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BCC Minutes 03/08/2011 Closed Session (#11A-South Florida Water Mgmt District) MINUTES BCC Meeting * Closed Session * March 8 , 2011 March 8, 2011 TRANSCRIPT OF THE CLOSED SESSION OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida March 8, 2011 The following is a Closed Session meeting held before the Board of Collier County Commissioners, who met on this date at 1: 15 p.m. in Building "F" of the Government Complex, East Naples, Florida, with the following members present: Fred Coyle, Chairman Jim Coletta Donna Fiala Tom Henning Georgia Hiller ALSO PRESENT: Jeffrey Klatzkow, County Attorney Jackie Hubbard, Assistant County Attorney Leo E. Ochs, Jr., County Manager Page 1 March 8, 2011 Item #IIA THE BOARD IN EXECUTIVE SESSION DISCUSSED: STRATEGY SESSION RELATED TO LITIGATION EXPENDITURES AND SETTLEMENT NEGOTIATIONS IN THE PENDING CASE OF COLLIER COUNTY V. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, CASE NO. 09-7419-CA, NOW PENDING IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. MR. KLATZKOW: Commissioners, we've received a settlement offer from the South Florida Water Management District. I sent each of you a copy that was in backup. The offer is $3 million. I have some background that I've talked with the County Manager on. The county's been looking for a suitable site for a number of years right now and we've been simply unable to locate a suitable site in Collier County at this point in time. If we had a suitable site, we would go to the Water Management District and say okay, we've got a site here and these are the parameters we've agreed on and require you to purchase it, but we don't have that site. At this particular point in time we could wait for the Lake Trafford site to get cleaned up if we even want to use that at this point in time. And I know the commission directed Commissioner Halas at one point in time to write a letter objecting to that site because of the contamination. Or we're down to money. The money offered here is $3 million. It struck me on the low side when I first heard it. But quite frankly, the market has deteriorated, you know, since the height of the market when we negotiated based on Pepper Ranch, and three million may be reasonable. We don't have to take it. We can go back and ask for Page 2 March 8, 2011 more if you'd like, or reject it outright, whatever the board's pleasure IS. CHAIRMAN COYLE: Is the property that you used as a comparable here actually suitable for the A TV site, or is that just used to -- as a comparable for the evaluation of the amount of the award? MS. HUBBARD: There is a memorandum from Ray Bellows. And I don't know if you have that. COMMISSIONER HENNING: I didn't see that. MS. HUBBARD: You don't have that. MR. KLATZKOW: I believe Marla rejected that site, Commissioner. CHAIRMAN COYLE: Who did? MR. KLA TZKOW: Marla Ramsey. CHAIRMAN COYLE: Do you know why? MS. HUBBARD: She thought it was all jurisdictional. But Ray Bellows seems to think that -- well, here's his memo. And he says -- it's written to Susan Murray Istenes prior to her leaving. And it's a memorandum in response to Susan Istenes' request for a zoning analysis regarding the above referenced property which consists of 701.9 acres, which is in your packet. The results from this analysis are intended to assist in the decision as to whether the county should purchase the property for use as an A TV park site. The site is primarily located in Township 46, Range 30, and includes Sections 31, 32, 33, 34, 35, 26, 27, 28, 29, 24, 23,22 and 21. He says the zoning is rural agricultural with a mobile home overlay. And it's within an area of critical state concern/special treatment, as well as the Rural Land Stewardship Area overlay. They are currently permitted uses, however. Single-family dwellings and mobile home dwellings, agricultural activities, wholesale reptile breeding, wildlife management, conservation uses, oil and gas exploration, family care facilities, communication towers, Page 3 March 8, 2011 essential services and schools. But there are 27 conditional uses. He lists those. And one of those is cultural/educational or recreational facilities and their related modes of transporting participants, viewers or patrons who are applicable. He says the subject site is designated an area of critical concern/special treatment which requires additional environmental review, in accordance with Section 38405, Florida Statutes, and Chapter 73-131, Laws of Florida. The administrative commission instituted regulations for areas of critical state concern. The purpose of these regulations is to conserve and protect the natural, environmental and economic resources. Furthermore, these regulations are to provide a land and water management system that will preserve water quality, provide for the optimum utilization of the limited water resources of the area, facilitate orderly and well planned development and protect the health, safety and welfare of the residents of the state. The Florida Administrative Code establishes criteria for site alteration, drainage, transportation facilities and structure installation. These regulations are implemented through the land development regulations as set forth in Section 440214. Now, he says the Growth Management Plan consistency of the subject property is designated agricultural mixed use on the Future Land Use Map. The Rural Land Stewardship Area -- says the area generally depicted on the Future Land Use Map and specifically depicted on the official zoning atlas map as the Rural Land Stewardship Area overlay, including lands within the Immokalee area study boundary of the Collier County rural and agricultural area assessment referred to in the State of Florida administration final order number AC99-002. The RLSA district generally includes rural lands in northeast Collier County, line north and east of Golden Gate Estates, north of Page 4 March 8, 2011 the Florida Panther National Wildlife Refuge and Big Cypress National Preserve, south of the Lee County line and south and west of the Hendry County line. The RLSA allows layers of development rights that have been removed from the property, and the remaining allowable uses on the property. This was done under the