HomeMy Public PortalAboutPRR 17-2572RECORDS REQUEST (the “Request”)
Date of Request: _______________
Requestor’s Request ID#: __________________
REQUESTEE: Custodian of Records Jones, Foster, Johnston & Stubbs
Custodian of Records Town of Gulf Stream
REQUESTOR: __ Martin E. O’Boyle _______________________________
REQUESTOR’S CONTACT INFORMATION: E-Mail: records@commerce-group.com
Fax: 954-360-0807 or Contact Records Custodian at records@commerce-group.com;
Phone: 954-360-7713; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST: 1. Please provide a copy of the Settlement Agreement and the Development Agreement
between the Town of Gulf Stream and Martin O’Boyle. The Settlement Agreement is dated June 30,
2013 and was executed on July 26, 2013. The Development Agreement is dated September 17, 2013 and
was executed on September 17, 2013 (collectively the “Agreements”).
2. Please provide copies of all transcripts related to (what are commonly referred to) as “Shade Meetings”
relative to the Agreements.
3. Please provide all communications and other records related to the Agreements, this would include,
without limitation, any and all notes, memos, E-Mails, text messages, letters, documents, pleadings,
filings, plans, permits, approvals and all documents referred to in the Agreements.
ADDITIONAL INFORMATION REGARDING REQUEST: ________________________________
__________________________________________________________________________________
THIS REQUEST IS MADE PURSUANT TO ARTICLE I, SECTION 24 OF THE FLORIDA CONSTITUTION AND CHAPTER 119,
FLORIDA STATUTES
IF THE PUBLIC RECORDS BEING SOUGHT ARE MAINTAINED BY 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. IF NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT THIS
RECORDS REQUEST BE FULFILLED ON 11 X 17 PAPER. NOTE: IN ALL CASES (UNLESS IMPOSSIBLE) THE COPIES
SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (a) (2)
ALSO PLEASE TAKE NOTE OF §119.07(1)(H) OF THE FLORIDA STATUTES, WHICH PROVIDES THAT “IF A CIVIL ACTION
IS INSTITUTED WITHIN THE 30-DAY PERIOD TO ENFORCE THE PROVISIONS OF THIS SECTION WITH RESPECT TO
THE REQUESTED RECORD, THE CUSTODIAN OF PUBLIC RECORDS MAY NOT DISPOSE OF THE RECORD EXCEPT BY
ORDER OF A COURT OF COMPETENT JURISDICTION AFTER NOTICE TO ALL AFFECTED PARTIES.”
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E-MAIL DELIVERY.
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS REQUEST IN ADVANCE.
It will be required that the Requestor approve of any costs, asserted by the Agency (as defined in Florida Statute, Chapter 119.01
(Definitions)), in advance of any costs imposed to the Requestor by the Agency.
“BY FULFILLING THIS RECORDS REQUEST, THE AGENCY ACKNOWLEDGES THAT THE RESPONSIVE DOCUMENTS
ARE “PUBLIC RECORDS” AS DEFINED IN CHAPTER 119, FLORIDA STATUTES”.
IN CONNECTION WITH ANY RECORDS WITHHELD, NOT PRODUCED OR REDACTED, PLEASE PROVIDE US WITH A
“PRIVILEGE LOG” AND/OR THE BASIS (PURSUANT TO CHAPTER 119 OF THE FLORIDA STATUTES) FOR ANY SUCH
RECORDS WITHHELD, NOT PRODUCED OR REDACTED.
I/P/NP/FLRR
03.30.2017
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
August 8, 2017
Martin E. O’Boyle [e-mail to: records@commerce-group.com]
Re: GS #2572 (PRR 1890)
1. Please provide a copy of the Settlement Agreement and the Development Agreement between
the Town of Gulf Stream and Martin O’Boyle. The Settlement Agreement is dated June 30, 2013
and was executed on July 26, 2013. The Development Agreement is dated September 17, 2013 and
was executed on September 17, 2013 (collectively the “Agreements”).
2. Please provide copies of all transcripts related to (what are commonly referred to) as “Shade
Meetings” relative to the Agreements.
3. Please provide all communications and other records related to the Agreements, this would
include, without limitation, any and all notes, memos, E-Mails, text messages, letters, documents,
pleadings, filings, plans, permits, approvals and all documents referred to in the Agreements.
