1995.04.25_TC_Minutes_Executive Session1
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1
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Executive Session of the Town Commission of
The Town of Highland Beach, Florida
Tuesday, April 25, 1995
3614 South Ocean Boulevard
Highland Beach, Florida
3:45 - 5:00 p.m.
PRESENT:
Arlin Voress, Mayor
Bill Paul, Vice -Mayor
David Augenstein, Commissioner
Arthur Eypel, Commissioner
John F. Rand, Commissioner
Mary Ann Mariano, Town Manager
George Roberts, Esquire
Samuel Daniels, Esquire (by telephone)
Nancy Coning, Court Reporter
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
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P R O C E E D I N G S
MS. MARIANO: I'm going to put you on the
speakerphone so you can become a part of our
meeting here and the commissioners will speak into
the microphone, so hopefully you'll be able to
hear all the comments and be able to answer them,
okay?
MR. DANIELS: Okay.
MS. MARIANO: Sam, are you there?
MR. DANIELS: I am.
MS. MARIANO: Okay.
MAYOR VORESS: Sam, can you hear me?
MR. DANIELS: Yes.
MAYOR VORESS: This is Arlin. We're going to
start the meeting, so if you'll bear with us for a
few minutes until we start the special meeting and
so forth we'll be moving along procedurally.
MR. DANIELS: I can hear you fine, Arlin.
MAYOR VORESS: Thank you, Sam.
Doris, are you -- okay.
Good afternoon. It's April 25th, 1995, at
approximately a quarter of four. I call to order
this special meeting of the Town Commission of the
Town of Highland Beach. Will the Clerk please
call the roll?
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
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THE CLERK: Commissioner Augenstein?
MR. AUGENSTEIN: Here.
THE CLERK: Commissioner Eypel?
MR. EYPEL: Here.
THE CLERK: Vice Mayor Paul?
MR. PAUL: Here.
THE CLERK: Commissioner Rand?
MR. RAND: Here.
THE CLERK: Mayor Voress?
MAYOR VORESS: Here.
I will turn to our town attorney, Rusty
Roberts, who will call for an executive meeting.
MR. ROBERTS: Mayor, at this time I'd like to
call, under Florida Statute Section 286, for a
special executive session of the Town Commission
for advice on the strategy of the negotiations of
settlement of the RTC versus Town of Highland
Beach matter.
MAYOR VORESS: Thank you. Do you want to
identify who's here and the time?
MR. ROBERTS: Sure. Okay. For the purposes
of this meeting, present will be Sam Daniels, as
special consultant attorney and appellate attorney
for the Town on the matter; myself, Rusty Roberts;
Mary Ann Mariano, Town Manager; Commissioner John
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
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Rand; Mayor Arlin Voress; Vice Mayor Bill Paul;
Commissioners Arthur Eypel and David Augenstein;
and pursuant to the statute we have a court
reporter present to transcribe everything that is
said at the meeting. The transcript is to be
provided to the Town and held confidential until
the conclusion of this litigation, at which time
it will become a public record.
All of those people being present, the
starting time of the meeting is 3:45, and we
expect the meeting to conclude in a matter of two
hours, at which time the executive session would
be concluded.
MAYOR VORESS: I'll call a recess of the
special meeting of the Town Commission.
(Whereupon the Clerk left the room.)
MAYOR VORESS: Okay. Are you okay? All
right. Then I'd like to state the purpose of this
meeting, and the purpose of this meeting is to,
Commissioner Arthur Eypel has requested a review
of the portion of the 4-21-95 commission executive
meeting, and I would like to ask Commissioner
Eypel to lead a discussion about his concerns and
the reason for this meeting.
MR. EYPEL: Thank you, Mayor.
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
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I think that at our last meeting I sensed
that we all left here and I'm not sure that we all
understood what we had decided on, and I gave this
a lot of thought over the course of the last
weekend.
I spoke to Mr. Daniels, Sam, on two occasions
in the last several days. I spent several hours
yesterday morning with the town manager going over
specifically the section regarding remedies 10-B,
3-B, numbers one through five, and if I can, I
want to go very slowly and I want to see that I
understand the ramifications of the language that
we are using in this settlement stipulation.
Section 2 specifically limits the liquidated
damage, damages that the RTC or its successors --
MR. DANIELS: If anyone can hear me, my
mike's gone dead.
MS. MARIANO: Can you hear me, Sam?
MAYOR VORESS: Can you hear us, Sam?
MR. DANIELS: I heard that.
MAYOR VORESS: All right. I'll ask
Commissioner Eypel to speak up.
MR. EYPEL: Yes, can you hear me, Sam?
MR. DANIELS: Yes, Arthur.
MR. EYPEL: Okay. I'll speak directly into
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
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this microphone.
Section 2 under B on page 17 addresses the
amount of money that the RTC or its successors --
MR. DANIELS: Went dead again.
MR. EYPEL: Dead again?
Can you hear me?
MAYOR VORESS: Sam, can you hear me?
MR. EYPEL: We've lost him. Hello, Sam?
MR. ROBERTS: Can you hear us now, Sam?
MR. DANIELS: Yes.
MR. ROBERTS: Go ahead.
MR. EYPEL: Okay. 2, B-2 --
MR. DANIELS: Nothing now.
MR. EYPEL: Oh, boy, well, we've got a
problem here.
MR. ROBERTS: Why don't you come over here
and sit here and talk and he can probably hear
you.
MS. MARIANO: I hear some interference in
that phone itself, so...
MR. EYPEL: Sam, can you hear me now?
MR. DANIELS: Great.
MR. EYPEL: Okay. B-2 referred specifically
to the liquidated damages that the Town would
incur for a delay in any development of 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
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property, and the plaintiff here, or the RTC or
its successors, would be able to receive the
thousand dollars a day with a cap of $60,000
should it be proven that the Town delayed their
efforts to develop the property, and upon
reflection, we removed that from the, from the
stipulated agreement, and quite frankly, that
clause favors the Town and I could understand why
the RTC would not want a stipulated, a, excuse me,
a liquidated damage to be specific and this is a
specific remedy.
Section 5, on the other hand, refers to other
damages that are unspecified. In other words, the
magistrate, if he should decide against the Town,
could award damages, I suppose, in whatever amount
was sought, as long as the preponderance of
evidence supported that. Is that correct, Sam?
MR. DANIELS: Yes.
MR. EYPEL: Okay. If I understand correctly,
Rusty feels -- where is Mr. Roberts?
MR. ROBERTS: Right behind you.
MR. EYPEL: Oh, I'm sorry, the chair is in
the way. I couldn't see Rusty but I now realize
he is sitting behind Mary Ann.
Rusty, as I understand it, Sam, feels 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
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e
the Town is being exposed to a great deal of
liability here if we do not specify damages, in
other words, we don't limit the damages to a
specific amount, and if we say other damages, that
sort of leaves us open to a great deal of
exposure.
MR. DANIELS: I agree that that's correct.
MR. EYPEL: Okay. So as I see it, we are
faced with two choices. If we leave five in and
we provide a provision -- and by the way, Sam, did
you have a chance to talk to Rusty about the
provision we spoke of earlier today?
MR. DANIELS: I sent Rusty a fax.
MR. EYPEL: Okay. Rusty, could you --
MR. DANIELS: And he and I talked.
MR. EYPEL: Could you comment on that, on the
provision?
MR. DANIELS: Can you all hear me okay?
MR. EYPEL: Yes.
MR. DANIELS: Good.