provision of the RLSA process. Approximately 19 acres along the north boundary of the property has had no development rights removed. The remaining areas had some uses removed, primarily dealing with earth mining and agricultural uses. However, the allowable uses include cultural, educational and recreational facilities. See -- as far as historical and archeological. See portions of the subject property contained -- since portions of the subject property contain areas of historical and archeological probability, an historic and archeological survey and assessment is required to be submitted with any local development order. In summary, Ray Bellows says: Upon review of the list of permitted and conditional uses, the proposed A TV park facility would require conditional use No. 23, which I just read to you was cultural/educational or recreational facilities as permitted under conditional use, it would require conditional use as a recreational facility. If you have any other questions, please don't hesitate to ask. COMMISSIONER HENNING: May I see that memo, please? MS. HUBBARD: Sure. COMMISSIONER HENNING: I'll give it back. CHAIRMAN COYLE: It sounds to me like it's iffy. There would be no assurance that you could use it -- MS. HUBBARD: No, no. You have your conditional use. COMMISSIONER COLETTA: One of the things we're going through is we've been through this process for about eight to 10 times, numerous times. Mike Davis and I worked on it, the county commission, we tried it several times. We even thought we had Hendry County trying to reach that park. Wernet resistance. It wasn't Page 5 March 8, 2011 local residents, we met it from the environmental community. Now, the way this lies, undoubtedly it's going to be near something as far as a panther preserve, as far as a park or other conservation lands, CREW trust or whatever. Anything you try to do most likely will be stopped down the road, if not by our own local ordinance and the residents there, probably by Federal Fish & Wildlife. Now, it doesn't mean it can't be done; it's just at this point in time we've never done it. The issue at hand today is do we want to go forward with the settlement. And my personal feelings is is that while three million might seem like a lot of money, we originally equated it to a number of nine million, and we started breaking it down to the loss, the interest on the money that would have occurred if we got it back when we were supposed to after a five-year period when we were supposed to finalize the whole thing up. I do think this is worth a little bit more than that. However, with that said, we've still got the problem with the fact that Rick Scott is out to cut wherever he can, and South Florida Water Management's telling us their budget may be cut as much as 25 percent. I don't think it would hurt to make a counter offer with the idea as far as what the money is going to be used for. If it's going to be for an A TV site, we can discuss later. We might want to open it up for a 30-day discovery period to see ifthere's anything out there that would work so that the A TV community would know that we gave it every possibility in the world and it wasn't something we just threw them under the bus in the end when we got to making a settlement. MS. HUBBARD: I have one comment. The 700 acres that Ray Bellows just analyzed and I read to you, it was for sale for 2.4 -- $2,450,000. It's 701 acres. And they've offered three million. Now, that would be sufficient to purchase the 701 acres and then seek the Page 6 March 8, 2011 conditional use that he seems to think is possible. COMMISSIONER COLETTA: And if we fail, then we have another Conservation Collier project. MS. HUBBARD: Well, you'll have 701 acres, if you decide to purchase it. COMMISSIONER COLETTA: I know. Right now we seem to be land rich rather than land poor. And there's so many other needs that are going out to fill, one of them being an A TV park. One of the reasons why they're coming to us now is very simple. We have got to the point where depositions are going to be asked for. When? When is that going to take place, Jeff? MS. HUBBARD: In about a month. COMMISSIONER COLETTA: In about a month. They don't want to do that. If for some reason they get forced in depositions before we reach an agreement with them, they'll probably be less likely to make a settlement. Because once they go through the pain, they're not going to matter. They don't want to go through the deposition, that's my feeling. Because they completely blew us off every time we inquired to where we were on this. MS. HUBBARD: I -- you know, I think it's a pretty good offer, frankly. COMMISSIONER COLETTA: I do too. But I'm just wondering if we might want to consider asking for more. Even if we came up with three-and-a-half, it puts us a little bit farther in the game. COMMISSIONER HILLER: My concern is where they're getting the money from to pay the settlement. I mean, if they're just taking it out of our paw and giving it back to us, I would like assurances that our paw is going to stay the same. Because, quite frankly, if all they're doing is shifting money that we would get otherwise and calling it a settlement, we're getting nothing. COMMISSIONER COLETTA: You got it right. That's what we're doing. Page 7 March 8,2011 COMMISSIONER HILLER: But I don't think they have to do that. MS. HUBBARD: I mean, why do you think that? You don't think this is a good faith offer? MR.OCHS: No, I think what -- in may, Commissioner, I think what the Commissioner is inferring is that you have the South Florida Water Management District who is the party in suit, and you have locally the Big Cypress Basin. And we've been advised by staff in West Palm that whatever the settlement amount turns out to be, if there is one, would likely come out of the Big Cypress Basin funding and not the Dstrict, so -- COMMISSIONER FIALA: Which would still go to us in the first place. But now, you know, we're not getting anything. MR. OCHS: As Commissioner Hiller said, you're negotiating against yourself. If you ask for four instead of three and they give you four, that might be a million less that transportation gets to maintain the secondary canals, or utilities gets to help with some of their brackish water programs, et