Dear Martin E. O’Boyle [e-mail to: records@commerce-group.com]:
The Town of Gulf Stream has received your public records request dated July 31, 2017. The
original public records request can be found at the following link:
http://www2.gulf-stream.org/weblink/0/doc/112447/Page1.aspx
Please be advised that the Town of Gulf Stream is currently working on a 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,
Reneé Rowan Basel
As requested by Rita Taylor
Town Clerk, Custodian of the Records
COMMERCE GROUP
I:/P/NPR/FLRR
www.commerce-group.com
TEL. 954.360.7713 FAX. 954.360.0807
1280 WEST NEWPORT CENTER DRIVE, DEERFIELD BEACH, FLORIDA 33442
moboyle@commerce-group.com
Direct Dial Telephone #954-570-3505
[DS501002.DS2]
August 10, 2017
VIA E-MAIL: RBasel@gulf-stream.org
TELEPHONE #561-276-5116
TELECOPY #561-737-0188
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
Attn: Reneé Rowan Basel, Executive Administrative Assistant
Re: PRR #1890 (GS#2572)
Dear Ms. Basel:
This will acknowledge your letter of August 8, 2017 referring to our Records
Request #1890. A copy of your letter and Records Request #1890 are
attached for convenience.
Referring to your letter, you state that you are working on a number of
incoming Public Records Requests, although in looking at the Town Log, the
number of requests seem to be somewhat “light”. Be that as it may, please
let me know when I may expect a response to this Request. As you can see,
the Request has been made in three parts. With respect to #1 and #2, I would
think that they would be readily available and could be turned around in
moments. With respect to #3, I would expect that that information would be
isolated in a singular file which could also be provided in a short period of
time.
Apropos to the above, please advise of the following:
A. Whether you are willing to immediately send the Requests in #1 and
#2 above?
Reneé Rowan Basel, Executive Administrative Assistant
August 10, 2017
Page 2
__________________________________________________
I:/P/NPR/FLRR
B. What time period you expect to be able to send the Response to #3
above.
Absent a prompt Response with acceptable time periods, I will send someone
into the Town Hall to make a personal review of the documentation and to
photograph each page. Please don’t make me go through this unnecessary
effort.
I look forward to your prompt response to this letter. I appreciate your kind
cooperation. Unnecessary delays are unacceptable.
Sincerely yours,
COMMERCE GROUP, INC.
Martin E. O'Boyle
President
Attachments
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
August 18, 2017
Martin E. O’Boyle [e-mail to: records@commerce-group.com]
Re: GS #2572 (PRR 1890)
1. Please provide a copy of the Settlement Agreement and the Development Agreement between
the Town of Gulf Stream and Martin O’Boyle. The Settlement Agreement is dated June 30, 2013
and was executed on July 26, 2013. The Development Agreement is dated September 17, 2013 and
was executed on September 17, 2013 (collectively the “Agreements”).
2. Please provide copies of all transcripts related to (what are commonly referred to) as “Shade
Meetings” relative to the Agreements.
3. Please provide all communications and other records related to the Agreements, this would
include, without limitation, any and all notes, memos, E-Mails, text messages, letters, documents,
pleadings, filings, plans, permits, approvals and all documents referred to in the Agreements.
Dear Martin E. O’Boyle [e-mail to: records@commerce-group.com]:
The Town of Gulf Stream has received your public records request dated July 31, 2017. The
original public records request and partial response can be found at the following link:
http://www2.gulf-stream.org/weblink/0/doc/112447/Page1.aspx
Your request seeks “copies of all transcripts related to (what are commonly referred to) as
“Shade Meetings” relative to the Agreements.” The Town interprets your request to seek the
transcript of the Town’s closed door meeting held on July 24, 2013, to discuss the Settlement
Agreement and/or Development Agreement. That transcript is available at the above link.