MR. ROBERTS: Sam sent me a fax at 9:58 this
morning and suggested Paragraph B, the
commencement of Paragraph B on page 17 say, the
parties stipulate and agree that the remedies
available hereunder shall only include and 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
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magistrate shall only have the power to order, and
he also suggests that another notice of violation
provision which has not been drafted. And I have,
as I told Sam and I'll tell you, I have no problem
with either one of them. I think, and I don't
know whether this is the point you want my comment
on, everything that's transpired, or you want to
carry on, but that's just what you want --
MR. EYPEL: I was speaking specifically to
the provision. Sam and I had discussed possibly
incorporating a provision in the agreement that
limits the amount of time that the RTC or its
successors could claim that the Town was in
default, because, if I understand correctly,
Rusty, your concern is that some unscrupulous
developer may wait an inordinately long time and
come in and claim rather large damages against the
Town and simply by waiting, so if we incorporate a
provision which limits the amount of time that the
developer would have to claim default, we're
thereby protecting the Town from this unspecified
amount of damages, in essence we're limiting the
damages, and I think we're approaching some sort
of specificity here. I'd like your comments on
that, if you wouldn't mind.
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
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MR. ROBERTS: Okay.
MR. DANIELS: If that is addressed to me,
Arthur, I think that it would be a fine idea to
say that, something to the effect that all claims
that this agreement has been violated shall be
waived if not presented to the opposing party in
writing within six months of the date of the
alleged violation.
MR. EYPEL: Okay. That's --
MR. DANIELS: And then you could put, Rusty,
you could put a cure provision in there if you
wanted, which would give them a certain amount of
time to cure the violation.
MR. EYPEL: Okay. Thank you, Sam.
Rusty, if you could comment from your
perspective on whether or not you can live with
that, whether you feel that's an appropriate way
to change the language or to put language in this
agreement that does not expose the Town to --
MR. DANIELS: I don't see anything wrong with
requiring the notice of violation and an
opportunity to cure it.
MR. EYPEL: Thank you, Sam.
MR. DANIELS: So it will give you notice that
you may have a problem. It will, they will still
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
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have a long time in which to sue us, there's the
five-year statute of limitations on breach of
contract, but at least we would have notice of it
and an opportunity to do something.
MAYOR VORESS: Sam, this is Arlin. On that
premise of your "shall only"s and "only"s and that
stipulation relative to the violation and to
identify that within six months, would then your
view of Section 5 that Arthur just read be onerous
to you?
MR. DANIELS: We have to talk about this
provision as a whole.
MAYOR VORESS: All right.
MR. DANIELS: We put the "shall only" have
these remedies at the beginning of the paragraph --
MAYOR VORESS: Yes.
MR. DANIELS: -- then I think you can put
back in the Paragraph 2 dealing with the
limitation on delay damage and then that would be
the only damages that could be recovered other
than the interest and attorney's fees. And if you
do that I don't think you really need a notice of
violation provision.
MR. EYPEL: Except that you could provide as
to the delay damage claim that they had to give
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
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notice. Are you with me, Rusty?
MR. ROBERTS: Yeah, but I think that there
might be some confusion as to where we're going.
MR. DANIELS: Okay. Help me out.
MR. ROBERTS: Okay. Let me just say this.
Is it your intention, Arthur, to put, is it your
feeling that any provision that should be put back
in of either Paragraph 2 or Paragraph 5?
MR. EYPEL: Yes, I want, I want -- if five is
going to, if five is going back in, then I want a
provision that limits the amount of time they have
to claim that we are in default. In other words,
I don't want a developer to wait two years and
say, you caused me twenty million dollars' worth
of damage. I want them to come to us as soon as
they discover that they have been harmed or
damaged and say, look, you folks are costing me
money and this is what you've cost me and I'm, you
know, you're in default.
Is that, was that a misunderstanding, Sam, to
you with regard to what I, how I felt?
MR. DANIELS: Well, I knew you were
considering lots of options, but I would be very
happy to have the limitation of the remedies in
the opening sentence and put two in and leave five
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
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out.
MR. EYPEL: Okay.
MR. DANIELS: We may, we may for negotiating
purposes have to put five back in, and if we do,
then I would like to see a notice of violation
provision to protect the Town. But if all we have
is delay damages, interest if we don't pay the
money and attorney's fees, I think we're in great
shape.
MR. EYPEL: Okay. And now I'd like Rusty's
comment on that, on your suggestion.
MR. ROBERTS: As I understand what's
transpired is that we approved -- not we -- you
all approved last Friday an agreement that the
only thing that was going to happen was that a
promissory note was going to be drafted and that
we were going to get a commitment from the League
of Cities and that Ms. Mariano's exhibit of the
1985 impact fees was going to be added.
I have that agreement sitting on here and I
want you all to know that it was ready to go out
at 2 o'clock yesterday afternoon. So the record
is clear, that was ready to go. Now, I did talk
to Arthur and Sam yesterday morning and my
understanding of it was a concern of whether 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
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not these two provisions that were taken out, one
or more of them should be put back in.
MR. EYPEL: Right.
MR. ROBERTS: Okay. Now the concept, the
underlying concept of this provision of the
agreement is whether there is an avenue available
to RTC or any successor to come back and seek
monetary damages of any amount, the potential for
them to seek monetary damage --
MR. DANIELS: Rusty, I lost you.
MR. ROBERTS: All right. The potential of
them to seek monetary damages in any amount,
potential in any amount for a breach of violation.
Now, the discussion I had with Sam was that he
felt that the introductory language was to some
extent ambiguous, which would allow them, even if
there wasn't a provision in there, to seek other
remedies.
I felt at that time that he was probably
right, that someone could argue it was ambiguous.
But I did not want to change it because you all
had decided and I didn't want to be blamed for
acting against the Town Commission or dragging my
feet. And I certainly didn't want to be the
person who is accused of playing Russian roulette,
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
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which is the term that is bandied about now.
Okay.
So I simply sent a fax to the Town yesterday
which said that I thought, and Sam and I discussed
this, that I thought that if the word "include"
were the ambiguous term, that I would suggest that
it simply be changed to "are," that the remedies
are as follows, one, two, three. I sent that as
well in the fax that I sent yesterday to the Town
of Highland Beach. That was my suggestion to try
to ameliorate any concern and still not being
dragging my feet.
Now, the suggestion is we still have a
meeting and I'm willing to do whatever it is you
want to do. But let me tell you what my feeling
is on this whole concept, okay? If we go with the
change in language that either I've suggested or
the change in language that Sam has suggested, not
"shall only be" and not to "include" and
Paragraphs 1, 2 and 3, it is my belief, and based
upon the research that I did till 12:30 last
night, 12:30 last night I left the office, okay,
from 6 o'clock to 12:30 I researched this for the
Town of Highland Beach, for the best interests of
the Town of Highland Beach, not the best interests
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
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of the League of Cities Insurance Fund, not for
the best interests of the RTC, but for the best
interests of the Town of Highland Beach I
researched it and I feel comfortable that if it
goes out as that it is, that you will have kept
the Town in the future from any large exposure on
a breach of this violation which no one can
envision at the present time, nor can you predict.
Now all those cases you're free to read, too.
Not one of them covers this particular situation.
And that's not unusual in law. You can't, you're
asking me for my opinion and I'm giving it to you,
and that is my opinion.
Now, if you add back in Paragraph 5 you're
changing the ball game, you're changing the
agreement. You're changing it to, in my humble
opinion, to a situation where they now have the
ability to come back in and for a violation sue
you for breach of contract and get any damages
that they feel that they are justly entitled, and
the law of Florida provides that they can get
incidental damages, the money that they have spent
in working under the contract, they can get
expectancy damages, damages that, profits that
they thought that they could get in the future.