cetera. COMMISSIONER COLETTA: And we could argue that after the fact too to see if we could draw funds from somewhere else. COMMISSIONER HILLER: You would argue it before. You would say these are the funds that you -- you know, you agree on a price and you say however, the funds need to come from a source other than the funding that we would normally get. I mean, they've got other money. We know what our allocation is going to be. They're going to probably, you know, cut back that allocation. But that should not be a line item in that allocation. Otherwise we're being deprived. MR. OCHS: I don't know how much support, funding support that the Big Cypress Basin receives from the District. I imagine if it was in the millions of dollars annually that they would simply not fund them for whatever the amount of the settlement funding should Page 8 March 8, 2011 be. COMMISSIONER HILLER: I don't know what the amount is. We should just -- otherwise it's meaningless. Otherwise you basically say I'd rather have land instead of money, because you guarantee that you're going to get the money. MS. HUBBARD: Well, I mean, if they -- MR. KLATZKOW: Jackie. Commissioner Henning. MS. HUBBARD: Sorry, I didn't hear you. COMMISSIONER HENNING: I didn't say anything. I was just trying to be recognized, that's all. CHAIRMAN COYLE: Well, this is a free-for-all here. It's not recognized. COMMISSIONER HENNING: Free-for-all everywhere. CHAIRMAN COYLE: Whoever the person is that gets in first. COMMISSIONER HENNING: Do we know the condition of the 640 acres near Lake Trafford recently? MR.OCHS: The spoil site, sir? COMMISSIONER HENNING: Yeah. COMMISSIONER COLETTA: It's 300 something, Commissioner. MR. OCHS: In terms of the -- COMMISSIONER HENNING: The condition of the arsenic. MR.OCHS: No, we haven't gone out recently and done an environmental assessment. That would obviously be something we'd want to do if the District -- if the Board wanted to go in that direction. Now, the few discussions I've had with our staff and with John Dunnuck representing the District is that, you know, they believe they can find a way to design and engineer a facility to move most of the arsenic heavy materials into berms and areas that wouldn't be torn up by constant A TV use. But, you know, there's always that liability out COMMISSIONER HENNING: I'm not done yet. Page 9 March 8, 2011 COMMISSIONER HILLER: You could -- COMMISSIONER HENNING: I'm not done yet. COMMISSIONER HILLER: Oh, sorry. I have a great idea. Go ahead. COMMISSIONER COLETTA: I got one too. COMMISSIONER HENNING: Here's an observation. It wasn't what, two years ago that we bought Pepper Ranch. There is no way property value has diminished that much from 14,000 to 3,000. I mean, I didn't vote for Pepper Ranch. You guys want to get a piece of parcel that is so much less in value that we just purchased, you go right ahead, I will support that. But in was sitting in your seat, I wouldn't do that. I would see about the spoil area. We can move around dirt and create that and get rid of it. MS. HUBBARD: Well, you should also be aware that this offer that they're making is subj ect to -- the last paragraph on Page 3, I wouldn't just discount it. If it is not accepted and we go to trial and we don't prevail, we don't get 25 percent -- COMMISSIONER HILLER: They have an offer for judgment? MS. HUBBARD: Urn-hum. If the judgment is one of no liability or the judgment obtained by the Plaintiff Collier County gives the District -- is at least 25 percent less than three million, then they will seek their reasonable costs, including investigative expenses and attorneys fees from the date of this proposal -- COMMISSIONER HILLER: What do you think -- COMMISSIONER COLETTA: In may, I really want to go before, because I've got an issue about Pepper Ranch that I wanted to share with you. Pepper Ranch is nothing more than a drag on water management. I have that from a good source, as time goes along it will be turned over to the county. We don't want it till they restore the whole place. We can merge it with Pepper Ranch. They're not going to want to maintain it. It serves no purpose. Or at the very least they'll do is Page 10 March 8, 2011 when they get the money, they'll turn it into a water feature. It will be able to -- COMMISSIONER HILLER: Who? COMMISSIONER COLETTA: -- be water management. Big Cypress Basin. MR. OCHS: Commissioner, you said Pepper Ranch. Do you mean the spoil site? COMMISSIONER COLETTA: Yeah, the spoil site. I'm sorry, I speak about -- MS. HUBBARD: Lake Trafford. MR. OCHS: The spoil site. COMMISSIONER COLETTA: But the spoil site is questionable. I mean, you know, we've never had the opportunity until just recently to even talk about finding out if it was feasible. We directed the County Manager to have risk management look into it. Didn't we do that, Leo? MR. OCHS: No. We talked about it, but when we got into the settlement -- COMMISSIONER COLETTA: We never gave direction, okay. But in any case, trying to encapsulate this kind of soil, I mean, there's a lot of things you can do with it. You can turn it into a home site. And it's fine for wildlife, because they're not bothered by this level of arsenic or solidimite (sic) within the soil. But the problem is, if you don't do it right, you've got a risk. And I don't know if our risk management's ever going to sign ofT on it. And we'll end up with land that we would have got anyway for other uses. Plus there's another element in there. We never got into an open discussion with the people in Immokalee whether this is a suitable site. Judging by what I've seen all the way from the Estates right on through to the Labelle area, you always have an uprising of residents, even when the thing is quite a bit removed, about the activity that goes on there. Page 11 March 8, 2011 And so I think in the end what we're going to do is we're going to get extreme pressure from the community of Immokalee not to do it. I mean, it hasn't reached that point yet. We can go down that road, but I think our chance of success coming up with an A TV site there because of the dangers of what's in the soil, try to mitigate it. By the way, the $3 million that they got here, if that's what they're going to offer, would that actually cover the cost of the mitigation