Please be advised that more than 200 pages of records that may be responsive to your request are
available for your inspection online. This includes a copy of the Notice of the Public Hearing on
Resolution No. 013-04 as published online and posted at the Town of Gulf Stream; e-mails
between the Town Manager and Town Clerk that include forwards of e-mails between William
Ring, Vice President of the Commerce Group, and Town Attorneys at Jones, Foster, Johnston
and Stubbs; e-mails between the Town Clerk and/or Town Manager and Town Attorneys at
Jones, Foster, Johnston and Stubbs; drafts of the Development Agreement; records from the
Palm Beach County Property Appraisers office regarding 23 Hidden Harbour Drive; fax cover
sheets; previous iterations of part of the Gulf Stream Code of Ordinances; Ordinance No. 81-4;
the Development Agreement dated September 17, 2013 between the Town of Gulf Stream and
Martin E. O’Boyle; the Settlement Agreement dated July 26, 2013 between the Town of Gulf
Stream and Martin E. O’Boyle; a letter dated July 26, 2013 from Ryan L. Witmer to the Town
Clerk; a letter dated October 3, 2013 from the Town Attorney to the Town Clerk enclosing the
Development Agreement; a Code Enforcement Order dismissing with prejudice Case No. CE 2-
13 between the Town of Gulf Stream and Martin E. O’Boyle dated July 29, 2013; wire transfer
authorization dated July 26, 2013; and drafts of the Settlement Agreement with red-lined edits.
With respect to your request for “a copy of the Settlement Agreement and the Development
Agreement between the Town of Gulf Stream and Martin O’Boyle,” a copy of the Settlement
Agreement is available at the following link:
http://www2.gulf-stream.org/weblink/0/doc/101600/Page1.aspx
A copy of the Development Agreement is available at the following link:
http://www2.gulf-stream.org/weblink/0/doc/101596/Page1.aspx
To review the remainder of the approximately 230 pages of records, go to www.gulf-stream.org,
click on “Find a Town Record”, click on “Town Clerk”, “click on “Contracts and Agreements”,
click on “O’Boyle Development Agreement & Settlement Agreement 2013”.
To the extent you seek “all communications and other records related to” the aforementioned
Settlement Agreement and Development Agreement, you have failed to sufficiently specify the
records you seek with sufficient particularity to enable the Town to provide a good faith
response. Please review the nearly 250 pages of records available to you that may be responsive
to this request and clarify your request if your request seeks additional records. If you decide
your request seeks additional records, the Town will proceed with filling your request, or
providing you with an estimate for the cost of production, based on your clarification.
If we do not hear back from you within 30 days of this letter, we will consider this request
closed.
Sincerely,
Reneé Rowan Basel
As requested by Rita Taylor
Town Clerk, Custodian of the Records
· · · · · · · · · ·TOWN OF GULF STREAM
· · · · SPECIAL TOWN COMMISSION CLOSED-DOOR MEETING
·
·
·
·
· · ·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
·
·
·
·
·
·
·1· · · · MR. RANDOLPH:· This is an attorney-client
·2· ·session as provided under Florida Statute relating
·3· ·to the cases that were announced.· The
·4· ·attorney-client closed-door session is limited to
·5· ·discussions relating to settlement and litigation
·6· ·strategy related to costs.· I want to read that to
·7· ·you specifically.· "The subject matter of the
·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
15· ·all persons speaking.· No portion of this session
16· ·shall be off the record.· The court reporter's
17· ·notes shall be fully transcribed and filed with the
18· ·entity's clerk within a reasonable time after the
19· ·meeting.· The session shall commence at an open
20· ·meeting at which the person sharing the meeting
21· ·shall announce the commencement and estimated
22· ·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· ·the person sharing the meeting shall announce the
·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
24· ·put that term sheet into a draft that we proposed
25· ·and delivered last evening.
·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
·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.
·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
·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
·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
·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
·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
·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
·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
·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
·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
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
·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:· D1 and D2, yes.
25· · · · MR. RANDOLPH:· Where was that?
·1· · · · MS. MAYOR ORTHWEIN:· It's in the back of this
·2· ·--
·3· · · · MR. GANGER:· In the back stapled in.
·4· · · · MR. RANDOLPH:· Tom, will you look at the
·5· ·releases while we talk?
·6· · · · MR. BAIRD:· Yes.
·7· · · · MR. RANDOLPH:· I want to also point out as I
·8· ·-- again, Tom and I looked at this, there is a word
·9· ·in a paragraph here which talks about
10· ·contingencies.· "The parties recognize as a
11· ·complete settlement of those matters defined as a
12· ·contingent matter cannot be achieved unless and
13· ·until the Town commission executes the development
14· ·agreement."· I don't see what is defined as a
15· ·contingent matter.
