HomeMy Public PortalAbout2015-11-17 In The Matter Of Bal Harbour Yacht Club CASE 15-6568CA301
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BAL HARBOUR VILLAGE
AT TORNEY/CL I ENT SESS I ON
IN THE MATTER OF BAL HARBOUR YACHT CLUB , I NC ., et al v .
14 BAL HARBOUR VILLAGE
15 CASE NUM BER : 1 5 -6568 CA 30
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BAL HARBOUR V I LLAG E HALL
655 96th STREET
BAL HARBO UR, FLORIDA 331 54
TUESDAY , NOVEMBER 17 , 2015
6 :17 p .m . -6 :40 p .m.
Taken before Mary G. Stephenson , FPR , Notary
Public for the State of Florida
TAYLOR REESE AND ASSOCIATES , INC .
(305) 444-733 1
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2 APPEARANCES:
3 COUNCILMEMBERS :
4 MARTIN PACKER, MAYOR
PATRICIA COH EN , ASSISTANT MAYOR
5 GAB RIEL GROISMAN
SETH E. SALVER
6 JAIME M. SAN Z
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V I LLAGE MANAGER :
JORGE M. GONZALEZ
VILLAGE ATTORNEY:
WEISS SEROTA HELFMAN
PASTOR I ZA COLE & BONISKE , P.A.
BY : RICHARD JAY WEISS, ESQ.
JOSEPH SEROTA, ESQ .
TAYLOR REESE AND ASSOC I ATES, INC .
(30 5) 444 -7331
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1 Thereupon , the fo l lowing proceedings were had:
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MAYOR PACKER :
call the roll .
The clerk is not here to
MR . WEISS: We don 't need to. We are here .
MAYOR PACKER: The time is now 6:17 .
We are about to have an attorney/client
session in accordance with F lorida Statute
286 .011(8) regarding the l it i gation styled as Bal
Harbour Yacht Club Incorporated, e t al versus The
Bal Harbour Village , in the Eleven t h Judicial
Circuit in Miami-Dade County , Case Number 15-6568
CA 30.
The session is estimated to last one half
of an hour and the following people will be in
attendance at this meet ing : Myself , Martin
Packer, Mayor, Assistant Mayor Patricia Cohen ,
Councilman Gabriel Groisman , Councilman Seth
Salver, Village Manager J orge Gonzalez, Village
Attorney Richard J. Weiss, Village Attorney Joseph
H . Serota .
T hese proceed i ngs will be recorded by a
certified court repo r ter and , at the conclusion of
all litigation discussed , the transcript will be
made part o f the pub lic record.
All t hose individuals I have not named
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should leave the room at this time.
way.
MR. WEISS: Did you read Jaime 's name?
COUNCILMAN GROISMAN: He said he's on his
MR. WE I SS : But did you read h i s name?
COUNCILMAN SA L VER : It was off the record.
COUNCILMAN GROISMAN : She didn 't go off the
reco r d .
MR. WEISS:
o f that list?
Did you read his name as part
MAYOR PACK E R: I wi ll read it aga i n if you
want.
MR. WEISS: Just say to be clear that Jaime
Sanz will be entering in a f ew minutes .
MAYOR PACKER: Yes .
MR . WEISS: Again , we would caut i on you
that this litigation co u l d go away very quick l y
depending on what happe n s . So caution you again
that wha t ever anyone says i n th i s meeting, at the
conclusion of t he li t igation , becomes a public
record, and the transcript wil l be in the clerk 's
off i ce and people could see it .
careful abo u t wha t you say .
MR . SEROTA : All right .
So just be
Th i s case , we are
really jus t bringing you up to date with what has
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been happening . We really don 't ne ed --le t me
see. I am putting on my glasses. This must be
importa nt , right?
We are jus t kind of bringing you up to date
with what has been going on and if you have any
questions , you can ask.
Just in terms of basic background , th i s has
to do with the use o f th e marina by the yacht
c lub. I 'll begin just giving a litt le bit of
background and then br i ng you up to date .
You had asked us back in March , our f i r m,
to ask --you asked us whether or n ot t he marina
i s appropriate, whe ther i ts use is in accordance
w i th the code .
At that t i me , we said the following , we
said the village has received some evi dentiary
information regarding the e x iste n ce of t he Bal
Harbour Yacht Club and h ow it 's operating. At
that t ime we said, the evidence suppo rt s the view
that the mar i na operation is noncomme r cial .
However , we said that in order to understand
whether it is commerci a l or not, and whether it's
operating p r operly or not , it requires an
invest igation of the books , records, accoun t i ng
information of the yacht club , and it might
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require an invest igation into other legal entities
related to that as well.