that's going to be needed to be able to encapsulate the soil and do everything? MS. HUBBARD: Why don't we hire an engineering environmentalist firm to do that report? COMMISSIONER COLETTA: Well, how about a community meeting with Immokalee too to see if this is a doable thing? MS. HUBBARD: Well, they gave us 30 days, so-- CHAIRMAN COYLE: Go ahead. I'll start refereeing here. Go ahead, Commissioner Hiller. COMMISSIONER HILLER: Jackie, what are the estimated attorneys fees? MS. HUBBARD: Well, they've been using their in-house counsel. And so far, these are the docket entries thus far. So this is very little in terms of what's been accumulated so far. COMMISSIONER HILLER: So our exposure on this right now is not that high. And even if they hired outside counsel for the trial, what would you estimate their fees would be? MS. HUBBARD: The trial, probably between 50 and 100,000. COMMISSIONER HILLER: So that potentially is our maximum exposure? MS. HUBBARD: Depending on who they hire. COMMISSIONER HILLER: Let's say at the high side 100,000? MR. KLATZKOW: It will be more than that because they'll have experts for those costs. You know, figure 150 to 200. COMMISSIONER HILLER: So say on the high side 200,000 is Page 12 March 8, 2011 our exposure if we went to trial. I just want to make a couple of comments. You know, you bring up Pepper Ranch. When was that acquired? MS. HUBBARD: You're talking about Lake Trafford spoil area? MR. OCHS: No, Pepper Ranch. COMMISSIONER HILLER: No, Pepper Ranch. MS. HUBBARD: I don't know. CHAIRMAN COYLE: Two years -- COMMISSIONER HILLER: Like a year -- two years ago? MR. OCHS: Two or three years ago. Approximately. COMMISSIONER HILLER: Well, the point being is that you're right, the market hasn't declined to this degree on a per acre -- price per acre basis, because Pepper Ranch is a recent compo Now, this property is inferior, isn't it? I mean, does Pepper Ranch have arsenic? COMMISSIONER COLETTA: No, no, this has got arsenic because of what they dragged off the lake -- COMMISSIONER HILLER: And dumped it. So obviously there's some discount for the fact of it having the arsenic. But the price does seem low. The other thing is, you know, with respect to liability and remediation, just make that a provision of the term, give us, you know, five million plus the remediation plus assumption of full liability if there's any contamination and anybody is hurt. MS. HUBBARD: Well-- COMMISSIONER HILLER: Assuming that Immokalee wants it. COMMISSIONER COLETTA: That could be a problem. MR. KLATZKOW: Commissioners, I'll just remind you that I thought we had the opportunity for an A TV park at the old jet port off on-41 at the Miami-Dade line. There's nobody living there. It was a terribly, you know, impacted site anyway. And the environmentalists Page 13 March 8, 2011 came out like locusts. And when I saw that, you know, my comment was, well, if we can't put it here, we can't put it anywhere. COMMISSIONER FIALA: So it goes back to me asking the question -- is it my turn? CHAIRMAN COYLE: Yes. It will be my turn next. COMMISSIONER FIALA: Okay. In my opinion only, this has been something Commissioner Coletta has been an advocate for, the A TV park. And he's been the one that's guiding it. And I feel that he should be the one that guides us. Whatever he feels is best on this is what reflects on him or what is important to him. We've been -- we've just supported his efforts. And I want to continue to do that. So if -- you know, whatever you feel is the right thing, right move for us to do to go forward. And if you feel taking the money would be good, fine. If you feel that we should negotiate a little bit more but take the money, fine. If you feel we shouldn't but look into buying this property -- you know, you know this district, we don't. We would just be talking on and on but we're not saying anything. You're the only one that really knows it, really knows your people and really knows the A TV'ers. COMMISSIONER COLETTA: It's been one of the most difficult things I've ever dealt with my whole political career. COMMISSIONER FIALA: I'm sure it has. COMMISSIONER COLETTA: There has been no victories from day one. I mean, so much energy and effort's been placed in this. It used to be we could draw crowds of about three, 400 people down in Florida Sports Park, just pack the place. Over the years through attrition they just gave up. And right now it's down to a hard core group that's mainly recreating outside of this area by one heck of a distance. Everybody else just gave up or they're riding illegally in different places. There's still a demand for it, but let's get realistic, they used to have the whole Picayune. When we came up with a square mile of 640 Page 14 March 8, 2011 acres, as they explained to us numerous times, that can't contain you. You just get going and you're off the -- you're at the other end of the property. So as you start to shrink it down it becomes even less appealing and doesn't really serve a purpose. Plus you have the environmental community and the neighborhood communities. The nearest we came to getting anything was Bill McDaniels' property out there at the corner there of Hendry, Collier and Lee. But in retrospect looking at that, it's going through a receivership. Bill will probably end up with -- he'll probably explore it as a temporary venture with the overlay he's got for A TV use. But the truth of the matter is, the only thing we're doing there is we're having a use that's going to compete with a private entity in Charlotte County, the Redneck Yacht Club. Do we really want to do that to satisfy the need? I kind of wonder where we're going. So my thoughts were is to go into it and tell them, you know, we appreciate the good faith offer and everything. We really think we should do a little better. We're thinking about four is the number. And if they negotiate it down to three-and-a-half, take that, don't say anything about the property down there at Lake Trafford. We'll come back on that years later if they get through mitigating it to see if we can put in Conservation Collier and take possession of it, we can do it. But what I would do is once we get the money, if we go through a period of discovery of about 30 days and hold one or two community