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1995.04.21_TC_Minutes_Executive Session1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 P R O C E E D I N G S EXECUTIVE MEETING OF TOWN COMMISSION OF THE TOWN OF HIGHLAND BEACH 5;. Commission Chambers 3614 S. Ocean Blvd. Highland Beach, Fl. April 21, 1995 1:09 - 3:35 p.m. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 K PERSONS PRESENT: Arlin Voress, Mayor Bill Paul, Vice Mayor Mary Ann Mariano, Town Manager David Augustein, Commissioner A.G. Eypel, Commissioner J.F. Rand, Commissioner George Roberts, Esquire Charles F. Schoech, Esquire Doris Trinley MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 3 MAYOR VORESS: Good afternoon. Good afternoon. It's a little after 1:00 o'clock on Friday, April 21st, and I call to order this Special Meeting of the Town Commission of the Town of Highland Beach. Will the clerk please call the roll? MS. TRINLEY: Commissioner Eypel? MR. EYPEL: Here. MS. TRINLEY: Commissioner Rand? MR. RAND: Here. MS. TRINLEY: Commissioner Augustein? MR. AUGUSTEIN: Here. MS. TRINLEY: Vice -Mayor Paul? MR. PAUL: Here. MS. TRINLEY: And Mayor Voress? MAYOR VORESS: Here. The purpose of this meeting is provided by Florida Statutes 286.001. The Town Commission of the Town of Highland Beach will meet in an Executive Session on Friday April 21st to discuss the following: A proposed settlement between the Town of Highland Beach and the Resolution Trust Corporation regarding certain parcels of property located south of Highland Beach Town MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 4 Hall on State Road AlA and described as town lots 6265 and 69 west, and town lots 69 and 70 east, formerly part of RPUD 2, and commonly known as Hidden Harbor. I will now recess the special meeting of the Town Commission and call for an Executive Session. MS. MARIANO: The attorney has to hold the Executive Session. MAYOR VORESS: Oh, all right. MR. ROBERTS: I would request that we recess the special meeting and call for -- because I would request an Executive Session under the Statute that we just recited, and for purposes of providing the input and advice relative to the proposed settlement agreement of this matter. And if that is the desire of the Commission, then I would also for the record purposes indicate who is present. That I would estimate that the meeting will take three to four hours. That present at the meeting will be myself, and Town Manager Mariano, Commissioner Rand, Mayor Ey -- Mayor Voress. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 5 MAYOR VORESS: That's okay, Rusty. MR. ROBERTS: Vice -Mayor Paul, Commissioner Eypel, and Commissioner Augustein, and as well, we have the court reporter present as required by statute. MAYOR VORESS: And Charlie. MR. ROBERTS: And Charles Schoech, who is special consultant to the Town, and that the Executive Session will be taken down by the court reporter to be held confidential until the conclusion of this litigation. And that the meeting started at 1:09 p.m. on this date. MAYOR VORESS: Okay. For the purpose of this Executive Session and to share with the rest of the Commissioners, I had put together a tentative agenda for today's meeting to see if this is acceptable to the members of the Commission, Rusty, and Mary Ann. And the information I put together, subject to any change the Commission wants to make, is first to state the purpose of the meeting, which is to renew Rusty Robert's latest draft of 4/19/95. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 Q Secondly, I would like to myself review J.D.'s letter as to what RTC said, and to ask if all of the Commissioners have responded to Rusty's draft of the 6th, which I think we're talking about. (Thereupon, Ms. Trinley exited the room.) MAYOR VORESS: Then I would like to suggest that we cover the issues that will come up as follows: One, that we talk, first of all, the changes that Rusty has in the new draft of the 19th, with the exception of the remedy section and the monetary section. After we finished the other changes, to suggest that we talk about the remedy section and then the monetary issues, agree upon what changes, if any, are desired, call for a motion of such to take a roll call vote, agree on when the document ought to be sent to the RTC, and then any other issues that the Commission wanted to take, just to have some kind of an order how we propose to carry this meeting forward. Anybody have any objection? Want to change any of those issues? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 7 MR. ROBERTS: No. MAYOR VORESS: Okay. I would say that we're all going to be talking about this draft of the 19th; is that correct? Rusty sent to us, transmitted to Mary Ann Mariano saying that here's a further draft of the settlement and I have some issues I want to talk with you about, and that I assume that you've got all the input, Rusty, from -- MR. ROBERTS: Yes, if I could, just to clarify to you what is contained in this draft . First of all, it does contain those matters that have been provided to me by the various Commissioners. It contains input by Sam Daniels. It contains input by me as a result of receiving input from others. So to the extent and also I reviewed the letter of Mr. Hambric. And to the extent that it was feasible, in my view, to suggest input, I have done that. I have in those issues where there has been a change, and not to get ahead of you too much, but as far as the remedy section, I'm sure that you've all observed that there's an MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 extra paragraph in there. MAYOR VORESS: Yes. MR. ROBERTS: I have put that in as a response to what I perceive is suggested by the RTC in both the last meeting and their letters, that they want something else. I am by no means saying that I find that to be acceptable in my view to the Commission. It is merely a suggestion of language. Again, you will note as well that there is no promissory note, and I had talked to Charles Schoech prior to that and requested him to do that, and he has not been able to get around to that. I'm not in the position to give you any advice about promissory notes. I've never drafted a promissory note in my life, and don't suggest that I would know what to put in there. I have simply adopted what Commissioner Rand has provided me into the agreement. And again, as to those financial issues, you know, other than a general sense of the law, which we'll certainly discuss, I am not providing advice. So there are things in this agreement which I think you've MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 recognized, Mayor, that are new, suggested changes from a prior draft that we had, and were not discussed at the previous meeting. But I felt that if it was suggested I would put it in that fashion so we could save time, rather than have a meeting and say this is what the draft is and then people saying, the suggestions have continually come to me on a daily basis. Quite frankly, Sam had some suggestions further to it that I put in, you know, just as I was preparing it. So I have prepared it. I have submitted it. So it's clear it's not exactly the same draft that we saw last and talked about at the last meeting. MAYOR VORESS: I'd like to make one comment. And that is that I think that it would be help -- from my perspective, it would be helpful on my part if all of us who respond, Rusty, to you, like you've asked on the draft of April 6th, I believe -- yeah, April 6th -- if we would respond to your initial drafting that occurred after the meeting with the RTC. I know that Commissioner Rand and I MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 sent you a copy of our comments and directed copies to all the rest of the Commission. And I would suggest that that might be helpful for all the Commission among ourselves that if we have a comment to Rusty, if you would copy that to the rest of the Commission, we would all know kind of where we stand. Is there any problem with that or is there? MR. ROBERTS: MAYOR VORESS: that, Rusty. MR. ROBERTS: some problem to that. MAYOR VORESS: do not do that? I -- Let's have your input to I think there might be So you would prefer we MR. ROBERTS: I would prefer you not do that because MAYOR VORESS: Okay. MR. ROBERTS: -- I think you're running afoul of the sunshine law if you're simply sending your suggestions and comments to other Commissioners outside of the public meeting. MAYOR VORESS: Even though that they're public property. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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. ROBERTS: I understand that, but you know. Do you want my advice? MAYOR VORESS: I do. Yeah, I do. I do. MR. ROBERTS: I think that writing something to someone else would be, in my view, no different than calling up on the phone and telling them, and I think that you can all recognize that. It's been done. It's done. It's going to be a matter of public record. MAYOR VORESS: Sure. MR. ROBERTS: And I don't think it's going to affect anything. MAYOR VORESS: But there's nothing hidden about what's being said. MR. ROBERTS: Certainly there's nothing hidden about that, and I don't think there's any, what you might consider communication back and forth and negotiation with respect to it like that. But you know, this sort of document, I suspect is going to be the subject of a lot of scrutiny even when that's down the road. MAYOR VORESS: Sure. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: And I would suggest that it's okay for you to send your comments direct to me, just as it's okay for me to talk to you direct like that. But to suggest that sending to other people direct, I have a concern about that. MAYOR VORESS: Okay. Let me in follow-up of that discussion, you always send what you send and you make a statement, claim material not subject to public production or inspection. MR. ROBERTS: Right. MAYOR VORESS: If we send you something, should we incorporate that similar statement? MR. ROBERTS: Well, I think that if you are going to discuss various aspects of the settlement agreement and you do it for the Town Hall, and a copy of it goes to the Town Manager, you know, I put that on at Mary Ann's convenience because I'm not real sure what the procedures are around the Town. And I hope that they're putting this in a separate file and whatever. But you know, if you feel comfortable MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 it is not going to be in a public inspection file, then you don't have to put that on there. I just do that because I don't know what happens when it gets to the Town. And I have had situations in the past where letters have gone down and they've been subject to public inspection. And it's just kind of an attention -getter for the person who files that to make sure that they recognize that this letter is not to be for public inspection until after this matter has been resolved. MAYOR VORESS: Okay. All right. All right. MR. AUGUSTEIN: I have a question. MR. ROBERTS: Certainly. MR. AUGUSTEIN: You mentioned to a paragraph in here that you said might be questionable. Would that be Paragraph 5 on Page 17? MR. ROBERTS: MR. AUGUSTEIN: that down the road? MAYOR VORESS: section. Right. Are we going to discuss Yes, on the remedy 13 MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. AUGUSTEIN: Because I find a problem with that. MAYOR VORESS: Yes. Well, does everybody agree that we'll cover all the changes that Rusty has made here and he will comment whether he agrees or not, but in response to comments he made other than remedies and monetary, which I think are the two major issues? Would you suggest that's probably so, Rusty? MR. ROBERTS: Yes, sir. MR. AUGUSTEIN: I have one more request, if I may. MAYOR VORESS: Sure. MR. AUGUSTEIN: Would you happen to have Commissioner Rand's motion on the payment? MR. RAND: Yeah, I gave him a copy. MR. ROBERTS: I have a copy of the transcript from our last meeting. MR. AUGUSTEIN: Right. That would be in there. MR. ROBERTS: Right. And on Page 319 of the transcript, Commissioner Rand says, I MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 move that we agree to accept the cash settlement of $5.5 million, provided their loan conditions to us are acceptable. They haven't indicated what it will be, and that the settlement will be contingent upon their agreeing to the settlement stipulation drafting in accordance with -that prepared by Rusty Roberts except as agreed by him as to its modifications. Commissioner Eypel seconded it, and then the vote was taken and then the RTC representatives returned to the room. MR. AUGUSTEIN: Do I take that to mean that the RTC does not accept that motion, that even a monetary amount is off the table? MR. ROBERTS: Yeah. Sure. I mean, that was a motion, in my view, to make an offer. And I think later on it was my position they did not accept it as of that time, okay? I don't think that would prohibit you from making some separate motion. I don't think it would prohibit you from reconfirming that. MR. AUGUSTEIN: We have not heard from them at all. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: I have not received any correspondence or communication from them direct saying I will accept it. But in all fairness, I think it was -- part of their response is, I want to see the agreement before I make that decision and the ramifications, and certainly we have not provided them that agreement. In furtherance of some suggestions made to me by Leonard, I called Judith Thompson on Wednesday at 1:00 o'clock and asked her that simply if she had some suggestions as to what their language was to be, to tell me and I would bring it up at this meeting so we could expedite things to have a discussion of those. And she told me that she had a meeting and she would call me back that afternoon, and I stayed there until 9:00 o'clock that night and received no call and I received no call from her yesterday or any communications. MAYOR VORESS: Dave, if I can add to what Rusty said, that's my understanding, too. When we originally discussed RTC's response to our offer that Rusty sent in -- what was it, in March, Rusty? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: That's right. MAYOR VORESS: There were five categories of things. One, there were some things where there were typos. Like instead of "fee" it should have been "the fee" and things like that. There were some issues around legal interpretations of what they said versus what we said, like, do we pay at the end of the stipulation agreement versus a Court Order, which Rusty brought us to up to date on. There were issues around money. There were issues about remedy. And there were issues around building parameters. And as we walked through all those areas, we made some changes in those and we discussed that with the RTC. And I think Commissioner Rand's motion, as I understood it, to the RTC was we will pay you $5 million if you accept Rusty's agreement with the -- in my opinion, nonspoken, but some of those things we agreed. Rusty said, well, that ought to be changed or these ought to be changed. And as a result of that, we then agreed to send the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 Z RTC Rusty's revised document. I think that's consistent with what you said, Rusty; is it not? MR. AUGUSTEIN: Which is what we're discussing today. MAYOR VORESS: Yes. And that first document that Rusty provided for us was provided on April 6th, which is what Rusty sent to us, and said to us, please respond about what I have drafted you. I think this is consistent with what I heard at the meeting. Rusty, you stop me if I'm wrong in any of these concepts. Then we got that letter from Jay which I transmitted to all of you. Rusty listened to some of those things plus other things and revised whatever that 6th was in response to what he had heard from the Commission and others and drafted this 19th document, which is what we're talking about today, which we will then send if we get an agreement about it to the RTC, saying this is consistent with the $5 million, plus the Rusty agreement; is that basically what we're setting for their MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 response? MR. RAND: I just want to correct you. It's 5.5. MR. AUGUSTEIN: 5.5. MAYOR VORESS: Excuse me. I beg your pardon. Every time I said 5, it should be 5.5. Yes, I'm sorry. - MR. ROBERTS: I would just add that in part and parcel to one of the reasons what I did what I did was that Commissioner Rand at the very conclusion of the meeting said at Page 338 of the transcript, the proposal that we made Mr. Hambric, was that we've reached the cash settlement, and that you requested on the strict condition that the settlement stipulation be in accordance with that prepared by Mr. Roberts. Now, if you don't agree with the terms of that settlement stipulation, then we don't have a deal. So we'll just leave it. We'll withdraw it until such time as you come back to us and tell us whether you're prepared to accept that condition. But that is a strict condition and it is a deal breaker. And Mr. Hambric's response was, we may MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 Nul have a deal breaker. There may be paragraphs in there that I can't live with. But again -- okay, and then he continues on. But with that statement in mind, I mean, I drafted it up. And certainly as we've already discussed, and I don't see a purpose in going on with. It was not in strict concept of what John felt it was. And I've changed it to what John says it is. But it seemed to me that they were not accepting at that time, and used the term "deal breaker". So I have drafted everything that you have in here, made suggestions of other -- MAYOR VORESS: Sure. MR. ROBERTS: -- changes. MAYOR VORESS: Right. MR. ROBERTS: And some of them which I do not recommend you make, but I've made suggestions. My purpose here is to draft what you want and tell you what the ramifications of it are. MAYOR VORESS: Right. MR. ROBERTS: And it's up to you to accept or reject or go onto something else. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 21 MAYOR VORESS: Now, do you prefer that we walk through this and the Commission too, the document first, or do your cover letter first, Rusty? What would be most helpful? Part of your cover letter talks about money and bond validation issues, and we're going to talk about that monetarily later on. So I would suggest we walk through the document first, and then as it touches on your cover letter, that we take care of that in the totality of the discussion. Do you have any problem with that? MR. ROBERTS: Well, yeah. I think to go to the document. The cover letter, I think essentially talks about those last issues -- MAYOR VORESS: Sure. MR. ROBERTS: -- the remedies and the -- MR. RAND: Can I make a further suggestion, Mayor? MAYOR VORESS: Sure. MR. RAND: I think in going through this document, I think we should only discuss those pages where there have been changes -- MAYOR VORESS: Right. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 22 MR. RAND: -- from the previous draft. MAYOR VORESS: Absolutely. MR. RAND: Like Rusty can tell us, on Page 1, there were no changes, so we don't have to -- MAYOR VORESS: We can walk right through a whole -- well, the majority of this there are no changes. MR. ROBERTS: The only trouble is I don't have it in that fashion -- MAYOR VORESS: Well -- MR. ROBERTS: -- without going back to the previous draft and looking like that. MAYOR VORESS: I can. I think I can. And if you can -- in fact, I've read through both drafts. MR. ROBERTS: Okay. Then you can take the lead. MAYOR VORESS: I'll take the lead. And then if you agree, for God sakes, say you don't agree. MR. ROBERTS: Okay. MAYOR VORESS: Is that all right with the Commission? MR. RAND: Fine. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: I can tell you that what I have is I have notes from the various people who have done that, and I can tell you where the changes were made from those notes. But let's take, for instance, on the -- you know, I'll tell you what Sam Daniels has told me, and if you want to, we can go through it in that fashion. He went to Page 5, Paragraph 2. MAYOR VORESS: Rusty, before we get there, like on Page 3 there was -- MR. ROBERTS: Go ahead. MAYOR VORESS: -- the fee thing. MR. ROBERTS: Go ahead. MAYOR ROBERTS: And you've changed that. It was an English thing, that was all. It was changed. MR. RAND: What thing on Page 3? MAYOR VORESS: On Page 3 up there. There was a section on Page 3. MR. RAND: t -h -e? MAYOR VORESS: Yes, correct. MR. RAND: The fee. MAYOR VORESS: The fee award. You had "fee the" award. Okay. We had some stuff like that. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: Okay. MAYOR VORESS: That's changed. MR. AUGUSTEIN: Where is that? Okay. MAYOR VORESS: Then on Page 4 was the same thing. RTC had some issues under the rights agreement. You've kept it the way it is, which is consistent with what that was on. MR. PAUL: I find the position on Page 4, Paragraph 1-A, in parens you put "more or less" after of the 17.3 acres. MR. ROBERTS: Right. MR. AUGUSTEIN: There was a request. MR. ROBERTS: We had agreed on that before. MAYOR VORESS: There was some -- MR. ROBERTS: And, you know, when you keep going through these drafts, apparently that didn't get picked up, but I don't have a problem with that. So that was added. MAYOR VORESS: Now, I have nothing on Page 5. Do have something on Page 5? MR. ROBERTS: Okay. Page 5, Paragraph 2, "The Parties hereby consent to the entry of an Order of the ..." and Sam wanted to put in "District Court" rather than just "Court". MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 25 MAYOR VORESS: Okay. MR. RAND: Where is that? MR. ROBERTS: The first sentence of Paragraph 2. MR. RAND: Are you saying the second sentence of the 2, the Order? MR. ROBERTS: Right. MR. RAND: The Parties hereby consent to the entry of an Order of the District Court? MR. ROBERTS: Right. MR. RAND: So "District" has to be added in. MR. ROBERTS: "District". It should be added in on your copy. MR. RAND: I don't have it. MAYOR VORESS: It's not added on mine either. MR. RAND: It's not on mine either. MAYOR VORESS: So that's a change you wish to make. MR. ROBERTS: It's in mine. MAYOR VORESS: Okay. MR. PAUL: The first sentence reads, the Parties hereby consent to the entry of an MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 Order of the District Court approving... MR. ROBERTS: ... this settlement, right. MAYOR VORESS: Right. On Page 6, this was one of the issues that we got into with the RTC as it spoke to infrastructure. The RTC wanted infrastructure on Federal Statute -- Florida Statute 163 point whatever the numbers were. And we said, no, we're going to keep it with sewer and water, and Rusty has kept that change in. MR. ROBERTS: Right. MAYOR VORESS: That was an area that Rusty kept the change in. I don't see they had any real questions with 7. MR. ROBERTS: There's another thing too, that what I did in style, in any instance where there was a small "iii" and "ii", make it in separate paragraphs so you can more easily identify them. It doesn't change the context. MAYOR VORESS: But it made the page numbers change -- MR. ROBERTS: Yes. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MAYOR VORESS: -- between the April 6th and the April 19th. So if you've got it, starting at this point then the page numbers are going to be different. MR. RAND: Different, right. MR. ROBERTS: Right. MAYOR VORESS: Okay.- Let's see, I didn't see anything that there was any big discussion, Rusty. Then we got over to -- on Page 10. Let's see. It will be I guess, on 11 on this one. Your B is new on that, Rusty, on Page 11 of yours. "The Parties agree the property" -- MR. ROBERTS: Okay. Well, I'll get to that, Your Honor, but let's go back to 5 on Page 10. MAYOR VORESS: 5 on Page 10. MR. ROBERTS: Right. Again, nothing has been changed, but one of the issues that was brought up is whether they could have an old RPUD -- MAYOR VORESS: Correct. MR. ROBERTS: -- at the new site plan, and we have retain the previous -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MAYOR VORESS: Building parameters. MR. ROBERTS: -- RPUD site plan, "(except for that portion thereof owned by other, to wit: the south seven (7) acres) is hereby deemed to be amended by the terms hereof;" Okay? MAYOR VORESS: Right. MR. ROBERTS: So what we're doing is, we're saying it's still the RPUD plan, but it really is just the building parameters here and there's not an alternative. MAYOR VORESS: Right. And the RTC proposed they wanted both. MR. ROBERTS: Yes. They wanted both. MAYOR VORESS: And we cut that out, okay. MR. ROBERTS: Okay. Now, going onto the next page. In order to the -- let's see. MAYOR VORESS: On "B", you just took the "therefore" out and started, "The Parties agree that The Property shall.." MR. ROBERTS: Yes. MAYOR VORESS: We've made that a separate paragraph. MR. ROBERTS: Well, the interesting MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 part is again, this is what happens when you go over and over it again. The previous draft said, "The Defendant agrees that The Property shall be considered as a planned unit development..." And since this is the provision that it has in the 427 residential dwelling units and the application of these codes, I felt it to be consistent, and for protection of the Town, it should be "The Parties" here. MAYOR VORESS: Sure. I think that's good. MR. ROBERTS: Okay? So they agree that it's 427 and these codes apply, okay? I mean, I think it's somewhat -- you know, I mean, because you go back to 5-A and it says, "Defendant acknowledges and agrees..." which is fine. This is what you've agreed to. But as far as those portions which they've agreed to, -- MAYOR VORESS: I think that's true. MR. ROBERTS: -- I've changed that to, "The Parties agree..." MAYOR VORESS: Right. And you maintain that they had to observe all of our codes MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 30 which they had originally said they want exempt. MR. ROBERTS: That's right. That's right. So this is somewhat redundant because it's also in the development parameters. MAYOR VORESS: Correct. MR. ROBERTS: But if it's not consistent, that's in my view, where you get into trouble. You say one thing on one hand and one on the other. So now it's consistent with the development plan. Both of them are the same way. MAYOR VORESS: Correct. MR. ROBERTS: And I felt that this was again, one of these paragraphs that was all run-on and like that. So I separated it out so we know exactly which ones are which. MAYOR VORESS: Correct. Then we get to the payment which we're going to pass at the moment. Impact fees, I don't think there were any changes there, Rusty. I don't -- MR. ROBERTS: Well, the only change was because we've added this Exhibit F, which is going to be provided by -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MAYOR VORESS: Right. Which we don't have at the moment, right? MR. ROBERTS: Right. Now -- MAYOR VORESS: Then on Page -- under the "Approval Procedure" -- MS. MARIANO: There's a change. MR. ROBERTS: There is a change there. MAYOR VORESS: On Page 14, yeah. Which Commissioner Rand has sent copies to all of you that, at the meeting of the Town Commission, the defendant shall immediately after this settlement has been proposed for consideration by the Defendant's Town Manager before it was accepted. So that was the only change, just a word change there. I believe that's the only thing that was in that. MR. ROBERTS: Now, there's been another change here going from Pages 14 to 15. There was a concern that we had at the last meeting about the RTC having a time frame to accept. MAYOR VORESS: Correct. MR. ROBERTS: And so I had proposed that their execution must occur within ten days of the date of the approval by the Town, MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 32 and the Town must actually receive such approval in writing along with sufficient documentary evidence of the authority of the plaintiffs to execute this stipulation within ten days of the execution by the Town. And Sam wanted to add, or before an opinion is rendered by the 11th Circuit Court of Appeals, whichever is shorter. MR. RAND: I don't understand that. MR. ROBERTS: Well, that -- MR. RAND: What is meant by that? MR. ROBERTS: What is meant by that is that if you sign it today and it goes up to them, they have ten days to sign it and get it back to you. MR. RAND: Right. MR. ROBERTS: And if on Monday there's a favorable decision of the 11th Circuit Court of Appeals in their favor, they won't sign it. MR. RAND: Right. But what if it's in our favor? MR. ROBERTS: If it's in our favor, then you don't have any out. They have ten days to sign it and come back. MAYOR VORESS: And they will sign it. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: And they will sign if it's in your favor, okay? So what this means is that they can't, during that ten-day period, wait until the ninth day to see if it's going to be in their favor. If a decision comes out in that ten-day period and it's favorable to the Town, the deal is off, okay. They cannot then accept it. MR. RAND: If the decision is favorable to the Town, then we don't go through with the agreement? MR. ROBERTS: MS. MARIANO: signed it yet. Right. Because they haven't MR. RAND: Yes, but wouldn't they be damn fools not to sign it? MR. ROBERTS: Well, -- MR. RAND: That's the point I don't understand. If the decision is made prior to the execution of the agreement, okay, and the Court renders a decision, obviously if it's in their favor, they're not going to sign. We accept that. So this is one sided the way it's written here. MR. ROBERTS: No. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. RAND: In other words, they get the advantage either way. MR. ROBERTS: No, that's why it's written in there because it is one sided as written. That's why I've added, or before an opinion. You have to be accepted. And of course, the language might be, you know, strengthened. I just threw this in and I really want to talk to Sam like that. (Thereupon, Mr. Schoech exited the room.) MR. ROBERTS: But the point here is that if you sign it today as it was written with the last clause there, they should then wait for the ninth day and if they reached a decision in their favor, they'd say, I'm not signing it. You lose. Too bad. MR. RAND: Okay. MR. ROBERTS: If in the third day without that clause a decision was favorable to the Town, they could still make the agreement binding upon you by signing it on the ninth day and getting back to you. Even though you had a decision in your favor, they could still bind you to do. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 35 So what we've done in here is it says we've signed it in. If in the next ten days a decision is rendered, no matter what happens, okay -- MR. RAND: Okay. MR. ROBERTS: -- the deal is off. MR. RAND: Why can't -you, Rusty, and this is a suggestion, I don't know what your reaction would be, if we send this up to them, let's send it up as a draft not signed, just send them up the draft and say, do you agree with these terms and conditions? And if they agree, then we invite them to come down here and sign it. And we could both sign at that time so that we eliminate this risk. We send them up the draft. If we decide on the terms of the draft, let's send a draft up without signing, in which case it's not a legal document. (Thereupon, Mr. Schoech reentered the room.) MR. ROBERTS: Well, I guess I perceive the difficulty we've had with every other agreement, which is just what you saw this morning with the Milani agreement, okay, MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 and what you've seen all along for the past seven years of this agreement, okay? If you send something up to them, and say, this is what we've agreed, they'll send it back and say, I want these changes, just as Mr. Bryan was drafting and sending me changes at 5:00 o'clock yesterday afternoon, okay? What it is, is that in my experience with these things is that you've got to have an agreement, which if they're going to agree to on in advance, that's a facet of what I already see it. We're sending this draft to them, and they say, fine, that's acceptable. Well then, the procedure is that you've got to hold the meeting just as you've held this morning, okay? Everything is all cleared, but it's the signing and execution thing. MR. RAND: Right. MR. ROBERTS: So you pass the resolution. You sign it. It's not a matter of negotiation at that stage; it's just whether they want to agree to it. They've already told you verbally that they've agreed to it, but there's nothing binding upon them -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 37 MR. RAND: Until they sign it. MR. ROBERTS: -- until they've signed it, okay? So that's why there's going to be an interim period there. Even though they've said they've agreed to it and they've told you verbally, until they put them on the dotted line and gotten back to you, it's not a deal. MAYOR VORESS: You sense -- excuse me just a second. You sense that when we get through here, we will send a document to them. We can't, as a Commission, sign it because that has to be done through a formal process. MR. ROBERTS: Right. MAYOR VORESS: But we send it up to them, and they say -- assuming they say, okay, that's all right, and they put their John Henry or Sarah Smith on the thing -- MR. ROBERTS: They're not going to sign it. MAYOR VORESS: No? MR. ROBERTS: Because as you and I have discussed previously, the approval procedure as is set forth in this document, is as follows: We're negotiating. Here is the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 agreement. One, this is what we'll agree to. Let's say, for instance, hypothetically it comes back and they say, we'll agree to it too. MAYOR VORESS: Okay. MR. ROBERTS: Okay? MAYOR VORESS: Go ahead. MR. ROBERTS: When that happens, then we advertise. MAYOR VORESS: Right. MR. ROBERTS: We have a meeting. We adopt a resolution. We sign the agreement, okay? They have obviously then the option. And I don't know any way around that. MAYOR VORESS: Okay. MR. ROBERTS: I mean, they could if they want to, and they very well may do it. They may come down and attend the meeting, and I certainly invite them to do that. And if which case that happens, then all of this means nothing anyway. MAYOR VORESS: Yeah, as a matter of fact, Jay has told me when we get -- when he gets this document -- now this may or may not come about in reality, but when he gets this MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 document, he agrees he will come down here and sign it in front of the Commission. MR. RAND: Right. MR. ROBERTS: Then we don't have to worry about anything if that's what's going to happen. MAYOR VORESS: Right. And if -- MR. ROBERTS: But if that doesn't happen, -- MAYOR VORESS: Whether this is in here or not, you know, if he signs it, he is committed at that point in time. We then have to take three or four or five days, whatever the time frame is, to advertise and hold a public hearing for the Commission to sign it; correct or incorrect? MR. ROBERTS: That's true. But if he agrees to it, what I would suggest is, as a practical matter, you have the advertised meeting and Mr. Hambric be invited to attend the meeting. And once you sign the resolution, just as Mrs. Milani did today, she signed off on it. MAYOR VORESS: Fair enough. MR. ROBERTS: They sign off on it. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MAYOR VORESS: Fair enough. MR. ROBERTS: And if that happens, then all of this means nothing, okay? MAYOR VORESS: Okay. But you're just providing protection here for us. MR. ROBERTS: I'm providing protection in case we have the meeting and all of a sudden Jay Hambric doesn't show up. MR. RAND: I don't know. Maybe I haven't made myself understood. If it's one sided in their favor, then we shouldn't sign this agreement when we send it up. MS. MARIANO: It's in our favor. I'm the one that talked to Sam about this particular issue too. This is in our favor because -- And when it says the Town must actually receive the approval, for instance, if we signed it today -- MR. RAND: Yeah? MS. MARIANO: -- and if this was our meeting and we signed it today and we sent it up to the RTC, -- MR. RAND: Right. MS. MARIANO: -- and now Monday the Court renders a decision -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 41 MR. RAND: Right. MS. MARIANO: -- or Tuesday the Court renders a decision in our favor, -- MR. RAND: Right. MS. MARIANO: -- if they haven't signed it and we haven't received their approval, the deal is off. If the Court comes back and says, you don't owe them any money, you don't have to give them anything, it is not binding on us. MR. RAND: Even though we sent up a signed agreement? MS. MARIANO: Absolutely. MR. ROBERTS: That's true. Right. MS. MARIANO: They have not given up the approval. That's what this protection is. If they hadn't signed off and said, we approve it, and that's why we have to actually receive the approval, because certainly somebody could sit at a desk on Wednesday, and if we won the case on Tuesday, they could date it Monday and send it back and say, well, we signed it before agreement came out. How do we know that? So I think the protection is that we must receive the approval. If something MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 happens before we actually receive their approval in our favor, the deal is off. MR. RAND: Okay. That's what's intended. MR. ROBERTS: Is that correct? MR. RAND: Well, if that's the understanding, fine, and you all interpret it that way, then no problem. MR. ROBERTS: And I believe there's a change here too again, a procedure which Sam suggested that -- MR. RAND: What page is that? MR. ROBERTS: On Page 15. MR. RAND: 15? MR. ROBERTS: Upon receipt, the Town shall execute and submit the fully executed joint motion, relinquishments to the Court of Appeals. And then upon entry of their order, relinquishing jurisdiction. And what happens is, you approve it and you sign it, okay? The first thing you've got to do as far as procedure once it's a done deal here locally is send in a joint motion to the 11th Circuit saying, you know, relinquish your jurisdiction back to the District Court. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 And then once that order is received, the fully -executed stipulation, which would have already been done along with these exhibits, will be submitted to the District Court. And again, I think the "District Court" has been added here just for clarity because you're talking about two Courts, and Sam wanted to make clear that it wasn't going to the 11th District, it was going to the -- MAYOR VORESS: So this should say District Trial Court? MR. ROBERTS: Yes, I've taken out Trial Court and put in District Court. MS. MARIANO: Well, actually Sam's thing is on Page 20 where he thinks that should be handled. MR. ROBERTS: Well, I put -- MAYOR VORESS: But we're on Page 15. MS. MARIANO: But he called me. He couldn't reach me last night. He called me this morning and said that on Page 20 in D, that's where that should be handled. Permission -- that you need permission from the Appellate Court. Then you go before the Trial Court. Then you go back to the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 44 Appellate Court if -- MR. ROBERTS: Well, I got that note from Sam. MS. MARIANO: Okay. MR. ROBERTS: But I feel it's better to put it in the section -- MAYOR VORESS: So you want Trial taken out and -- MR. ROBERTS: Put it in the section, Approval Procedure rather than the in the Mutual Releases and Dismissal of the Appeals section. I think Sam just didn't realize it was already under another section. And where it said "Trial Court" I've taken and placed "District Court" instead. MR. PAUL: Is that sentence also District Court? MR. ROBERTS: Right. MR. RAND: Can I ask a question, Rusty? MR. ROBERTS: Sure. MR. RAND: Mrs. Mariano made mention of a point that I find nothing so amazing. She said despite the fact that we will sign or make a motion to the Circuit Court of Appeals relinquishing jurisdiction in this case, they MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 still could render an opinion in this case. I find that inconceivable. MR. ROBERTS: Well, -- MR. RAND: If we ask them to relinquish jurisdiction, that they would still render an opinion later on, and they would have the option of doing so despite the fact that we made a request for relinquishing of jurisdiction? That doesn't make sense. MR. ROBERTS: Well, you have to under -- I guess, understand. It wouldn't affect you, because you have agreed -- if you had agreed to an agreement and they could effectuate the purposes of the agreement, they still would have the power, even though you had resolved your issues, to render essentially what would be an advisory opinion. MR. RAND: Yeah, but it does have an affect on us, Rusty, for the simple reason, if they decide that they're in favor of the Town, and which case we don't have to pay anything, then the residents are going to be on your tail, okay? If it's $20 million, then the residents are going to applaud us for settling for a five and a half million. So it does MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 have an impact. MR. ROBERTS: Well, I don't know. And perhaps, you know, there's understanding. If, in fact, they did that, they went on to render an opinion, it would not be an opinion that would necessarily talk about the underlying monetary judgment. You have to understand what the en banc procedure is. Essentially in this case it's an effort by the entire -- well, the 11th Circuit Court of Appeals has 12, 13, 14 judges on it. Each case, as you saw, they handle the appeal with a three-judge panel. And in this case there was a feeling that there were differing views of the same issues of law by different panels. And what they, in my judgment, wanted to do is take this case and use it as a basis to harmonize all of those panel decisions into one case, and set out certain principles of law, which at least in my view of the case, would be in harmony with what the Supreme Court says. And they can still do that because they feel that that's important. It was important enough to get them all down here to hear this. It still may MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 47 be important to them to change that law, okay? MAYOR VORESS: You're suggesting there may be disharmony in some of their opinions right now. MR. ROBERTS: No question about it. There are opinions on essentially the same issue, which go different ways. MAYOR VORESS: Yes. MR. ROBERTS: And since they have expended the effort, they still have the authority and still may want to essentially adopt a harmonized principle of law that purely local zoning dispute is not the subject of a civil rights claim. And their opinion would just simply say that, okay? And it would not go on in that instance if you had settled your claim. It would not go on in that instance and say, gee, we find in favor of the Town, okay? Yes. One of the leading cases I believe, Williamson Vs. Hamilton Bank, exactly that happened by the Supreme Court. The Supreme Court had taken the case for decision, and in the interim between the time argument was held and the decision was rendered, the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 parties had resolved their situation, and you'll note it's in a footnote. This really doesn't mean much as far as these parties because they've settle, okay? And that's what would happen with the same. So it doesn't really mean much to the RTC and Highland Beach because they've settled, but for the purposes of harmonizing this law and essentially cutting back on our workload, we're going to go ahead and render this decision. And quite frankly, I think that would be extremely helpful to the Town because I think if they did take that step, it would be for the sole purpose of cutting down on the number of cases they're seeing. And the only way they're going to do that is to say that this is not a 14th Amendment claim, that people can't come running to Federal Court for these purely local zoning disputes. You've got to go through State Court first, okay? And that's going to be helpful to all Towns. Okay. So if that happens, it's not going to hurt you or affect you one way or another. MR. RAND: But if they render that MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 opinion, they will make reference to this case. MR. ROBERTS: Oh, absolutely. It will be this case. It will be RTC and Highland Beach will be the case. You'll have that notoriety, no question. MR. PAUL: But if somebody, if they wanted to take us on at a later date, at another case, this could be helpful to us. MR. ROBERTS: Absolutely. Absolutely. MAYOR VORESS: Okay. MR. ROBERTS: Yeah. Those changes on Page 15 are essentially just changing "Trial Court" and "District Court" again just to clean up. As far as the Comprehensive Plan Amendment, I mean it's -- MAYOR VORESS: There was nothing there. MR. ROBERTS: Well, we've maintained our position that it's not going to be done right away. MAYOR VORESS: Right. You left the "promptly" in that they asked for. MR. ROBERTS: Sure. MAYOR VORESS: And the prohibition and all those sorts of things. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: Now, on 10 -- well, you don't want to deal with that yet. MAYOR VORESS: We don't want to do 10, so let's -- We're leaving that until last. There wasn't anything under Jurisdiction. There really wasn't anything under Prohibition that I have in my stuff, Rusty. Mutual releases, nothing that I saw in that unless you have something, Rusty. I saw nothing in that. I saw nothing under -- MR. ROBERTS: Well -- MAYOR VORESS: In the Parameters then in Exhibit B, you did make a change from 30 to 40 -foot setback. MR. ROBERTS: Right. MAYOR VORESS: And you changed the 1995 to 1994. You maintained the floor space, which we originally talked about, and they had made some comment relative to they wanted smaller pieces. You took out the Corps of Engineers. We already know about. And that's about all I saw there. I don't think there was any -- There wasn't any -- well, do you have anything in your thing that shows you made any major MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 51 changes there? MR. ROBERTS: No, I don't. MAYOR VORESS: So I sense everything, from what I read, is fine there. MR. AUGUSTEIN: Outside of the two points that we have to go back to. MAYOR VORESS: Which leads us to remedies and monetary. If you agree with that, we'll move onto remedies. We'll give you whatever time it takes to get those ready. MR. ROBERTS: Right. I would just say that in the letter -- Okay. That's all I have. MAYOR VORESS: Okay. Could we then turn back to Page 16 on Rusty's document, Section 10 titled "Remedies". And Rusty, since you have some concerns about it, maybe you can walk us through that. MR. ROBERTS: Okay. Again, in the remedies, the critical issue on remedies is what remedies will be available to them in case of default for the next ten years of this agreement, them or a subsequent owner. In reviewing briefly the transcript and the letters of Mr. Hambric, it appears to me MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 that their focus is that they want to have some security or have some ability to go back to a multimillion dollar judgment against the Town should there be any default. And I don't believe that there is, as I've said in my letter, any support for that amongst the Commission. Now, the suggestion has been made here there is some middle ground that can be adopted in that regard. And I've done research and Sam has done research on this issue. And the difficulty that I see, and why I initially suggested there be a liquidated damages cost is because there is not any accurate way to predict a general specified damages clause. What I have suggested in here is strengthening up the agreement so it makes it ultimately clear that this is -- if at all, the damages would only be contractual. There's case law in this case, and this agreement also says it will be construed according to the internal laws of Florida. And I'm not familiar with what the internal laws of Florida are. I know what the laws of Florida are. And I've made a change in that MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 regard to the agreement by taking out the word "internal". And in hopes of strengthening it, that it's in keeping with the law of Florida. Well, the law of Florida suggests that if you merge, and Sam has made this suggestion, merge your previous tort action into a settlement contract, then you're strictly limited to contract remedies, okay? And so contract remedies would only be something that if there was a default on the contract. Now, typically in any contract you have, the remedies, the best thing for you in entering into a contract is that you note very clearly as best you can, what are the remedies in case of default. Now in this, the focus that we have drafted in the remedies section is that since there are things like issuing permits, you know, in giving approvals, site plan approvals, water and sewer hookups and stuff like that, there is mandatory injunctive relief. And that simply means if you don't do it, they go to the Court and the judge and say, you're not doing it. You're breaching MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 the contract. The judge hears your side of it; hears their side of it very quickly and says you're wrong. I order you to do it, and you do it, okay? And I don't think that there's anybody on this Commission or in this Town that if so ordered by a Federal Judge to issue a permit, would not do it. I think there are people in Boynton Beach who would not do that, but I think they've learned their lesson. And I just don't see that happening. So in instance -- I don't see it happening in the first instance. But if it was simply an interpretation of what it was, it could be quickly and efficiently handled in that fashion. And that's why it's perfectly acceptable to me to have a quick remedy section that you can go by motion to this Magistrate and get in there in 30 days. And because I think from the Town's perspective, you don't want to drag this on either, okay? MAYOR VORESS: Right. MR. ROBERTS: The unfortunate part is that I guess this agreement doesn't even allow -- I think implicitly, but not MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 explicitly, allow the Town to go there too if you don't want to get a hearing on it. Because the difficulty is they could, you know, say there's a breach. They could sit around a couple years and wait and say, hey, you breached the thing two years ago, much the similar thing what they did in the underlying suit here. They claim that there was a breach in 1984 and '85, but suit wasn't filed until '87. And they did essentially nothing during that period of time. And I think, you know, that could happen again. So that's why you want the limitation of damages to be a certain amount for delay. Because they have it in their power to delay. They can sit and do nothing for four or five years and then go back in and say, gee, I've lost all this time value of money and da, da, da, da. And come in there and essentially turn it into just a collection thing rather than a development thing. And that's why I put these liquidated damages provision in there, so that we know in advance exactly what it is. Now, what they want as a general, any MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 other remedy available to them in law, okay? what I have suggested in here in Paragraph 5, other damages proven by the preponderance of the evidence to have been proximately caused by breach of this agreement by the Defendant. What I'm telling you is that in my view limits them to contractual damages. What I can't tell you is what those contractual damages would be, okay? I can easily envision that it could be multimillion dollars. If you get a scenario where they come in. Some buyer says, I bought this property because I could build all these things. And now I went down to Harry Heithaus, the building official, and he denied my permit, and this is confidential fortunately, denied my permit and you as a Commission never heard that. Four years later he comes in and says you denied my permit, or I got a letter here from Bruce Sutherland that says that there's no zoning on the thing, or some Planning and Zoning Commissioner, Planning Board member at a meeting says, you're tough out of luck. You'll never get a permit out of me. They sit MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 back, four years later and he goes, well, you know, they agreed that they would do this, and they didn't do it, and it was breached by the building and zoning official. I've lost the value of my property, so my damages -- proximate value of my damages, or the loss of this property. And guess what? I've got an appraisal out here from my favorite appraiser that says the property is worth $24 million now. And if I would have been able to build this two 18 -story feature in there, and since I've lost all of that, you owe it to me, okay? And that could very easily be contractual damages, okay, for noncompliance by one of your building officials or a finance official or Town Manager or something like that and you're