We stated th at the only manner in which
this access could b e granted is through an action
for declaratory judgmen t.
March 1 7 th .
Tha t is what we said on
On March 20th, a l as, an action for
declaratory judgment was filed.
MR . WEISS: You remember this . We were at
the council meeting and I was about to tell you
that I really can 't go any further wi th this
because it was code enforcement, because we don't
have any actua l facts to show and then all of a
sudden a lawsuit gets filed.
MR . SEROTA : So they filed the lawsui t. We
answered the lawsuit and we raised defenses to it,
and we have also filed a counterclaim . Our
counterclaim is very similar on what they said,
which is , you k now what, we don 't have enough
evidence here . You claim th at it's an i ssue, and,
therefore , if you claim there is an issue , then we
are going to claim it's an issue, and that is why
we filed the counterclaim . Our counterclaim is
really no different than t heir original cla i m, but
in part we want th i s to happen . So we didn't want
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them simply to change their minds and dismiss
their case , which they could do at any time.
MR . WEISS: We discussed this with Gabe
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because we have been strategizing with him on this
case. Our concern was that we knew that the next
thing we were going to do is ask th em for copies
of every document that re lated t o this. What we
were concerned about is that they hadn't thought
this through properly, and that as soon as we
asked for al l these documents, they were just
going to dismiss t he case, and we would have lost
an opportunity to really figure out what was going
on there.
MR . SEROTA: So what we did , we then filed
a request for documents of abou t 120 separate
categories of documents plus interrogatories.
They filed a l ot of objections . There were
a lot of delays. We ended up getting two separate
orders from the judge and eventually we have
gotten documents . Not exactly everything that we
requested , but a lot of documents , in the
thousands of pages o f documents that we have
received.
So we now and t his just happened days
ago t hat we got
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MR. WEISS : Joe, you had sort of a list of
the documents that we have gotten.
MR. S ER OTA: Just in categories, we have
gotten documen t s that we previous ly saw that they
exchanged with the village . T hat is one category.
No great news, but they are claiming this is
responsive.
We have gotten documents r elating to t he
members of the club. The judge at this point did
not rule that we could have a list of the actual
members, but a lo t of t he member informa tion, the
documents, criteria, a l l of tha t s t uff they have
produced.
Then we have corporate doc uments rela ti ng
to this entity o f various sorts. We have got t en
financial documents . We have gotten bank
accounts. We have gotten profi t an d loss
statements.
Now, it 's a lot o f documents. So one thing
that we ask is that we would like to h ire a
forens ic accountant to assist us in evaluating
t hese documents. Th e n we wou l d also like this
forensic accounta nt to be an accountant with a
special expertise in nonprofits . So what we need
is somebody who l ooks through this and says either
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this is in order, i t 's not in order , or th ere are
obvious documents that are missing here that they
didn 't provide you , and then we would go to get
that .
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And we want somebody who potent i ally could
be an expert witness to say this is not consistent
with a , you know , w i th a not-for-profit entity
operating under these circumstances.
So we wou l d li ke your permiss ion .
think it's a huge financial undertaking.
Actually, we have spoken to Gabe.
MR. WEISS: Maybe , Seth , from your
We don 't
background as an accountant know somebody that
kind of specializes in not -for -profits that might
be also a good witness.
MR . SEROTA : We have spoken to Gabe about
people that we have used in common . We have used
two firms specially tha t are very , very good both
in the forensic area of j ust inves t igat in g
documents and a l so potentially as a witness.
I don 't really think we are going to use
them as a witness . There 's t wo firms . One is
COUNCILMAN GROISMAN : Using Kaufman Rossin .
MR . SEROTA : --Kaufman Rossin and the
other one
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COUNCILMAN GROISMAN : Mor ri son Brown .
MR . SERO TA : --Morrison Brown.
COUNCILMAN GROISMAN : This is a question on
the documents. I spoke to John, but I don 't
recall. Di d we get doc u ments pre2014 or no? I t's
just they produced
MR. SEROTA : The judge at this point is
limiting it because the question is are they
operating now.
COUNCILMAN GRO ISMA N : I don 't know how the
judge dealt with this issue , and chances are she
just got it wrong, because it happens often, but
one of our counterclaims, the second one, is
whether this is a , quote , new marina under t he
code. If it i s, it can only be utilized by
residents .
MR. SEROTA: If they lost the use.
COUNCI L MAN GRO I SMAN : So if the new marina
switch , that time period that is the relevant time
period is pre2014, I be l ieve, right? I don 't
know .
MR. GONZALEZ : What is your question?