meetings and bring back information to the commission what's out there that could be done, and I think the sum results out there is going to be there's nothing out there that's going to pass public scrutiny or the environmental scrutiny to allow us to go forward. Then we can dedicate that money to something that will benefit the people in that area that won't be able to have their A TV park. Now, you're absolutely correct about the money coming from the Water Management, Big Cypress Basin. I don't know how you get around that. That was a concern of mine too. Because you are taking Page 15 March 8, 2011 money from one government entity and you're putting it into the pocket of another to satisfy what's there. The only option left there would be to try to force them to coming up with money from their general fund, if that's at all possible. And if they refuse to do it, I don't know where you go from there. CHAIRMAN COYLE: Well, one of the things you could do is just condition the settlement on the fact that Collier County will not suffer an inordinate percentage decrease in funding. COMMISSIONER COLETTA: I like that. CHAIRMAN COYLE: Then all of the other counties involved in South Florida Water Management District -- COMMISSIONER COLETTA: How would you word it? CHAIRMAN COYLE: Let me go -- COMMISSIONER COLETTA: Okay, I didn't mean to get in front of you. Sorry. COMMISSIONER HILLER: But the decrease would be equal to the other counties. I mean, isn't it like a tri-county pool? COMMISSIONER COLETTA: Yeah, we're part of a bigger pool. CHAIRMAN COYLE: I know that, I know that. But the money that comes to us, they're going to reduce their budget, okay. And I think it's fair that we get our fair share of that reduction, that we incur that reduction. But we should not incur more than our fair share. They shouldn't be taking too much money away from us to subsidize their agreement here. So here's -- I'm going to have to ask you a couple of questions here. Do you have any confidence in what we're being told about being able to make that site out near Lake Trafford a suitable A TV site? I'm told that they're within I've heard from six to 12 months of having it ready to go. COMMISSIONER COLETTA: Well, that's with the muck-- Page 16 March 8, 2011 de-muck. CHAIRMAN COYLE: Yeah, it's -- they're waiting for it to dry out and then they're thinking about that their plan is to do the samples, decide where the greatest pollution is, cover that area or else move it off to a side, create trails that are away from the areas of greatest contamination. And they maintain that that will be safe. Now, I don't know. COMMISSIONER COLETTA: It might be. CHAIRMAN COYLE: Okay. Now, let's suppose you were to say to them okay, we want three million or $3.5 million and we want that site. COMMISSIONER COLETTA: And then we get to do what we want to do with it. CHAIRMAN COYLE: That's right. And then we could take the $3.5 million and we could use part of that to continue the remediation and/or design of the facility. It would be completely off their hands then. They wouldn't have to worry about it, we would assume responsibility for the time table. We'd have the money to fund it without digging into our own pockets. And if it turns out to be unacceptable, you could turn it into another use, perhaps sell it sometime in the future and do what you suggest, use the combined funds then to go do something better, if we ever get to that point. But I really think what you're going to find out is that we are not going to be permitted to have this A TV park. And the people who expected it are going to be disappointed and they're going to have to go away. And we'll probably use the money and/or that land, if we got it, for some other amenity for the community that makes a larger number of people happy. Maybe that's not so bad. But as Commissioner Fiala's pointed out, it's your district, you've been the lead on this. And -- but I think there's a -- you know, if I'm looking at it from South Water Management's standpoint, that parcel out there is almost worthless. It's causing me problems. I've got to Page 17 March 8, 2011 find a way to make it right for Collier County. If they could walk away from that and pay three-and-a-half million dollars or so -- COMMISSIONER COLETTA: I see what you're saying. But that site might be even more than the three million. We have no idea. CHAIRMAN COYLE: Well, it's possible it could be. I'm hesitant to say that you can't. But what I'm saying is even if you can't do anything with the site, the site is still there. COMMISSIONER COLETTA: It is. CHAIRMAN COYLE: Okay. And you have to get an estimate of what it's going to cost you to do the job there at that site. And if it's too much, just don't do it. Just keep the money. COMMISSIONER COLETTA: I hear you. But here's some of the problems with it. One, if we do nothing with the site period, don't even include it in our agreement, they have to by law do certain things to bring it up to certain standards, and which is going to cost a lot of money. I don't know the numbers at this time. They're going to have to maintain it in perpetuity. They're not going to want to do that. They can't do anything with the CREW land because there's no CREW land adjacent to it. The only thing they can do is either turn it into some public amenity themselves or turn it over to the county to be merged with the Pepper Ranch land. That I think will happen regardless. But two things exist that will make it very difficult for ATV's there. One is the possible contamination. But there's two other things that are really big. One is the community, which I know when it comes to that time it will be no different than they've been all the way from Labelle right on through; they're going to come out against it. And two, panthers have been sighted on Pepper Ranch. In fact, I was with Brian McMann on one of the kids days and he spotted it. I turned too -- a little slow turning around to see it. But they know they're there. Page 18 March 8, 2011 And Fish & Wildlife, if we called up Paul Souza over there, I think he'd give us reason to be concerned about any activity with A TV's there, because they've killed us numerous times before with panthers where our neighbors -- CHAIRMAN COYLE: Well, so your