stuck with it. And you know, that's a scenario I can envision. But if you leave this out and you simply say that the only remedy you have is going to Court and enforcing me to do this, and if during the time it takes you to go to Court you're delayed, you've got to pay me this money, okay? You know exactly where it MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 .H is. So I don't recommend that it be done. But I think that if you allow it to be done, if you allow any other remedies or you allow for five in there, you're subjecting yourself to the potential of that occurring. MR. AUGUSTEIN: That's the way I read it. MR. RAND: What does the word "proximately" mean? MR. ROBERTS: That's just -- proximate cause is legal cause. It's a term of art that lawyers use, that you know, if the damage has to be as a result of this breach, it can't be as a result of something else like market conditions. But unfortunately just because the reason you're asking me that question, you don't know what it means, six, twelve jurors don't know what it means either, okay. It's the best term we have. But if they think there's a connection between the two, that's proximate cause. MR. RAND: All right. MR. AUGUSTEIN: Rusty, if you know the prevalent dangers in here, why did you put it MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 59 in? MR. ROBERTS: I put it in because I received a rather scathing letter that I wasn't doing enough to expedite this matter. So I wanted to make sure that you had my best thinking at this meeting of what other clauses are available, even though I didn't recommended them. MAYOR VORESS: Let me make the point. I wrote Rusty a letter and told him I was not satisfied when he was responding to what Jay said had to be done so there wouldn't be a deal breaker. Let me ask you this, question, Rusty. You talked about people could wait three or four years to do that. Is there anyplace here in under A of the Remedies where the Plaintiff and their successor and owner shall be entitled to -- to say they should promptly seek relief and are entitled to? MR. ROBERTS: No, there's no time limit on them. MAYOR VORESS: Well, but we could put something; could we not? Your pitch was that somebody unknown to the Town Commission would say, well, I am not going to give you this or MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 am not going to do something, so they just sit and wait and nobody knows about it. MR. ROBERTS: It could be drafted in a sense that if there .is a breach, that you have 30 days within which to seek a remedy on that breach or you waive it. MAYOR VORESS: Or promptly, yeah, to move along. You know, that ought to do that. MR. AUGUSTEIN: Yes, but they will seek a breach with the possibility of getting the same -- MR. ROBERTS: Yes, but I'm not saying they necessarily have to wait four years to have these damages. They could say the first breach of it. MR. RAND: I think there's been a false impression given as far as the possible consequences of this. I think some of Commissioners are under the impression that if there is a violation of this agreement, that they're automatically going to be able to collect $20 million, which is what they had the under the judgment, and that's just not so. It could be, depending on what the violation is and what the Magistrate decides, MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 okay? They have the right under this agreement to go to a Magistrate and claim damages, okay? You're making this provision in 5. That doesn't mean they're going to collect $20 million. It doesn't mean they're going to collect $1 million. It's something that has to be proven and justified; is that not correct? MR. ROBERTS: That's absolutelv correct. MR. RAND: So it shouldn't be, and I just want to make sure my fellow commissioners understand this, this is not an opening for them to reopen the judgment that they got in the Federal District Court. I want you to understand that. MR. AUGUSTEIN: I disagreed. It's an open door to ask for the judgment back again. MR. RAND: Well, you can sue anybody for any price. MR. AUGUSTEIN: Yes, but this gives them the opportunity to do it. MR. RAND: It gives them the opportunity to sue, but that doesn't MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 necessarily mean they're going to -- MR. AUGUSTEIN: They can request it. MR. RAND: Sure. We can also attack this if they violate the agreement and want to do something that's not provided in this thing, we can sue them too. MAYOR VORESS: And furthermore, if they get a judgment, we have the right to appeal. I mean, this isn't the be-all/end-all thing. I think that Rusty has confirmed to me that there's an appeal process here. MR. ROBERTS: I double-checked that to make sure that by citing to the U.S. Code section here, and the Magistrate Rules, Rule 3 FRCP, Rule 73, and Title 28 USC 636-C says that essentially a Magistrate can take over the function of a District Court Judge, and that any decision from that Magistrate's decision can go directly to the 11th Circuit Court of Appeals. MAYOR VORESS: So we can appeal in the same manner we did before. I mean, we're not dealing -- Excuse me, Vice -mayor Paul. MR. PAUL: As I regroup now, they could MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 collect from us under 2-B, and then go at us under 5 also. MR. ROBERTS: Well, I left that in there, okay? MR. PAUL: All right. MR. ROBERTS: I would suggest that if you were going to adopt 5, that you delete 2, okay? MR. PAUL: But it's your recommendation we not include 5. MR. ROBERTS: Certainly it is. Certainly it is. I mean, the thing of it is is that this contract here is a settlement contract. And as I said before, there are two ways to do it and this kind of flows over to the remedy section because Sam has found cases, I have found cases both in Florida and outside of Florida, that the concern is that if it's for -- and the case Sam found was for $2,500. And this is for five and a half million dollars. If you can't come up with the money right away, or the money as is described in here that you're going to save, then I can assure you they will take the position that MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 there's a failure of consideration. And there's substantial body of case law to the effect that when there's a failure of consideration, you can do two things. You have an alternative. You can elect to pursue on the contract your remedies, or you can just void the contract, okay? And when they void the contract, then I think they would go back to the Federal Court and say, gee, I entered into a settlement agreement. They didn't pay me, and so therefore it's void and I want my judgment back, even though I've executed a satisfaction, because my satisfaction was based upon the promise that they would pay me. And if they haven't paid me in the fashion they said they have, I want my judgment back. MAYOR VORESS: But we as a Town -- MR. RAND: But that's not a danger, Rusty. MR. ROBERTS: That absolutely is a danger. MR. RAND: I don't see the monetary consideration being a danger as I've indicated in the report that I'm going to make. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 MR. ROBERTS: Okay. And I don't want to get onto that thing too, but I just want to add the principle in dealing with remedies, that if in fact that would occur, I can see very easily the Court reinstituting that judgment. MR. RAND: Sure. I wouldn't doubt that. MR. ROBERTS: Now again, there are provisions in here that have been added to try in a fashion to shore up so there's no question that if you don't pay, the only thing you -- and that's why I put the provision in there, if you don't pay, your sole remedy is getting a judgment for that amount, okay, -- MR. RAND: Right. MR. ROBERTS: -- not going back to that judgment or trying to do that. But you get back to what are the potential damages. And I don't know how more to say it is then if you leave it open-ended, you expose yourself to this. And ordinarily, you know, I would agree with you, Commissioner Rand, that you know, that is so far afield, that it's probably not MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 M something that you've got to be concerned about. But you have to remember, if you agree to this, okay, and the 11th Circuit Court of Appeals, you know, affirms and reinstates the previous panel opinion, you're sitting out there with a published panel opinion saying that you can lose big bucks on a case like this, okay? And I think that they're going to be back in Federal Court. And I've said all along that I don't see how, and I still don't see today how they get to that judgment because that's just not the law. But that's the things that can happen. And I think if you agree to this, you know, sure, the law may not envision that, but can it happen? We know that. We know it can happen. MR. RAND: I wouldn't disagree with Rusty. If there was a default as far as the payment of the monetary consideration, that they could conceivably go back and say that this agreement is null and void, several years null and void, and thereby go back to the Court and make an attempt to reinstate the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 original judgment. I don't disagree with that. But I don't think that that's going to happen as far as the monetary consideration. I think what we should delve into and be specific about, what could conceivably take place under this agreement based on what we're allowing them to build in Town on the property that they have? What could we possibly do to create a violation? MR. ROBERTS: Not give them a permit, not give them a hookup, have somebody -- MR. RAND: But we've agreed to do that. We have agreed to do that. MR. ROBERTS: I understand that you've agreed to do all that. MR. RAND: So who is going to refuse to do so? I don't understand. MR. PAUL: You don't know down the line who's going to be here. MR. RAND: And you're going to tell me that they're going to go to the building department, considering the importance of this case, they go for a permit from the building department, the building official arbitrarily refuses to give it, we're not going to know MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 about it? You've got to be kidding me. MR. AUGUSTEIN: Commissioner, by the time this development is finished, none of us will be here. MR. RAND: Well, whoever the Commission then -- MR. AUGUSTEIN: But they -- MR. RAND: -- should certainly give the building official instructions that any permit that is requested on this particular property, has to be referred to the Town Commission in the event that it is refused. MR. AUGUSTEIN: This is basically the same thing which you said is a deal buster to them, the reinstallment of an original amount. This makes it possible. MAYOR VORESS: Well, this is no different than the Boca B & C site, Dave, or Ocean Place, -- MR. AUGUSTEIN: Okay. How? MAYOR VORESS: -- that we agree, for instance in that case, Boca B & Cr if we hadn't done that, they could only come back and get us about the agreement. I mean, there is no way you can prevent all risks from MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 taking place in any agreement. MR. AUGUSTEIN: Well, we certainly can make an effort not to make this -- MR. EYPEL: May I ask a question, Mayor? MAYOR VORESS: Sure. MR. EYPEL: May I ask something, Mayor? MAYOR VORESS: Sure. MR. EYPEL: My problem with 5 is as follows: We are, in essence, signing an agreement with these folks that we will each -- that they will be given certain concessions. We are going to pay them a large sum of money. If it is in fact their intent or their successor's intent to build a project there -- MAYOR VORESS: Uh-huh. MR. EYPEL: -- then so be it. Let them proceed. Let them build it out. Take advantage of if somebody delays their movement forward, $1,000 a day up to $60,000 a day. That sounds reasonable to me. But what I'm concerned about is what if some unscrupulous -- well, not even unscrupulous, some developer comes along and MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 thinks he has bought a beautiful piece of property that is going to make him wealthy and retire, and he finds out that he, in fact, has a piece of property that is not such a great opportunity. It then behooves him to look for ways to find a contractual -- MAYOR VORESS: Sure. MR. EYPEL: -- fault or a contractual problem with -- MAYOR VORESS: Uh-huh. MR. EYPEL: -- the Town. And believe me, I think it's not unreasonable to think that if somebody wants to find a reason to sue you bad enough, they're going to find a reason to sue you. And I just feel that if we are going to sign a stipulation to this agreement and we give them these concessions, why do we have to go beyond that? Why do we have to give them even more opportunity to -- I mean, we are conceding in this settlement. We're giving them the right to build under the parameters that we've all agreed to. Let them proceed. I honestly -- if somebody can tell me why we should give them an additional -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 (Thereupon, Mr. Schoech exited the room.) MR. EYPEL: -- way to exert leverage on us, I'd like you to tell me, why should we do that? MR. RAND: Let me ask you a question. MR. EYPEL: Yes. MR. RAND: Would you agree that if we did default on this agreement, okay, that it becomes null and void? Would you concede that point? MR. EYPEL: If we -- MR. RAND: If we defaulted on this agreement, okay? MR. EYPEL: If we didn't pay them the money -- MR. RAND: If we didn't pay them the money or created a violation -- MR. EYPEL: Didn't give them the money. MR. RAND: -- of the agreement, we didn't give them a permit or whatever, would you agree then that at the very least this agreement was declared null and void? Wouldn't you have to do that? I mean, you can't have it both ways. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 72 If you make an agreement and you violate the agreement, then it's null and void and they would have remedies, wouldn't they? MR. EYPEL: Okay. So what your saying, John, is that if we defaulted -- MR. RAND: Yeah, that's exactly what I'm saying. MR. EYPEL: If we defaulted, all right. I would agree with you, John, but I must say that the purpose of the Town Commission and the government in this Town is not going to be to impede these people's movement forward, I don't think. I would say the likelihood of them defaulting was far greater than us defaulting. MR. RAND: I quite agree with you. MR. EYPEL: Much, much more so, because they are for profit. They are looking at this from -- MR. AUGUSTEIN: Can I add something to that? If we default ourselves, then it is our fault and we are responsible. MR. RAND: Right. MR. AUGUSTEIN: However, if we get an adverse decision over a complaint that is not MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 73 our fault, we are still going to have to pay perhaps the entire thing over again. So why give them the opportunity to get that back? MR. RAND: We keep saying that we run the risk that we're going to possibly have to pay the original judgment. MR. AUGUSTEIN: Right. MR. ROBERTS: I find that very difficult to understand if in this agreement we are vacating all the judgments. They're going to have to go through a new trial in order to be able to collect that amount of money, maybe use the same argument. But this isn't the case where it's automatically going to be that they're going to collect $20 million. They're going to have to have a new trial, present the evidence, and justify that they are able to collect the money because we violated this agreement. MR. AUGUSTEIN: But this gives them the opportunity. MR. PAUL: Yeah, why are we giving them one more chance to get at us if we don't have to? MR. RAND: But you didn't answer my MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 74 question. If we violate this agreement, would you concede the point that it becomes null and void; yes or no? MR. AUGUSTEIN: If we violate the agreement? MR. RAND: Yes. MR. AUGUSTEIN: Purposely, yes. MR. RAND: Okay. So then aren't they entitled to some remedies if that's the case? MR. EYPEL: Well, I don't know, John. MR. RAND: What do you mean? MR. EYPEL: I don't know if they are. MR. RAND: That would -- MR. EYPEL: Because we are conceding. We're giving them -- in order to assume that risk, we're giving them five and a half million dollars -- MR. RAND: Okay. MR. EYPEL: -- of the Town's money. MR. RAND: Right. MR. EYPEL: And for them then also to have the opportunity to go back and sue us for damages, contractual damages, I just think we're exposed to far too much risk there. I really feel that. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 75 MR. RAND: Then they could use the argument based on their previous experience and that's what I think Mr. Hambric alluded to, that he can't trust us. However unjustified that opinion is, they could say, well, you guys signed this agreement for the express purpose of avoiding a $20 million judgment, and settled fore five and a half million dollars, and you never had any intention to live up to the agreement. And after the agreement was signed, you paid the five and a half million dollars and you're going to walk a way from it and forbid us from building as you have indicated here. And he could use that argument. They're trying to act in good faith here. I can't conceive of this Town, whether it be this Commission in power or any other Commission down the road in power, that would do anything to run the risk of creating a violation of this agreement. MR. AUGUSTEIN: I agree with you. MR. RAND: It's just inconceivable. MR. AUGUSTEIN: I agree with you. Every word you said is true, but what if the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 76 Commission doesn't do it but an owner who has found himself losing his money -- MR. EYPEL: I'm not so concerned about what we are doing, John. MR. AUGUSTEIN: We intend to live up to it, and we all know it. MR. RAND: But as Mayor Voress mentioned before in his letter to Rusty, we have had settlements in this Town before, okay? And are you saying that in those agreements, they couldn't sue us if there was a default under that settlement stipulation like -- MR. EYPEL: Yes, uh-huh. MR. RAND: -- with the B & C and so forth? MR. EYPEL: That is correct. MR. RAND: That they couldn't sue us? MR. EYPEL: Couldn't, correct? MR. ROBERTS: That's right. MS. MARIANO: They couldn't sue us. We agreed upon that. In fact, your specific point was, for instance, how would a building official not issue a permit and nobody would know about it. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 77 The problem with that is if eight years from now or seven years from now, there's an owner who finds himself on the losing end economically of the deal, a bad deal that he has bought, he realizes he bought a lemon piece of property, there are any number of ways he can come in and slightly change something to where he knows the building official is not going to issue the permit, and we wouldn't know about it because he's not going to come and complain to the Commission about it because it's going to be his plan to wait until he can come in two years from then and say back two years ago I didn't get a permit, the same way this happened, back two years ago. We may not know. As a Manager I may not know if it's their intent. We're trying to go into this in good faith. But if somebody doesn't have good faith, and they have ulterior motives, they can do something and not complain to the manager and say, Mr. X didn't issue me a building permit. They can hold up for two years and then bring us back to Court for whatever the other damages might be. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W- I think the only thing Rusty is saying is that we didn't think we would have gotten here five years ago and say they would have never, ever in a million years, and there's no way they could ever come up with those kind of damages. We all see what could happen. So nobody could guaranty anything with regard to what -- it may go back and maybe they'll get nothing, but maybe they'll get, you know, more than we had the first time. There's no way to judge that. And I think that's what Rusty is saying. MR. RAND: Well, that's a normal risk. They still have to go to the Court to prove their case and the judge would have to be satisfied that they have proven their case and award damages based on the arguments that are offered, and you have that risk in any agreement that we have. MAYOR VORESS: Absolutely. And I would say if we could have a Town policy that any employee of the Town that's dealing with the Hidden Harbor relationship, any requests made by them, it would also be issued to the Commission to make them aware of what's going MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 on. 79 Certainly if the Town -- if the building official is asked to issue a permit on the Hidden Harbor property, we have a Town policy that says anything that relates to Hidden Harbor will be also copied to the Commission. The Town Manager doesn't have to know what's going on. She can be advised as well as the Commission. That's easy to do. I'd like to make one other point. I think all of these things are great esoterically to talk about, but the reality of life is if we don't give the RTC some relief in this area, and that's what Jay Hambric told us, and it relates to what Commissioner Rand said, relative to trading the $5.5 million suit for a $20 million suit, if we don't do that, we are in effect saying that's a deal breaker and we're casting our lots with the Court. Now, that's their position. MR. AUGUSTEIN: We were willing to do that three weeks ago. MAYOR VORESS: Well, we may have been but I -- MR. RAND: Dave, excuse me. What we MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 agreed three weeks ago was because we were led to believe that there was a danger that if there was a violation of this agreement, that they could collect $20 million. MAYOR VORESS: Good. MR. RAND: That was the premise. And that we said we would never -tolerate. But that's not the case. I wanted Mr. Roberts to confirm this. It doesn't mean that they would get $20 million. MAYOR VORESS: That's correct. MR. RAND: It's not an automatic thing, Rusty. MR. ROBERTS: Nothing is automatic. MR. RAND: Okay. I just want to confirm, because I think, as I indicated earlier, there is a feeling here that if there's a violation of this agreement, that means we're going to pay five and a half million bucks, and they have the right to go back and get the $20 million judgment reinstated. And I find that absolutely impossible to believe. MAYOR VORESS: That's untrue. It has to go to the Court. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 (Thereupon, Mr. Schoech returned to the room.) MR. EYPEL: Why can't we -- Excuse me, why can't we then, instead of saying "other damages", why can't we specifically limit the damages? Why can't we limit the amount of damages that they -- MR. RAND: To what? MR. EYPEL: Well, let's pick a number. Let's come up with something reasonable. Can we do that, Rusty? MR. ROBERTS: That's what we have there. MR. RAND: You've got $1,000 a day. MR. EYPEL: No, I'm talking about 5. It says "other damages". Isn't that what we're arguing about here? MR. PAUL: I don't want it in there, period, because it's another door opening to them. MR. ROBERTS: I'd like to point out that I looked back. The Milani case that we just settled has no provision for remedies, okay? Cooaught, which I dealt with previously, has no provision for remedies. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 M And that was Randy Schatz, one of their lawyers right in our -- one of the RTC lawyers that handled that. Draxel has no provision for remedies, okay? Those are three settlements that you've done for the last three years. If there is not -- well, all they have is just continuing jurisdiction of the Court to enforce that agreement. And all that means is, and it's not even specified in those agreements, all it means is if they feel you violated, then can file a motion with the Court and have a hearing. The Court either says you have or you haven't, and that's it. There's absolutely no monetary risk in any of those three agreements. MAYOR VORESS: How about Tom Sliney's agreement, Rusty? MR. ROBERTS: I didn't do that. MAYOR VORESS: But they do have relief. MR. ROBERTS: I didn't do that. MAYOR VORESS: I talked to someone that participated in that. MR. RAND: Rusty, if we leave off five, just for the sake now of discussion, if we MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 left off Paragraph 5, would you tell me then that they would have no right to collect any damages other than the $1,000 per day? Is that what you are saying? MR. ROBERTS: Correct. MR. RAND: So even if there's a violation of the agreement, the most they could hope to collect is $1,000 a day or $60,000 year. MR. ROBERTS: For your violation. MR. RAND: Right, for the violation. MR. ROBERTS: True. MR. RAND: That's the only consideration they would get for any violation. MR. ROBERTS: That's correct. MR. RAND: And even if the violation means that they can't build, okay, the 427 units -- MR. ROBERTS: Well, let's look at it. If it is a violation and it is found to be a violation, then one presumes that the Court is going to instruct you to let them do it, okay? So therefore they're not damaged, okay? And to their credit, if they've taken 60 days to MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 do it, you're going to pay them $60,000 for the damages for delay and that's it, okay? If it is not a violation and they went to Court and they lose, they're going to pay your attorney's fees, okay? And they're wrong, okay? And that allows that if -- and I think this is currently appropriate, that if you feel that there's a violation which is in all the contractual contracts, mortgages like that, you have a certain period to exercise it or you waive it. And I don't see a problem with putting that in there too, even if you don't. See, the problem is it's just exactly what happened in this case. It's like deja vu. January 14, 1986, their guy from Arizona comes into this office right over here to Bruce Sutherland with an application for the permit for the beach clubhouse, and gives it to him, and Sutherland says that you know, that zoning is over, rightly or wrongly, you know, it's denied. Now, Dick whatever his name was, went to Hugh Williams, the Town Manager, and he said you've got to cross your is and dot your MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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's, and that didn't come up to the Town Commission until years later during the course of the litigation, okay? Those went in there because he came in with something that wasn't in accordance with the zoning board. Now, what would prevent somebody who owns it at that time from essentially coming in with an 18 -story tower, 26 -tower plan, and coming in and saying, gee, I think this complies. And the building official says, no way does it apply. I'm not going even going to look at it, okay? Now, you've got your claim of breach. You and I agreed we ought to win that, right? Well, me and a lot of other people agree we should have won back in February of '92 too, but we didn't, okay? And I think the 11th Circuit might agree with us, maybe they won't, that we were right. But the point of the matter is that that's all, as you said, that's all it takes for somebody to sue. And all it does is then they come into Court and say, gee, I've lost another $20 million, John. And we're down here meeting again because now we want to restructure the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 settlement because there's a claim of $20 million out there pursuant to the damages provision here. And if you don't give me what I want, then you know, I'm going to sue you, and I'm going to cause you attorneys' fees and your insurance carrier is going to deny you coverage. And you're going to say, gee, isn't it better we settle with them and give them 18 stories than go through all this litigation? MR. RAND: Let me ask you this as a possible compromise. Can we put down that they would have other damages if we failed to abide by an order of the Magistrate? MR. ROBERTS: You can put anything you want. MR. RAND: Would that be reasonable? In other words, going back to what you said, if the Court orders us to do something, we have to do it. We have no choice. So that if we say, look, if the Court ordered us to do something, we don't do it, then you're entitled to sue us for -- MR. ROBERTS: Well, I think -- MR. RAND: -- other damages. MR. ROBERTS: -- they can already do MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 think that you don't even have to have this agreement. MR. RAND: Well, that's my point. MR. ROBERTS: Well, that's my point to them, that if that Magistrate sitting in the capacity of a U.S. District Judge tells the Town of Highland Beach to issue this, and the Town of Highland Beach doesn't issue that permit within the time prescribed, he's not only going to fine the Town of Highland, he's going to fine every official in here. And he's going to hold it in contempt. He can throw your ass in jail -- your body in jail. MR. AUGUSTEIN: Can you leave me out of that? MR. ROBERTS: Okay. He can require to you post a bond. I mean, that has the full coercive relief there. And I don't believe -- that's already implicit in there by him going to the Court. So it really doesn't add anything in there. And that's my point to them is they're going to get anything that they want as far as the breach by these provisions, okay? And the only reason they want something else is because they want to MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 have the alternative. If getting a correction of the breach isn't best for their purposes, they want to say, I don't care whether I go that. I'll just get $20 million from the Town; that's how I'll make my money. MR. RAND: But you're saying $20 million again, Rusty. And again -- MR. ROBERTS: Well, say $10 million. MR. RAND: -- that's assuming. That's what bothers me. MR. ROBERTS: Let me say I'll get $12 million off the Town. MR. EYPEL: Can I ask -- Can I make a statement? I want to ask John this. I tried to insert your question. John, if by this agreement the successor or the owners of the property are fully protect in having this agreement lived up to on our part, they have relief. We must live up to this agreement. If we don't, then they could go to the Magistrate and exactly what Rusty said would happen. We could all end up in contempt of Court if we didn't give them the permit. The purpose of this agreement is to allow these people to proceed and build this project as MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 we've agreed to let them build it. There is no way -- MR. RAND: There's no disagreement on that. MR. EYPEL: Okay. Why then -- I'm trying to find out, if they are given that ability and they have the protection of the U.S. Magistrate to do that, plus five and a half million dollars of our money, why should we give them more? Why should they have more rights than what we have agreed to give them? I mean, I don't understand. MR. RAND: That goes back to the question that I asked you before. MR. EYPEL: Yes. MR. RAND: If we violate this agreement, does it become null and void? You said, yes, correct. In which case -- MR. EYPEL: We are in disagreement. We're going to Magistrate. We're going to talk to the Magistrate. MR. RAND: Fine. All right. So you go before the Magistrate. We are in agreement here. We intend to live up to this agreement. MR. EYPEL: We have to. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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. RAND: We agree. We have no choice but to do so. So the only danger is that some unscrupulous individual who eventually buys this property or gets it through some means, okay, is going to attempt to cheat us and come up with some fabricated excuse to stick it to us and saying you guys violated this agreement. Well, we didn't violate it. Well, I say you did violate the agreement and I'm going to take you to Court and I'm going to sue you for $20 million, right? Okay. He has the right to do that. You can be sued for anything, okay? That doesn't mean that he's going to win. We are -- MR. EYPEL: Well, -- MR. RAND: -- there's no doubt in our minds. I think we're all in one agreement in that we have no intention of violating this agreement. If there's a violation, it's going to be something that they are accusing us of violating, right? MR. AUGUSTEIN: No, but John, it gives them the possibility of winning. MR. RAND: But they can sue us anyway, Dave. Nothing is to prevent them. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 91 MR. AUGUSTEIN: Fine. Then why put it in? MAYOR VORESS: I'll tell you why, because we're not giving this to the RTC. We're giving this to the person who buys the property. MR. EYPEL: Right. MAYOR VORESS: Let's say the property is sold to person or a corporation XYZ for say $20 million. That person that buys it wants to make good on his or her $20 million investment, and they're saying to the RTC for whom they're buying, suppose that bunch of cats down in Highland Beach won't let me do something, they, the RTC as an owner of -- current owner of the property convey the title, somebody else and say, you have the right to take that Town to Court if they don't do what they have agreed to as it relates to this settlement, the building parameters. And that's what the RTC is asking for. If you say, okay, you put $20 million in, and I'll give you $1,000 a day on a $20 million investment, that number is way low. I'm just saying to you they are merely MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 Ci saying that they have the right to come back and sue us. Whether we put that in or not, they're going to have that right. MR. PAUL: So why emphasize it? MAYOR VORESS: I'll tell you why. MR. AUGUSTEIN: Because it's opening a door. MAYOR VORESS: There's already a door open. If we do not put some statement like this in, the RTC is not going to sign it. And so we have to decide, okay, if we don't want to do that, we're going to guess along with the Court. MR. PAUL: How do we know the RTC isn't going to sign it? We had a motion on the floor. The motion was passed that we gave them -- we're going to give them the deal -- MAYOR VORESS: Period. MR. PAUL: -- period. MAYOR VORESS: And they said we need to know something. The letter we got from Jay Hambric said, I have got to have some relief in that particular area. We will do that. MR. ROBERTS: Wait. Wait. The court MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 93 reporter has to change her paper. I suggest we take about a ten-minute break. MAYOR VORESS: Okay. (Thereupon, there was an interruption in the proceedings.) MAYOR VORESS: I'd like to reply to Vice -Mayor Paul. I did, as the Mayor of the Town get a letter from the RTC which I did indeed transmit that same day to the Town Commission, so you do have that, Vice -Mayor Paul -- MR. PAUL: I didn't say I didn't have it. Okay. MAYOR VORESS: -- for the record. MR. RAND: Are you reconvening the meeting? MAYOR VORESS: Yes. MR. RAND: I'd like to continue the discussion regarding remedies. And judging from the remarks from the other Commissioners here, perhaps there might be a basis of a compromise. What I'd like to suggest and Rusty, please guide us. Under B, we say "The Parties stipulate and agree that the remedies MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 94 available hereunder include, and the Magistrate shall have the power to order, (1) mandatory and injunctive relief in order to specifically enforce this settlement..." (2), leave out Paragraph 2. Then go to judgment against the Defendant for any unpaid balance due as you've written here, which is perfectly okay. Number 3 would then become "actually incurred and paid attorney's fees and costs for one attorney for the prevailing party, and then leave out 5. MR. ROBERTS: So you're saying -- MR. RAND: Leave out 2 and 5. MR. ROBERTS: 2 and 5. MR. RAND: Because the Magistrate has the power to order mandatory and injunctive relief. MR. ROBERTS: Sure. MR. RAND: Okay? Which he has the power to do. So let's take out 2 and leave out 5. How does that strike you? MR. AUGUSTEIN: Fine with me. MR. PAUL: Fine. MR. ROBERTS: Fine. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 95 MR. EYPEL: I'll buy that. MR. RAND: Good. Done. MAYOR VORESS: Now, let's understand what mandatory and injunctive relief is. That could be forcing us to do something, -- MR. ROBERTS: Yes, sir. MAYOR VORESS: -- forcing us to pay some remedy, correct? MR. ROBERTS: No. That's got to be forcing you to do something. I don't know that that's going to necessarily force you to pay anything. MR. RAND: But it could, Rusty, right? MAYOR VORESS: Let's talk about what injunctive relief is. MR. RAND: Injunctive relief would constitute a monetary consideration, no? MR. ROBERTS: No. That is not generally considered to be payment of money other than a -- what you have to understand when you deal with contractual relief and contractual remedies and that's why you want to be clear about what your remedies are, so he can force you to do certain things. He can force you, let's say, for MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 instance, you shall -- the prohibition is you shall not adopt any moratoria or former zoning which will impair them. They come in and say, they adopted this, this is impairing me, okay. I order you to not adopt that, because it impairs them, okay? But that's not paying them any money. MR. RAND: Right. But the whole idea is they should be satisfied with this approach for the simple reason, they have the protection that we are not going to back down on this agreement -- MR. ROBERTS: Will not? MR. RAND: So what the hell are you worried about? MR. ROBERTS: Absolutely. MR. RAND: So my suggestion would be that we leave in 1, remove Paragraph 2 and remove Paragraph 5. I trust the other Commissioners are agreeable? MR. AUGUSTEIN: I'm agreeable to that. MR. PAUL: Yes. MAYOR VORESS: I'd like to make this point. If I owned the property and through some action of us, maybe inappropriate, we MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 97 kept somebody from doing something for a month or two months, certainly they're going to have the money that they've got invested, that they're not going to be returned. MR. RAND: Okay. MAYOR VORESS: I'm not sure we're denying people if we did something wrong for some money. MR. RAND: But then maybe they might then come back to the suggestion that Rusty made that we'll give you monetary damages of $1,000 a day, because we've approved of this before so we hold that in reserve. If they object to the elimination of 2 and 5 like I'm suggesting, then we could only agree to consider later on reinstituting Paragraph 2. MAYOR VORESS: Or some modification. MR. RAND: Or some modification thereof. MR. AUGUSTEIN: Paragraph 13 on that subject, we have cooperation which we're signing on. "The Defendant shall use its best efforts to cooperate in any efforts to obtain any permit, consent or cooperation from any other bureau, division, agency, department or MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 S any other governmental agency..." We're signing on that too. MR. RAND: All right. Well then, have we agreed on the remedy portion? Okay. So that takes care of that. MAYOR VORESS: I would like to ask one other thing. Rusty, you made a big point. They should do this promptly. That they can wait for three or four years and then come back and get us. Should we add something in here that says promptly to complain back over here under "Remedies. "In the event that the Plaintiffs or any Owner alleges that..." blah, blah, blah. The Plaintiff or Successor/Owner shall promptly advise and be entitled, to make it as a point here that we expect if they are held up for any reason, they should promptly -- MR. RAND: Should we say "prompt action"? MAYOR VORESS: They should promptly complain or promptly identify that they have been constrained from operating under these parameters and they shall be entitled to -- Do you follow what I'm saying? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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. ROBERTS: I understand what you're saying. Yes. I mean, I don't know that I can draft such a thing and label it right off the cuff, because then if it gets -- But I can draft something like that. MAYOR VORESS: It's just we want to know right away. Is that correct or it's not correct? MR. EYPEL: Well, my thoughts on that, Mayor, are that what would be their motivation not to promptly -- If we remove 5 -- MR. RAND: Like Rusty said, they could wait two years to make the claim. MR. EYPEL: But you see, the point of that discussion was the reason they were waiting two years was because they felt that there was a chance to sue for considerable damages here, you see. That was the motivation. I'm saying that there's a potential for someone to do that maliciously and on purpose. And it happened. It's already happened here. So if we remove that section of the damage of the remedies, I can assure you if we violate this agreement, we don't allow them to MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100 do what this agreement says we're allowing them to do, they'll be on us the next day if we don't, because they don't have any recourse. MR. ROBERTS: You know, and I would say that I think that they would clearly find that objectionable, because what -you're essentially suggesting to them is if there's a breach, you've got 30 days to take action or you waive that breach. MAYOR VORESS: That's not what I was saying. MR. ROBERTS: Yes, and -- MAYOR VORESS: I just wanted to get the thought across. MR. AUGUSTEIN: That sounds good. MR. ROBERTS: Yes, I mean, that sounds great. But I think they're going to find that because the difficulty of any breach of any agreement is when did it occur and you know, if you said, oh, I'll deny it but I'll think about it and I'll get back to you in 30 days, and then the 31st day you get back and say, yeah, fine, I'm not going to do it. MAYOR VORESS: I was thinking, any MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 101 successor owner shall promptly identify failure of 1, 2 or 3, which is what you have up here up here right above it, and shall be entitled to. You don't have to put the time frame on it. We're just asking them to identify where those pages are. They're identified in 1, 2 and 3. MR. ROBERTS: I can put it in there. I mean, I can put in, upon a duly filed and promptly -- promptly and duly filed and served motion. MAYOR VORESS: Okay. MR. ROBERTS: But I don't know if that means anything. MAYOR VORESS: Okay. have any problem with that. MR. RAND: Okay. next. Okay. I don't MAYOR VORESS: Let's go to monetary MR. RAND: May I? I've given each of you a copy of the presentation that I intended to make. So I'd like to read it for the sake of incorporating it into the record. Since I have been delegated by the Town Manager to review the financial aspects of MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 102 this settlement and specifically to recommend to you the parameters of how we should go about funding the payments required, I should like to make the following comments and suggestions especially in light of recent correspondence and meetings with our two attorneys involved in this case and also with the bond underwriting firm of Stifel, Nicolaus & Company who are known to us from a previous Town bond issue. At our public meeting pertaining to this unfortunate litigation which was attended by a surprising number of our residents who unmistakably and unequivocally encouraged us to settle this matter out of court even if the cash to be paid is $5.5 million, I asked Attorney Charles Schoech whether or not a referendum was required if we arrived at a settlement. His reply was that as long as a court order is issued directing us to make payments as well complying with the other terms of the settlement, no referendum was required. In the minutes of the March 28, 1995 Executive Session, Pages 63 to 65, Mr. Schoech MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 103 again stated that opinion which was confirmed in his letter to us dated April 18, 1995. However, in that letter he brought up for the first time that it will be necessary to validate the bonds through a Circuit Court Bond Validation Proceeding. In a meeting held on April 19th attending by two representatives of the bond underwriter, Mr. Schoech, Mrs. Mariano, Mr. Seaman and me, I questioned him about that point and stated that in my opinion a bond validation was not required but might be advisable. He agreed that it is not legally required, but it would be added protection for us and would facilitate the sale of the bonds. However, it should be borne in mind that a validation proceeding could take considerable time to accomplish, although Mr. Schoech felt it should not take more than 60 to 90 days. Our underwriter mentioned 120 days. But he cautioned that it could take longer and the validation request could conceivably be refused. I note that Mr. Roberts has addressed this issue on Pages 13 and 14 of the latest MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 104 draft to which I have no objection. However, I want to allay your fears that if we don't obtain a validation of the bonds, we would then have to pay a balance of $3 million due under the settlement by increasing taxes $1 million for each year for a three-year period. Such an event need -not and will not happen. If for any reason we cannot get a validation of the bond issue, there is another financial vehicle that can be utilized. That is instead of issuing bonds, we would issue Certificates of Participation, commonly referred to if as "COPS", which would have the same maturity schedule of the bonds, a copy of which has been furnished to you, but might result in a one quarter of 1 percent higher interest rate than what we would have to pay via the the bond route. COPS do not require a validation. In essence, it ks a lease -type deal. But servicing of that obligation would have to be included in the millage rate applicable to our operating budget which has a cap of 5 mills. Whereas the millage applicable to debt MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 105 servicing of a bond is considered separate and apart from the operating millage rate. I'm not opposed to a bond validation proceeding. And as stated earlier, Mr. Roberts has covered that contingency in the new draft if we fail to obtain it. I'm merely trying to inform and convince you that it would not be the end of the world if we can't obtain it. I also, for the sake of perspective, wish to advise you that I have had second thoughts about floating a 10 -year interest -only bond with a call provision after 5 years. In that scenario we would eventually have to refinance the balloon payment either at the end of 5 years or at the 10 year maturity date. The underwriter has convinced me to consider floating a 20 -year bond issue with a principle amortization beginning with the 6th year as per the schedule in your possession. We would still have a call option, but it would only be after 10 years. Furthermore, since we have not yet decided how we would fund the purchase of the fire engine to be delivered in the late fall MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 !Me of this year, you will note that the bond issue to be considered has been increased by $350,000. It should really be for $420,000, because that is the unpaid balance of the fire engine. But you can decide whether you want to leave it at three fifty or increase it to four twenty, which would be my recommendation. If you consider the very favorable interest rate that we have to pay on the bonds, I recommend that we finance that purchase through the proposed bond issue. My recollection is that a referendum is also not required for that purchase. Can you confirm that conclusion, Mrs. Mariano? MS. MARIANO: Well, yes. On Page 13 in your charter, which is Section 2.01, enumeration of powers, 41, it's signing limitation. It says any single project, accumulation of projects of Town services requiring an allocation of more than $350,000 in any given fiscal year. So over 20 years it would never be -- MR. RAND: Okay. So that is correct, that a referendum under that ordinance would MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 107 not be required. All right. We also have to recognize that if for any reason, our insurance carrier does not pay the $1 million, our Town is liable for such payment. Consequently, the bond issue may have to be increased by $1 million over and above the $3 million that the Town is required to pay under the settlement and the $420,000, or $350,000, if you prefer, covering the balance due for the new fire truck. Mr. Roberts, do we need a motion to agree upon this bond issue and/or the COPS issue if we can't complete the bond issue in time? For your guidance, I spoke to the underwriter who confirmed to me that the switch to a COPS issue would not be a problem. And the proceeds would be paid to us in two to three weeks time after such a change in financing method. I would also request guidance from Mr. Roberts as to how we should address the following point. We hold three U.S. Treasury Bonds in our treasury with details as follows: Face value, there are three bonds of MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 UM $500,000 each, for a total of a million and a half. And the coupon is 6 and 3/8 percent, and 5 and 1/8 percent, and 6 and 3/8 percent respectively. With a maturity, one being $500,000 on June 30, 1997; the second after February 28, 1998; and the third July 15, 1999. I was thinking of offering these bonds at face value to RTC to satisfy our obligation of paying them $1,500,000 under the settlement with interest on such bonds belonging to the Town up to the next coupon payment date, and thereafter, such interest being for account of RTC. By so doing, we save about $50,000 in losses that would result if we had to sell these bonds in the market to come up with the cash needed. Besides this a would represent a saving for the U.S. Government if RTC took these bonds on that basis since it technically is prepaying the bonds and saving the remaining interest to be paid. After all, the RTC is part of the U.S. Government. Should we incorporate this matter in the settlement stipulation or rather attempt MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 109 to accomplish it later on after the agreement is executed and recognized by the Courts? In other words, we would have to ask RTC later on whether they would accept the $1,500,000 due from us on that basis. Now, I would like to review, because there's going to be a change in that preliminary financing analysis that Stifel, Nicolaus & Company had sent to you. On Page 1 where they have the bond proceeds of $3,455,000, that figure is correct. Insurance proceeds, $1 million, that is correct. The City funds should be $1.5 million, not one million one fifty. You're going to be get corrected copies of this, but I just want you to go along with me on this. So that makes a total of $5,955,000. The uses satisfy the judgment of $5.5 million. Then the underwriter's discount cost and miscellaneous fees are $105,000, plus $350,000 for the fire truck which would mean $5,955,000. Now, that figure could be increased by another $70,000 if you all agree to finance the purchase of the truck on which MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 110 there's a balance due of $420,000. Now, on the next page, and that also is a mistake, the beginning balance as far as the bond reserve balance is $2.2 million. Expenditures applied to judgment, $1.5 million. And then the fire truck of $350,000 would mean $1,850,000, which would leave a remaining balance in the reserve fund of $350,000. Again, as I said before, you're going to get corrected copies of this. However, the third page is correct as stated. This will show you the principal payments that we have to make, the first one being six years after the issuance of the bonds. And you will note the interest rates on a sliding scale basis starting at 4.25 going up to no more than 6 percent, which is extremely attractive, based on today's conditions. But I would like to point out to you that the payments between 1996 and the year 2004 would not require any increase in millage due to the $367,000 reserve adopted in 1994-95 fiscal year, which is already included in the millage rate. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 111 If there are any further questions, I would be happy to answer them, but perhaps we should take the second part first. Rusty, do you think it would be too complicated to include that offer of a million and a half face value bonds in the settlement stipulation or try to accomplish that later on. MR. ROBERTS: I hate to do this, but before I forget it, going back to the Remedies section -- MR. RAND: Right. MR. ROBERTS: -- one of the suggestions made by Mr. Hambric to Mayor Voress in his April 11, 1995 letter was that the Remedies section be expanded to include references to Paragraphs 2-B, 3-A and 3-B. And I looked over that and I don't have a problem with 2-B and 3-A. I didn't necessarily hear the 3-B. 3-B was -- it didn't seem to make sense. But I didn't have a problem with 2-B and 3-A, and that's in the agreement. MR. RAND: What was 3-B? MR. ROBERTS: You have to look back at the agreement. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 112 3-B was except as set forth above, the improvements -- any improvements permitted hereunder, which permits have not been applied for, any improvements permitted under which have been applied for or obtained and have lapsed may not be reapplied for by the cut-off date. I didn't see how that was anything that they could enforce against us. And least it was something we would enforce against them, so it wouldn't be in any remedy provision they would seek to enforce. Also the stipulation shall not prohibit the Town from adopting any appropriate zoning and land development regulations for the district in which this property is located. However, such a regulation shall take effect with respect only upon the expiration of the cutoff date. Other provisions say we can't adopt any zoning inconsistent, which is covered in Remedies. This is really just kind of just duplicative, so I didn't see it put in. Quite frankly, it's not a deal breaker with me. MAYOR VORESS: No, no. I didn't see anything wrong. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 113 MR. ROBERTS: If any -- MAYOR VORESS: Their language is a little different than ours, that's all. MR. ROBERTS: If that is the final point to add 3-B, you know, I don't see where it makes sense, that's why I'm not putting it in there. I don't know whether it harms us like that. But as 2-B or 3-A, that talks about the extending the water/sewer thing, and I think it's appropriate that that should be something that they could seek enforcement of. MAYOR VORESS: Sure. MR. ROBERTS: And as far as 2-B, which is -- MAYOR VORESS: We didn't have any argument about that on either side. MR. ROBERTS: I don't think so. MAYOR VORESS: There was no discussion on the RTC's part or our part. MR. ROBERTS: They had written that and suggested that. MAYOR VORESS: I understand. MR. ROBERTS: And not put it in, but it's in. MAYOR VORESS: There's no difference. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 114 MR. ROBERTS: Quite frankly, I think because it's covered in other sections. MR. AUGUSTEIN: Can I interject something here? Commissioner Rand mentioned something about the million dollars from the insurance company might not be forthcoming. Do we have a commitment or don't we? MR. RAND: I didn't say that. I just want to point out to you that this settlement is between the RTC and the Town of Highland Beach, not between the insurance company. MR. AUGUSTEIN: Oh, I know that. MR. RAND: It's not the carrier, and I'm saying in the event that whatever reason they don't pay us, we've got to come up with that money. I am not saying it's going to happen, but I'm just telling you that -- MR. AUGUSTEIN: Right. I understand that. MR. RAND: -- we owe, five and a half million dollars. If the insurance company drags its feet and doesn't pay us this money, we've got to come up with it. MR. AUGUSTEIN: Well, is there any MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 115 particular reason you mentioned that? MR. RAND: Well, I haven't seen anything in writing as to what the hell the insurance company is willing to pay us, to be perfectly frank with you. I requested, and I know Arthur raised that question as well. And I'm just concerned in never having seen any confirmation of what they would pay us, I'm just making sure that you understand that we are liable for that amount of money if it isn't paid by the insurance company. We have no choice. I'm not saying it's going to happen, but I want you to consider that that might be a possibility, in which case we have to incorporate in our bond issue. If we don't, fine. But you will notice, and I requested Rusty to change the wording on the draft about that point in the past. It was -- let me get it. MR. AUGUSTEIN: Let me know where you are. MR. RAND: One second. I'll tell you in a second. Page 6 -- Page 12, I'm sorry. Page 12, payment by the Town. Previously we said we MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 116 would pay the five and a half million dollars in the following manner: $1 million within five days of the date of the Order, okay? And I requested Rusty to change it, which he has, to put in $1 million within five business days of receipt of such sums from the Florida League of Cities, okay? In -other words, if we get it from them, we're going to pay, but I think the RTC is going to pick that up. I don't think they're going to let us get away with that. And they're going to say, well, wait a minute now, if you don't get it from the Florida League of Cities, who's going to pay us the million dollars? Now, I'm trying to do it this way. In other words, to say we'll pay the million dollars within five days after we get it from the Florida League of Cities. But I think if they're smart enough, they should pick it up and say, hey, wait a minute now, if you don't get it, you're not going to pay us; is that what you're saying? And the answer has to be, we have to pay it. So we might have to change that clause. I just want you to be aware of it. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 117 MAYOR VORESS: Let me ask you this. I think Rusty is indeed passing these documents through the Florida League. MR. ROBERTS: Right. MAYOR VORESS: And they have -- Do we have any formal commitment from them, Rusty? I can't remember that we had. We had had discussions with Dale Morgan who is their chief counsel. I'm sure that we can get the piece of paper that's saying that they agree that they are committing to that $1 million. MR. ROBERTS: It seems -- MAYOR VORESS: We may have that piece of paper around too. I'm not sure. Do you know, Mary Ann, whether we have that paper? MS. MARIANO: We've got something where they talked about not objecting to the form of the agreement. MAYOR VORESS: Yes. MS. MARIANO: But inherent in that, and I think we're assuming that means that they're going to pay us, -- MAYOR VORESS: Yeah, we would probably MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 118 need the commitment. MS. MARIANO: -- but as Commissioner Rand states, there's nothing where they have said absolutely, unqualified, you're going to have the money. MAYOR VORESS: I think that's right. MR. ROBERTS: I thought initially when an offer was made back in early January there was some correspondence back and forth between Scott Pendley and Mary Ann to the effect of gee, if you're going to make that offer and it includes any of our money, we need to improve that. And I think the letter was back that, you know, it's okay. Frankly, and I agree with you, we should have some documents confirming to okay that -- MAYOR VORESS: Right. Right. MR. ROBERTS: -- for our protection. As a practical matter, I don't think there's a problem there. MAYOR VORESS: No. There was a meeting in Boca Raton with Scott Pendley; Dale Morgan, who is the chief counsel -- I guess the general partner for the law firm that services the Florida League, and at that meeting he MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 119 said, among other things, if we got this thing through, that that's all that he would be willing to recommend that the Florida League paid, and he was trying to get that commitment. I think it's available, but we probably ought to have that in specific writing. MR. AUGUSTEIN: I think so. MAYOR VORESS: Yes, and I think, Rusty, you would be probably the proper one to when you send that out, to ask them to provide that. MR. ROBERTS: Sure. I don't have a problem. I'll take care of it. MAYOR VORESS: I'd like to make one other comment about the last page of this. It talks about the increase in tax rate and the millage rate. This in later years starting -- MR. AUGUSTEIN: Which one are you looking at? MAYOR VORESS: I'm looking at the piece of paper from the bond firm. MR. RAND: The analysis that's dated April 20th. You have to have the one that's MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 120 dated April 20th. MAYOR VORESS: It doesn't make any difference. The last page, this is all based on the taxable assessed value of the Town of six hundred sixty-eight thousand -- million dollars. Our taxable increase is going in this Town 3 to 5 percent. So that's the basis on '94. In another 10 years it will be double that if you add the compound interest rate. So these numbers will come down because the value of the Town, taxable value of the Town will be coming up. So you must recognize in the millage rate, that that is based on a constant value which is not the case, but that value will be coming up. We get about 3 percent more money for the same millage rate every year in the Town and it's taxable. MR. AUGUSTEIN: Plus we'll be adding units. MAYOR VORESS: Pardon me? MR. AUGUSTEIN: Plus we'll be adding more units. MAYOR VORESS: Plus we will be adding more units. So this is the high end and not MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 121 the regular end that we want to do. MS. MARIANO: Let me make a point with that, too, Mayor. I think certainly these numbers look very favorable. I mean, if we're going to have to finance it, the numbers look very favorable. However, I do want to say that I don't know that we're going to stay at this point because based on the assessed value, you just brought up a very good point which I tried to work out yesterday. We also have to, if all things are equal, it's not just a matter of the value of a Town going up, it's a matter of cost of services going up in ten years, the cost of business goes up. With regard to this property, the 427 units, we're talking very possibly 800 people, which is like 25 percent of our, you know, base population, which certainly is going to be an increase, especially being next store to library services, because they could walk here, postal services, public safety. So even if it was not the case where these numbers came down, even the numbers that we are getting today appear to be very MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza ' International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 122 favorable. MAYOR VORESS: Yes. MR. AUGUSTEIN: I believe that. MR. RAND: Very favorable. So I think it's time that most of the pieces to give this serious consideration. And I just wondered, Rusty, in connection with the questions I raised. Number one, about attempting to get RTC to accept the million and a half at face value. The value of the bonds are less. It's approximately $50,000 less at market value, today's market value. But they would be collecting interest, so they would be getting more than a million and a half face value. They could if they want to hold onto it and collect the interest from Uncle Sam. They would be entitled to the interest for the next two to three years. But I'm saying since they are Uncle Sam, they are in effect, prepaying the obligation and saving the interest. So that might be a consideration for them to consider this. I mean, that would be the argument I use, whether they would or they wouldn't. I'm just afraid if we incorporate it in the agreement, it's going to present a MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 123 possible problem. And I think if we sign the agreement based on the draft that you have, we could then approach that later on because we have six months in order to come up with -- 90 days, excuse me, for a million and a half. We could then approach them and say, by the way, in connection with the requirement of a million and a half dollars, would you be willing to take these bonds under these conditions? If they say no, then no, we sell the bond and that's it. But it would be better to leave it separately rather than to incorporate it in the agreement at this time. MR. ROBERTS: I don't think so. I don't think if you put it in there, because as you say, essentially you take the bonds instead, and they're going to come back and say the bonds are not worth a million and a half, so I'm taking less. I think that's going to create some more problems. MR. RAND: Except that they're going to get a better interest rate than what they could get, especially if they're winding up their affairs at the end of this year, because they have 6-3/8 coupons. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 124 MAYOR VORESS: I would agree with Rusty. MR. ROBERTS: I think your approach is correct to say that I guess it's always when you're sitting on the other side of the table with somebody and they say, this is a good deal for you. You go, oh, I've got to watch out for this, you know. And I can't get inside their minds, you know, and I think you just trade a million and a half dollars and suggest that to whoever it is. If they want to make it, fine. If they don't -- MR. RAND: The other question is, Charlie, how long will it take you to come up with the note, Exhibit G, the sample of the note? MR. SCHOECH: I'll have that at the beginning of the week. MAYOR VORESS: Charlie, I'd like to ask you to respond to Commissioner Rand's paper here. And you agree -- MR. RAND: He has a copy. MAYOR VORESS: Do you agree with what he said to our Commission? Do you have any problems with some of the assumptions or MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 125 statements or what's said in here, or are you supportive of what his memo is? MR. SCHOECH: The answer to your question is yes, I do agree with what he has said as it relates to the issue of the referendum issue and the validation issue. There are a number of alternatives available obviously as far as the financing mechanisms. COPS are one of those that are available. He indicates that the underwriters have said that they can do that in just a couple of days. MR. RAND: No, no, two to three weeks. MR. SCHOECH: Two to three weeks, okay. The biggest concern that I have is that if you go with the concept of COPS, you've got to create a public building corporation and prepare a lease agreement and transfer title of the facilities to that public building corporation. And that two to three weeks depends upon your meeting schedule. So I certainly am not saying that that two to three weeks is correct. He can have the money available, but can we have those documents in place as the Town? It depends on your MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 126 schedule as a City Council. MR. RAND: We can hold a special meeting. MR. SCHOECH: Sure. But there are a number of additional documents that would have to be done if that route were pursued. MR. RAND: Right. MR. SCHOECH: As far as the referendum issue is concerned, as you can see from that memo, from the previous time I stood before you, we have done some additional research and found a Florida case, although it is a 1941 case, it still appears to be good law. The question was raised on the issue of validation. Is it legally required? The answer to that is no. But I suggest to you from a practical standpoint that it will be required by bond counsel and by underwriters. In fact, underwriters counsel will no doubt require it. And for that reason, I made the statement that it would be necessary. In addition to that, the validation eliminates the possibility of a citizen coming in and filing a protest and causing you to be in default on the issue. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 127 MR. RAND: Okay. But essentially what I've indicated in'the report, you subscribe to as being correct? MR. SCHOECH: Yes. MS. MARIANO: I have one question, Charlie. Under the COPS issue, is it necessary? How would the Commission effectuate that? Can we do that by a resolution or would you think it would have to be an ordinance? MR. SCHOECH: I think it's going to need to be an ordinance because you're -- MS. MARIANO: If it needs to be an ordinance, we are talking three weeks. MR. SCHOECH: It's going to need to be an ordinance because you're actually talking about transferring title to a public building corporation and creating that public building corporation. MS. MARIANO: I just want you all to be aware of the timeframe, because certainly I know the Commission will accommodate whatever schedule they need to to get it done. MR. RAND: We may not have to do it because we have considerable time. We've got MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 128 6 months from -- close to 6 months, plus a 90 day extension. So we've got 9 months to accomplish this. So I don't see any problem, right? MR. SCHOECH: No, I just wasn't sure of your meeting schedule and I didn't want to be concurring to something that I -- MAYOR VORESS: Charlie, does your law firm have the skill to draft documents that would allow this Certificate of Participation or COPS area to go together to transfer title and do all of the law work required to make that work? MR. SCHOECH: The answer to that question is yes, with the exception that we would then use special counsel to assist us with the tax aspect. Just as I do with bond work, I have an additional tax attorney assist me with the tax aspect, because I do not claim to be an expert in tax law. MAYOR VORESS: But through your firm it could be accommodated? MR. SCHOECH: Yes. MR. RAND: The same thing with the validation process, Charlie? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 129 MR. SCHOECH: That's correct. MR. RAND: We would be handling that? MR. SCHOECH: Assuming it's the desire of this council, yes. MR. RAND: Now, the last part then, Rusty. Are you finished, Charlie? MR. SCHOECH: Yes, unless you have other questions. MS. MARIANO: I have one comment just to advise the Commission that the Town attorney, Mr. Sliney, has recommended that if we have to where we are going to this issue with regard to a validation, he wanted to make a recommendation to the Commission that Mr. Schoech be retained to do this -- MR. RAND: Fine. MS. MARIANO: -- because of his expertise in the area. MR. RAND: Now then, Rusty, do we have to at this Executive Session make a determinational decision that we are going to float the bond issue or we wait to do this at a regular meeting? How are we handling that? How should that be handled? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 130 MR. ROBERTS: Charlie's the one with -- MR. SCHOECH: I think that some direction should be given today, but I think at your regular meeting you should actually make the formal decision to issue the bonds as opposed to the Executive session. I think you need to do that at a regular -- MR. RAND: All right. So then we should let the record show that we are in agreement with floating the bonds required to cover the payments that are due and in which case we will formally adopt the necessary resolution. Would it be necessary to adopt a bond resolution? MR. SCHOECH: It would be necessary at a regular meeting to adopt a bond resolution. MR. RAND: Right. Okay. What was your question, Dave? MR. AUGUSTEIN: We haven't cut the deal yet. MR. RAND: I said this is obviously only if the deal is accepted. There's nothing to be done. MR. AUGUSTEIN: I think the best thing to do was to get this away to them. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 131 MR. RAND: No, but I want to make sure that we're in agreement with -- MR. AUGUSTEIN: Oh, I think we can make the payments, and then this will be formally addressed once the agreement is signed, if it is, and then we'll take it up at one of our regular meetings to adopt a resolution. But I just want to know that we have a consensus to go along with the approach that I suggested, and specifically to include the financing of the vehicles. Because I think these financial terms are very favorable. We can purchase the fire trunk, pay it over a 20 -year period at a very, very, favorable interest rate than I think we would get leasing it or financing it with another bank. MAYOR VORESS: Yes. I think what Commissioner Augustein was saying there, is that the write-up on this piece, merely makes note of the fact we'll pay the money. And it doesn't say how we'll get to that. And I think your question was, does this Commission generally agree with your philosophy on why we do that. MR. RAND: Right. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 132 MAYOR VORESS: There are two different subjects, correct? MR. AUGUSTEIN: Sure. MR. ROBERTS: I would suggest as a point of order that it be clear, and again, I'm reading and listening to you, it would be clear, and I would suggest. -Mayor, by vote, -- MAYOR VORESS: All right. MR. ROBERTS: -- that it's not a vote to issue a bond issue, -- MAYOR VORESS: Correct. MR. ROBERTS: -- but a vote to accept the principal that in order that an offer be made to the RTC to pay them that amount of money based upon the payments as described in here, one of which would include floating of a bond issue, okay? As I said before, some of the difficulty we've had, and not to point any fingers like that, is to make sure that everybody agrees on the language of this agreement. And I think that this is one of the issues that has to be addressed that should be approved by this Commission by a vote -- MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 133 MAYOR VORESS: All right. MR. ROBERTS: -- as to this financing vehicle, and it be clear that whether or not there's going to be a bond validation suit. MR. RAND: Well, no, we've got to approach it. The idea would be that we float the bond issue, and also go for the bond validation process. However, if at any given point we find that we are facing a time constraint and will not be able to obtain this bond validation, then we would change the format from a bond issue to the Certificates of Participation or COPS. But we would absolutely first attempt to do this via bond issue because it would be the best way to do it and give us the added protection that Charles made reference to. That is to say with a bond validation, we eliminate the possibility of anyone suing us for issuing a bond without a referendum. Is that stated correctly, Charlie? MR. SCHOECH: That's correct. MAYOR VORESS: Let me see if I can sort a little bit of this out. I think if I understood what Rusty Roberts suggestion to us MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 134 was one, we need a motion -- MR. ROBERTS: Before you get to that, Mayor, let me just add to it, -- MAYOR VORESS: Okay. MR. ROBERTS: -- because I had drafted in here -- MAYOR VORESS: Yes. MR. ROBERTS: -- the other remedy provision -- MAYOR VORESS: Right. MR. ROBERTS: --that if it wasn't fully paid within the 9 months, 270 days, that their sole remedy would be to get a judgment for the balance which would be paid -- MAYOR VORESS: Over three years. MR. ROBERTS: -- over three years. And again, that's just a suggestion of mine. It's not a recommendation. MR. RAND: No, I think that's a good point. Then we've got an out. Then we're not going to be strapped and hey, look, fellows, we're going to pay you, but it will take three years. We don't think it's going to happen, but it's just added protection in the event that for some reason or another we get a snag MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 135 and get the bond issue. That's how we intend to finance the payment. But if we can't for one reason or another, then it will have to be this route here. I don't know whether they object to it or not, but -- MR. ROBERTS: I guess that's why I've added in this Paragraph D to the agreement, Defendant will use its best efforts to refinance. And again, if you've got better language here, you tell me. MR. RAND: No, I think that language is fine. MAYOR VORESS: What I was going to say to continue on. First, we need a motion, among other things to address, are we in agreement with the language that Rusty has here in Section 6, under quote, "Payment to the Town". That's one. MR. RAND: Well, I personally agree to it. MAYOR VORESS: Let me finish for a minute, and then I'll ask for a motion. Secondly, we need to include in that motion a reference to the bonding and the validation, I think is what you asked for, and MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 136 a vote on the Commission as it relates to that. Were those the two issues, Rusty, that you felt ought to be covered in a motion, the language that you have and the way -- and the bond financing? MR. ROBERTS: Right. - MAYOR VORESS: Right. MR. ROBERTS: And the alternative COPS. MAYOR VORESS: And the alternative COPS. MR. ROBERTS: I would suggest it to be a separate motion. MAYOR VORESS: Separate. MR. ROBERTS: One, you say is this language or this method or you might reverse, should we bond? MAYOR VORESS: Okay. I will ask for a motion as it relates to Rusty's writeup under Number 6, "Payment by the Town". MR. RAND: I would make a motion that we accept the wording that has been suggested in the draft by Mr. Roberts as to the payment. MAYOR VORESS: Okay. That is the July -- April 19th draft, correct? MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 137 MR. RAND: Right. MR. AUGUSTEIN: I'll second it. MAYOR VORESS: All right. All in favor? I'll go by roll call. Commissioner Augustein? MR. AUGUSTEIN: Aye. MAYOR VORESS: Commissioner Eypel? MR. EYPEL: Aye. MAYOR VORESS: Vice -Mayor Paul? MR. PAUL: Aye. MAYOR VORESS: Vice -Mayor -- Commissioner Rand? MR. RAND: Aye. MAYOR VORESS: And the Mayor, aye. So that's okay. MR. PAUL: That motion was all of Paragraph 6? MAYOR VORESS: That's correct, all of Paragraph 6. Now we need a -- MR. ROBERTS: Just to add, you know, and I presume that you've all read this before coming here. MAYOR VORESS: Yes. MR. ROBERTS: Because it's got 18 MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 138 percent per annum -- MAYOR VORESS: Yes. MR. ROBERTS: -- and I took that from what Mr. Hambric said. MR. RAND: Yes, we said that at the meeting. MAYOR VORESS: We agree, Rusty. Now, I'll accept another motion as it relates to the means of financing. MR. RAND: I would like to make a motion that the Town Commission approve the method that I have suggested in my memo dated April 21st pertaining to the issuance of a bond with validation thereon to cover the payment due on the settlement agreement. And if a bond issue is not feasible or cannot be obtained with the validation in a timely fashion, that we would then fund the payment required by means of a Certificate of Participation vehicle. MR. SCHOECH: Now, you -- MR. AUGUSTEIN: I'll second it. MR. SCHOECH: Just for clarification, both of those are bond issues. The first is a general obligation judgment bond. The second MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 139 is a Certificate of Participation revenue bond. But they are both bonds. MR. RAND: They're both bonds. MR. SCHOECH: And I am not making a recommendation as to which way you go. That's really your decision based on input from your underwriters. MR. RAND: We're going to go to the bond issue first, the general obligation bond issue first with the validation. That's the first step. That's the first approach. MR. ROBERTS: Is there a validation? MR. SCHOECH: The revenue bond would not require validation. MR. ROBERTS: Nor referendum. MR. SCHOECH: Nor referendum. Unless of course you had an underwriter whose underwriter counsel said, we want to validate it. They're not legally required. It's a question of do the parties involved insist on it in order to participate? MAYOR VORESS: But with the definition of bonds, general obligation bonds, and the definition of revenue for a Certificate of Participation, with that amendment to your MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 140 motion, could we have a second? Is there a second? MR. AUGUSTEIN: Seconded. MAYOR VORESS: Any discussion? MS. MARIANO: I have one further issue. I think that just for the record in wording that motion you said, "approve the method". I don't know that you're approving. I think the word pursue those methods rather than approve. MR. RAND: Right. I agree. MS. MARIANO: They need to be approved at a regular meeting. MR. RAND: So amended. MS. MARIANO: Okay. MAYOR VORESS: So you amended -- MR. AUGUSTEIN: Motion amended. MAYOR VORESS: Any further discussion? Commissioner Augustein? MR. AUGUSTEIN: Aye. MAYOR VORESS: Commissioner Eypel? MR. EYPEL: Aye. MAYOR VORESS: Vice -Mayor Paul? MR. PAUL: Aye. MAYOR VORESS: Commissioner Rand? MR. RAND: Aye. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 141 MAYOR VORESS: Mayor Voress? Aye. All right. That takes care of that. MR. ROBERTS: Again, I've put in the words "lending institution". Is that appropriate? MR. SCHOECH: That's fine. That's not a problem. MR. ROBERTS: Good. MR. SCHOECH: It's either going to be -- typically when your bonds are longer than 8 years, you're talking about underwriting and marketing through an underwriter. If they're less than 8 years, then they're typically bank eligible, and a bank or a lending institution would purchase them. If you go with a 20 -year financing, you would eliminate the bank, but you would still have the underwriter, and I think the term is broad enough to include that. MR. ROBERTS: Okay. MR. RAND: Then what else? MAYOR VORESS: Back to our agenda. I believe we have agreed so far on all changes other than the remedy and the monetary issues, which we talked about first. We then MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 142 addressed the remedy section and had a motion about the changes desired in that area. We have just finished a motion relative to the monetary issues. Is everyone agreed that that's where we are today? We've all, therefore, agreed on the changes desired. And now we need to agree and to discuss with Rusty when such a document can make those modifications we have talked to and be sent to the RTC. MR. ROBERTS: As soon as I get this over to the printer, it's on. MR. RAND: Well, we need the note from Charlie. MR. SCHOECH: And the note on Monday. MR. ROBERTS: Yes, but I've already made the change to the remedy section. I don't think there was any other change to the monetary section. MAYOR VORESS: No. MR. RAND: No. MR. ROBERTS: So -- MAYOR VORESS: All right. Okay. That's where we are. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 143 MR. RAND: That's in two and a half hours. Not bad. MAYOR VORESS: All right. So what do you say, Rusty, then on Monday you'll send it? MR. ROBERTS: It will be printed up here this afternoon. MAYOR VORESS: Okay. - And Charlie? MR. SCHOECH: I'll have the note to Rusty on Monday. MR. ROBERTS: I can print it up here, but I'll print it up in the office. MR. RAND: Charlie, isn't there a standard note, a promissory note? I mean, what type of note do you envision using? MR. SCHOECH: There is a standard promissory note form, but in this case we're going to have to draft a note that incorporates the provisions. That's one of the reasons you don't have it before you is because this language in the section that you just approved is new language, and I had no idea as to whether that was going to be acceptable to you or not. But now that I know it is, we'll incorporate that into the note MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 144 and we'll have it out. MR. RAND: Is there any possibility you can do it earlier, Charlie? Can it be done tonight? MR. SCHOECH: It can be done this afternoon if we don't spend the rest of the afternoon here. MAYOR VORESS: We're about to adjourn, Charlie. MR. RAND: I'd certainly appreciate it if you could do it so that Rusty would be able to send it out by Monday. MR. ROBERTS: So my understanding when I send it out, it's going to be sent to Judith Thompson? MR. RAND: Yes. MAYOR VORESS: So at latest Monday. If Charlie had anything to give you right now, we could send it out late tonight. MR. ROBERTS: I need the 1985 -- MS. MARIANO: I'm going to hand it to you right now. I have it here. MAYOR VORESS: Okay, Charlie. We can excuse you if you'd like to get moving. MR. SCHOECH: Okay. Is that all right MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 145 with the Commission? Okay. MAYOR VORESS: Are there any other issues that the Commission would like to discuss about this issue right now? MR. AUGUSTEIN: None that I can think of . MAYOR VORESS: Commissioner Eypel? MR. EYPEL: No. MAYOR VORESS: Bill Paul? MR. PAUL: No. MAYOR VORESS: John? MR. RAND: No. I think we've accomplished a hell of a lot more in the two and a half hours than we did at the eight-hour meeting we had a few weeks ago. MAYOR VORESS: Then I will at this time declare this Executive Session adjourned. MR. ROBERTS: I'll just declare that there's no further business and it's 3:30 in the afternoon. I will just declare the Executive Session for adjournment at 3:32 in the afternoon and that the only persons who have spoken are those on the record and in attendance that were here initially. And we'll turn it then back to the MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 146 special meeting, other than do you have a comment? MR. PAUL: One comment. Is our action today covered under the original motion as presented in the past -- MR. ROBERTS: Well -- MR. PAUL: -- at the last Executive Meeting? MR. ROBERTS: I would think that it probably would be best if a new motion be made considering what transpired. An offer was made that was not accepted. And I would think that you probably would want to make another motion. MAYOR VORESS: All right. MR. ROBERTS: To make an offer to the Resolution Trust Corporation for the full and final settlement of the matter and settlement stipulation as is going to be amended, including but not limited to the payment of the $5.5 million as provided for in the agreement. MAYOR VORESS: Okay. I'll accept such a motion. MR. RAND: I make such a motion. MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S. E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 147 MAYOR VORESS: Seconded? MR. AUGUSTEIN: Seconded. MAYOR VORESS: Any discussion? All in favor? (Thereupon, all Commissioners said "Aye.") MR. ROBERTS: With that we'll end the meeting. (Thereupon, the meeting was concluded at 3:35 p.m.) MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955 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 CERTIFICATE 148 I, DENISE CUPELLI, a Shorthand Reporter and Notary Public, do hereby certify that a meeting of the Town Commission of Highland Beach, Florida, was held at Highland Beach Commission Chambers, 3614 South Ocean Boulevard, Highland Beach, Palm Beach County, Florida, on Friday, April 21, 1995; that I was authorized to and did report in shorthand the proceedings of said meeting; and that the foregoing pages, numbered from 1 to and including 148, represent a true and correct transcription of my shorthand notes of said meeting. Dated th's day of 19777, Shorthand Reporter an4No y Public, State of Florida at Large THE STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing certificate was acknowledged before me this `") 11 day of 19�'�! b Denise Cu elli i who s r.� personally known to me. IN5 t ,c Notary Public - State of Florida My Commission No. Expires: PSTRICIA NVOULF-ARrR Nct--Iry Rjbii;l, F)Ute of Florida 5� toy Gow.rn. Expires Od. 4,1998 X10. CC 39,1130 Bogded *fh" Official MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. 5th Floor • Comeau Building Suite 1515, 1 Financial Plaza International Place Suite 205 319 Clematis Street NationsBank 100 S.E. 2nd Street • 23rd Floor 2499 Glades Road West Palm Beach, Florida 33401 Ft. Lauderdale, Florida 33394 Miami, Florida 33131 Boca Raton, Florida 33431 Area Code (407) 659-4155 Area Code (305) 525-6723 Area Code (305) 371-2713 Area Code (407) 338-0955