COUNCILMAN GROISMAN: Our second
countercla im is for a determ i nation of whether
when they switched ent i ties , whenever this was,
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I 'm not sure when the deal was done, whether now
it's considered a , quote, new marina under the
code because if it is , then it can only be for
residents of Bal Harbour as a who l e, the village,
and it can't be for people outside. So the
question I want --I think that is --
MR. WEISS: I f they are under the new code,
it can't even exist, the new marina can 't even
exist in the residential district.
exist in the business district.
It can only
COUNCILMAN GRO I SMAN: What I 'm saying, the
point is that is an important time frame. I am
almost sure it 's pre2014.
go back .
It would make sense to
MR. WEI SS: So our plan on t hat is you
wanted to show how they were operating before and
after?
COUNCILMAN GROISMAN : Yes .
MR . WEI SS: So the plan is to take some
depositions to see what is going on , and if we are
not getting th e information we n eed abou t it, t he
judge has given us an opening to go back and get
those documen t s.
MR . GONZALEZ : 2014 is when I believe they
filed th ei r profit paperwork.
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MR . WEISS: When we started rattling
sabers , raising these questions, they cleaned up
their ac t .
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COUNCILMAN GROIS MAN : That is what you we r e
talking about comparing what it looked like before
and after and what happened in that period.
MR . WEISS :
putting lipstick.
It 's just a painting and
COUNC I LMAN GROISMAN : Are you q u oting Sarah
Palin?
MR . WEISS : I didn 't mean to. I t was way
before Sarah Palin .
MR . GONZALEZ : She was quoting someone
else.
MR . WEISS : In this group, I wouldn 't be
using a pig.
MAYOR PACKER : That was used at one t i me .
MR . WE I SS : Oh, yes, it was .
Go ahead , Joe . I am sorry.
MR . SERO TA : The issue here is whethe r it 's
properly operating . In other words , if in fact
three yea r s ago t hey were n ot p r ope rl y operating ,
that i s no t really the iss u e a t this point . In
o t her words , whe t her there was code enforcement
that shou l d have been take n th r ee, four years ago,
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that is really no longer the issue right now .
I think that there are issues that go back .
For example , we have found two ads that were in
various websites and publica t ions t hat talk about
leasing transient slips , and that certainly would
be inconsisten t with the private club if you are
leasing slips for transients, and we are going to
use those in the depos i tions . Now, we know they
a r e going to resist . They will say it 's
irrelevant what happened , and our response is
going to be i t may or may no t be . We want to know
did you put this in , how did you put this in , did
you change what you were doing from what --
MR . WEISS : Or d i d they sign a ten -year
contract with this boat rental company and said
for a period of ten years we are going to operate
as your terminal here in South F l orida and that
cont r act is still in p l ace .
COUNCILMAN GROISMAN :
the flyers they sent .
This year . That is
MR. SEROT A : There was a 20 1 3 website that
was really a wor l dwide boaters website . That is,
if you have a big yach t and you are taking it all
over the world you know where you can go . This
was one of those places , which would seem again
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MAYOR PACKER: Who pays for that ad?
MR . SEROTA: We don't know . We don 't know
anything about it. We don't know how .
COUNCILMAN GROISMAN : We just know it was
there .
MR . SERO TA : We don 't know who placed it .
MAYOR PACKER : If i t was placed by --
COUNCILMAN GROISMAN : By them, th at is a
bad piece of evidence for them, correct .
ASSISTANT MAYOR COHEN : Excuse me , even if
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it wasn 't placed by t hem , if they are going t o put
their boat i n the marina, someone is approving
that .
COUNCILMA N GRO I SMAN : Yes, sure . You are
absolutely right. They did i t this year again .
We got t he flyer.
ASSISTANT MAYOR COHEN : Somebody told me
that , yes.
MR . SEROTA : We t hink it 's relevant. They
are going to resist it because it's before 2014 .
We think it's re l evant and certainly can lead to
relevant material, which is all we have to do to
show. We will see. We expect this is going to be
a fight .
MR . GONZALEZ : What is the significance of
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2014? I'm sorry.
is th e date?
I missed that. It 's just that
MR . WEISS: At some point --
COUNCILMAN SALVER: They changed.
MR. WEISS: --they changed t he corporate
entity under which they were operating. It used
to be Flamingo Way Enterprises and then they
incorporated a not-for-profi t club called the Bal
Harbour whatever it's called.
MR. GONZALEZ: I 'm trying to figure out .
MR. SEROTA: Jorge , a part of it is also a
compromise. In other words, we look ed to go back
to 2010. They said 2015. At this point, the
judge is saying , well, let's go back to 2014, see
where you are.