idea is not bad. If -- what you're really saying is we'll take the risk on getting that land sometime in the future for almost nothing. COMMISSIONER COLETTA: Yeah, probably will be nothing. CHAIRMAN COYLE: And you want to concentrate on just getting a little more money out of them, perhaps make a counter offer and see how that works out. COMMISSIONER COLETTA: That and then due diligence on the part of the Commission to go through a 30-day or 60-day public finding to see what's available out there. CHAIRMAN COYLE: You don't have that much time. COMMISSIONER COLETTA: No, no, after we get the money. CHAIRMAN COYLE: Oh, okay. COMMISSIONER COLETTA: We put the money aside with the understanding that we're not throwing the A TV's under the bus. We're going to go through due diligence. We'll have everything listed what we tried in the past, we'll identify some areas we might be able to look at, and we'll work them through the process. And I'd be absolutely amazed if we came up with something at this point in time that would meet everybody's scrutiny out there. But at least it would give them the assurance that, you know, it wasn't a case of $3.5 million or $3 million was put in front of us and we said okay, too bad about it for you boys, we're done. CHAIRMAN COYLE: Well, here's-- MS. HUBBARD: I was going to say, don't assume that this case is a slam dunk. CHAIRMAN COYLE: Okay. MS. HUBBARD: You know, don't assume that, that we're going Page 19 March 8, 2011 to go into court and boom, we're going to win the case. There's a major problem that the county has in that 2007 agreement that was entered into. But I feel they've breached it anyway. But nonetheless, as part of that agreement -- there's several supplemental agreements to the original 2003 agreement. And one of those agreements -- I didn't participate in that, but one of them says I think that the Alico site was the last site? CHAIRMAN COYLE: I don't know. MS. HUBBARD: That any damages would be a percentage of the rental cost, if it didn't go through. MR. KLATZKOW: I don't think you're getting a better deal at the end of a trial than you have here. MS. HUBBARD: No, I think that this is -- MR. KLATZKOW: I mean, if we had another site, I'd tell them go buy that site and give us our A TV park, but we can't locate one. COMMISSIONER COLETTA: One of the things we're missing here too, wasn't the agreement to be not only the land but it was going to be a turnkey operation? MR. KLATZKOW: Yes. MS. HUBBARD: That was your initial agreement. You've entered into so many agreements since then. You know, there've been MR. KLATZKOW: You cooperated with another government entity and it turned out that they were in bad faith. MS. HUBBARD: Right. MR. KLATZKOW: That's really the bottom line here. MS. HUBBARD: When we go to court, I'm going to have to confront those subsequent agreements and deny their validity, which I have an argument for. But nonetheless, there was a joint meeting of the board, your board and the South Florida Water Management board at the hotel over here some years ago, and you agreed that -- well, that's worked in Page 20 March 8, 2011 our favor so far because you agreed that you would sort of postpone or continue the underlying understanding as long as they were able to provide you with the 640 acres or something comparable. And they've never been able to do it. Which is -- COMMISSIONER HILLER: Leo, what do you think? MS. HUBBARD: -- which is why we filed the lawsuit. MR. OCHS: Well, I think you have a bird in the hand and we so far haven't found an option in terms of actually providing a facility. The other consideration, it's separate but a bit related, the board will recall, might have been last meeting or the meeting before, where we are in some disagreement with the District over this renewal of a long-term maintenance of our secondary system where the Basin -- or the District has maintained that over a period of 10 years. That agreement has lapsed. We're on a 90-day continuance. It's obvious to me they're holding that as leverage over us. Just so you know the order of magnitude of that financially, if that agreement doesn't get renewed and we are forced to take on that maintenance obligation, it's about two and a half million dollars in O&M costs a year. MS. HUBBARD: A year. MR. OCHS: And then another roughly about two million based on their history of capital improvements, Commissioner, to that system, so -- COMMISSIONER HILLER: So we need to be our own -- COMMISSIONER COLETTA: Tie that in with the settlement? MR. OCHS: I mean, I'm just suggesting that if they continue to play hard ball with that, that's the worst case scenario for us. Ifwe -- I think if we settle this for some reasonable financial settlement, they will move quickly to renew that agreement. But-- COMMISSIONER HILLER: Can they actually do that, Jeff? MR. OCHS: -- you could make it a condition of the suit, perhaps. Page 21 March 8, 2011 MR. KLATZKOW: They'll never say that they're doing it that way; they'll give you every justification in the world. But yeah, they can do it. CHAIRMAN COYLE: Can you tie that to the agreement, to the settlement? MR. KLATZKOW: Tie a future decision by their board of governors? It's like my trying to tie you to a future decision. CHAIRMAN COYLE: But you can tie a renewal of our current agreement for a specified period of time. MR. KLATZKOW: Sure, that would probably do it, yeah. COMMISSIONER COLETTA: Yeah, that's a good idea. COMMISSIONER HILLER: There's one thing that came up that concerned me. You said that the property would ultimately revert to us anyway. But you also said before that that there were all sorts of obligations to remediate or do something with that property that would be very costly. And then there's the maintenance cost-- COMMISSIONER COLETTA: Right, and that's why -- COMMISSIONER HILLER: -- associated with that. So how can they foist that property on us? COMMISSIONER COLETTA: Well, they wouldn't. We would have to agree to it. But-- COMMISSIONER HILLER: Okay. So there's no way they could -- COMMISSIONER COLETTA: -- the thing is, if they got-- COMMISSIONER HILLER: Taking that property makes no sense. COMMISSIONER COLETTA: In order to be able to bring the property up to what's required by the state and federal