16· · · · MR. STANLEY:· It's in all caps, too. I
17· ·circled it the first time through.· I don't know.
18· · · · MR. RANDOLPH:· Yeah.· Mine is in quotes.
19· · · · MR. GANGER:· Mine is in quotes, too.
20· · · · MR. STANLEY:· It's in caps.
21· · · · MR. RANDOLPH:· Is yours caps?
22· · · · MR. STANLEY:· Each word is capitalized and in
23· ·quotes.
24· · · · MR. RANDOLPH:· Paragraph 9 says, "O'Boyle
25· ·should promptly remove all signs from the property
·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
·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
·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
·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
·1· ·intercoastal waterway, the private roads and the
·2· ·common property line to the west."· I suspect he's
·3· ·not saying that he wants to build a house as big as
·4· ·from the intercoastal waterway to the road, I think
·5· ·he's saying he wants to put a home within it, but
·6· ·we don't know the size of 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
·1· ·that are incorporated in here as have been
·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.
·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
·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
·1· ·hear how the Commission feels, and, of course, I
·2· ·don't know how the Commission feels I know how a
·3· ·Commissioner feels.
·4· · · · I believe that we were very fortunate to have
·5· ·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
·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?
·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
·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
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
·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
·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.
·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
·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
·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,
·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
·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
·1· ·our definition of effective lot area.· That's what
·2· ·has concerned him is that we changed the rules on
·3· ·him, but that happens often when zoning codes
·4· ·change, and certain things that are already built
·5· ·are grandfathered in and if they're not the zoning
·6· ·code applies to them.
·7· · · · MS. MAYOR ORTHWEIN:· I think that --
·8· · · · MR. RANDOLPH:· You can certainly give the
·9· ·encouragement that you believe that the substantive
10· ·terms of this agreement are something that -- I'm
11· ·putting words in your mouth, I don't want to do
12· ·that.· You guys have to decide on that, but I'm
13· ·kind of jumping on what you're saying.
14· · · · MR. GANGER:· Finally, and I promise to shut
15· ·up.
16· · · · MR. RANDOLPH:· You don't have to.
17· · · · MR. GANGER:· Is it a -- in the business world
18· ·sometimes we had an agreement to agree.· In other
19· ·words, this is an agreement, we're going to work on
20· ·it, but we have an agreement that we'll come to an
21· ·agreement.· Sometimes that would, you know, buy us
22· ·a little time because we'd indicate what were the
23· ·areas that we still need to deal with, but that
24· ·overall we're in agreement.
25· · · · MS. MAYOR ORTHWEIN:· I think he's saying in
·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.
·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
·1· ·important for them to get this signed and
·2· ·everything worked out on a timely fashion that came
·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.
14· ·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
·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
·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
·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,
·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
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
·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
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
·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
·1· ·that either needs to be clarified or taken out
·2· ·because we don't know what is being referred to as
·3· ·a contingent matter at this point.
·4· · · · Number 6, I've heard at least one expression
·5· ·that the money, the 180,000, should go into escrow.
·6· · · · MR. RANDOLPH:· You heard one say that they
·7· ·thought it could be paid on the execution of the
·8· ·agreement in good faith.
·9· · · · MR. BAIRD:· So I'm kind of --
10· · · · MS. MAYOR ORTHWEIN:· I had said something
11· ·about the escrow.· I mean I mentioned putting it in
12· ·escrow until a certain time, maybe not 60 days, but
13· ·until some of the lawsuits are withdrawn and, you
14· ·know, some of the things are accomplished.· That
15· ·was my only concern.
16· · · · MR. RANDOLPH:· We can certainly take it back
17· ·as an issue regardless of what the majority think
18· ·here.
19· · · · MS. MAYOR ORTHWEIN:· But I do believe --
20· · · · MR. RANDOLPH:· And find out where they are.
