
meeting, if you wanted to then give direction to
3
the manager to call another special meeting at the
4
end of next week then at least you'd be -- if
5
things have progressed to that point you could be
6
in a position to have the meeting and vote on that
7
settlement.
8
MR. RANDOLPH: But the question I think that's
9
been raised is what happens if we're advised that
10
there's no deal unless this is done by tomorrow or
11
Friday of this week?
12
MR. BAIRD: I think the answer to that is that
13
there's no deal.
14
MR. RANDOLPH: I don't see how it can be --
15
MR. BAIRD: Unless I'm able to work on the way
16
to Jacksonville.
17
MR. STANLEY: If there was -- how would we
18
approve it? We'd have to -- we can't approve a
19
settlement agreement with all of these global
20
issues without adjourning again. Does the
21
plaintiff understand that? Are they assuming now
22
that this would be the meeting?
23
MR. RANDOLPH: Their last word to us is they
24
expected this to be signed tonight and the word
25
before that I think was Thursday is what they said.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 53
1 You know, talk about reasonableness, we've been
2 handed this agreement, we've been working on it and
3 saw it an hour before we came in here. I mean I
4 don't see how you can do it by Thursday or Friday
5 MR. STANLEY: I mean the issue is, for the
6 record, is government. You want to set deadlines
7 to get people to move, you know, a governmental
8 board such as this one, I understand that, we all
9
understand that, but
again we're still
confined --
10
we can't just adjourn
the meeting, this
meeting, go
11
to public and
then adjourn
tomorrow whenever --
12
every time we
go back and
forth.
13
MR. RANDOLPH: Why don't
you, as Tom
14
suggested,
set
a meeting?
At your
open session set
15
a meeting
for
next week to
consider
it.
16
MR. STANLEY: I
hope
the plaintiff has some
17
grasp that no matter
what
we'd like to do to
18
finalize a settlement
we
don't have a -- we can't
19
just adjourn --
can't just come
back to
the table
20
every day in a
formal meeting.
It seems
logical.
21
MR. BAIRD:
I think that if
you do
set the
22 meeting for Thursday or Friday it should be
23
evidence
to a
reasonable
person that you are moving
24
in good
faith
as quickly
as government can move.
25 There has to be some time for the attorneys to II
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
1 resolve the outstanding issues
Page 54
And there has to
11
2 be adequate time for you to give notice of a
3 meeting. I don't
think that, you
know, the
4 Commission can do
any better than
that. It simply
5 is not reasonable
to expect that
you would receive
6 an agreement at 2:30 in the afternoon and that you
7 would sign it.
8
MR.
STANLEY: And with regard to
our item, our
9
laundry
list of items, we've gone over
them twice,
10
but not
a third time, but would we --
if we went --
11
if this
meeting is adjourned -- I don't
have a
12
problem
covering
most
of these things
at a public
13
meeting.
I mean
-- I
don't know about
availability
14 of the transcript -- am I allowed to comment on
15 availability of transcripts and things at a public
16 meeting in closed door? I'm just saying the
17 availability -- you all go back to the plaintiff
18 and their counsel immediately depending on what the
19 direction is, the availability of anything is not
20
an
issue,
so
we
would just --
I guess
my question
21
is
do we
need
to
go back over
them one
last time or
22 do we do it at the public meeting?
23 MR. RANDOLPH: Well, I mean to the extent that
24 we've discussed these things and Tom and I feel
25 comfortable with what you want us to go back to
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 55
1
them with you don't need to announce at the public
2
meeting what you want us to go back with. We can
3
certainly indicate that to them immediately where
4
your concerns were. I just want to make sure that
5
we don't have any questions in regard to where you
6
want us to go with this.
7
MR. STANLEY: Okay. I got like one minute of
8
comments to the third go around to make sure we're
9
on the same page before we finish up, unless the
10
other Commissioners have any -- they can add what
11
they want, and the Mayor.
