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BCC Minutes 09/09/2008 Closed Session (#12A-Bonita Media Enterprises, LLC) MINUTES Bonita Media Enterprises , LLC September 9 , 2008 Copy IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR ke _kV '_,' . t► ,_ 01i/_i i 't • , BONITA MEDIA ENTERPRISES,LLC, BRKNNAN,MANNA&DIAMOND(REG.AGENT), APPollants, vs, Appeal Case No.07-2035CA L.T.CEB No.2007-35 BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,FLORIDA, APO's& • '_ _A,_ lib. • - 1 ' ADM =iP. t,L_ 44, __ THIS CAUSE comes before the Court on Appefa nfa"Notice of Voluntary Dismissal with Prejudice,"filed October 16,2008. The Court accepts Appellant's notice to dismiss its pending administrative appeal,and,accordingly,it is ORDERED AND ADJUDGED that the administrative appeal is hereby DISMISSED with prejudice. DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this day of ,,. ,2008. liahe Ellis Circuit Judge Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing order has been Runished to:Richard S.Anaumciata,Esq.,Brennan,Manna&Diamond,P.L.,3301 Bonita Beach Road,Bonita Springs,Florida 34134;Jacqueline Hubbard,Esq.,3301 East Tamiami Trail, Bldg.F,Naples,Florida 34112;and Court Administration(X),3301 B.Tamiami Trail,Naples, Florida 34112,this%v- '"day o1C-Vd.ft r L ,200!46 DWIGHT E.BROCK Cleric of Court By CD 7 • . Case 2:07-cv-00411-JES-DNF Document 104 Filed 10/20/2008 Page 1 Of'1 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED �:07 Vigil u.s.COURTOF Ai ALL No. 08-15118-Q aY OCT 1 0 2008 ` BONITA MEDIA ENTERPRISES,LLC, a Florida limited liability company, • THOMAS K. KAHN Plaintlft.Appellee, CLERK versus COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY,'et al., Defendant, JONATHAN LEE RICHES, •i Movant-Appelant. Appeal from the United States District Court for the Middle District Of Florida ENTRY OF DISMISSAL Pursuant to the 11th Cir.R.42-1(b),this appeal is hereby dismissed for want of prosecution because the appellant has failed to pay the$450 docketing and$5 filing fees($455)to the district court clerk within the time fixed by the rules,effective this 16th day of October, 2008. THOMAS K.KAHN Clerk of the United States Court of Appeals for the Eleventh C ; AIM - - By Walter Pollard • - Deputy Clerk 1 r = FOR THE COURT-BY IRECTION f. ORD-40 4 Case 2:07-cv-00411-J SII:ATLu UIJTRI J1Q.i 7/2008 Page 1 of 2 MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES,LLC, Plaintiff, -vs- Case No. 2:07-cv-411-FtM-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD,COLLIER COUNTY,a political subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. JUDGMENT IN A CIVIL CASE IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order entered on October 16,2008,this case is dismissed with prejudice. Date: October 17,2008 SHERYL L.LOESCH,CLERK By:/s/Dianne Nipper,Deputy Clerk c: All parties and counsel of record Case 2:07-cv-00411-JE$pNFAEr c 0/17/2008 Page 2 of 2 Aooealabla Orderx Comte of Appeals haw jurisdiction conferred end strictly limited by stitets: (a) Appeals frog final orders purawst to 2$U.S.C.Bodies 1291:Daly Baal orders and judgments of district coasts,or final orders of banbopley courts which have been appealed to and fully resolved by a district court under 28 U.S.C.Seddon 158,mangy are appealable. A find decision is one that"cods the litipdos on the writs and leave noting for the court to do but execute the judgment." Pithy Bowes.Inc.V.Mostre,701 F.2d 1365,1365 (11th Cir.1953). A mag strata judp's report and recommendation is not final sad appealable until judgment thereon is entered by a district court judge.25 U.S.C.Beatles 636(c). (b) In uses IanMug mold*parties or multiple claims,a judgm—t as to fewer than all parks or all clehna is not a del,appealable decision oohs de district court his certified the judgmaat for immediate review under Ped.S.CIv.P.54(b),Williams v.Bisbee.732 5.2d 583.553-86(11th Cir.1984). A Judgment which resolves all issues except matters,suck as attorneys'fees and coats,the era collatoal to the merits,is immediately appealable. Budialch v.Botha Dictirroo R Co.,456 U.S.196,201,108 3.Cl.1717,1721-22,100 L.Bd2d 175(1988k LmChmmce r.DutYYs Drat!Hooey lao..146 F.3d 132,837(11th Ch.1995). (a) Appeals pennant to 28 U.B.C.Section 1292(x): Appeals are permitted Both ostlers"gsnetla&oaodiaring, modityieg,refldag or dissolving injsmctoue or refueling to dissolve or modify Inkatodaas._"and from "(1)cte locutory de orem...detdrmfising the rights and liahWdm of parties to admlreIty eras it which appeals from final deems are allowed." Interlocutory appeals from adore denying temporary remaking orders are mot permitted. (d) Appeals pursuant M 38 U.S.C.Section 1292(b)and Fed.R.App.P.St The certification specified is 28 U.S.C. Section 1292(b)must be obtained before a petition for permission to appeal is Sled in the Court of Appeals. The district court's dada'of a motion for c rdilcadan is not itself appealable. (e) Appeals porsosnt to jodidely created exceptions is the OsaSq ruler Limited exceptions are discussed is cams including,but not limned to Cohen V.Beneficial lodes.Loon Core.,337 U.S.541,346,69 S.Ct.1221,1225-26,93 L.Ed.1525(1949)~Adana Fad.Say.It Loan As'a v.Blythe Butenas Paine Webber.Inc.,890 F.2d 371,376 (11th Cir.1959);Oillsrfe v.United States Steel Can.,379 U.S.148,157,55 S.Ct.308,312,13 L.Bd.2d 199 (1964). 