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
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Lost profits under Florida law tend to be
speculative, but that does not mean that if you
can prove it you can't collect it.
And it is my feeling and my legal opinion
that that addition of Paragraph 5 puts them in the
position of seeking a remedy at a later date for
damages of any breach of violation and it is not
my recommendation that you put that in. Okay?
You are free as a town commission to vote and
decide whatever you want. And if that's your vote
that you want it in, it will go in and it will go
out in the UPS package that's sitting right here
tonight, however you want to. That is my
recommendation, that the RTC did not want a
liquidated damages clause. I suggested a
liquidated damages clause in the first inception
under the thought that they wanted to go back to
court for any reason.
The most significant problem that I see with
respect to a future conduct under this agreement
is that someone would be delayed in action by the
Town. Thus, I suggested to you that a way to make
them happy with that would be to put in a clause
that said, you might be damaged in this regard and
thus, you know, we're going to specify exactly
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
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what those liquidated damages are. If you prove
that we're wrong, you get a thousand dollars a
day. If that's not enough, make it $2,000 a day,
whatever is comfortable, you got to start
somewhere. Okay?
If the RTC doesn't want that, why do they not
want it? They don't want it because they want to
seek anything else that they can get. Okay? If
you put that in, you're specifying exactly what
damages they can get. If you take it out and you
say there are no other remedies, they don't even
get damages for delay. Okay?
Case law suggests that when two parties of
fairly equal bargaining power enter into an
agreement to stipulate what their contract --
parties to a contract may stipulate as to what
consequences of breach will be. If language
discloses that the parties intend to limit
remedies to ones stated, stipulation will be
enforced. Okay?
You can't enter into these agreements whereby
these are the only remedies, and I suggest to you
that no court in this land would find the Town of
Highland Beach guilty of overreaching, undue
influence, or coercion to the United States
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
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government, the RTC.
The judge is going to take this agreement,
once signed, it's going to be presented to him and
he has the option, the federal district judge has
to review it and he will review it, but his
options are just twofold: One, accept it, or
reject it. He can't change what's in there. He
can give his opinion of it, but he can't say,
well, I think it should be this or it should be
that.
Case law supports that in a Southern District
Court case relative -- and where this comes up
most frequently is in class action settlements.
They enter into a class action settlement where
the class participants get a little bit of money,
the lawyers get a lot of money and, you know,
everybody goes home and the judges have the
obligation under case law to review that. So that
is what will happen.
I have no idea, earthly idea what the RTC
wants, will accept or not accept. And that I
don't see as my position in this case. That's
your all's decision. You tell me what it is you
think or you want to propose, I'll tell you from a
legal standpoint what I see the hazards are 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
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that. If, you can either accept it, just like the
federal judges, reject it, or do something else.
That's up to you, and I feel that Sam feels the
same way.
So the language, I agree with Sam's language.
If you put it in that strengthens the agreement.
That makes it all the more clear that the only
remedies they have are specific court enforcement
by order, and quite frankly, I don't know that
that includes contempt powers because some of the
cases say that if you want to have contempt powers
you've got to add that in there as well. But I
would suggest to you that a federal district judge
might hold you in contempt if you did not do it
even if it's not in the agreement because it is a
judgment of the court.
Secondly, the second thing is if you don't
pay the note off that you're bonding timely, it's
going to be reduced to a judgment payable over
three years. And the third provision simply is
that -- whatever it is -- is attorney's fees.
Okay?
That's the only remedy for breach that they
get. That's all they can get. In my view, if
that's the way it goes forward, that's it. 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
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can't sue you for breach of contract. If you
claim, if there's a claimed violation, then their
sole remedy is going to the Federal District Court
and saying, these people are violating it and
here's the proof, now order them to do it, i.e.,
grant a permit. Okay? Under this scenario they
can't even get delay damages. Okay? Not going to
happen. And they cannot sue you in my view
outside, for any other way in any other form in
the District Court like that.
Now, if you want to add something back in,
that changes the ball game. Under that scenario,
I don't see a necessity for notice of violation
language, quite frankly, because if they don't
want to send you a notice of violation, there's
nothing you have to do until they file a motion to
the court. Okay?
I don't see the necessity of doing that. If
you want to add in something that allows them
damages for delay or allows them the ability to go
back in and sue you for breach of contract,
certainly a notice of violation would be helpful.
But quite frankly, I've never seen that one of
these notice of violation provisions ever have
saved the day in any situation. One will say, oh,
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
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I sent you the notice, and the other will say, you
didn't send it timely, and then the other one will
say, well, I didn't even know it was occurring,
and that's just another big dispute which is
another lawyer's dream, okay?
If you want to put it in I have no objection
to it. I think it might be helpful to some
extent. To the extent that it would make any
reduction in damages in a potential suit, no, I
don't think it would. I think if someone is
determined to sue you for large amounts of money
for a breach of this contract, some developer down
the road who wants to cash in on the Town as
opposed to taking his lumps in a development
market, that notice of violation provision is not
going to make one whit of a bit of difference.
Okay?
Now, Sam, do I need to address anything
further? That's my view of this.
MR. DANIELS: Rusty, you and I are in total
accord on everything. If we have the introductory
paragraph clear that these are the only remedies,
the introductory paragraph so reads, then we don't
want five in, because that just opens up the claim
for damages. And the only thing they could get
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
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would be the injunctive relief, the attorney's
fees, and you have a question mark about whether
you want to put in delay damages to give them
something.
MR. ROBERTS: That's right, and I agree with
you totally on that, Sam. As I said before, I
agree with you totally, that makes it clear, it
reduces the ambiguity, but I didn't want to change
anything because it was my marching order to get
that agreement out and the timetable, but I'll be
happy to change it right now.
MAYOR VORESS: Sam, let me ask you one
question. This is Arlin.
MR. DANIELS: Yes.
MAYOR VORESS: All of these things are fine,
but if the RTC won't buy it, you know, this is an
exercise in nothing. They have already told us,
Sam, they don't want a number, the thousand and,
that $60,000 a year. If all they're willing to
settle for, Sam, just as a scenario, is some
statement like five, that other damages proven by
the preponderance of evidence to have been caused
by the breach of this agreement, would your "shall
only" and your -- all changes in this, challenges
this agreement that have been violated within,
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
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must be denominated within six months of the
alleged violation, how much exposure do you
believe that we have under Section 5?
MR. DANIELS: Well, you could have a great
deal of exposure down the road if the Commission
denies some permit that they should have granted.
You could have a twenty million dollar loan that
is put on hold for a year or something and have
all the interest and damages. It could be a large
number, but you would have to assume that the
Commission in the future violated the settlement
agreement, because I know the existing commission
is not going to.
MAYOR VORESS: And if you have this section
in here about notification within six months, Sam,
are you saying that's valid or not valid, that the
Commission would have some, and if they didn't
have any internal controls that there would be an
external control that the then owner would have to
notify the Commission within six months that
something had been violated? Do you think that is
valid or --
MR. DANIELS: If the RTC comes back and says
we won't go for this remedy section and you decide
that you'll go back to give them breach 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
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contract damages, which is the normal remedy in
every case, then I think notice provisions could
help you cap your losses and would be, it would be
some help.
MAYOR VORESS: And that notice provision is
something like you earlier stated about six
months?