12
I guess the mitigation for the public records
13
lawsuits if any future ones come, at this point I
14
don't know really what that means. I mean he can
15
-- the plaintiff can bring other suits the day
16
after these are released. We talked about it. I
17
don't rank that as high importance. Although we --
18
although the counsel had recommended to you -- you
19
all recommended -- get something in there to slow
20
the process down --
21
MR. RANDOLPH: That's not a big deal to you?
22
MR. STANLEY: I mean you can't forever bar
23
someone from -- the plaintiff or any plaintiff from
24
filing a lawsuit or another public records request
25
unrelated to the ones here.
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 56
I 1
MR. RANDOLPH: We can ask them how strongly
r-
2
they feel about having that out.
3
MR. STANLEY: I don't know what that does.
4
Does that mean that if they make a request we can
5
-- we can talk about it?
6
MR. RANDOLPH: I think that's what it means.
7
If they make a public records request and then
8
immediately want to file a public records lawsuit
9
we want to talk to them and say what are your
10
concerns? Do you think we're hiding something? Do
11
you think we're charging you too much? Do you
12
think we're taking too long? Let us know so we can
13
j
attempt to resolve the problem before you file your
14
suit. That's what the language meant. That's not
15
important to you?
16
MR. STANLEY: Giving the seriousness of the
17
rest of what's going on --
18
MR. RANDOLPH: It's not a big deal.
19
MR. STANLEY: I don't rank that high.
20
MR. RANDOLPH: What about his statement that
21
he doesn't think that Ryan Whitmer ought to be in
22
the settlement agreement, is that not important to
23
you?
24
MR. STANLEY: Well, that --
25
i
MR. RANDOLPH: He has --
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 57
1
MR. STANLEY: What we can talk about and can't
2
talk about with the suits and the attachments --
3
i
MR. RANDOLPH: Let's talk about that in the
4
public meeting.
5
MR. STANLEY: It's general in nature. We can
6
do that quickly. We'll leave that here
7
(Indicating).
8
The application and the variances and the
9
development agreement, I think that, you know, you
i
10
got it where you would work it out. I don't know
11
if you would need -- in a perfect world you would
12
have, we've talked about this twice already, you
13
have your building coverage of what can you build,
14
it would almost look like a mini cove with a lot,
15
we'd know -- you'll work on that, I think that
16
i
would be identified as two layers, one, the
17
existing application, or if that's not done, the
18
future one was and the duration would be if you
19
have the developer's agreement recorded the
20
duration is forever, we don't have to worry about
21
the expiration issue and satisfying the plaintiff.
22
Normally when you file an application it's good for
23
i
a year --
24
MR. RANDOLPH: That's why we do it in the
25
developer's agreement --
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 58
I 1
MR. STANLEY: I'll leave that alone.
2
Payment of the funds, we talked about.
3
Paragraphs 5 and 8, you identified as somewhat
4
problematic, you know, while this is all pending
5
it's similar to my issue with the payment you can't
6
just start demolition, or can you --
7
MR. RANDOLPH: I don't see how --
8
MR. STANLEY: -- start construction?
9
MR. RANDOLPH: Paragraph 7 we suggested that
10
agreed upon execution of the developer's agreement
11
the Town agrees that O'Boyle can proceed.
12
MR. STANLEY: I'm fine with that. The
13
contingent matter, we addressed that.
14
The stay on the lawsuits, you all have
15
adequate notes from what the Mayor said and all
16
that regarding the stays and not expending more
17
money while we're doing all this.
18
MR. RANDOLPH: I understand that, at the very
19
least, that we stay this -- if we set a meeting for
20
next week, and we're in good faith working towards
21
a resolution of this, we at least stay the lawsuits
22
until we can work the agreement.
23
MR. STANLEY: Right.
24
MR. RANDOLPH: Okay.
25
MR. STANLEY: Number 8, you had -- we were
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 59
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1 looking at dismissal of cases, you had a note about
2 clarifying that.