2. Time for Hilmar The timely Meg of a notice of appeal is mandatary and jaladladosal. Rinaldo v.Corbett,236 17.34 1276, 1275(11th sir.2001). In civil cases,Fa ULApp.P.4(a)and(a)set the following dins limits: (a) Fed.R.App.P.4(a)(1):A notice of appeal in compliance with the requineneets set forth in Fed.R.App.P.3 most be filed in the district court within 30 days after the catty of the order or Judgment appealed from. However,lithe United Stem or as officer or agency thereof is a party,the notice of appeal terse be filed is the district court within 60 days after such ester. THE NOTICE MUST BC RECEIVED AND PILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD-ms additional days are prodded for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P.4(a)(3k"If one party timely tiles a notice of appeal,any other party may file a notice of appeal within 14 days titer the date whew the fist nodes was filed,or within the time othmwis preaaibed by this Rule 4(a),whichever period ends later." (a) FM.R.App.P.4(ax4):If any party mats a timely motion in the district court under the Federal Ruhr of Civil Fronde!'of a type specified In this rule,the time fir appeal for all parties rams from the date of entry of the order disposing of the last such timely filed motion. (d) Ped.R.App.P.4(a)(6)and 4(a)(6):Under nosh limited einottostanoce,the district coact may extend the time to file a notice of appeal. Under Rule 4(aXS),the time may be extended if a motion for sin extension ls filed within 30 days slier aspiration of the time otherwise provided to the•nodes of appeal,upon a showing of excusable neglect or good cams. Under Rule 4(a)(6),the time may be extended if the district court finds upon modes that a party did not timely restive nodes of tte entry of the judgment or order,and that no party would be prejudiced by an extension. (s) Fed.R.App.F.4(ek If an inmate congaed to an instmttlm fits a notice of appeal In either a civil case ore arkoioai case,the nodes of appeal Is timely if It is deposited in the iustitudos's Internal mail systmm on or before the last day for filing. Timely filing may be shown by a deolantba in compliance with 28 U.S.C.Sodas 1746 or a noterixed stag either of which mast it forth the date of deposit and state that first-class postags has sea prepaid. 3. Format of the a d..of souk Form f,Appendix of Foams to the Federal Rale.of Appellate Procedure,is a suitable format. See also Fed.R.App.P.3(c). A 514 nodes of appeal most be signed by the appellant 4. Effect of a sell.,of assist A district coat loses Jurisdiction(authority)to act after the filing of a dmsly nodes of appeal, except for actions in aid of appellate jeriedietim or to role w a timely motion of the type specified in Fed.R.App.P.4(aX4). -2- Case 2:07-cv-00411-JES-DNF Document 102 Filed 10/16/2008 Page 1 of 2 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES, LLC, Plaintiff, vs. Case No. 2:07-cv-411-FtM-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY, a political subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. ORDER On September 16, 2008, the Court entered an Order (Doc. #100) terminating all pending motions in light of a settlement, administratively dismissing the case for a period of sixty days, and directing that the parties could present argument at the time of filing final documents if they wished to have the Court retain jurisdiction. Within the time allotted, plaintiff filed a Notice of Voluntary Dismissal With Prejudice (Doc. #101)2, however, no arguments have been provided to support the retention of jurisdiction. Therefore, the Court will not retain jurisdiction over the settlement but otherwise dismiss the case. Accordingly, it is hereby ORDERED AND ADJUDGED: !Although defendants appeared and filed an Answer, the Court will permit the voluntary dismissal as it was filed pursuant to a Settlement Agreement. Case 2:07-cv-00411-JES-DNF Document 102 Flied 10/16/200S Page 2 of 2 The Clerk of the Court shall enter a separate judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure dismissing the case with prejudice. The Clerk is further directed to terminate any previously scheduled and pending motions, and close the file. DONN AND ORDER= at Fort Myers, Florida, this 16th day of October, 2008. I r: JO:r: E• f '1 7r ii V - • States District Judge Copies: Counsel of record -2- September 9, 2008 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, September 9, 2008 CLOSED SESSION Item #12 A - Bonita Media vs. Collier County LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12:00 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Donna Fiala Jim Coletta Fred Coyle Frank Halas ALSO PRESENT: Jim Mudd, County Manager Jeffrey A. Klatzkow, County Attorney Jacqueline Hubbard, Assistant County Attorney Page 1 — Item #12A (Bonita Media) September 9, 2008 Item #12A THE BOARD IN EXECUTIVE SESSION DISCUSSED: SETTLEMENT NEGOTIATIONS AND STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE PENDING LITIGATION CASE OF BONITA MEDIA ENTERPRISES, LLC