21· · · · MS. MAYOR ORTHWEIN:· I do believe they want to
22· ·settle in good faith, and I think they want it done
23· ·as quickly as possible.· I think it's a good
24· ·agreement, the 180,000 is behind us, and I don't
25· ·want to see it grow.· So I would be very much for
·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· · · · MR. STANLEY:· If you -- I agree that you
·6· ·probably need to split the difference on it.· I'm
·7· ·on the fence about it, but if you step back out and
·8· ·you're pretty objective on the money if the -- if
·9· ·you're using public funds from the Town's reserve
10· ·account to make the settlement and you pay the
11· ·money when you sign this and then all of a sudden a
12· ·week later, whether it's Mr. Ring or Mr. Seiman and
13· ·Mr. Baird get together and it falls apart, what are
14· ·we going to do to get the money back?· What are we
15· ·going to get, a judgment?· I mean --
16· · · · MR. RANDOLPH:· We originally had a provision
17· ·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
·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
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 --
·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
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
·1· ·limited or no escrow and just deferring it for 14
·2· ·days after signing the agreement.
·3· · · · MR. RANDOLPH:· I think that gives us enough to
·4· ·go back and discuss the issues, don't you, Tom?
·5· · · · MS. MAYOR ORTHWEIN:· Can you get it done in
·6· ·seven days instead of 14?· Not that I'm pushing --
·7· · · · MR. RANDOLPH:· We are trying to -- Mayor,
·8· ·Mayor, we're trying to get the agreement complete
·9· ·by next week, not 14 days.· We're going to try to
10· ·get it done as soon as it can be done next week.
11· ·If they can sit down with Charlie Seiman and Bill
12· ·Ring and Mr. O'Boyle and Tom we'll get it done as
13· ·quickly as possible.· We'll come back to you at a
14· ·public meeting and discuss what we accomplished,
15· ·and at that time you can decide whether to sign the
16· ·agreement or not.· I think we can do that at a
17· ·public meeting.
18· · · · MS. MAYOR ORTHWEIN:· Okay.
19· · · · MR. BAIRD:· It seems to me if we keep the
20· ·format that we originally started with which is a
21· ·settlement agreement followed by a development
22· ·agreement that if you wanted to pay the money upon
23· ·execution of the settlement agreement, which just
24· ·for guidance purposes, let's say that's within a
25· ·week, one of the provisions that's in the
·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
·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
·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· ·the attorney-client session, you'll be back into
·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.
·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
·1· ·resolve the outstanding issues.· And there has to
·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
·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.
·1· · · · MR. RANDOLPH:· We can ask them how strongly
·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· ·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· · · · MR. RANDOLPH:· He has --
·1· · · · MR. STANLEY:· What we can talk about and can't
·2· ·talk about with the suits and the attachments --
·3· · · · 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
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· ·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· ·a year --
24· · · · MR. RANDOLPH:· That's why we do it in the
25· ·developer's agreement --
·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
·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
·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?
14· · · · MR. STANLEY:· It's in the 30's, 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
·1· ·here, done or in pro forma pretty much done at the
·2· ·time of signing the -- a potential, you know,
·3· ·execution of a proposed and finally agreed
·4· ·settlement agreement, wherever it goes.· You just
·5· ·don't want to agree to something and then you're
·6· ·locked into it in the settlement agreement and all
·7· ·of a sudden it controls the developer's agreement.
·8· ·You have to do it all together.
·9· · · · The apology, you know, everybody has gone
10· ·through a lot of soul searching and whatnot with
11· ·this.· It's important to the plaintiff, so it
12· ·should be important to us.· That's my comment on
13· ·that.
14· · · · MR. RANDOLPH:· Okay.
15· · · · MR. STANLEY:· I don't want to be flippant
16· ·about that clause.
17· · · · The developer's agreement and the baseline,
18· ·you got all that.· We talked about the escrow. I
19· ·think that's all I have.
20· · · · MR. RANDOLPH:· I think we have the direction
21· ·that we need unless Tom has questions.
22· · · · MR. GANGER:· May I ask one more question?· You
23· ·said that we would need two public hearings on the
24· ·development agreement?
25· · · · MR. BAIRD:· Right.
·1· · · · MR. GANGER:· We don't normally look at
·2· ·development agreements as a Commission.
·3· · · · MR. RANDOLPH:· Well, you will -- I mean the
·4· ·important thing is to notice it to the public so
·5· ·the public can come to a public meeting and comment
·6· ·on it, and the statute requires that you have the
·7· ·two public hearings.· So you will look at the
·8· ·developer's agreement --
·9· · · · MR. GANGER:· I'm just trying to get the thing
10· ·in order.· Let's take the Spence property as an
11· ·example.· I realize it has nothing to do with this,
12· ·but just as an analogy.· Once there was an
13· ·agreement it was all public noticed and commented
14· ·upon then the attorneys wrote the agreement and the
15· ·public didn't see the actual agreement, did they?
