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HomeMy Public PortalAbout2014-05-05 AttorneyClient Flamingo Way Enterprices LLC1 2 3 4 5 6 7 8 9 10 11 12 VILLAGE OF BAL HARBOUR ATTORNEY/CLIENT SESSION 13 IN RE: FLAMINGO WAY ENTERPRISES LLC V. BAL HARBOUR VILLAGE 14 15 16 17 18 19 20 21 22 23 24 25 BAL HARBOUR VILLAGE HALL 655 96th STREET BAL HARBOUR, FLORIDA 33154 MONDAY, MAY 5, 2014 5:35 p.m. -7:06 p.m. Taken before Mary G. Stephenson~ FPR, Notary Public for the State of Florida TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 1 APPEARANCES: 2 COUNCILMEMBERS: 3 4 5 6 7 8 9 10 11 12 13 14 JEAN ROSENFIELD, MAYOR JONI D. BLACHAR, ASSISTANT MAYOR PATRICIA COHEN MARTIN PACKER JAIME M. SANZ VILLAGE MANAGER: JORGE M. GONZALEZ VILLAGE ATTORNEY: WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.A. BY: RICHARD JAY WEISS, ESQ. JOSEPH H. SEROTA, ESQ. 15 VILLAGE CLERK: 16 ELLISA HORVATH, CMC 17 18 19 20 21 22 23 24 25 (PRESENT ONLY DURING PUBLIC PORTION) TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 2 3 1 Thereupon, the following proceedings were had: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR ROSENFIELD: Ladies and gentlemen, I'm calling this public meeting to order. May I have the roll call, please. MS. HORVATH: Mayor Rosenfield. MAYOR ROSENFIELD: Present. MS. HORVATH: Assistant Mayor Blachar. ASSISTANT MAYOR BLACHAR: Present. MS. HORVATH: Councilwoman Cohen. COUNCILWOMAN COHEN: Present. MS. HORVATH: Councilman Packer. COUNCILMAN PACKER: Here. MS. HORVATH: Councilman Sanz. COUNCILMAN SANZ: Here. MAYOR ROSENFIELD: The time is now 5:35 p.m. and we are about to have an attorney/client session in accordance with Florida Statute 286.011 regarding the litigation styled Flamingo Way Enterprises LLC versus Bal Harbour Village, Miami-Dade County Circuit Court Case Number 14-8812 CA 22. The session is estimated to last for one hour and the following people will be in attendance at this meeting: I will be there, Vice Mayor Joni Blachar, Councilpersons Patricia Cohen, TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Martin Packer, and Jaime Sanz, also village Attorneys Richard J. Weiss and Joseph Serota, as well as the Village Manager Jorge M. Gonzalez. 4 The proceedings will be recorded by a certified court reporter and, at the conclusion of the litigation discussed, the transcript will be made part of the public record. All those individuals who I have not named should leave the room at this time. MR. GONZALEZ: We are going to go downstairs. I think we should still go downstairs. Conversation is carrying on, and folks can come in. (Thereupon, the proceedings were resumed in the village manager's office.) MR. SEROTA: First of all, as you met me outside, I am Joseph Serota, Richard's partner, started together 23 years ago. We work together, but we try not to. What I mean by try not to is whenever I get involved, we are involved in litigation. The more time we spend talking to each other in the office and not meeting with clients and counsel the better. This is what is called an executive TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 session. I think some of you may have had experience with it and some may not. COUNCILWOMAN COHEN: Yes, we did. MAYOR ROSENFIELD: Yes, we did. MR. SEROTA·: Let me just say it. I'll do this briefly, but let me just explain it anyway because it is important. 5 This is one of those few times that the Florida statutes allow you to as elected officials to sit around without the public there and to talk about and give your views on any important matter for the village. Right now it's with litigation. However, what the Florida statutes say is that every word you say now and that you are saying is being written down. At some point when this litigation is over, whenever that happens, everything we say is made public. So even though there is a feeling we are in this room together, the door is closed, and we can say whatever we want, you certainly can say whatever you want, but recognize that whatever you say will be made public. MR. WEISS: And people do make public records requests. These transcripts become public and people do make public records requests for the TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 transcripts once the litigation is done. Sometimes it's interesting reading. ASSISTANT MAYOR BLACHAR: happened in Bal Harbour. And that has MR. WEISS: That has happened in Bal Harbour. MR. SEROTA: This is an attorney/client session, and I know that all of you, I am sure, during the course of your lives have had some dealings with attorneys. Whenever you sit down with an attorney, whatever you say to that attorney is confidential, whatever that attorney says to you is confidential, and it remains that way forever (Phone interruption.) MR. GONZALEZ: Go on. MR. SEROTA: --unless you discuss it to a third party. So in other words, this is no different 6 than if you talk to your attorney about something and it was confidential, but then you went out and one evening you are with a group of your friends and you tell them exactly what you said to the attorney. If you say that, there is no longer a privilege, and the same happens here. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In other words, anything that you say among us stays here, and anything that you want to ask me after this meeting or Richard after this 7 meeting or the manager after this meeting well, the manager is different because it won't maintain the privilege. Anything that you want to speak to me or Richard about privately dealing with whatever happens here today also remains privileged. However, if you choose to speak to somebody other than people in this room, then that privilege is lost. It sounds fairly unfair, but if one of you decides to make your comments public about what other people said here, then it waives it for everybody. COUNCILMAN PACKER: For everybody. MR. SEROTA: For everybody. COUNCILMAN PACKER: I have a question. MR. SEROTA: Sure. COUNCILMAN PACKER: When you say that it will be public after the case is adjudicated or whatever, so it's the same position, only a different time. MR. WEISS: Yes. MR. SEROTA: Yes, right, and that time will TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 be, and we will get into this lawsuit in a moment. MR. WEISS: For instance, just for an example, if something happens and whatever happens Mr. Imbesi decides to dismiss this lawsuit tomorrow, then the transcript is public the next day. COUNCILWOMAN COHEN: Essentially, if we want to say something that we don't want in the transcript, it's better that we call you tomorrow. MR. WEISS: Exactly, but it's very important because the purpose of this is to get some guidance from you. We don't have our own agenda here. You are the clients and you are going to tell us what to do. As good as those conversations are, Patricia, it is very important that you tell us what you think. direction. We are here for COUNCILMAN PACKER: Can we ask you your opinion? MR. WEISS: You can ask us our opinion on that, of course, but the point is we need to leave here with some direction on how to handle litigation. Go fight them, go settlement. Go do this, go do that, whatever, but the reason we are here is to get direction from you because you are TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 the clients. MR. SEROTA: And we will during the course of my presentation, which is not that long, I don't want you to worry about it, but we will give you some of our opinions about the litigation. That is why I am here. This is what I have done for 35 years. It's hard to believe it has been 35 years, but this is what I do. For the past 23 years that Richard and I have been together, the majority of what I have done is litigate for councils, including Bal Harbour, although it hasn't been very often, over the years. That is really what I do. I can give you my input about these things, what we think the court may or may not do, and then you need to make that decision. talk about it. So we will Now, according to Florida Statute 286.011, which deals with the Sunshine law really, but it has this exception, that the discussion here, and this is right out of the stature. The subject matter of the meeting, that is this meeting now, shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. It's really just two things, TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 settlement or strategy regarding litigation expenditures. The idea behind that is if you are spending public money on legal fees, you can talk about what is our strategy, to minimize those fees or to deal with it. Now, this lawsuit, which I am going to get into in just one moment, is limited in terms of what it talks about. However, in order for us to discuss these larger issues, which is to see if it can be resolved or to deal with litigation expenditures, we are going to get a little bit broader than the exact words of the lawsuit, but there may be a time that one of you raises an issue, and even though it may deal with Flamingo or the principal of Flamingo, we may, again, in our direction say we think that is too far afield outside of the lawsuit, which we are happy to talk to you about tomorrow or this evening, but not in the context of this. MR. WEISS: We need to say this. The issues of --you know, there's a lot of other issues involving, which are pending, the dockmaster's house and the harbor, and all of those things. That is outside of what we can discuss here today. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 MR. SEROTA: So what is the lawsuit itself? The lawsuit itself was filed by Flamingo against Bal Harbour. They are the only two parties. called a complaint for declaratory relief. asking the judge for a legal opinion. These It's It is things are limited in terms of what kinds of legal opinions the judge can issue, but this one that he has filed involves the issue of the charter amendment. However, there is a larger issue here. Flamingo -- MR. GONZALEZ: Would you kind of explain exactly what -- MR. SEROTA: I will. I'll go through it. COUNCILMAN PACKER: What you are going to explain --I understand what you just read, the charter amendment. What you are going to explain right now is your opinion around about -- MR. SEROTA: I am going to give you more background, and then I'll stop, and then you can ask any questions. side of my side. I'm still in the presentation COUNCILMAN PACKER: Okay. MR. SEROTA: He is asking the court to interpret the new charter provision so as not to TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 prevent the closing on the pending transaction. I know that sounds very legalistic, but that is what it is. He asks the court to rule that the charter amendment does not prevent the closing of this transaction. This transaction that you are all familiar with is a land swap. transaction. That is the Now, in the lawsuit, he alleges the background as you would in any lawsuit. He goes over the history that Flamingo bought this residence. To complete construction they needed the additional property. The village owns and operates a sewage pump station and uses Flamingo's consent and accesses a portion of the property. Says that the parties entered into a contract on November 6, 2012, and then talks a little bit about what it's supposed to do. It says the village executed the contract and then afterwards, a year afterwards or a year and a half afterwards, entered --actually, it's less than a year --passed a charter amendment which says if there is any lease or disposition of real property owned by the village that it has to be approved by the majority of the electors. Then he goes on to say, and this, of TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 course, is wrong, it's not true. He says the village maintains that Section 81 applies retroactively -- 13 MR. WEISS: Which is the charter amendment. MR. SEROTA: --to void or invalidate the agreement. So he makes an allegation that our position, that your position as elected officials is that the charter amendment invalidates the agreement. Okay? Or it keeps it from being consummated. COUNCILMAN PACKER: He is saying that we are wrong. MR. SEROTA: Well, he has not said that yet. I'm going through this. Right now he is saying that our position is the village maintains that Section 81, which is the charter amendment, applies retroactively to void or invalidate the agreement. MR. WEISS: He is saying that the village has taken the position that because of the charter amendment, we can't close. That is what he's saying. that. ASSISTANT MAYOR BLACHAR: We didn't say That is what he is alleging. MR. WEISS: That is what he is saying we TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 said, but we never said it. ASSISTANT MAYOR BLACHAR: We never said it. COUNCILMAN PACKER: We never said that, but from what I know that the contract was never consummated and this came about, the charter amendment came in between. MR. WEISS: The contract was signed, then the charter amendment, and then the lawsuit. We haven't closed on the transaction. COUNCILMAN PACKER: There were no closing. ASSISTANT MAYOR BLACHAR: But there was an agreement before. COUNCILMAN PACKER: There was an agreement before but it wasn't consummated. MR. WEISS: It was signed but not closed. COUNCILMAN PACKER: But there was a money transaction that had to be paid that was not taken care of. COUNCILWOMAN COHEN: That he was supposed to pay to you. MR. WEISS: There is a whole series of things that needed to be done prior to closing. COUNCILMAN PACKER: Correct. MR. WEISS: Palm trees and other things. COUNCILMAN PACKER: That were not done. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 MR. WEISS: Those things, have not all of them been done. MR. GONZALEZ: Just to be clear, what I think what Joe is trying to clarify is that the basis of his lawsuit is based on wrong information because at no time has the council as a body said we are no longer closing on this thing because now we need a referendum. COUNCILWOMAN COHEN: The premise is wrong. MR. GONZALEZ: It's his lawyer's premise. COUNCILMAN PACKER: It has never come back. COUNCILWOMAN COHEN: Exactly. MR. SEROTA: But he needed to do this in order to -- when I say this, I'm not excusing it, but he wanted to bring this issue public and he did that in a lawsuit. So, yes, what he should have done is, first of all, he should have allowed the village to make a decision specifically on that to the extent that we could, but whatever, this is where we are. It then goes on to say that such a position if we took the position that the charter amendment voids the transaction, that such a position would be in violation of the Florida constitution, which says you cannot have a law impairing contracts or TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 ex post facto, there's various legal concepts that say that once parties agree to something, that you can't later do something that affects this signed agreement. Then he says there is a bona fide practical need for this declaration, and then he asks the court for it. He says Flamingo cannot secure final site approval, construct the residence or exchange the access property because of this problem, and he is saying, we are not closing. He is saying the reason we are not closing is because of the charter amendment. Essentially, what he has laid out, we have a contract, there is a charter amendment. The village's position is it's not closing and we are asking for the court to rule that in a sense the village has to close. They cannot use the charter amendment as a reason for not closing. That is what the lawsuit is about. claim for the lawsuit. It's a very limited However, it does raise basic issues. That is what we are saying. In order for you to discuss the lawsuit, you do have to get into the existence of the contract, the position of the village council as to whether we should proceed TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 with closing or not proceed with closing. I mean, those issues are all covered in our opinion with the lawsuit. If the village agrees to close on the transaction, this case will go away. We are 'hot worried about this case. If we agree to go forward on it, then this is really, it's moot. It's a worthless lawsuit. He may dismiss it. He likely will dismiss it. Whether he dismisses it or not, who cares. MR. WEISS: We are not worried about the lawsuit either way. We think he has made a statement, which is that the village has taken a position that it's not closing on this because of the charter agreement. The village never took that position. So whether you close on the transaction, whether you don't close on the transaction, we are not concerned about this particular lawsuit, but it does in the context of all of it give us an opportunity to have a discussion as to what you want to do with the underlying land swap. MR. SEROTA: We think, based upon conversations we have had with his attorneys, that he may have filed this lawsuit in a sense thinking TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that this would assist us by somehow getting it out in the public and having a judge decide that 18 it doesn't apply. why he did it. Who knows. Not our issue as to However he has, with this lawsuit, sent us a letter and the manager a letter threatening to sue us for ten million dollars in damages if we don't settle. I mean, this is what his complaint says. MR. WEISS: They have all seen the letter. MR. SEROTA: If we don't close or if you decide to terminate the transaction, you the village, decide to terminate the transaction, we are suing you for ten million dollars. If the village doesn't close, we would expect that he will use this lawsuit, amend the lawsuit to bring in charges for breach of contract or for damages. Okay? That is what he can claim, or he can seek what is called specific performance. He can say, you entered into a contract, I want the judge now instead to declare this to basically say you have got to close on it. So that is really -- MR. WEISS: This is my alarm company. me just step out for a second. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 Let 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 MR. SEROTA: Okay. Go ahead. Let's just discuss the underlying issue that I know the council, the mayor and the council is aware of. Under this contract, he had to act diligently to pursue all the obligations that he had under the contract. The language here talks about diligence on his part, and it says under the contract that if we believe that Flamingo has not diligently pursued their approval, then the village may terminate the contract. Now, you heard, I believe you were all there, when his attorney, Carter McDowell, came forward, and his attorney said, listen, we have diligently pursued the contract, and he went in great detail each and every thing that they did. This is not a simple situation. He has a whole list of things he had to get under the contract. There were sort of some catch-22's here and said which thing do you get first before you get something else. So you sat here, and I have seen it on the tape, that he said this is what he did. If we were to take the position that he has not diligently pursued this matter, we can TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 terminate it. If we terminate it, they will go forward and they will do the same thing that Carter McDowell did in front of you. He will go through all this and he will say to the judge, judge, we diligently pursued this. It is our opinion that this may be a difficult position for us to sustain. That is, 20 that they haven't diligently pursued it. We think that the court could rule that they haven't diligently pursued. The court could rule that they have diligently pursued. COUNCILWOMAN COHEN: That is always the case in a lawsuit more or less. You never going into it, you never know which way it is going to go. MR. SEROTA: Correct, but here we have some facts. This is reasonable diligent pursuing it. Yes, in any lawsuit, there is no guarantees ever in terms of what could happen, but here we have a pretty good understanding of what the issues are going to be. He is going to maintain that I did all these things, that I was held up for this reason or held up for that reason, and we are going to say that is not diligent. I am not saying we have TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all the facts yet, but these are the issues that are going to come up. So our issue is and your issue is what is 21 it that you want to do. So what are the options? The options would be that we want to, we will take the position that they haven't diligently pursued and we want to terminate the contract. At this moment, that is the basis we would have to terminate the contract. If we terminate the contract, they will sue us for either damages or specific performance or whatever. What I said earlier and the reason I haven't been here much, what I do is litigate and I litigate against people who take the position contrary to the position of our clients. Okay? I try cases. I just finished a six-day trial for Indian Creek. Actually, we used your facilities here as a mediation, which was unsuccessful. We litigate these things, and we understand, and we accept it, and we have actually a good judge in this case. We don't know how this judge will rule, but we have a good judge. So the issue is how do we want to deal with it, how do you want to deal with it. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 We have a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 principal here in Flamingo. We can't predict exactly what will happen. We can't predict even if you were to say, let's proceed, that it 22 actually does close. that arise. There might be other issues Flamingo has some other obligations under this contract that they haven't yet completed. We expect, we must expect that they do, but if they don't, that could be another issue. So we are not necessarily the issue today is what do we want to do relating to this litigation, and how we want to respond to it. So those are really the options. That is, do we want to proceed with the closing and see what happens, see if it closes or doesn't close or if issues go smoothly or if not or we decide that perhaps it is not because of the charter change that we decided not to pursue, but we may pursue for the lack of due diligence or for some other reason, and then we say we are terminating the contract not because of the charter change, but we are terminating because he hasn't diligently pursued it. Those are the issues. In the event, you know, we don't know the basis for his claim about damages. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 If we feel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 that this is the right thing to do, the fact that we are getting threatened with damages is something you should consider, but if you feel that is something that it should not be the basis for our opinion or our decision, then that is really where we are. MR. WEISS: I am sorry I missed, but we have somebody working on our home all day today. First of all, I am sorry that you guys have to deal with this kind of stuff. You didn't sign up for this, and I'm sorry you have to do it, and I know it's uncomfortable, but I just wanted to say it. The issue here, okay, at the one point the council voted. If there is a point to be made here, if there is something to be accomplished, then let's litigate. The point is at one point the council voted to move ahead with this transaction. It was done as a courtesy. I don't know if you gave the history of this all, but just to remind you a little bit. He came to the council. He said, could you help me out here. for the council. At that point, it was a nothing It was a nothing, and it is a nothing. The truth is aside from all the TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 background noise, and I know there's significant issues regarding the dockmaster's house and the other thing, this issue, the village was happy to close on it. COUNCILMAN PACKER: I have one question. Go ahead. MR. WEISS: The village said, okay, it's a resident. He has been a pretty good guy, why not help him out. So the point is notwithstanding what is happening here, this is going to be costly to litigate this. I don't know whether --I apologize if I am repeating myself, but when we first sort of talked about what to do about this contract, we said that we had the ability to cancel this contract because he had not sort of pursued it in a timely way. You all sat through the meeting and based upon what we knew at that point, it didn't seem like he was really pursuing this very much. You all sat through the presentation by Carter McDowell and you can all judge your --I am not sure if you were there Jamie when Carter went through the, his, what he had done. COUNCILMAN SANZ: Yes. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEISS: You were there? COUNCILMAN SANZ: The last one that he was here? Yes. MR. WEISS: Anyway, you can make your own judgments, but if you are thinking of yourself sitting as a judge, and I will give you my 25 opinion. Your opinion is just as good as mine on this by the way. On most things it is and on this one in particular. I think the judge can say, you know what, the guy spent a bunch of money, he went through a bunch of things, he hired lawyers, he did this, he did that. I think this case can go either day. The village has the right to terminate this contract. So there's two things to think about. Number one, is there something here that is worth spending a lot of money to litigate with him, number one, and, number two, what are our chances of winning. If we think we have --this is a toss up case, and the judge could well rule that he took too much time, he dragged his feet, he caused us a hard time, or the judge could say, you know what, the guy spent a whole bunch of money. COUNCILWOMAN COHEN: A whole bunch of TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 money? Really? MR. WEISS: Yes. He put in a sewer line. He hired --whatever he did. COUNCILMAN PACKER: I was going to ask you about that sewer line. From what I understood at the last meeting, the county has not approved that and they wouldn't give him the easements. MR. WEISS: He was trying to get all of those things cleared up, and if we were going to close with him, he would have to have all those things lined up before we would close. COUNCILWOMAN COHEN: But he could have come back and said --correct me if I am wrong. could have come back to us and said, this is He taking longer because of due diligence. don't know. I mean, I MR. GONZALEZ: Actually, the contract contemplated and allowed for two -- COUNCILWOMAN COHEN: Extensions. MR. GONZALEZ: Thirty day or 60 day extensions. COUNCILWOMAN COHEN: Was that -- MR. GONZALEZ: They were automatic. He didn't have to come and ask for it. COUNCILWOMAN COHEN: Was that taken into TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 consideration? Did he use those extensions? MR. GONZALEZ: Oh, yes, he did. Those were used and kind of the outside date extended ends up being like July of last year. COUNCILMAN PACKER: However then in the meantime, other factors entered into it. In other words, when the contract -- I remember the first time that we looked at it. I went out to the place there, and the council said, okay, we have no problem, done deal, finished. Whatever was drawn up was drawn up. However, then came a problem with compensation to the village. COUNCILWOMAN COHEN: And also to the attorneys. COUNCILMAN PACKER: On the legal fees where he started objecting to it. He said that they were too high. I did not realize that the actual contract was signed because from what I know if you have a contract, it goes both ways. It's not just signing it, but something has to be given for that thing, and money was supposed to be exchanged between the village. MR. WEISS: What the contract said, when he came to us he said, listen, I will take care of all your expenses. It's not going to cost the TAYLO~ REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 village any money. Then what happened was you approved the contract in March, and what happened was he didn't sign it until --he didn't sign it until what? COUNCILWOMAN COHEN: March of what? MR. WEISS: November. COUNCILWOMAN COHEN: March of '12. MR. WEISS: March of '11. March of '12. He didn't sign it and what happened was -- COUNCILWOMAN COHEN: He didn't sign it because of what? MR. WEISS: We don't know why. back and forth with his lawyers. He went COUNCILWOMAN COHEN: Until November of '12. MR. WEISS: Yes. What happened was at the time he came in for approval of the documents, I said I was worried that the village didn't have a signed contract with him. We said, listen, you can move ahead on the dockmaster's house provided you close on this transaction, because at that point the village had a lot we had hired experts. We had done a bunch of work on the thing. So I didn't want the village to be hung out. So what we did, we imposed that as a condition. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 COUNCILWOMAN COHEN: $11,000 if I recall correctly. MR. GONZALEZ: It was about 21,000. COUNCILMAN PACKER: It was 21,000. COUNCILWOMAN COHEN: And he didn't like it. MR. WEISS: He didn't like it. COUNCILMAN PACKER: Excuse me for interrupting. He signed the contract, but did not take care of the dock. MR. WEISS: At that time, he was not responsible to pay us anything. The truth is MR. GONZALEZ: Signing the contract then set in motion a number of things that would ultimately end up in closing on this exchange, and it was at that point when bills and landscaping and whatever other conditions needed to be paid. COUNCILMAN PACKER: He was objecting to it. MR. WEISS: He was objecting to it, right. COUNCILMAN PACKER: So the contract as an arm's length looking at it was in limbo. MR. WEISS: During the time March through November, the contract was in limbo, but because he was a good guy and Al wanted to proceed with it, we were going ahead and we were drafting documents and were proceeding. He had lawyers in TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Philadelphia. He had lawyers in Miami. Anyway, we were proceeding in good faith because, you know, and what happened was I 30 eventually just got nervous. I said, I'm worried about this, and that is why we had the council meeting. We imposed that condition because I wanted to make sure he signed it. COUNCILWOMAN COHEN: That was November of 201.2 or -- MR. GONZALEZ: Yes. MR. WEISS: That was November of 2012. It's easy to get involved in the details of sort of what happened here, but understand that the -- I think the decision to be made here, do you care about closing on this property. litigation over it? Is it worth ASSISTANT MAYOR BLACHAR: I don't think it's worth it. MR. WEISS: All the other issues with Mr. Imbesi are totality separate. Did he have the permit to do the dockmaster's house, is he operating an illegal marina? All that stuff is still out there and we are going to have to deal with that, and we may get into a situation with him at a later time. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 COUNCILMAN SANZ: My biggest concern is I didn't know what was going on with the village and the management in the village because a lot of things happened that we didn't know and we didn't have no idea. We voted for that contract in March to be signed and we agreed. Nobody ever came back to us and told us anything else. COUNCILWOMAN COHEN: Until we heard it in November of 2012. COUNCILMAN SANZ: Now. What is it, two years later? COUNCILWOMAN COHEN: A year and a half. MR. GONZALEZ: No, no, no. March to October. COUNCILWOMAN COHEN: Sorry. MR. GONZALEZ: It was November, October of 2012 when you paired it up with the dockmaster hearing. COUNCILWOMAN COHEN: He came to council and he was getting nervous and said --it got a little heated, I remember it, and he got a little nasty if I recall correctly. Richard said, you need to settle your bill, and he said, I didn't expect it to be so high, whatever. And you said, you didn't consult with TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us before. Nobody brought us up to date on anything. And you just said at that point, you need to settle your bills with the village, and then you can go forward, and you will not be allowed to pull a permit on your house. Yet, he went ahead and did it. 32 MR. WEISS: No question. No question about that. MR. GONZALEZ: Jaime's point is from that point forward, I don't know that there is any further conversation at the council. COUNCILMAN SANZ: To me, this was put to bed. When he came out now, it was like a surprise. What do you mean? What are you talking about? We vote for this. We okayed it. Now you are bringing it back to me again? But if I would have had a lot of confidence the way this place was run, I would fight it, but I don't have confidence. Everything that happens that we didn't know, and they said, well, you vote for it, you did this or you did that. I am very skeptical about fighting anything that was done through the permits because we have the Bal Harbour Shops with the street permits too. COUNCILWOMAN COHEN: From what I TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 understand, correct me if I am wrong, I don't think that we have gotten to like this really involves permits and things like that. think. I don't MR. WEISS: The point that Jamie is bringing up -- COUNCILMAN SANZ: My thing is if I would have had faith in the people that were running this place, I would fight it. I don't have any faith. I am sorry. MR. WEISS: What we are telling you is based upon we see the way that the thing was handled from his side, it's that, you know, if I was, for my money, and I'm just saying, this is not something that I would fight. I am not afraid if we have to at some point fight him on other things where the village is on very solid ground. I don't recommend, and this is as strong as I will get, I don't recommend fighting him on something where it's like who knows what this one did, and this one did, and that one did on the dockmaster's house, on the yacht club, on those other things. Once we get a clear picture, you know, then I think those are important issues, but the other thing, aside from the fact whether we win or lose, TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 is there really an issue here that you really care about? COUNCILWOMAN COHEN: What about the fact that some citizens might come forward and say you are not -- MR. WEISS: Because of the charter amendment. COUNCILWOMAN COHEN: Yes. ASSISTANT MAYOR BLACHAR: That is my question. Will we have a problem with the charter amendment? MR. WEISS: I will tell you in this room. I will tell you in this room that I don't think Joe talked about impairment of contract. We took it to the bar. The government can't enter into a contract and then pass a law that sort of invalidates the contract. law. COUNCILWOMAN COHEN: We didn't pass the The referendum was passed by the people. MR. GONZALEZ: Here is why you are here. You have a contract that when I arrived, I look at and I say, this contract was not consummated. We didn't close on it. It was executed but we never closed on it, and there were conditions that needed to be met for it to be closed upon, which TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to this day haven't been met. So when I speak with Richard, I say, Richard, what do we do about this contract. wants to now close. Can I still close? The 35 He language in the contract leaves it a bit ambiguous that it can be terminated if you haven't exercised due diligence, but I can't terminate it nor can Richard, the council must. If you don't terminate it, if you decide that he has exercised diligence or for whatever reason you decide the contract is still in a valid state, then the referendum doesn't apply because it was entered into prior to. Alternatively if you decide that the contract is terminated or will be terminated by you, which is what you guys two or three months at the council meeting directed us to bring you an item that terminates the contract. If you terminate the contract, any future or subsequent sale of land, including the exact same land if you wanted to in the future do it, would be subject to a referendum. I can't decide it, nor Richard. It really becomes a council decision on to terminate or not terminate. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 MR. WEISS: If you decide to --the only way I feel comfortable applying the referendum is to say, okay, they did not exercise due diligence, they did not exercise due diligence. Therefore, the council terminates the contract, and, therefore, any land transaction after the contract is terminated would be a new transaction and so the referendum would apply. What I don't think you should do and where the lawsuit is so wrong, I don't think you should apply the referendum to the existing contract. MR. GONZALEZ: I don't think anybody has ever suggested that. MR. WEISS: No, but people --Patricia has reacted because I heard this. People are saying, we passed the referendum, how can you close on this property after the referendum has passed. The answer is that even though the closing had not occurred, the contract was entered into and that is an impairment of contract, and I think that that is a very dangerous thing to be doing. COUNCILWOMAN COHEN: So the gentleman was supposed to --we started in the contract in We are now in May of 2014. It's March of 2012. still not done. It's not finished. Not by our TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doing. Or is it by our doing? I still haven't gotten, we still have not gotten like Jamie brought up. How can we make a decision based on --we don't know what part or what liability we had or how we contributed to this or how we did not contribute to this. We don't know. So how can I make an educated 37 decision based on the fact that he is bullying us that he is going to threaten or whatever the word is that he is threatening to sue us. Well, yeah, you know, everybody has that option in the United States. MR. WEISS: He did already. COUNCILWOMAN COHEN: I understand. Based on the fact, I should shy away and say, okay, you know, let's not go down that route, and let's not enforce what I suppose was enforceable. MR. WEISS: I keep going back to this. you feel like it's in the best interest of the village? Forget about the litigation. Do MR. GONZALEZ: I think it would be helpful to advise us how much litigating this might cost the village. MR. WEISS: You are probably talking about tens of thousands of dollars to spend on this TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 litigation. My question is, is this something -- at the time you approved the contract, the council said, it's not a bad -- it's slightly better for the village, and it helps out Imbesi. The question is if you still feel that way, then you shouldn't fight over this issue. On the other hand, if you feel like it's bad for the village to close on this, then you shouldn't. ASSISTANT MAYOR BLACHAR: I feel like we agreed to in the beginning. It was a win win for everybody. Yes, his property value would be higher, but then he would be paying higher taxes. The people who live on that street would not have to face the trucks going in like they don't see them now. I think his attitude was not nice, quite honestly, but I'm not going to not rule in somebody's favor because of their attitude. I think if we go in litigation, it is going to cost us so much money that it's silly. Like Richard just said, if we would have done it back then, to change our minds now and to spend all the money, I think our money is better spent somewhere TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 else. And we have already spent money on lawsuits and wasting money. I know what Jamie is saying. We didn't know every step of the way, but I feel like I was a little informed. I did speak with Richard as some of it was happening. I just didn't understand why he didn't move on it. MR. WEISS: Imbesi? ASSISTANT MAYOR BLACHAR: Mr. Imbesi. So what I would say is that I would say, okay, look -- and, again, this is as long as we are not going to have a problem because the charter amendment was passed, and I understand we are not going to because the agreement was signed. MR. WEISS: Let me just say -- ASSISTANT MAYOR BLACHAR: But you are going to have people that might come. That is my other issue. MR. WEISS: You are going to have people that are going to come and say, why did you close on the property with the charter amendment. ASSISTANT MAYOR BLACHAR: But I don't think they have a basis, so I am not worried about that. They might say it and they might not be happy, but I don't think that is a problem. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 I think I would --this is what I would do. I would say to him, okay, you want to do this, we will let you do this, but now you need to do by this time because he is like a perpetual negotiator. I quote. Someone used that word. Even after we would agree on something at the council meeting, he would come back again and then say, okay, well, I want changes, and then he would call up and say, well, now I want this. be in writing. It has to COUNCILWOMAN COHEN: You know why he does that? Because knows that ultimately he gets his way. ASSISTANT MAYOR BLACHAR: I think it needs to be laid out very carefully with his lawyers and almost to the point of having him not even come to a meeting and get up and try --I mean, because I know he has a right to speak, but he just keeps going and going. MR. WEISS: Here is the thing. We have an idea what we are doing. He's quite unpredictable. I haven't spent 10 minutes with the guy, really, but he is quite unpredictable. We really can't tell what this guy is going to do. I cannot tell you that if we --the reason TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that I am being sort or pushing you a little bit not to litigate on this particular issue is because I don't like this issue. We don't like 41 we think that it's a toss up because who did this and who did that and what did this village do. ASSISTANT MAYOR BLACHAR: And what Jaime said. COUNCILWOMAN COHEN: You are right. In a way, that would bring out exactly what happened in the village, and that wouldn't be such a bad idea. MR. WEISS: village -- I know, but if it costs the COUNCILWOMAN COHEN: I still haven't seen who did what and who didn't do what. I still haven't seen it. We are still making decisions ASSISTANT MAYOR BLACHAR: We have a timeline there that shows a lot of it. COUNCILMAN SANZ: When I'm in business and somebody didn't pay their bill, we call them. Or you don't pick up your dress, we call you. our job to remind too. It's COUNCILWOMAN COHEN: Well, perhaps not to give them a building permit. COUNCILMAN SANZ: You just talk to them. MR. WEISS: But these things happened. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 COUNCILMAN SANZ: It did happen now. Like I say, I don't know, you know. I don't feel that strong that we did the right things either. I think he is wrong, but we were not right either, and if they start digging MR. WEISS: I understand that, but what I was saying also --first of all, I think you are right, and I think there's equities that the judge can look at. What I am saying is I can't guarantee that we are not going to have a problem down the line with this guy on this closing. He could say a million different things. The palm trees, who knows what is going to happen. At some point, you say, okay, this is a clear breach of this contract. He didn't do the proper thing and I am okay to recommend that we litigate on that issue. But this one if you are sort of okay with the transaction to begin with, and the case is iffy, it's okay to litigate, but, Patricia, it's going to cost money. COUNCILWOMAN COHEN: I am not saying --I just didn't --just because you are recommending it, Richard, in the past you recommended a whole lot a stuff that didn't exactly, you know, now in TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 retrospect, we would have done it --whatever. We would have done it differently. So I am asking, you know hundreds of things that you recommended in the past that I took at face value. Maybe we should have all like this, for example, we should have all scratched below the surface. MR. WEISS: We will talk about it later. COUNCILMAN SANZ: I think --I'm sorry, Michael --if we go along with it, then the next one we do, it has to be so that he cannot get out of it in anything. COUNCILWOMAN COHEN: Exactly. COUNCILMAN SANZ: This has to be done this, this, this, this, that. else. No room for anything COUNCILWOMAN COHEN: No wiggle room. COUNCILMAN SANZ: That is it, yes. COUNCILWOMAN COHEN: And I thought that day you actually made it clear to him that there was no wiggle room. That day I remember you telling him you must do this and this and this and this. MR. WEISS: And he signed the contract the next day. He signed the contract the very next day. He came in and signed the contract. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ASSISTANT MAYOR BLACHAR: Did we ever find out why he said he tried to pay Al Treppeda $20,000? MR. WEISS: Because he was trying to be done with the fees that he owed the village. 44 ASSISTANT MAYOR BLACHAR: Oh, paid in full? MR. GONZALEZ: Let me just disclose we have upstairs a check from him. ASSISTANT MAYOR BLACHAR: Okay. MR. GONZALEZ: $21,000 and change, which is the latest, the last statement he thinks he owes the village, and I told him we were not depositing it, we were not accepting it as payment in full, that it would be reserved pending the outcome of this situation, and there may be additional legal fees. MR. WEISS: There will be. The contract says he is going to pay all the village's fees that are involved. Of course, all the gyrations that have gone through, you know, we are going to have an issue about it, but the point is that Al didn't want to accept the money because that was not the end of it. The transaction had not closed and we weren't going to accept just the money that he was offering, and then be left out on the hook. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 So that was the right thing to do. MAYOR ROSENFIELD: I think at this point that we say we will honor what we originally said we will, but we will honor it with an expiration date, that X must be accomplished by Y and that is very specific. ASSISTANT MAYOR BLACHAR: Or steps be accomplished by Y because at the end, you know, sometimes something can come up with somebody. MR. SEROTA: Keep in mind that we have a contract. We can't add new things to the contract. The contract, though, on these issues is quite specific and it says that we give notice for him to close within 15 days of our final approval. That would be, in a sense, Jorge's final approval of the work he needs to do, which is the landscaping and some other things, including the payment of legal fees and expenses and stuff like that. So that is what the contract says. We can't really add requirements to the contract. The contract, though, does require, we can require him to strictly comply with the contract. MAYOR ROSENFIELD: By X date? TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 MR. GONZALEZ: Well, see, that is the nuance. MR. SEROTA: Whatever the contract requires. MR. GONZALEZ: Before the contract is expired. of -- It is expired pending your determination MR. SEROTA: Not really. MR. GONZALEZ: --diligence. MR. SEROTA: Why do you say it's expired? MR. GONZALEZ: Because the two 30 day or 60 day extensions have run. MR. SEROTA: Well, what it says is if he doesn't diligently proceed. MR. GONZALEZ: Right, right. Let me rephrase that. It's not expired. You all need to determine at what point has diligence run. COUNCILWOMAN COHEN: Well, how can we determine that if we don't know the exact details? MR. SEROTA: It's more the opposite that you would do. You have to determine that he has not diligently pursued. If you make a positive determination that he has not diligently pursued it, then you can terminate. That is the first stage. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, I understand, Patricia, what you are saying -- COUNCILWOMAN COHEN: How do we know that? MR. SEROTA: --is how, since you heard Carter McDowell and perhaps you heard our side, okay, how do you determine it? The point is this, the details of who did what, when, how, which phone call occurred on which date, and what the county responded to him 47 or the city responded to him, I will tell you that you will not definitely know all of that until the day before trial begins on the issue of whether it has been due diligence. I'm not saying you can't know more than you know here today. to proceed. The question is how do you want MR. GONZALEZ: And that is my point. Go forward. If you assume you want to keep this contract in effect. It's not expired. It's not being terminated. At what point do you collectively think that reasonable due diligence has run out and we no longer want to close? In light of the fact that at this point what is pending is some of the easement transfers that need to occur. The landscaping that hasn't TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 been installed and the payment of final legal fees. That is generally, maybe with a few exceptions, generally what he should be spending. COUNCILMAN PACKER: That is on the table. COUNCILWOMAN COHEN: The legal fees have never been paid although he tried. MR. GONZALEZ: I told you there is a check. So it's partially paid. I am not positive. He might argue that is all I am paying. COUNCILMAN PACKER: That is all I'm saying. MR. GONZALEZ: So my question to you is we can go to him and say, guy, Joe, the council wishes to close on this, and these are the items still pending, and we expect that we will close within 15 days of your accomplishing these things. The nuance is, well -- MAYOR ROSENFIELD: How long. MR. GONZALEZ: how long do we wait for the landscaping and the easements and whatever else needs to be done. COUNCILMAN PACKER: And if he comes up with something else. MR. GONZALEZ: Exactly. Before we say this is enough. ASSISTANT MAYOR BLACHAR: I think he can TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 use due diligence now in trying to get it closed. MR. GONZALEZ: That is the nuance because you can't lose the contract. COUNCILMAN PACKER: We did originally approve this transfer. From my perspective, of course, if the things weren't taken care of, I would say the contract was no contract any more. However, what you say, it was signed, and a signed contract even though other things were not taken care of, it's okay. MR. GONZALEZ: It is partially done. COUNCILMAN PACKER: I would do this, I would go along with what we did before but there is a but, and then there is the wall. If it's not taken care of without any extra delays -- now, if he says the county is delaying, they won't give him this thing about the sewers, how is that handled? That is out of our hands. MR. SEROTA: First of all, all of this is, I wouldn't say not so much in our control, but knowledge is in our control. If the county delays on giving him something, we pick up the phone, we call the county. Are you delaying? What is the situation? If the county gives us a story, and TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 says, no, it's sitting on this desk and he refuses to come in, that is the basis. The point is we do have a contract. He has to strictly comply. We have to strictly comply. We will make sure the best that we can to make sure that he complies with it. To the extent that he doesn't comply with it, we will be back. COUNCILWOMAN COHEN: I have a question. Where do you find the provisions of the contract, how much to extend it if it has already run its course? MR. SEROTA: It's all reasonable diligence. COUNCILMAN PACKER: We are back to the same. MR. SEROTA: No, no, no, but Patricia asked a question. How do you determine? You litigate over what is reasonable. Okay? That is if the county refuses to give him something, and the county says, we will give it to you in 15 days and we verify that the county is right, that seems pretty reasonable. If the county says, again, we said he could pick it up in 10 days, and he says, no, I need 45, that is not reasonable. So ultimately who decides what is reasonable is a judge, but we have a lot of TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 experience dealing with what is reasonable, dealing with county agencies, dealing with requirements. close. So we generally get it pretty Now, at this point --just one second. am sorry --the issues that remain are pretty 51 I limited. Okay? So we are hopeful that we can get this thing closed or if it's not closed, we are hopeful that we will have a more definitive understanding as to why it isn't and what our position is. MR. WEISS: A reasonable thing to say is to say, okay, I want this thing closed in a certain amount of time. Obviously, there is a different sheriff in town, you know. Well, there is. I mean, there is a different level of -- COUNCILWOMAN COHEN: Accountability. MR. WEISS: --accountability and I think you should say it has to be done whatever time you feel, you know, 30 days, 60 days. MR. SEROTA: Whatever the contract requires. Richard, whatever the contract requires. We can't make up now we decided it should be 30 days. Whatever the contract requires. We will strictly enforce the contract. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 We will strictly enforce the due diligence issues, the reasonable aspects. We will work with Jorge about it, and that is all we can say that we will do. We will hold his feet to the fire performing the contract. COUNCILMAN PACKER: From what I can see, though, there is an open issue and it's the open issue of compensation. That, I'm afraid he is going to pull the string and say, that is too much, give me a bill. MR. GONZALEZ: That is probably easier to define than reasonableness. COUNCILWOMAN COHEN: What about this? He caused this expense. MAYOR ROSENFIELD: Exactly. MR. GONZALEZ: The legal fees are the legal fees, and it's not subject to some consideration as to how long it took to get a permit. COUNCILMAN PACKER: Correct. MR. GONZALEZ: So those are what are Richard -- COUNCILWOMAN COHEN: There's a lot of money. Mr. Serota doesn't come for $25 an hour. Mr. Weiss comes for 15. ASSISTANT MAYOR BLACHAR: Mr. Serota and TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 Mr. Weiss should be included within the legal fees, right? Does that get included on his legal fees? MR. GONZALEZ: I'll defer to the lawyers. You decide what a judge would decide. MR. WEISS: At some point in the end, there is going to be conversation with him. It's not just legal fees. It's other costs that the city has incurred that is going to become an issue, and we will have to figure out what happened. COUNCILWOMAN COHEN: You have come to this village and discussed it several times. MR. SEROTA: If we can resolve it on our own, we will resolve it on our own. If we have to come back to you, we will come back to you. MAYOR ROSENFIELD: It's time for him to be a big boy and say, we will go along. MR. SEROTA: We may have these other issues as well. That is what we are saying. We don't want anybody to be under any misapprehension that by moving at this time, it either guarantees a closing or it guarantees that we are done dealing with Flamingo. We may very well have other issues, and if so, we will deal with them as they come. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 MR. WEISS: Just to be clear, I don't mind recommending that we make a stand on something. Not at all. But I want two things. I want, number one, for it to be a stand on something that you guys care about. That is important to the village, and it's important to our residents. Number two is I want to take a stand on something that I feel like we have a pretty good chance on winning because the worst thing is to spend a whole bunch of money and litigate and then lose. We don't lose very often. Joe wins cases he's not supposed to win, but when we look at the facts and they are not that great, it's not something that you want to spend money on. But the most important is do the citizens really care about this land swap that they want to spend 80,000 or $100,000 litigating with this thing. MR. SEROTA: Let me just make one point that I made to Jorge just to give you an idea, and I know it's getting a little late. The Village of Key Biscayne was one of our first clients. Wometco was going to expand the Seaquarium to put a theme park there. The Village of Key Biscayne decided it would change our lives TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 forever. Every time we come onto this island, we are going to have to deal with a major theme park using the same road. They said to us, this is our lives. This is the future of our community, oppose it. We fought it. We went through an eight-day trial. We went on appeal. We then went to a six-day administrative proceeding. It took like six to eight years. They never got it. They never looked at our legal fees. I shouldn't say that. Of course, they did, but ultimately there is no theme park. It's still the Seaquarium because we succeeded in beating the county and Wometco and Greenberg Traurig twice. The point of the story is getting back to what Richard said. There are times that you may say --I don't know exactly what the analogy is in Bal Harbour, but there may be issues that you could say, this will change the way our citizens live. COUNCILWOMAN COHEN: This is where we draw the line in the sand. MR. SEROTA: I hesitated to use that. COUNCILWOMAN COHEN: Because we are in Bal Harbour. MR. SEROTA: No, no, no, because we have a TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 president who drew some lines that he didn't necessarily comply with, but there is a time when you are using money and your own emotional energies that you get involved in things. It has to be something, number one, that is important, that you really feel this is a good investment of $250,000 of legal fees because we have to do this. And, number two, that there is a reasonable --I would say that we are likely to win. We are likely to win. considerations. I think that those are really the Anyway, I didn't mean to do it. I know Joni wanted to say something. ASSISTANT MAYOR BLACHAR: I just had a question. intervene. Someone had presented this motion to MR. WEISS: We have to deal with that issue too. ASSISTANT MAYOR BLACHAR: That is what I want to know. Is that part of this? MR. WEISS: Let's deal with this first and then let's move on to the other issue. We need some guidance on what you want to do. MAYOR ROSENFIELD: Do we have consensus? ASSISTANT MAYOR BLACHAR: Yeah, I think so. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 MAYOR ROSENFIELD: I say yes. COUNCILMAN SANZ: In what? In this? Yes, we can vote. MR. WEISS: We don't need to vote. need to know. We just MR. SEROTA: We just need a general consensus. MR. WEISS: Do you want us to proceed with closing? COUNCILMAN SANZ: I go with Joni, you know. Let's get it over with because it's going to be on and on and no matter what we do, we will be damned if we do and damned if we don't. Somebody is going to come out and complain about what we do. ASSISTANT MAYOR BLACHAR: I am in agreement. I'll be back in a second. MR. GONZALEZ: Does that mean you are looking for guidance for settlement discussions? What exactly is the action that we will take on this litigation? MR. SEROTA: The action that we will take based upon the consensus that we have reached -- MR. WEISS: I would like to finish going around the room. MAYOR ROSENFIELD: We just have consensus. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 MR. WEISS: I don't know what Martin thinks and I don't know what Patricia thinks. MAYOR ROSENFIELD: Okay. No, no, I want to know what they think too. Consensus, we don't vote, but we come up with MR. WEISS: No, but we listen carefully. MAYOR ROSENFIELD: Consensus really means that whatever it is, no one will then fight it after that. MR. WEISS: But it means we are going to take direction. If the majority of the council says go ahead and close and try to move ahead with this, that is what we are going to do, but we have not finished. COUNCILWOMAN COHEN: How do you feel about that? MAYOR ROSENFIELD: I just feel we made this agreement. I think that our attorneys now have to say let's get this over with. I really don't want to go to court and fight something on the issue of something being retroactive. That is a very strong --it's just something you don't want to fight about. It's not worth getting in a fight about the word retroactive, and please understand, I definitely support the referendum. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 By doing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, we are not in any way saying that we don't support the referendum, but in this peculiar circumstance, and it is a peculiar circumstance because we agreed to something before the referendum. Now it's going to be very difficult 59 to say, well, retroactively it can't happen, and I just have to say let's get it over with. COUNCILMAN PACKER: You want to hear from me? MR. WEISS: Of course. COUNCILWOMAN COHEN: The majority of the council has spoken. MAYOR ROSENFIELD: No. Only two people. COUNCILWOMAN COHEN: That is the majority. MAYOR ROSENFIELD: Three is a majority. MR. WEISS: It's important that people express their thoughts. COUNCILWOMAN COHEN: Okay. No problem. COUNCILMAN PACKER: As far as I was concerned, the original contract that we entered into was fine. Everyone was happy with it. My concern is there are other things now that have happened since. There are other disclosures that have come out since. Namely, the costs. Namely, things that were done that TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 shouldn't have been done as far as permits being given. There are other things that go on in the gated community. I mean as far as I am concerned, I would go along with this at the moment, but with a but. That it absolutely if you say we are going to close, we are not going to litigate with this thing, but closing means closing, and that is it, and he must do what he needs to do as far as the due diligence. We have done all our due diligence. I don't want to hear any more excuses from him or from the corporation or from whatever it is. Now, what is our recourse if even one iota comes up as far as compensation? What is our recourse then? MR. WEISS: What we would do is we write him a letter and say we are ready to close. We watch very carefully what he is doing. One of the things that will be prepared is a closing statement just like in a real estate closing. On the closing statement will be whatever he owes us, whatever, you know, has to go back and forth, charges. People will go out and check the tress and make sure he has planted the right number of TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 trees. Whatever happens, happens. COUNCILMAN PACKER: What about the wall that was supposed to be moved or not moved? COUNCILWOMAN COHEN: A fence. Not a wall. A fence, I think. MR. GONZALEZ: Closing on this transaction avoids having to move walls and fences or anything like that. MR. WEISS: Whatever needs to be done, and at some point what is going to happen, to be fair, he's going to get a bill for the money that the village has spent on this thing, and we will sit down with him, and if he says fine, I'll just pay it, that is fine. COUNCILMAN PACKER: Closed. MR. WEISS: If we are able to resolve it somehow or another, we will bring it back to you, whatever happens, but we have to come to some finality. COUNCILMAN PACKER: And if there's objections? MR. WEISS: If he has objections that we are unable to resolve them with him, then we are going to bring it back to you, and then what you will do is you will terminate the agreement TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 because they haven't done what they were supposed to do. That is what is going to happen. COUNCILMAN SANZ: Okay. That makes sense. COUNCILWOMAN COHEN: I go along with that. MR. SEROTA: Okay. So, Jorge, in answer to your question based upon what the council does, we will notify him to proceed with the transaction. That is what we will do, but, obviously, we will look at the contract carefully, understand exactly what the timing is, speak with you about what needs to be done and when, and that is what we will do. The litigation will happen. I mean, I think the litigation goes away either way. MR. GONZALEZ: Okay. Now this issue with the person who wants to MR. WEISS: Kelly Stoppe, whatever, has filed a motion to intervene in this litigation, which means she wants to get involved in the middle of this litigation. COUNCILMAN PACKER: But there is no litigation any more. MR. WEISS: Well, if the litigation is dismissed then there is no issue, but she has filed a motion to intervene. What she is basically saying is that one of the allegations TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 made in the complaint is that he is the owner of property in the village, and it's her position, because I do try to return her calls when I can, she says that he doesn't own the property, and we are back to the certificate and the yacht club. mean, the club and all that kind of thing. need direction from you. So we MR. SEROTA: One of the issues is whether I legally she even has a right to because she has to show under the law of intervention a special interest, something different than any other citizen, because otherwise you have -- how many citizens here? MR. GONZALEZ: 3500. MR. SEROTA: 3500 people who can all say, you know what, I have nothing else to do, I would like to go to those hearings, so I will intervene. So then you would have to notify me every time there is a deposition, every time there is something. I am not even sure if legally she was the right to intervene simply by being an interested citizen, which she clearly is an interested citizen. COUNCILMAN PACKER: She at one time owned property in the village. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 MR. SEROTA: Right. MR. WEISS: She claims that she still does. COUNCILMAN PACKER: That is another story. ASSISTANT MAYOR BLACHAR: Well, I find interesting, though, that she always gets up at every meeting and says she lives at 77 Camden, which is next door to me, when on this thing that she filed, she wrote that she lives at 1075 93rd Street, Bay Harbor Islands, which is not Bal Harbour. Did you notice that? MR. WEISS: She claims she still owns 77 Camden. ASSISTANT MAYOR BLACHAR: But she doesn't reside there. MR. WEISS: Somebody else is using that. MR. SEROTA: Let me just give you your options here. COUNCILWOMAN COHEN: Soon it will be knocked down. MR. GONZALEZ: Yes. Soon it will be demolished. MAYOR ROSENFIELD: It will be demolished? COUNCILWOMAN COHEN: It's slated for demolishrnent. MR. SEROTA: In terms of the issue of TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 intervention, first of all, if we advise them tomorrow, which we will, to proceed, they may just dismiss the case and everything is moot. may. They MR. WEISS: There is nothing further to intervene. MR. SEROTA: Right. On the other hand, they may say, well, you know, until it closes, we will keep it pending. Who cares? Whatever you want to do. It could go away on its own. There will be no issue. That is one issue. The other thing is, number one, you can say, fine, if you want to intervene, intervene. It makes my life a little bit more difficult because I have somebody else here that I have to involve in everything. Specially, a nonlawyer who I have to explain everything to. thrilled with that. So I'm not One thing you could do is say we are opposing it, because we don't see that it's in the village's interest. MR. WEISS: Do we have to take a position? MR. SEROTA: Let me finish. The other position is we don't have to take a position. We can simply say, let the judge decide and we can TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 even say to tie j~dge, judge, listen, these are citizens. COUNCILWOMAN COHEN: Impede them. MR. SEROTA: We don't want to impede them. We don't want to impede them. We don't want to be naysayers, but we really are not certain whether she has the credentials that are required in a lawsuit to intervene, and, therefore, we leave it up to you. By the way, they will certainly oppose the intervention if this case were to go forward. Flamingo is certainly not going to want some citizen that they have to answer to. That is the last thing in my opinion what they would want. So what I would recommend at this point is we take no position, and that we say to her we are neither going to oppose it nor approve it. We will leave it up to the judge, and if you can show that you have the right to intervene, and the judge rules, fine, we will certainly respect that. If the judge doesn't, the judge doesn't. I think we should just say that we don't want to set any precedents because if we approve you then what if five other citizens now want to intervene. Then they are going to say, well, you approved her, so why not approve five more people to get involved. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 I think the better position is that we are not going to oppose you. That is, if the court rules for you, then that is fine with us. MAYOR ROSENFIELD: Is this going to cost us anything? MR. SEROTA: It will cost us nothing to do nothing. ASSISTANT MAYOR BLACHAR: If she intervenes, we don't have to represent it. MR. WEISS: No. MR. SEROTA: No, no, no. MR. WEISS: When there is a hearing, we have to call her up. hearing for you? Is this a good time for the MR. GONZALEZ: That assumes there is a case. MR. SEROTA: I think the best position -- ASSISTANT MAYOR BLACHAR: If they leave it open. MR. SEROTA: I think the best position for all of you is to say, we are not opposing you, but we are not taking a position because we are concerned about the precedent that if we approve you, and we have, God forbid, more litigation, then you are going to say, well, you approved her. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think that is the safest thing for you to do. COUNCILMAN PACKER: We can't say anything to her. MR. WEISS: Exactly. COUNCILMAN PACKER: She has been waiting upstairs. MR. WEISS: We will walk out of here and she is going to say, what did you guys decide. COUNCILMAN PACKER: She is waiting upstairs. MR. WEISS: The first example for you guys to say, we can't discuss what happened in the executive session. ASSISTANT MAYOR BLACHAR: When we were all sitting up there, she wanted to start talking 68 about it. I said, we cannot talk about this here. She goes, well, I can talk if I want. have to be very careful with that. You guys MR. WEISS: What I want to do because I don't want to end up with a whole other mess with her ASSISTANT MAYOR BLACHAR: Right, but whatever. MR. WEISS: When we go back and we open up the public meeting, we give her three minutes to TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 talk. I don't want to end up in a whole other thing with her. MAYOR ROSENFIELD: So when I say, I will open the public meeting, and she raises her hand, I say MR. WEISS: If she wants to talk for three minutes and that is it. MR. SEROTA: And I don't think you should respond. MR. WEISS: Don't respond. ASSISTANT MAYOR BLACHAR: I do want to say something, though. If she gets up there, though, and says that she is at 77 Camden, I just think for the record by her saying 77 Camden, it is showing that she does have an interest, and she is somebody that could have a right to intervene. I think that that needs to be corrected, and I So really think by the attorney or somebody, not me, and I also think that that needs to be corrected at a meeting. Because I was talking to someone the other day and they said, you know, somebody watching the meeting would think that this person has a right to speak at this meeting, and she doesn't live here. I think that needs to be reflected at every meeting. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 COUNCILMAN SANZ: This is another question that we have been ignoring this for probably the past 20 years, letting her say that. Now, I think a house that probably sold twice or three times, you cannot sell a house if you don't own the house. When she says she owns the house, that they stole it from her. MAYOR ROSENFIELD: In her heart and her mind. COUNCILMAN SANZ: But, I mean, this house was been going on for so long. has to be I mean something MR. SEROTA: I don't mean to interrupt, but we do need to be careful. We are in an executive session, although this is theoretically COUNCILWOMAN COHEN: Well, no, because it's actually you are saying is she not, is she qualified. What are her credentials to use your words? ASSISTANT MAYOR BLACHAR: And she is going to talk at the meeting and somebody looking at it would say she has come up at every meeting and said she lives there. I think she has to be corrected by whoever wants to do it. going to do it? TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 Is someone 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 COUNCILWOMAN COHEN: It's true. It's true. MR. WEISS: Okay. MAYOR ROSENFIELD: Our attorneys will speak. MR. WEISS: Jorge asked us to do it. Well, we can't discuss that. MAYOR ROSENFIELD: Yes. Let's not discuss it. MR. WEISS: We are going to go upstairs and finish this. {Thereupon, the proceedings were resumed in the council chambers.) MAYOR ROSENFIELD: I will now reopen the public meeting. The attorney/client session has now been terminated and members of the general public are now invited to return for any further proceedings or matters. Thank you, ladies and gentlemen. We will have another meeting in about three and a half minutes. (Thereupon, the proceedings were adjourned at 7:06 p.m.) TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 C E R T I F I C A T 8 5 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 a.nd complete record of my 9 stenographic notes. 10 11 Dated this 23rd day of June, 2014. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 72