V. COLLIER COUNTY, CASE NO. 2:07-CV-411-FTM-29DNF, NOW PENDING IN THE US MIDDLE DISTRICT COURT OF FLORIDA, FORT MYERS DIVISION, AND BONITA MEDIA ENTERPRISES, LLC., BRENNAN, MANNA & DIAMOND (REG. AGENT) V. BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, APPEAL CASE NO.: 07-2035-CA, LOWER TRIBUNAL CASE CEB NO. 2007-35, NOW PENDING IN THE ADMINISTRATIVE APPEAL DIVISION OF THE CIRCUIT COURT. — CLOSED SESSION CHAIRMAN HENNING: The Board of Commissioners is going to move to 12A. That's the closed session between the Board of Commissioners and County Attorney's Office. The issue is Bonita Media Enterprises, LLC, versus the Board of Commissioners, and we're going to discuss a settlement of that case. MS. HUBBARD: Yes. CHAIRMAN HENNING: And Jacqueline Hubbard is going to explain this afternoon's proceedings. MS. HUBBARD: Thank you, Commissioner. As we stand right now, where we are is we have an order from the judge that basically has -- who has found our sign code to be, you know, unconstitutionally intrusive. He's entered that order. So what remains to be decided if the settlement does not go forward are contained in a copy of this letter that was written to opposing counsel back in July. I'd like to pass that out. It's dated July 18, 2008. Page 2 — Item #12A (Bonita Media) September 9, 2008 Okay. Essentially, in my opinion, anyway, if we did not settle the case today, these issues, A through F, would have to be decided by the Court. There are remaining claims by the plaintiff. The most important claim is that the ordinance is not only unconstitutional as applied, but facially unconstitutional as to everybody else. And secondly, whether or not -- CHAIRMAN HENNING: Hold on, hold on. MS. HUBBARD: Uh-oh. No one's supposed to come in here. I'm sorry. That's not permitted. May the record reflect that -- who that was that entered. I'm not sure if I've met her. COMMISSIONER HALAS: Sandra Lee. MS. HUBBARD: Sandra Lee entered to bring lunch to Commissioner Coletta, and she has now exited the room. Okay. In any litigation in federal court in which federal claims are raised, the prevailing party is entitled, to some extent, to some type of damages, whether nominal damages or actual damages. So in order for the Court to determine what that would be, the Court would have to determine and we would have to litigate the extent to which the plaintiff is the prevailing party. C, we also have an issue that has been raised by a motion for summary judgment by the county which is whether or not the plaintiff is entitled to any compensatory damages at all since the plaintiff filed a lawsuit requesting injunctive and declaratory relief, which are equitable issues. Our position is that if you plea for injunctive relief and you receive injunctive relief, that's all you're entitled to. You're not entitled to damages -- excuse me -- but we would have to litigate that matter. And if the Court decided that the plaintiff was entitled to the compensatory damages that they are claiming, which is $251,000, we would have to litigate what the proper amount of those damages would be and what the proper method of calculating those damages Page 3 — Item #12A (Bonita Media) September 9, 2008 would be, which we would have to litigate. Then we would have another issue which we've also raised by summary judgment which is whether the plaintiff is entitled to attorney fees and costs given the nature of the pleadings by the plaintiff. If we lost on that issue and the Court found that the plaintiff was entitled to attorney fees and costs, then we would have to litigate the proper amount and calculation of those attorney fees and costs. Rounded up -- which gets us to this chart. I've prepared for you a comparison chart. It's actually three pages. And Bonita Media retained an expert economist and he provided a report that they base their claim for compensatory damages upon, and basically he said that Bonita has suffered $251,000 in actual damages as a result of enforcing our sign code against them. Their attorneys -- on the second page, the attorney fees and costs claims as given by counsel for Bonita, they claim $199,402 as of April, 2008, in attorney fees and costs they have incurred. They also state that -- and they have retained a very high profile, very -- you know, relatively expensive law firm, Holland & Knight, has been very involved in the litigation. The total amount of the Holland & Knight fees I cannot say, but I can tell you that prior to my involvement in this matter, the Holland & Knight fees they claim were about 25-, $26,000. Since April, Holland & Knight has been involved in almost every aspect of the case. So I would assume that there would be additional fees and costs. CHAIRMAN HENNING: Would you assume it would be up to 200,000? MS. HUBBARD: No. They claim it was up to 200,000 as of April, 2008. We've been proceeding on since, you know, after April of 2008. So there would be, I would assume, additional time expended by local counsel and additional time possibly expended by Holland & Knight on their side. So I would expect their claim for Page 4 — Item #12A (Bonita Media) September 9, 2008 attorney fees and costs to exceed the