16· · · · MR. RANDOLPH:· Well, that's different.· That
17· ·related to a subdivision application and additions
18· ·that were placed on it.
19· · · · MR. GANGER:· I understand that.
20· · · · MR. RANDOLPH:· You have to have the two public
21· ·hearings.
22· · · · MR. GANGER:· Okay.
23· · · · MS. MAYOR ORTHWEIN:· And they have to be 30
24· ·days apart.
25· · · · MR. GANGER:· I understand that.· I'm trying to
·1· ·--
·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
·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
·1· ·meeting.
·2· · · · MS. MAYOR ORTHWEIN:· By next week if we work
·3· ·on all this we'll be in a position to sign?
·4· · · · MR. RANDOLPH:· If it is worked out you'll be
·5· ·in a position to sign at that meeting.· If we get
·6· ·it worked out earlier, you can call a special
·7· ·meeting before that.
·8· · · · MR. GANGER:· Had they accepted your draft that
·9· ·you gave them that this came back, would you
10· ·have -- and they said fine, would we have been able
11· ·to sign the agreement at that point in time?
12· · · · MR. RANDOLPH:· I think so had -- yeah, because
13· ·we had a developer's agreement attached as an
14· ·exhibit and it spelled out the terms of the
15· ·developer's agreement, so yes I would have expected
16· ·that.
17· · · · MS. MAYOR ORTHWEIN:· Can we make that known?
18· ·I think that is important.
19· · · · MR. GANGER:· Sounds like that would be made
20· ·known -- they changed some things and --
21· · · · MR. RANDOLPH:· They just saw it the night
22· ·before, so we didn't expect them to not make any
23· ·changes.
24· · · · MR. GANGER:· I think in context the
25· ·communication, I'm thinking about people
·1· ·negotiating this and have, as well, expectations
·2· ·that we got a deal, let's do it and get it over
·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
·1· · · · between the parties and we'd expect to continue to
·2· · · · have a· good faith exchange for clarification
·3· · · · purposes even though in substance you have a
·4· · · · conceptual -- you have a favorable conceptual --
·5· · · · · · ·MR. STANLEY:· This draft has the development
·6· · · · agreement referenced in it.· It's not the same as
·7· · · · what was proposed, so it is in it.
·8· · · · · · ·MR. BAIRD:· Respectfully, I think he was a
·9· · · · little bit mixed up.· He put -- he kind of mixed
10· · · · the terms.
11· · · · · · ·MR. STANLEY:· I understand.
12· · · · · · ·MR. RANDOLPH:· The next step, if you're ready
13· · · · to adjourn this meeting is to adjourn and reconvene
14· · · · in a public meeting.· In the public meeting you
15· · · · declare the attorney-client closed-door session
16· · · · closed, and then you open up your public meeting.
17· · · · · · ·We're done.
18· ·(Whereupon the closed-door session is concluded at 5:45
19· · · · · · · · · · · · · · p.m.)
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·1
·2· · · · · · · · · · C E R T I F I C A T E
·3· ·THE STATE OF FLORIDA, COUNTY OF PALM BEACH
·4
·5· · · · · · ·I, Julie Andolpho, Professional Reporter, do
·6· ·hereby certify that I was authorized to and did report
·7· ·said closed-door session in stenotype; and the forgoing
·8· ·pages numbered 1 to 68, inclusive, are a true and
·9· ·correct transcription of my shorthand notes of said
10· ·closed-door session.
11· · · · · · ·I further certify that I am not an attorney or
12· ·counsel of any of the parties, nor am I a relative or
13· ·employee of any attorney or counsel of party connected
14· ·with the action, nor am I financially interested in the
15· ·action.
16· · · · · · ·The foregoing certification of this transcript
17· ·does not apply to any reproduction of the same by any
18· ·means unless under the direct control and/or direction
19· ·of the certifying reporter.
20· · · · · · ·IN WITNESS WHEREOF, I have hereunto set my
21· ·hand this 29th day of July, 2013.
22· ·_________________________
23· ·JULIE· ANDOLPHO, COURT REPORTER
24· ·Notary Public in and for the STATE OF FLORIDA
· · ·My Commission Expires: 12/14/13, #DD934948
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