HomeMy Public PortalAbout2014-05-05 AttorneyClient Flamingo Way Enterprices LLC1
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VILLAGE OF BAL HARBOUR
ATTORNEY/CLIENT SESSION
13 IN RE: FLAMINGO WAY ENTERPRISES LLC V.
BAL HARBOUR VILLAGE
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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
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1 APPEARANCES:
2 COUNCILMEMBERS:
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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
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(PRESENT ONLY DURING PUBLIC PORTION)
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(305) 444-7331
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1 Thereupon, the following proceedings were had:
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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.
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Martin Packer, and Jaime Sanz, also village
Attorneys Richard J. Weiss and Joseph Serota, as
well as the Village Manager Jorge M. Gonzalez.
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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
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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.
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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
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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
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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.
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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
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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
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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
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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,
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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.
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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
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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
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course, is wrong, it's not true. He says the
village maintains that Section 81 applies
retroactively --
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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
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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.
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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
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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
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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
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that this would assist us by somehow getting it
out in the public and having a judge decide that
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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.
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Let
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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
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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,
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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
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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
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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.
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We have a
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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
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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Philadelphia. He had lawyers in Miami.
Anyway, we were proceeding in good faith
because, you know, and what happened was I
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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.
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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
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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.
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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
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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,
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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.
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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.
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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?
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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?
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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.)
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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.
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