COUNCILMAN GROISMAN: Do you know if you
have evidence of a broker that had the listing ?
They l iste d the marina . They were trying to sell
the whole thing th is past year.
MR . SEROTA: Whatever information you can
give us . Gabe has helped us out already. One of
the things we asked is if you have witnesses, you
know people that have seen something tha t would be
inconsisten t with their use as a private club,
then you need to tell us.
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ASSIS T ANT MAYOR COHEN: What does that
mean?
MR. SEROTA: Well , we have interviewed
several peop l e .
ASSISTANT MAYOR COHEN : You know , I mean ,
we know plenty of people who dock their boa ts
there .
Harbour.
That doesn 't necessarily involve Bal
MR. WEISS : I f there's people that dock
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their boats there that have not been asked to join
this club or that come in for one night because
they are on their way to Newport or something , who
knows where , the more peop l e we can talk to --
Gabe put us in touch with some people . We are
going to speak to, I guess , another one of them
again , but there has got to be some --the reason
that we couldn 't do code enfo r cem~nt to begin with
is because we didn 't have any evidence .
COUNCILMAN GROISMAN: The bottom line on
the club is that there is no club , right?
MR. WEISS: I t's a pseudoclub.
COUNCILMAN GROISMAN: It 's just a marina.
It 's a very expensive marina . The r e is n o other
services they offer other than a slip .
MR . SEROTA: Under your code, a pr i vate
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recreat i on facility is a faci lit y that prov i des
recreation and social activities . I t 's certa inl y
recreation activity , wh i ch is boati n g .
activities?
Soc i a l
COUNCI L MAN GRO I SMAN: I don 't know.
doesn 't prov i de any recrea t ion activities .
ju st a physical sl i p .
MR . SEROTA : L isten, I 'm no t arguing
whether it is o r
It
It 's
COUNC ILMAN GRO I SM AN : T he reason why the
code said that is i mportan t because a t one time it
did have even t s and it was a r ec r ea ti onal club for
res i dents.
ASSISTANT MAYOR COHEN : There was a
building t her e .
and everything .
There was a building wi t h lunches
I li ved next door. T here was al l
kinds of s t uf f there .
door.
I l i t era l ly lived next
MR . WEI SS: T hey had the beach c l ub across
the street .
COUNC ILMAN GROIS MAN: And t hey h ad the
beach club across the street . Now there i s n o
more club and it 's just a ma rina .
MR. WEISS:
empty shell .
I t 's basically j ust like an
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MR. SEROTA: This is what we are going to
inquire into. Once we get all the facts, we will
come back to talk to you and bring you up to date
and see what our evaluation is .
COUNCILMAN GROISMAN : Now the point is j ust
push discovery.
MR. SEROTA : Exactly. Exactly. So what
I'm saying to all of you, we are taking
depositions of Joe Imbesi, his son, his wife, his
daughter, dockmaster, his accountant , all of these
depositions that
MR. WEISS: We have asked for dates.
COUNCILMAN SALVER: Who is his accountant?
MR. SEROTA : I don't know. This is his
corporate accountant that we are taking . We know
that they are going to be f ig hting this. They are
going to be fighting the q uestions that we ask,
but that is what we are doing.
So what I would say to all of you to th e
extent that you know of anybody who has any
information that is helpfu l to us, then you need
to tel l us because this is in a sense --
ASSISTANT MAYOR COHEN:
they joined the club?
You mean tell you
MR. WEISS: Tell us if somebody that you
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know has any information about how they are
physically operating or has evidence.
(Thereupon, Counc i lman Sanz entered the
room . )
ASSISTANT MAYOR COHEN : Hi , Jaime.
MR. GONZALEZ : J aime has arrived.
MR . WEISS: We are talking about the
lawsuit on the dock, on the yacht c l ub .
COUNCILMAN GROISMAN: The marina .
MR. WE I SS: The marina.
If they have any information about
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transient people there, informa t ion about how
people joined the club, and wha t is the sales
pitch, what they have said during the sa l es pitch.
If they said, listen, it's just a private marina ,
but we have to do this because of the village code
crap, that is very helpfu l to us.
MR . SEROTA: And we have learned from some
of the peop l e that Gabe di re cted us to.
I will tel l you, it 's not necessarily in
the direction that it 's a commercial club. I
mean, some of the information we learned that they
do charge a fairly lar ge annual fee , p lu s a
monthly fee. That might suggest that they are not
renting out t ran sient slips in t ha t they charge a
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fairly large amount.
ASSISTANT MAYO R COHEN: So if you are
transient , you just pay more. It's just l ike when
I go to my yoga class, if I buy a whole package ,
it's a lot cheaper than when I just drop in .