standards, they'll have to bear all those expenses. Let them do it. And then down the road, you know, probably maybe five, 10 years, maybe even longer, they're going to be sitting on that inventory and it's not going to match up with anything that they own. They'll either develop it as Page 22 March 8, 2011 some sort of feature for Immokalee, which is fine, and take responsibility to it, or else they'll probably merge it into what we have. CHAIRMAN COYLE: As long as they properly remediate it, it is a plus for you. COMMISSIONER COLETTA: They'll have to. I mean, they'll be required to do certain things to that property. They won't be able to leave it like it is. Then they'll have to make sure the exotics are taken care of for many years to come. CHAIRMAN COYLE: Well, I would say if you can get these assurances, that you'll have a renewal for a specified period of time of a maintenance agreement for the canals, that they will not disproportionately punish Collier County in reduction in their budget for this next year, if -- COMMISSIONER COLETT A: You have a good point. COMMISSIONER HILLER: You have to be more specific than that, though. CHAIRMAN COYLE: Well of course you do. COMMISSIONER COLETTA: Here's what you're dealing with here -- CHAIRMAN COYLE: That's why we got lawyers here. COMMISSIONER COLETTA: This is part of the restoration that would happen. When we turned over the Picayune Forest and everything, all that figured into the restoration. The restoration is being paid for not from Big Cypress Basin, it's being paid from many sources, mainly from the Water Management District over there at Palm Beach. So now all of a sudden this ended the restoration project, which was a settlement, is going to come out of our local one. That doesn't seem fair. We're one part. I don't know how they break it down. Maybe tax-wise we might be one-third of the total amount in taxes they collect. That should be our fair portion to come out of Big Cypress, and the rest of it should come out of the District itself. Page 23 March 8, 2011 We might make that -- I mean, if we make that a condition, the worst they could do is come back and say we're not going to do it. Would that be it, or do you think they might throw the whole thing out the window? MS. HUBBARD: I have no idea. I mean, it took all these years to get them to do anything without filing a lawsuit. COMMISSIONER COLETTA: But then again too, you want to make sure the depositions don't hit them before we reach a settlement, because their whole attitude will change if they go through -- MR. KLATZKOW: We can push those over. MS. HUBBARD: We can push those back. But, you know -- COMMISSIONER COLETTA: Yeah, they don't want us to go through the depositions. They may jump at that. And I don't know if it's a real good idea, but we could even offer to take it over two or three years and it becomes another issue for another bargaining point. MS. HUBBARD: Now precisely what is it that you want me to take back, Jeff and I, to the South Florida Water Management? COMMISSIONER COLETTA: Here's what I got -- and I appreciate everybody's input. That the $3 million offer in itself is adequate. But the condition to it would be is we need to be able to also settle our maintenance agreement that we have to come up with a -- as part of the condition to get Water Management to sign in with the maintenance agreement that's been comparable to years past; that the money would be proportionate from the Big Cypress Basin as the percentage of money that's collected district-wide. MS. HUBBARD: I don't understand what that means. COMMISSIONER COLETTA: Okay, I probably didn't word it right. In other words, what's the fair share of Collier County water basin -- Big Cypress Basin should be paying towards the settlement? Should it be right out of their budget, the whole three million? No, this is part of the restoration. Page 24 March 8, 2011 MR. KLATZKOW: Why don't we just say that the $3 million shall not come out of the Big Cypress budget. Let them come back and -- COMMISSIONER COLETTA: Okay, you're right. COMMISSIONER FIALA: That's a good idea. COMMISSIONER COLETTA: That's why he's the attorney and I'm not. MR. KLATZKOW: So I understand it, $3 million, you want 10 years, Leo, along with renewal? MR. OCHS: Actually, five, I think. Because there's some things after five that we'll have to reassess. We may want to change the deal. MR. KLATZKOW: Five years on the renewal and the monies do not come out of the Big Cypress. COMMISSIONER HILLER: Why don't you make it longer? Make it 10 years on the renewal with our right to cancel when we want. I mean, while you're going for it. MR. OCHS: Yeah, that's fine. Or even five with a five-year renewal -- COMMISSIONER HILLER: Yeah, at our discretion. MR. OCHS: -- at the board's sole discretion. COMMISSIONER HILLER: Right. I mean, if you're going to lock them in, go for it all the way. MR.OCHS: How about five with-- COMMISSIONER HILLER: With an option. MR. OCHS: -- a five-year renewal at the board's sole discretion? MS. HUBBARD: But that's the maintenance agreement. MR. OCHS: Yes, ma'am. CHAIRMAN COYLE: Okay, we got it solved. MR. KLATZKOW: We'll get out a settlement-- COMMISSIONER COLETTA: And what do we announce up there, that we're submitting an offer? We don't have to go into it, do we? Page 25 March 8, 2011 MS. HUBBARD: No, you can't go into it. MR. KLATZKOW: No, you'll just announce that you directed us to send out a counter offer. CHAIRMAN COYLE: That's fine. COMMISSIONER FIALA: We turn our paperwork in here, right? MS. HUBBARD: Yes, ma'am. MR. OCHS: You just directed us to make a counter offer. CHAIRMAN COYLE: And that's the only announcement we have to make. MR. KLATZKOW: We'll have to take a vote-- CHAIRMAN COYLE: Directing you to make a counter offer. MR. KLATZKOW: -- to counter offer. COMMISSIONER HILLER: You don't want to ask for a little more money? I would. Because right now you've locked yourself into no more negotiation on price. If you offer more, if they come back and disagree, you can always bring down your price. COMMISSIONER COLETTA: How about $3,350,000? CHAIRMAN COYLE: You can always go up with your price too. If they come back and say no, we want -- COMMISSIONER HILLER: But they don't usually -- I mean, they've already made