3 MR. RANDOLPH: We'll clarify.
4 MR. STANLEY: It dovetails into the stay.
5 MR. RANDOLPH: Yes. We'll review the
6 releases.
7 MR. STANLEY: I just -- I know that whoever
8 drafted them they probably were pressed for time,
9 and I see what they're trying to do, but I can't,
10 you know, it's agreement versus cases, I can't, you
11 know, accurately see what they're doing. I don't
12 know if there needs to be a list of what's included
13 or a better reference back to the agreement to
14 whatever the releases were for. I agree with the
15 -- as a fiduciary I agree -- this is still related
16 to the money, too, I agree with the sovereign
17 immunity. I don't know what the -- on 18 whether
18 you're limiting it by 768.28 --
19 MR. RANDOLPH: I couldn't recommend you agree
20 with that without my language in it.
21 MR. STANLEY: Right. That's obviously fine.
22 The baseline -- is the baseline that's going -- the
23 baseline is in here which is a clause that I'm
24 assuming that Mr. Ring or plaintiff's other counsel
25 took from -- either added or took or was an attempt
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 60
I 1
to incorporate some of the terms of the developer's
2
agreement into the settlement agreement.
3
MR. RANDOLPH: No, he wanted to define it
4
further than we did, so he put a baseline saying I
5
want to build whatever I could back to whatever the
6
code was back then. I'm not sure how important
7
that is.
8
MR. STANLEY: I don't know either.
9
MR. RANDOLPH: Other than when Tom gets
10
together with him and say let's forget about the
11
baseline, let's just see what you guys want to
12
build within this footprint.
13
MR. BAIRD: What paragraph is the baseline?
1
14
MR. STANLEY: It's in the 301s, I think.
15
MR. BAIRD: Building envelope.
16
MR. STANLEY: It's 35.
17
MR. RANDOLPH: Yes, last sentence.
18
MR. STANLEY: I don't know what the code was
19
then, obviously it was the code when the plaintiff
20
built his original house, or what was in place
21
then.
22
MR. RANDOLPH: I think it will be worked out
23
--
24
MR. STANLEY: You're going to have the
25
development agreement, depending on what happens
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
�� 1
2
3
4
5
6
7
8
9
1 0
1 1
1 2
1 3
1 4
1 5
1 6
1 7
1 8
1 9
2 0
2 1
2 2
2 3
2 4
2 5
P a g e 6 1
h e r e , d o n e o r i n p r o f o r m a p r e t t y m u c h d o n e a t t h e
t i m e o f s i g n i n g t h e - - a p o t e n t i a l , y o u k n o w ,
e x e c u t i o n o f a p r o p o s e d a n d f i n a l l y a g r e e d
s e t t l e m e n t a g r e e m e n t , w h e r e v e r i t g o e s . Y o u j u s t
d o n ' t w a n t t o a g r e e t o s o m e t h i n g a n d t h e n y o u ' r e
l o c k e d i n t o i t i n t h e s e t t l e m e n t a g r e e m e n t a n d a l l
o f a s u d d e n i t c o n t r o l s t h e d e v e l o p e r ' s a g r e e m e n t .
Y o u h a v e t o d o i t a l l t o g e t h e r .
T h e a p o l o g y , y o u k n o w , e v e r y b o d y h a s g o n e
t h r o u g h a l o t o f s o u l s e a r c h i n g a n d w h a t n o t w i t h
t h i s . I t ' s i m p o r t a n t t o t h e p l a i n t i f f , s o i t
s h o u l d b e i m p o r t a n t t o u s . T h a t ' s m y c o m m e n t o n
t h a t .
M R . R A N D O L P H : O k a y .
M R . S T A N L E Y : I d o n ' t w a n t t o b e f l i p p a n t
a b o u t t h a t c l a u s e .