MR. DANIELS: There is no reason not to put
it in, is my view.
MAYOR VORESS: All right.
MR. DANIELS: I agree with Rusty, there's a
lot of litigation about it, but you can require
the notice in writing sent to a certain person and
that sort of thing.
MR. EYPEL: Sam, this is Arthur. Do I sense
that --
MR. DANIELS: The way this whole thing got
started was that I read the introductory paragraph
different than Rusty, and therefore I thought five
was helpful because it limited damages to the
breach of the agreement and prevented them from
going back to the judgment. But if you're going
to have a limited, if the section is going to say,
these are the only remedies, then you don't need
five unless the RTC makes you put it in.
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
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MR. EYPEL: Sam, this is Arthur. That brings
up two questions that I have. One -- can you hear
me, Sam?
MR. DANIELS: Yes.
MR. EYPEL: Okay.
MR. DANIELS: I can't hear you now.
MR. EYPEL: No, I'm not speaking, but I will
be.
I think that's, if I understand, you and
Rusty seem to differ on the impact that the
provision, notification provision will have. You
seem to feel that it's helpful to us. If I
understand Rusty's position, he feels it isn't
worth the powder to blow it to hell.
MR. DANIELS: I lost you, Arthur.
MR. EYPEL: I'm sorry. Do you and Rusty, is
the, if I had to define an area where you don't
agree, it's in your interpretation of the
provision that limits the term or amount of time
that --
MAYOR VORESS: Notification.
MR. EYPEL: Notification. In other words,
Rusty feels that that provision of notification is
not very valid and not worth much, and you seem to
feel that it would provide us some sort of 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
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helping hand. Is that a valid statement?
MR. DANIELS: I think Rusty would agree that
properly drawn it has some value.
MR. EYPEL: Okay. Some value. But it
doesn't limit the exposure, is that what --
MR. DANIELS: Didn't hear the response,
Rusty.
MR. ROBERTS: I agree with you, it has some
value. I just don't see it as any particular
limitation, any great limitation of exposure, but
it allows you to, certainly if followed, it allows
you to know what the claimed breach is and an
opportunity to cure it. But -- and certainly to
that extent it would be helpful.
MR. DANIELS: Right, and at that juncture I
believe the Town would seek legal advice.
MR. ROBERTS: Hopefully they would, and
follow it.
MR. DANIELS: Right. And that, that probably
should keep the Town out of serious trouble and it
would be a flag, you need to talk to your lawyers,
this isn't just an administrative matter.
MR. EYPEL: Okay. That, now we're getting
down to the point at issue here. The decision has
to be made, as I see 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
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M.-
MR. DANIELS: I lost you again.
MR. EYPEL: I'm sorry. Can you hear me now?
MR. DANIELS: Still can't hear you.
MAYOR VORESS: Arthur is on the way over,
Sam.
MR. DANIELS: Okay. Thanks, Art.
MR. EYPEL: Okay. Sam, can you hear me now?
MR. DANIELS: Yes.
MR. EYPEL: Okay. I think what we're trying
to discuss, and we haven't even started the
discussion with the other commissioners, but what
I'm trying to clarify in my mind is if we leave
five out, I don't think -- if we leave five out
and we change the language in the first paragraph
as you suggested to "hereunder shall only include"
and "the magistrate shall only have," I am
concerned, and the reason, and the term Russian
roulette is with regard to our chances of coming
to terms with the RTC. If that is not acceptable
to them then we're back in the negotiating mode.
I'm trying to see if we can't put a document
together that will be satisfactory to both sides
and limit our exposure and still be, be totally
fair here. If they're going to throw it back at
us then we, we still have no agreement and 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
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court could come to a decision any moment.
MR. DANIELS: Everything you say is accurate.
MR. EYPEL: So, you know, I'm simply, my
concern is if we can put the language that they're
seeking or that they want in there and somehow
limit the exposure that the Town has to these
damages, then let's do it. But if the provision,
the limiting notification provision does not,
isn't worth very much, then I don't, I don't see
how we can expose the Town to this liability.
MR. DANIELS: Well, you're faced with
something like a twenty million dollar liability
now if you lose the appeal.
MR. EYPEL: Right.
MR. DANIELS: And you don't know whether you
are going to win or lose it, so the other side of
the coin is if you believe that the court may come
out with an opinion in the next week or two, then
you need to make your best offer now, because
you're not going to have time to go back and
forth, and --
MR. EYPEL: That's my whole point.
MR. DANIELS: And five is a perfectly
reasonable damage clause. That's the law for
every breach of contract.
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
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MR. EYPEL: Okay. But --
MR. DANIELS: And the RTC would be completely
reasonable in insisting that that be there.
MR. EYPEL: All right. But, I hear what
you're saying, Rusty -- or Sam. The problem is
that our counsel here, Mr. Roberts, feels that
five is going to expose the Town to a very large
risk. That's the dilemma as I see it. Am I
correct in that?
MR. DANIELS: You are exactly correct and
Rusty will be the first one to agree that you have
a much greater risk if the court ends up entering
an opinion against us before we settle. So it's
just a balancing of how quickly do you think you
need to act.
MR. EYPEL: Okay. I think I'm beginning to
get the, an understanding, clear understanding
here. If we keep going back and forth we have the
risk of a twenty million dollar judgment against
the Town. If we put five in, and we even include
a provision that, a notification provision, which
they would be entitled, which is fair to them, we
then limit the risk to a potential lawsuit. It
could be a big one, but we are in essence, we have
at least settled the case, and then we face 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
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risk of them being able to prove that we have
damaged them to some great degree. I see what you
are saying, exactly.
MR. DANIELS: I think you're stating it
exactly the way it is, Arthur.
MR. EYPEL: Okay. Okay. I have a clear
picture of it. I, I would now like to turn this
back over to the Mayor and I think we all need to
discuss this and see where the rest of us are and
how we feel about this. Thank you.
MR. DANIELS: I have another thought that
just occurred to me that I would like to run by
Rusty, because I think it might be a device that
could limit our future liability. May I do that?
MR. EYPEL: Certainly.
MR. DANIELS: Rusty, can you hear me okay?
MR. ROBERTS: Yes, sure.
MR. DANIELS: What would you think about
providing in there that no damages are recoverable
until there's been a ruling by that magistrate
that the Town has violated the agreement and the
damages shall only run from that time forward?
Then what you could do is get a ruling immediately
and if the magistrate rules against you you could
comply and have no damages. Do you think 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
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workable?
MR. ROBERTS: Well, two things, Sam. You
know, I'd like, the first that I've got of your,
you know, of your suggestions here on notice of
violation, I'd like to look at that and really
render an opinion on that and render an opinion on
what you've said, too. I hate to give advice on
such a weighty subject right off the cuff without
even having a chance to look at it.
MR. DANIELS: No, but we're talking about the
terms of something that would be agreed to in a
court order and it's pretty hard to deny
effectiveness to something that both parties have
said is okay and a judge has said is okay and
neither party can appeal because they agreed to
it.
MR. ROBERTS: You know, I don't have a
problem with that principle. I'd just like to see
what it is that is being proposed as far as the
notification of violation and how that applies to,
I mean, this is a 24-, 25 -page agreement that has
been moved and removed and I, you know, I just
don't feel comfortable in giving my opinion on
what that means to this Town Commission without
having a chance to look at it, without looking 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
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see how it does it, and I'm not saying that I
would disagree, but I don't like --
MR. DANIELS: What you might consider doing
is sending the agreement like it is and be working
for a fall -back position when they come back to
you and you'd be saving time.