us an offer. But just to keep the negotiation open. COMMISSIONER COLETTA: I don't know, what do you guys feel on this? COMMISSIONER FIALA: You said 3.5 before. COMMISSIONER HENNING: Well, all you're going to do is make them angry if you make it ridiculous. COMMISSIONER COLETTA: You know, you're right. What we're looking for in the concessions are pretty deep. They mean a lot. COMMISSIONER HILLER: I would say four million. Just say four million plus those -- those other things don't mean anything. And Page 26 March 8, 2011 then if they try to fight us on those concessions, they'll say okay, well, reduce the price. COMMISSIONER FIALA: You know, but Tom's got a good point too. We need these other concessions. We don't want to get them all angry, we want to be working together, right? COMMISSIONER HENNING: Well, we have to work with them. COMMISSIONER HILLER: Aren't they in breach of contract? COMMISSIONER HENNING: Well, that's an interpretation that a judge needs to determine. COMMISSIONER HILLER: That better be the case, because that's the basis of this lawsuit. You can't tell me we're not because that's what we're suing them for. COMMISSIONER HENNING: The other conditions of the settlement, what you're saying to them is hey, you know, we have concerns. We have concerns that this is going to only come out of the taxpayers pocket. We have concerns that you're going to be angry at us. So we want a reassurance that we get certain things done. But asking for a ton of money is just going to anger them. COMMISSIONER HILLER: Well, it's not asking for a ton, it's asking for what's fair. And based on looking at the price of Pepper Ranch and knowing what devaluation we've experienced in the market, it seems like on a per acre basis is a low price, even if the property is contaminated. And that's why I'm saying, that was the whole point of suggesting more. But I'm fine with whatever you want. COMMISSIONER HENNING: They have a comparable of 700 acres versus -- MS. HUBBARD: 640, yeah. COMMISSIONER HENNING: -- 640. MS. HUBBARD: And they agree -- both appraisers agree. COMMISSIONER HENNING: And that's $3 million. MS. HUBBARD: 2.2 million. Page 27 March 8, 2011 COMMISSIONER HENNING: 2.2. COMMISSIONER HILLER: Well, why would they offer us more? COMMISSIONER COLETTA: Because our original offer to them was nine. MS. HUBBARD: Oh, I thought it was eight. COMMISSIONER COLETTA: Eight? Okay. COMMISSIONER HENNING: Well, I mean, that's to, I would imagine, is to improve the property. MS. HUBBARD: Urn-hum. COMMISSIONER HILLER: And we shouldn't be punished for their delays. I mean, that's essentially -- you know, they're showing us that they're giving us a little bit more, but in effect by lowballing the offer, you know, we're eating their failure to perform. MR. KLATZKOW: Yeah, but at the end of the day, this is another government entity and so it's all taxpayer money. I would feel very differently if this was a private entity, but this is another public entity we're suing and we're taking out of one pocket of the taxpayers to another pocket of the taxpayers. And both pockets are essentially ours. COMMISSIONER HILLER: No, but that's what we're arguing, that they can't take it out -- MR. KLATZKOW: That's why the offer is going to be that it doesn't come out of the budget. COMMISSIONER HILLER: Right. We're not taking it out of ours. I mean, what we're doing is we're protecting our taxpayers. MR. OCHS: Well, we pay for both. We pay for the Water Management District and the Big Cypress Basin. COMMISSIONER COLETTA: What do we do, we actually-- MS. HUBBARD: The taxpayers. COMMISSIONER COLETTA: -- do the attorneys handle it or goes before the board? When it goes before the board, do you want Page 28 March 8, 2011 Jeff there or would you like me to go? What do you want to do? What happens at this point? MR. KLATZKOW: They're going to have the same thing we are, they're going to have a shade session. MS. HUBBARD: What happens is we draft a response -- MR. KLATZKOW: We're going to draft a letter just like the letter that they gave us, and then they're going to take it to their board in a shade session, and they'll either accept it or they'll come back with a counter. I don't know. COMMISSIONER COLETTA: That's simple, we don't have to go. MS. HUBBARD: No, you can -- it's closed session. COMMISSIONER HILLER: Well, I think they'll accept what you're offering. COMMISSIONER HENNING: I say go with what was said. COMMISSIONER FIALA: I do too. MS. HUBBARD: And just so we're on the same page here -- COMMISSIONER HENNING: You have to find the page. MS. HUBBARD: I have to find the page. COMMISSIONER HENNING: I don't see how you guys do it. MS. HUBBARD: Okay. Number one is $3 million is acceptable. Number two, but we need to settle the maintenance agreement. MR. KLATZKOW: Five years with a five-year option of the county. MS. HUBBARD: Yeah, five years, plus five years at the Board's discretion. And that the money should not come out of the Big Cypress Basin budget. COMMISSIONER COLETTA: Well, I mean, they'll come back with a counter to it. MR. KLATZKOW: They may not. Because they've always intended to renew that agreement and they always intended this is -- Page 29 March 8, 2011 COMMISSIONER HILLER: Right, they're going to accept it. MR. KLA TZKOW: Then they'll accept it. COMMISSIONER COLETTA: We'll see. Okay. MR. KLA TZKOW: We're just asking are you in good faith. That's all we're asking. COMMISSIONER COLETTA: It sounds reasonable. Man, there's a lot to go through here. MS. HUBBARD: Are you okay with what I just read? COMMISSIONER COLETTA: Yeah. I mean, I'd love to do better, but once again, where's it coming from and who's going to be hurt, that's -- MR. KLATZKOW: Jackie, prepare a draft, I'll take a look at it, we'll take a look at it and make sure that the three of us understand the directions and then we'll get it out. CHAIRMAN COYLE: Okay, that's good. (At which time, this Closed Session concluded at 2: 16 p.m.) Board of County Commissioners MW.~ FRED COYLE, Chairman A TTESf . "'0,';, ~, DWIGHT E. ijR'OCK, CLERK AU .19RIturt 011.. These mil: approved by the Board on q '~e.. Q ~ J 1.11 , as presented or as corrected ~ Transcript prepared on behalf of Gregory Court Reporting, Incorporated by Cherie' R. Nottingham, CSR. Page 30