T h e d e v e l o p e r ' s a g r e e m e n t a n d t h e b a s e l i n e ,
y o u g o t a l l t h a t . W e t a l k e d a b o u t t h e e s c r o w . I
t h i n k t h a t ' s a l l I h a v e .
M R . R A N D O L P H : I t h i n k w e h a v e t h e d i r e c t i o n
t h a t w e n e e d u n l e s s T o m h a s q u e s t i o n s .
M R . G A N G E R : M a y I a s k o n e m o r e q u e s t i o n ? Y o u
s a i d t h a t w e w o u l d n e e d t w o p u b l i c h e a r i n g s o n t h e
d e v e l o p m e n t a g r e e m e n t ?
M R . B A I R D : R i g h t .
L E Y & M A R S A A C O U R T R E P O R T E R S , I N C .
( 5 6 1 ) 6 8 6 - 0 4 0 0
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 62
MR. GANGER: We don't normally look at
development agreements as a Commission.
MR. RANDOLPH: Well, you will -- I mean the
important thing is to notice it to the public so
the public can come to a public meeting and comment
on it, and the statute requires that you have the
two public hearings. So you will look at the
developer's agreement --
MR. GANGER: I'm just trying to get the thing
in order. Let's take the Spence property as an
example. I realize it has nothing to do with this,
but just as an analogy. Once there was an
agreement it was all public noticed and commented
upon then the attorneys wrote the agreement and the
public didn't see the actual agreement, did they?
MR. RANDOLPH: Well, that's different. That
related to a subdivision application and additions
that were placed on it.
MR. GANGER: I understand that.
MR. RANDOLPH: You have to have the two public
hearings.
MR. GANGER: Okay.
MS. MAYOR ORTHWEIN: And they have to be 30
days apart.
MR. GANGER: I understand that. I'm trying to
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 63
it
2
MR. BAIRD: I'm not sure of the timing. Just
3
based on my experience that's -- a 60 -day window is
4
a pretty good estimate of what the time period is.
5
The statute -- the reason you're struggling with
6
this is this is a statutory creature that the
7
legislature created many years ago to enable you to
8
be more specific about a property owner's rights as
9
to the development of his or her property, and so
10
it's a vehicle that can be used so that you are not
11
setting a precedence for all the other properties.
12
It's a site specific agreement. For that reason
13
the due process concerns are that other people that
14
may reside on either side of the property which is
15
the subject of the development agreement be given
16
an opportunity to comment on it as to whether they
17
think it's an appropriate agreement or not. The
18
reality here may be that the neighbors are
19
interested in seeing this resolved also so they
20
don't necessarily have any comments on it, but by
21
statute we still have to hold those hearings.
22
MR. RANDOLPH: We've been over an hour and a
23
half. I don't want to cut this short, but if we're
24
going to go on for any length of time we should
25
probably get back into public and extend it, but I
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 64 I!
I 1
feel you're at the end, and I think what you need
2
to determine is what you need to announce at the
3
public session. I have heard you say that you
4
think it's important to let Mr. O'Boyle know that
5
you have a conceptual agreement with the
6
substantive terms of this and that you're in favor
7
of it, but that there are certain clarifications
8
and modifications you would ask your attorneys to
9
meet with them on and to schedule a council meeting
10
-- excuse me, Commission meeting, say Thursday of
11
next week to bring the agreement back for your
12
consideration.
13
MS. MAYOR ORTHWEIN: Are you all going to be
14
here next Thursday -- Wednesday or Thursday?
15
MR. RANDOLPH: I'm sure Wednesday would be
16
better for them, but I just don't know if -- I
17
think Charlie Seiman is important in this, and
18
you've got Tom and you got them, I just don't know
19
what everybody's schedule is.
20
MR. STANLEY: I'm okay.
21
MR. GANGER: I'm okay.
22
MR. STANLEY: What time?
23
MR. RANDOLPH: 4:00, 3:00?
24
MR. STANLEY: Sure.
25
MR. RANDOLPH: It's going to be a special
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 65
11
meeting.