MAYOR VORESS: No way.
MR. DANIELS: But I think you would need to
change that introductory language to make it clear
that these are the only remedies. I would not
send it without that language in there.
MR. ROBERTS: All right.
MR. RAND: Sam, can I ask you a question?
This is John Rand.
MR. DANIELS: Good morning or afternoon,
John.
MR. RAND: How you doing? Sam, you mentioned
before about a section --
MR. DANIELS: I can't hear you.
MAYOR VORESS: Speak into the microphone.
MR. RAND: Can you hear me now?
MR. DANIELS: Yes.
MR. RAND: You mentioned before that we
should have some phraseology in there to the
effect that you would have to be notified of 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
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violation within the six-month period. Can it be
ninety days? Does it have to be six months for
any reason?
MR. DANIELS: No, you could make it any time
period that you want.
MR. RAND: Well, ninety days, the quicker we
know about it the quicker we have an opportunity
to cure it and limit the damages that might result
from any violation. Would that not be the case?
MR. DANIELS: That's true.
MR. RAND: Okay. So you would, you don't see
anything wrong with suggesting then a ninety -day
notice of violation as opposed to six months as
was --
MR. DANIELS: If you are talking, John, I
can't hear you.
MR. ROBERTS: I think John wants to know
whether the time limit means any difference.
MAYOR VORESS: John is proposing six --
ninety days, Sam, if you can hear me. My
microphone seems to be working.
MR. DANIELS: I think that you could make it
an earlier time provision and provide that no
damages accrue until after the Town has had a
certain period of time to cure the problem.
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
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MR. RAND: Right. Okay. So you, you think
that it might not be a bad idea to mention ninety
days as far as notification of any breach or
violation of this contract as opposed to six
months? Can you hear me? Sam?
MR. DANIELS: I'm not hearing anybody.
MAYOR VORESS: Well, Sam, what John said to
you is you would not be opposed to ninety days
instead of six months?
MR. DANIELS: No.
MAYOR VORESS: Okay. Maybe at this point in
time we can have a discussion, Sam, among the rest
of the Commission about what we've heard so far.
MR. DANIELS: Okay.
MAYOR VORESS: Okay?
MR. DANIELS: Do you want to call me back if
you want to talk to me again?
MAYOR VORESS: Why don't you, can you just
stay on for a few minutes, Sam?
MR. DANIELS: Sure.
MS. MARIANO: I'd like to change phones, if
you don't mind, because this thing has too much --
MAYOR VORESS: Mary Ann is going to try -- do
you want him to hang up?
MS. MARIANO: He needs to hang up.
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
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MR. EYPEL: He's not going to participate.
MR. DANIELS: In my opinion we're going to
take it out for the moment and be ready to put it
back in, unless you feel that time is of the
essence and you have to put it in now, and that's
your decision.
MR. AUGENSTEIN: Well, Sam, I'm not
experienced in this, I never went to a federal
court. What do you think of the time limit, where
do we stand?
MR. DANIELS: It could be any day, it could
be a year from now. My guess is it will take a
while because they're going to be different views
of different judges, but it's just a guess.
MR. AUGENSTEIN: Well, I feel they're not
going to buy it with this in or with this out, but
if you feel it would help us as a bargaining ploy
later on then I could see it coming out. And of
course, the heading on this B will have to be
changed to what you said.
MR. DANIELS: Right.
MR. AUGENSTEIN: Yes, well, I can see that.
MR. DANIELS: Good.
MAYOR VORESS: Arthur?
MR. EYPEL: I think, I think I've stated 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
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MAYOR VORESS: You need to hang up. We're
going to try to call you back, Sam, with a better
phone connection.
MR. DANIELS: Okay. I'll hang up and you
call me.
MAYOR VORESS: All right. While Mary Ann is
calling, Dave, I'll call on you next, and we'll
just walk down the line, okay, about this
discussion?
MR. AUGENSTEIN: Fine. Fine.
MR. DANIELS: Hello?
MS. MARIANO: Hi, Sam, it's us. Hopefully
this is going to be better.
MR. DANIELS: Okay.
MAYOR VORESS: All right, Sam, we're going to
go on with the meeting. If you will just listen
in, we're going to start with Commissioner Dave
Augenstein to give us some of his views about our
recent discussion and any other things he would
like to say.
MR. DANIELS: Great.
MR. AUGENSTEIN: Okay. I got lost a little
while back. Are we speaking of including
Paragraph 5 or taking it out?
MAYOR VORESS: Either way, he's 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
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position, Mayor.
MAYOR VORESS: Commission -- Vice Mayor Bill
Paul?
MR. PAUL: I'm in accord with Sam on B,
change the language in B, leave five out.
MAYOR VORESS: Commissioner John Rand?
MR. RAND: Well, I think I've stated my
position very clearly the last time, and I'm
somewhat amazed at the change of heart that Arthur
has now, and especially the earlier remarks that
you stated that we didn't realize what we perhaps
were doing. I find that an amazing statement to
make because we, I think we discussed this at
length and I thought I tried to convince you of
the importance of including Paragraph 5, and the
consensus at that time from what I was able to
discern was that three commissioners were
violently, vehemently and diametrically opposed to
the inclusion of Paragraph 5.
Now we seem to be concerned that excluding it
might create a problem. I think we should not
lose sight of several important facts, one, we are
working against the clock and that's where the
Russian roulette aspect comes in, not in any other
sense.
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
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The decision could be made next week,
tomorrow, or six months or a year from now. But
we can't afford to gamble, in my opinion. And I
think you have to be realistic, since they have
indicated to us that the remedy portion of this
contract is of paramount importance. I just don't
think that we can continue to meet like this and
change our minds from day to day or week to week.
We just are running out of time, and I think
we ought to come to an agreement once and for all
as to what we are prepared to do. And I
personally feel that this agreement is not going
to be accepted if we don't include Paragraph 5 in
there with the additional amendments that have
been proposed, i.e., the time limit as far as the
notice of violation is concerned and the damages
would be only applicable after the magistrate so
decides or decrees that there has been a
violation.
I think you have to be realistic. I don't
think what they're asking for is unreasonable. I
think if we default on this contract I think they
have the right of remedy. I think we would
certainly request it if the shoe was on the other
foot, so I am personally in favor of including
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
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Paragraph 5 in order not to run the risk of RTC
throwing this back at us and then we have one or
two more sessions and then all of a sudden the
Court of Appeals makes a decision where we lose
twenty million dollars.
So I feel very strongly about my position, as
I indicated in as clear a fashion as I could at
the last meeting, that it makes sense, and I still
feel the same way, that we should include
Paragraph 5 with the changes that have been
suggested by Sam.
MR. AUGENSTEIN: Commissioner, can I jump
back in a minute?
MAYOR VORESS: Just a minute, Commissioner
Augenstein. Let me say what I think and then
we'll go through all of us. All right, is that
all right?
MR. AUGENSTEIN: Fine.
MAYOR VORESS: I believe that we should
include Sam's proposal, "shall only" and "only,"
that there should be a notification section put in
written by Rusty relative -- and putting a
ninety -day provision in that for notification to
us, we accept Sam's suggestion that we put in
damages do not start until we have been determined
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
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by the magistrate to be guilty of some violation,
and that Section 5 should be in.
I believe that it is vital to put that piece
in if we truly want to deal with the RTC. If we
don't we can take it out, but I think they have
told us that, I think Sam has said this is a
common provision in agreements of this type and
that it is perfectly proper for them to ask for
it.