MR . SEROTA: That is what we are going to
find out. If they say , no , we don 't allow anybody
unless they pay an annual fee, those are the
questions we have .
MR . WEISS : Wh at is the application fee .
MAYOR PACKER: I t's a $20 ,000 annual fee I
think .
MR . WE I SS : But fo r these huge boats, it's
nothing. I stop off , oh, you can't park here.
Okay . Where's the papers, and here is my check .
ASSISTANT MAYOR COHEN:
exactly like t hat .
Of course . It 's
MR. SEROTA: So we wi ll find out . We will
find out. We wil l ask them under oath and we will
find out.
COUNCILMAN GROISMAN : When they stil l had
the club , before the Oceania knocked out the club ,
even at the end --
MR . WE ISS: You mean t he beach club?
COUNCILMAN GROISMAN : The beach club . The
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$3,000 fee would still give you access to the
club . I know from people t hat were members, but
when they knocked down the club, there is no more
club .
MR. WE I SS: The dockmaster 's house .
COUNCILMAN GROISMAN: They just have a fee.
It's an empty fee. At le a st, that is what it
looks like from the o utside .
MR. WEISS: That is going to be our --that
is our challenge t o try to find to the extent
there is evidence to show that basically the whole
thing is just a sham.
COUNCILMAN SALVER: Are there any
restrictions t o what t hey do if they are not --if
it's a nonprofit? It 's not net income .
becomes like r evenue and expenses.
I t
MR. WEISS: That is why we need somebody
that specializes to find out t hat these people are
taking huge salaries f or basically do in g nothing.
MR. GONZA L EZ: They have t o fi l e that in
their paperwork.
COUNCILMAN SA LVER : That is the t hing.
They are not a 5 01 (c) (3). The y are ju st a Florida
nonprofit . The y don't even have to file a return
in Florida.
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MR. S ER OTA : T hese are the issues for them.
COUNCILMAN GROISMAN : That is the i ssue for
them because if they file it as income, the way
they do their tax return --I don't know if we are
getting them or not.
MR. SEROTA : We are .
COUNCILMAN GROISMAN : But if we do , that is
an issue .
MR. WEISS : We are going to have to dig
into it .
COUNCILMAN GROISMAN : You definitely need a
forensic accountant. I don 't know if anyone
disagrees .
stuff .
It 's the only way you get through the
MAYOR PACKER : I have no problem with that .
MR . WEI SS: We used this for another
client . We need an accoun t ant that knows the
not -for-profit rules. We have been through this
with a person on some other stuff . To find
somebody that real l y knows the not-for-profit
side .
COUNCILMAN SALV ER : Do they have government
rates l ike you guys do , the forensic accountant?
COUNCILMAN GROISMAN: Kaufman Rossin is
pretty reasonable.
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MR. SEROTA: We asked them. We have used
some of these people that charge what we charge.
COUNCILMAN SALVER: T hat is what I am
saying. That is what I 'm worried about. A
thousand pages and
MR. S ER OTA: We wi l l do our best. We will
do our best to get
MR . WE ISS : Can we g e t an estimate?
MR. SEROTA: We will get an estimate .
think we are in the five to $10,00 0 range .
MR. WE I SS: That i s all right . That is
I
within Jorge 's spending authority. We have the
approva l o f counci l . Assuming that is within
Jorge's range, we are jus t going to go ahead and
do it .
Is that all right with everyone?
COUNCILMAN SALVER: It's okay with ,me.
CO UNC ILMAN GROISMAN : I t h in k it 's just
necessary.
is no
MAYOR PACKER: I agree.
MR. S ER OTA : Anybody else?
COUNCI LMA N SANZ: We have to do it. There
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CO UN C IL MAN GROISMAN: Thank you so much for
the update.
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MR. WEISS : O k ay . Go ahead .
MAYOR PACKER : I 'll now reopen the public
meeting.
The attorney/client session has now been
termina t ed . Members of the general public are now
invited to re turn for any further proceedings or
matters .
ASSISTANT MAYOR COHE N: For food .
COUNCILMAN SALVER : Do we need a motion to
adjourn?
ASSISTANT MAYOR COHEN : I move to adjourn .
MAYOR PACKER : Thank you very much .
(Thereupon, the proceedings were adjourned
at 6 :40 p.m.)
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C E R T I F I C A T E
I, Mary G. Stephenson, FPR, State of Florida at
6 Large, certify that I was authorized to and did
7 stenographically report the foregoing proceedings and
8 that the transcript is a true and complete record of my
9 stenographic notes .
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\
Dated this 2nd day of December, 2015.
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(305) 444-7331
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