MS. MAYOR ORTHWEIN: By next week if we work
on all this we'll be in a position to sign?
MR. RANDOLPH: If it is worked out you'll be
in a position to sign at that meeting. If we get
it worked out earlier, you can call a special
meeting before that.
MR. GANGER: Had they accepted your draft that
you gave them that this came back, would you
have -- and they said fine, would we have been able
to sign the agreement at that point in time?
MR. RANDOLPH: I think so had -- yeah, because
we had a developer's agreement attached as an
exhibit and it spelled out the terms of the
developer's agreement, so yes I would have expected
that.
MS. MAYOR ORTHWEIN: Can we make that known?
I think that is important.
MR. GANGER: Sounds like that would be made
known -- they changed some things and --
MR. RANDOLPH: They just saw it the night
before, so we didn't expect them to not make any
changes.
MR. GANGER: I think in context the
communication, I'm thinking about people
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 66
1 negotiating this and have, as well, expectations
2 that we got a deal, let's do it and get it over
I
3 with, that these subtleties about wrinkles here and
4 there and the short notice, you know, it's not as
5 if we're holding back.
6 MR. RANDOLPH: But I think you need to be a
7 little bit careful because I'm not sure it's
8
helpful to your cause
to say if
you had signed the
9
agreement that we had
presented
-- if you accepted
10
the agreement that our
attorneys
sent to you we
11
could have signed it
tonight. I
don't know.
12
MR. BAIRD: As I
said earlier,
the -- they
13 changed the approach that we were using. We were
14 using a two-step approach to facilitate the early
15 execution of the settlement agreement, to stay the
16 litigation and move things forward. Their approach
17 was to make everything in the settlement agreement,
18 including those terms that we were envisioning had
19
to be in the
development
agreement,
so
there was a
20
fundamental
change in the
approach
that
the
21 attorneys for the two parties used, and but for
22 that we would probably be a lot closer to having
23 signed the settlement agreement.
24 MR. RANDOLPH: I think you could indicate
25 there's been a good faith exchange of documents
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
I 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 67
between the parties and we'd expect to continue to
have a good faith exchange for clarification
purposes even though in substance you have a
conceptual -- you have a favorable conceptual --
MR. STANLEY: This draft has the development
agreement referenced in it. It's not the same as
what was proposed, so it is in it.
MR. BAIRD: Respectfully, I think he was a
little bit mixed up. He put -- he kind of mixed
the terms.
MR. STANLEY: I understand.
MR. RANDOLPH: The next step, if you're ready
to adjourn this meeting is to adjourn and reconvene
in a public meeting. In the public meeting you
declare the attorney client closed -door session
closed, and then you open up your public meeting.
We're done.
(Whereupon the closed -door session is concluded at 5:45
p.m.)
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400
Page 68 I'
1
2
3 C E R T I F I C A T E
4 THE STATE OF FLORIDA, COUNTY OF PALM BEACH
5
6 I, Julie Andolpho, Professional Reporter, do
7 hereby certify that I was authorized to and did report
8 said closed -door session in stenotype; and the forgoing
9 pages numbered 1 to 68, inclusive, are a true and
10 correct transcription of my shorthand notes of said
11 closed -door session.
12
I further certify that I
am
not
an attorney or
13
counsel of any of the parties, nor
am
I a
relative or
14
employee
of any
attorney
or counsel of
party connected
15
with the
action,
nor am I
financially
interested in the
16 action.
17 The foregoing certification of this transcript
18
does
not apply to
any
reproduction of
the same by any
19
means
unless under
the
direct control
and/or direction
20 of the certifying reporter.
21 IN WITNESS WHEREOF, I have hereunto set my
22 hand this 2 du of July, 2013.
23
24 JULIE ANDOLPHO, COURT REPORTER
25 Notary Public in and for the STATE OF FLORIDA
LEY & MARSAA COURT REPORTERS, INC.
(561) 686-0400