I believe also that the Town, that the
present commission has to believe that current --
that future commissions will be as responsible for
this agreement and stipulation as this current
commission is, and we may have to institute rules
in this town in terms of policies to let us know
whenever there is a question on the RTC, on the
Hidden Harbor property, that we're aware of what
those things are, whether it's to the building
official, to anybody in town, we should as a town
commission be notified until this project has been
complete, and that's my view of it.
Now, Commissioner Augenstein?
MR. AUGENSTEIN: Okay. The remedies here are
specific in each and every number. Number one is
mandatory injunctive relief. Second is payment,
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
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which we took out, but anyway, what the payment by
defendant for liquidated damages for delay reads
over here was a judgment against any unpaid
balance. Four was paid attorney fees actually
incurred.
But five is vague. "Other damages," it's so
vague, what could other damages be? So I'd like a
specific instance in here and I wouldn't object to
it if there was specific instances put in of what
else we can be responsible for, but this is
extremely vague, "other damages."
MR. ROBERTS: Can I say something?
MAYOR VORESS: Yes.
MR. ROBERTS: Thank you. A couple of things.
One, this is a common provision, and as Sam says,
it really just restates the law is all it does.
If you had no provision in there making your
remedies exclusive or limiting, even if that
position, if that wasn't in there, they would have
that ability to do it. It's a contract. That's
contract law.
What I have indicated to you is that the
research shows, and I'm sure Sam will agree with
this, you can limit your remedies, and that's the
case law of Coastal Computer versus Team
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
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Management Systems, Inc., and that's not uncommon
either.
Now, what you have in this provision from the
very outset is an unusual provision whereby they
have -- what generally happens in a contract is
you have your general contract remedies, and if
there's a breach they file suit and you go on for
a year or two or three or four or five, six, until
you finally get to the jury trial which you are
entitled to under contract remedies. You're
entitled to do all your discovery, you're entitled
to go to state or -- and generally it would be
state court, and RTC might require you to go to
federal court under their statute. That's a
general contractual remedy.
But you have to understand in this situation
we've already changed that ball field to begin
with from the very outset by agreeing in this
thing to allow it to be done on an expedited
motion in front of a magistrate, rather than a
district court judge, in a non -jury proceeding
rather than jury proceeding, going to a specific
place, and that is something their, to their
benefit, okay?
They are essentially asking you to waive 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
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general contract remedies. All right? And it's
my advice to you that if you're going to waive
those general contract procedural remedies that
you are entitled to, that there be something in
return to make it fair to you. And the fairness
to you as a town is that in return for those
specific things they only get specific remedies.
And that's why it was inserted.
The second thing is that it's my feeling that
this is not the only provision in this agreement
that RTC has dispute over. If it were the final
agreement, quite frankly I think you could draft
something, what Sam says, and potentially limit
your exposure, but it's my sense from the
correspondence and reviewing the transcript that
the RTC has a lot of other things to talk about.
They want to talk about stories of buildings and
monetary provisions and all that stuff like that.
I would suggest, you know, conceding that,
that you send it off with those few minor changes
to them and then continue your discussion and be,
like Sam says, drafting what the notice provision
is. I think they'll probably want something. But
if that's the last provision, then fine, because I
think this is the biggest provision. It's 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
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biggest provision, it's the biggest risk, and the
other stuff, if that all gets resolved and you're
down to this I wouldn't have any hesitation saying
that's the risk, if you want to take the risk take
it, and I think you'd probably be at five million,
if this is the last thing, but it's not.
MAYOR VORESS: Well, we don't know until we
send it to them, Rusty.
MR. ROBERTS: Absolutely, but as I said to
you before, Mayor, if you change it now you'll
never go back.
MAYOR VORESS: We always have relief from the
Circuit Court, Rusty.
MR. ROBERTS: No, you don't.
MAYOR VORESS: Yes, we do.
MR. ROBERTS: Well, I'm, I retract that. I
don't know in what context you meant.
MAYOR VORESS: The Court of Appeals.
MR. ROBERTS: Well, and you can see what
happened on the first panel opinion in this case,
what sort of relief you got.
MAYOR VORESS: I understand, I understand
that, Rusty, but, you know, we do have the
capability of getting relief from the court and
it'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
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MR. ROBERTS: And, well, and the other
concept I think you have to understand is that if
in fact you, let's say you, the twenty million
dollar judgment is affirmed and you still have the
potential to go to the Supreme Court in this case,
and I think Sam would agree with it.
Second of all, there are a variety of rulings
that that court could make, only one of them is
affirming the underlying judgment. There are a
variety of things that can happen in that regard.
The other thing is that if in fact -- let's
take for instance the mandatory injunction that
was issued. It simply says, our PUD for five
years and two months and one day and reasonable
changes to that, okay?
What did the court say in that regard in that
order? There is nothing about, in that order
saying they can get damages if you violated that
injunction. And that's very similar to what
you're saying here. I'm substituting in these
building parameters something different than what
the mandatory injunction is and you don't get
damages. They either do it or you don't do it,
okay?
And my suggestion to you and 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
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recommendation is that you simply send it off as
is and if the clock is ticking for you, the clock
is ticking for them as well. Okay? I think
they're very anxious to settle this, too. I would
suggest you send it off and continue to discuss
what it is, and if that's the final thing, the
final thing that puts it over the precipice as a
done deal, then you can do it.
MAYOR VORESS: Well, let's see if we can get
to the end. I think we're trying to -- I would
accept a motion --
MR. EYPEL: Wait a second. Wait a second.
We haven't gone around the table.
MAYOR VORESS: Oh, excuse me. All right.
MR. EYPEL: We were going to rebut, we were
going to go around.
MAYOR VORESS: What I was saying is, we can
either rebut what we have heard or we can get a
motion, and then we'll have a discussion section
of the motion --
MR. EYPEL: Well, I think since Commissioner
Augenstein has had an opportunity --
MAYOR VORESS: Go right ahead, Commissioner,
f ine .
MR. EYPEL: I'd like 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
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MS. MARIANO: Sam, are you still with us?
MR. DANIELS: Yes.
MR. EYPEL: Thank you, Sam.
In response, I would like to clear the air on
a couple of things. Number one, Commissioner
Rand, I was not speaking for you, sir. I respect
your decisiveness and I know that you had your
opinion at the last meeting and I know you have
not changed your opinion.
So possibly my choice of words was a little
inaccurate. I was speaking more in terms of
myself.
MR. RAND: Fair enough.
MR. EYPEL: I simply felt after reflecting
and pondering this matter over the weekend that
we, I had to come to terms with this agreement.
Quite frankly, this back and forth and deciding
when the Court of Appeals is going to render a
decision and when they're not going to render a
decision, quite frankly this is, this is very
nerve-wracking for all of us, so I basically came
down to the decision of whether or not the risk of
the twenty million dollar judgment, the impending
risk of that judgment was a stronger force than
the liability that we would be exposed to 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
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left five in and produced some language, and I
agree with Mr. Daniels and with Sam, that we could
provide language that not only a notification
provision, that I agree with Commissioner Rand on
the ninety days, but that we could also draft some
sort of language that addresses the issue of --
MAYOR VORESS: Damages.
MR. EYPEL: Damages, excuse me, sorry.
I think those suggestions were very clear and
I hope you will all understand that this is a
decision of risk management, basically. We are
trying here, and I agree with Rusty and I know
that he is, his intentions are clear, he is trying
to advise the Town to the best of his ability and
he is trying to limit the Town's exposure to a
serious case of damages, a damage case suit here.
And, Rusty, I do appreciate those comments
and I know from where you're coming. But I must
say that we must decide which is more important to
us. And those are my statements. Thank you.
MAYOR VORESS: Thank you. Vice Mayor Bill
Paul, do you have anything to add?
MR. PAUL: Nothing further to add.
MAYOR VORESS: Is everybody ready to get a
motion so we can --
1MUDRICK, 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
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MR. AUGENSTEIN: Could I just ask one
question?
MAYOR VORESS: Yes.
MR. AUGENSTEIN: Is there any way of
softening this language so it doesn't look so
dedicated --
MR. EYPEL: I think, Commissioner Augenstein,
that that's what Sam was suggesting, that we did
add provisions and soften it so that our exposure
was limited.
MAYOR VORESS: To after the magistrate --
MR. EYPEL: After a magistrate has decided.
There would be no damages until a magistrate has
decided that we have --
MR. AUGENSTEIN: That I would like.
MAYOR VORESS: All right. Could I have,
could I get a motion? Since I'm the chair I guess
I can't make the motion. Would someone wish to
make a motion?
MR. RAND: Well, I make a motion that we
include Paragraph 5 in this stipulation with the
suggested changes to minimize the risk that we
obviously are all aware of exists.
MR. AUGENSTEIN: Okay.
MAYOR VORESS: All right. So that 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
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include "shall only" and "only," notification
section at ninety days.
MR. RAND: Correct.
MAYOR VORESS: And Sam's suggestion that we
put in damages would only start at the
magistrate's ruling that the Town was indeed
violating the agreement.
MR. DANIELS: It would be a two-way deal,
that either party had violated.
MR. RAND: What did you say, Sam?
MR. DANIELS: The clause would provide that
no damages for breach of this agreement shall
commence to run until the magistrate has ruled
that a party has violated the agreement.
MAYOR VORESS: All right.
MR. AUGENSTEIN: That's what I thought we
decided on.
MR. DANIELS: RTC might violate it, too.
e
MAYOR VORESS: Okay. Fine. It probably
won't be RTC, it will be the next owners, Sam,
they're going to be out of it.
Could I have a second for Commissioner Rand's --
MR. EYPEL: Second.
MAYOR VORESS: All right. Any discussion?
MR. EYPEL: Mayor, if I may ask, we haven'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
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discussed two, are we leaving two out?
MR. RAND: I was going to ask the same thing.
Are we going to leave in Paragraph 2 about the
thousand dollars per day?
MAYOR VORESS: Well, we left it out the last
time. I said that we were going to leave it out
this time, too.
MR. RAND: I thought so, too.
MAYOR VORESS: Yes. Okay. Commissioner Dave
Augenstein?
MR. AUGENSTEIN: Aye.
MAYOR VORESS: Commissioner Arthur Eypel?
MR. EYPEL: Aye.
MAYOR VORESS: Commissioner -- Vice Mayor
Bill Paul?
MR. PAUL: Nay.
MAYOR VORESS: Commissioner John Rand?
MR. RAND: Aye.
MAYOR VORESS: Mayor Arlin Voress, aye. The
motion passes. Sam, we're going to take your
advice and move in that direction, by the majority
of the Commission. Can you hear me?
MR. DANIELS: I can hear you. I think it's
everybody's advice.
MAYOR VORESS: Right. All right. Fine. 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
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problem with that.
MR. DANIELS: I think that's wonderful.
MR. ROBERTS: You want to draft up the
provisions, Sam, send them to me?
MR. DANIELS: Get something up -- where are
you going to be? Tell you what you do, Rusty,
have you got my home number?
MAYOR VORESS: I have it, Sam. We can get it
to Rusty.
MR. DANIELS: How about, where are you going
to be that you can call me? You going back to
your office?
MR. ROBERTS: No, I'm going home.
MR. DANIELS: Oh, okay.
MR. ROBERTS: Can you just get it to me in
the morning?
MR. DANIELS: I'll send you something first
thing in the morning.
MR. ROBERTS: Okay.
MR. DANIELS: Great. Are we done?
MR. RAND: No.
MAYOR VORESS: I think Commissioner Rand has
one other issue he wants to bring up.
MR. DANIELS: Okay.
MR. RAND: Yeah, I'm a little bit concerned
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
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about the Section 6, payment by the Town. As I
had made reference at our last executive session,
I reminded my fellow commissioners that the Town
is liable for the 5.5 million dollars in this
settlement.
We now have the first time seeing a
commitment which Mr. Roberts has produced from
Florida League of Cities to the effect that they
would agree to pay one million dollars under the
settlement after certain conditions are met,
meaning the, their release from the Town, I
presume they also mean from the court order.
However, the way we worded it here where we
say one million dollars within five business days
of receipt of such sum from the Florida League of
Cities Insurance Trust, I'm afraid that the RTC
might question this as to what happens if you
don't get it within five business days.
And inasmuch as this is our liability, I
don't know, and I appreciate your opinion, Rusty,
by virtue of this letter from the Florida League
of Cities do you feel that there could be a
problem that they may not pay it in timely
fashion, in which case would we have to increase
our promissory note from three million to four
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
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million? In other words, we're liable for their
share of the million if they don't pay it for one
reason or another, but you feel with this letter
that that thing just doesn't exist?
MR. ROBERTS: You know, I've been working
with them for fifteen, sixteen years and I've
never had a problem. In fact, I've got a check
that they don't even have to fund until probably
the end of this year sitting in my office right
now for $125,000 because somebody said, gee, has
that been funded, so they sent it to me already
and I, I can almost assure you that, you know,
once this agreement is reached and the resolution
goes down there, that million dollars will be
here.
MR. RAND: All right. Then --
MR. ROBERTS: And I agree with your concern,
too, and the RTC may question that. And I suspect
that they will want some language of wanting it
probably within some day of the order rather than
in fifteen days of receipt.
MR. RAND: I have a suggested wording on it
that I'd like to try on for -- after --
On A now, we're talking about 6-A, the
payment by the Town, where it says one million
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
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dollars within five business days of receipt of
such sum from the Florida League of Cities
Insurance Trust, I would like to add, however, if
for any reason such payment is not made within ten
days of the date of the court order pertaining to
this settlement, the sum of one million dollars
will be added to the balance of three million
dollars, to be paid by the Town in accordance with
the terms and conditions of Section 6-C of this
settlement agreement, and the note to be executed
by the Town will be therefore increased from three
million to four million dollars. How's that
strike you?
MR. ROBERTS: I don't have a problem with
that.
MR. RAND: Okay. Anybody else have a problem
with that?
That would be the suggestion, because I think
that would satisfy the RTC and eliminate their
coming back and saying, well, suppose you don't
get the million dollars, then what happens then,
so this way I think we cover it in advance and
eliminate any argument in that respect.
How do you feel about it, Sam?
MR. DANIELS: Sounds great to me. 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
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knows those people and they've paid every bill
right on time.
MAYOR VORESS: Yeah, I think you'll get your
money, we'll get our money right away.
MR. RAND: Okay. So that would be the
suggestion that I would add for 6-A.
MR. AUGENSTEIN: I have a question. Would
that check be made out to the RTC?
MR. ROBERTS: Right.
MR. AUGENSTEIN: In other words, all we have
to do is forward it or you could forward it,
either way?
MR. ROBERTS: Right.
MAYOR VORESS: They might indeed ask for a
wire transfer.
MR. ROBERTS: They probably won't get that.
MAYOR VORESS: No, but -- all right. Are
there any other, are there any other issues then
to come before the executive session?
Hearing none -- wait a minute, Sam, excuse
me, Sam.
MR. ROBERTS: I'll just, I think that if we
get close to it I'm sure I can get a commitment
out of them so that they will in fact, not that I
don't think your language is beneficial as well,
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
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but I'm sure I can get a commitment out of them
that the deal is signed and sealed, you know,
send, you will send the check on such and such a
day, I'm sure.
MAYOR VORESS: Okay. Sam, the only other
issue --
MR. ROBERTS: If you could, John, send me
that language.
MR. DANIELS: Arlin, I couldn't hear you.
MAYOR VORESS: Excuse me, Sam. The only
other issue we're going to take up in this meeting
is discuss with Rusty when he thinks he'll have
the document ready to take to the RTC.
It's almost 5 o'clock and you may wish to
leave us now. I think the Commission thanks you
very much for your time and patience with us and
if you want to stay on you can. If you want to
get off, this is just going to be --
MR. DANIELS: My family just came home, my
dogs need to be fed, so I am going to say good-bye
and God bless all of you.
MR. ROBERTS: Okay.
MAYOR VORESS: Rusty, I guess the other thing
I have on my agenda is when you think we might be
able to get this off to the RTC.
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
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MR. ROBERTS: Well, I got to get his draft
and incorporate an agreement and, you know, I
should be able to get it out tomorrow.
MAYOR VORESS: All right. Okay. So next
couple of days we'll be able to get that out?
MR. ROBERTS: Yes, I don't think I have
anything else tomorrow so I can get John's
language and Sam's language and, you know --
MAYOR VORESS: Okay. Fair enough.
MR. AUGENSTEIN: Rusty, can I ask you a
question?
MR. ROBERTS: Uh-huh.
MR. AUGENSTEIN: Have you had any
communications with the RTC on when this is going
down?
MR. ROBERTS: I talked to Judith on Monday.
MR. AUGENSTEIN: That's yesterday.
MR. ROBERTS: Yesterday. And I told her I
thought it was going out yesterday or today. So --
MAYOR VORESS: Okay.
MR. AUGENSTEIN: But she is expecting a
message.
MR. ROBERTS: She said she'd be happy to see
it.
MR. AUGENSTEIN: 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
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MS. MARIANO: Okay. I have a comment. I
just want to be clear on how we're going to
proceed, because I'm not planning to be in the
office tomorrow. Is it agreed among the
Commission that Rusty is free to send this
document out without him sending any proposed
language back through you?
You know, I don't want him to have language
and then the Commission say, well, we didn't see
that language before it went, because he's been
advised to send it out. I want it to be very
clear that are you putting your trust in he and
Sam to draft the language as they see fit and to
send the agreement without coming back before this
body.
MR. AUGENSTEIN: Good point.
MR. RAND: I would certainly be willing to
give Rusty the discretion --
MR. AUGENSTEIN: Me, too.
MAYOR VORESS: Yeah, I think so. Rusty, I
think you understand the spirit of what we want.
MR. ROBERTS: Well, as I say, Sam's going to
be drafting it up, and the only thing, I just
wanted to make sure that any provision that we had
in there is consistent with the other provisions,
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
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yes.
MAYOR VORESS: So, okay, so we give Rusty the
authority and the obligation to move it right
along.
MR. AUGENSTEIN: I'm sure you made copies of
the language we were discussing.
MR. ROBERTS: Sure.
MAYOR VORESS: Right.
MR. ROBERTS: What I did -- I mean, I'll fax
it down to Mary Ann if you all want to see it or
something like that.
MAYOR VORESS: Okay. But let's move it right
along. Fax us a copy when you get it, to Mary
Ann. She'll distribute it to us, and --
MR. RAND: Don't hold it up, just send it --
MR. ROBERTS: Oh, no, no. I mean, I'll --
just make sure she has her fax machine on.
MS. MARIANO: Because I can't be in the
office tomorrow.
MR. EYPEL: And if we could, we could have
that distributed to the Commission in whatever
fashion is necessary.
MAYOR VORESS: We'll have it delivered by the
police the minute it gets here.
MS. MARIANO: And I will be available on 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
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phone or by beeper all day.
MR. ROBERTS: The other thing was the
promissory note is a part of that package that you
all just got.
MR. RAND: I don't see any problem with it.
Wait a minute. Just a minute. There was one
thing. Excuse me. Where is that now? That's in
Rusty's --
MS. MARIANO: While he's looking for that,
you'll note that in your box you received an
updated version of the preliminary financial
analysis from Stifel, Nicolaus based on those
corrections that Commissioner Rand made on
Friday's meeting.
MR. RAND: Rusty, there is one suggestion I
have on the note.
MR. ROBERTS: Okay.
MR. RAND: I think it might be helpful if we
insert somewhere that this note is issued in
accordance with the terms and conditions of the
settlement stipulation. I'd like to identify the
note as being part of the settlement stipulation,
because they make no reference to it.
MR. AUGENSTEIN: I think they ought to keep
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
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MR. RAND: Huh?
MR. AUGENSTEIN: Going to keep it --
MR. RAND: No, but there are certain, in
other words, this promissory note has been issued
as a result of a settlement stipulation, so I'd
like the note to clearly make reference to that
fact.
MR. AUGENSTEIN: Yeah, they dot their "I"s
and cross their "T"s.
MR. RAND: I'm sorry, that's my nature.
MR. ROBERTS: I'll talk to Charlie and see
what -- I mean, I don't have a problem with it one
way or the other on that, but it's his note so I
want to communicate it to him.
MR. RAND: Okay.
MAYOR VORESS: I declare that all subjects
have been discussed, and I will adjourn the
executive meeting as of now. Do you have anything
you want to say at 5 o'clock?
MR. ROBERTS: No, just that it's 5 o'clock
and that the attendees of the meeting are listed
in the transcript, that no part of the meeting has
been held off the record, and that Sam Daniels has
attended by a phone from Miami because of the
distance. And that's all I have.
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
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64
Mayor, thank you very much.
MAYOR VORESS: Thank you. I will reconvene
the special meeting of the Town Commission and
when the Town Clerk gets here we will address
that.
MS. MARIANO: (Telephonically) Doris?
THE CLERK: (Telephonically) Here I come.
MAYOR VORESS: What did she say?
MR. RAND: "Here I come."
(Whereupon the Clerk entered the room.)
MAYOR VORESS: Doris, we are reconvening the
special meeting of the Town Commission of the Town
of Highland Beach for April 25th, and I'll accept
a motion for adjournment.
MR. RAND: So moved.
MAYOR VORESS: Second?
MR. EYPEL: Second.
MAYOR VORESS: All in favor?
(All respond "aye.")
MAYOR VORESS: Meeting stands adjourned.
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
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C E R T I F I C A T E
The State of Florida, )
County of Palm Beach. )
I, NANCY L. CONING, Registered Professional
Reporter, do hereby certify that I was authorized to
and did report the above meeting at the time and place
herein stated, and that it is a true and correct
transcription of my stenotype notes taken during said
meeting.
The foregoing certification of this
transcript does not apply to any reproduction of the
same by any means unless under the direct control
and/or direction of the certifying reporter.
In witness whereof I have hereunto set my
hand this C) Y4 day of v) 1995.
NANCY L. CONING, RPR, P
My Commission Expires
JULY 21, 1995.
OFFICIAL NOTAR SEAL
NANCY L CONING
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC454490
MY COMMISSION EXP. ULY 21,1999
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