approximately $200,000 that they have here. Now, if we go back to their business damages claims on the first page, we also retained an economist; however, we received just a verbal preliminary report from our economist and then, because of the settlement agreement, he was instructed not to incur any additional expenses. And he -- we've spent about $8,000 on his advice. I spoke with him today to make sure that this chart was accurate, and he thinks that the estimate of$251,000 by their economist is actually very high and that he thinks our exposure is between 77,000 and $155,000, and that's because of the reasons I've listed there. They operated in two counties, the expert didn't separate how much was due from operating in Collier County and how much was due from operating -- how much of the damages resulted from operating in Lee County, but he thinks it should be reduced by approximately 65,000. They claim damages for the entire period of January through May, and actually the enforcement action didn't occur until May, so that was like four months off, and several contracts that have been submitted to the county, which Commissioner Henning is aware of, especially, involved -- were in the name of other legal entities that weren't even the plaintiff. So -- and additionally, our expert says that generally risk is a calculation. You know, your risk of earning money or losing money, and he thinks that that would be an additional $5,000. Now, obviously to prove those damages down to 75,000 to 155,000, we would have to incur additional expenses on the part of our expert, which we estimated for trial to be about 25,000. We've expended eight. So if we don't settle and we went to trial, we would extend the additional 17,000 to get our expert, you know, ready for trial. Now, the attorney fees and costs, this is a number that their attorney has been quite adamant about. He has refused to provide any Page 5 — Item #12A (Bonita Media) September 9, 2008 backup documentation for those attorney fees and costs. He's claimed every exception in the book from economic reasons to attorney-client privilege. He's even refused to give us redacted, you know, attorney fee billing records, which we are clearly entitled to. But I left all those issues on the table to present the settlement proposal to you. And the second page of my analysis is a one-page document that based upon our economist's estimates, I think our damages -- our exposure would be somewhere between 277,000 and 355,000. They've agreed -- that's assuming that the attorney fee amount -- you know, they were able to prove that up. And I'm assuming that a lawyer would not give me a false attorney fee number. I don't know how much he's been paid. I have to make that assumption though. So he probably billed that amount. I'm not sure if he was paid that amount. But in any event, the settlement, after much negotiation and much back and forth, is for 225,000, and that would be payment in full from the county for the two cases that are pending. And bear in mind, there's a state case. I don't think he'll get dual remedies, but he has a state case pending and a federal case pending, and both of those cases will be dismissed with prejudice. And our exposure through the settlement is substantially lower than what we estimate our exposure to be, although I'm not -- I will tell you that it's possible we could bring that 77 number down further. But as you can see, if we went to trial, you'd probably wind up expending more than 225,000, at least in my estimate. MR. KLATZKOW: But there's another factor here. This case isn't limited just to Bonita. If we were to go to trial and have our sign ordinance tossed out as unconstitutional as applied to everybody, you would have ramifications of that; you would have bill boards popping up all over Collier County until we got the sign ordinance amended to prohibit them. And in my mind, that's the real danger in going to trial. You know, I'm not happy with the Bonita Media people, but the Page 6 — Item #12A (Bonita Media) September 9, 2008 downside of going to trial, I think, is very, very large. MR. MUDD: Jeff, isn't there another piece to this settlement -- MS. HUBBARD: Yes, there is. MR. MUDD: -- that has to do with use of county roads for two years with your movable signs as a guarantee, no matter what the future sign ordinance looks like? MS. HUBBARD: They have asked for one additional aspect of the settlement, which is -- and there are two settlement agreements. One allows them to operate in the county from the date of the execution of the agreement -- and I've been told they're prepared to execute it today -- for one year. We estimate the sign code will be ready by the end of the year. So we're talking about -- that's what we estimate. We don't know if we're going to make that, but we think we can possibly have the sign code ready by the end of the year. So we don't -- we wouldn't have a sign code until that period anyway, so that's one year, which I strongly recommend as part of the settlement. The other request that they have made, which they are saying if you don't agree, then we may not have a settlement, is to allow them to operate for two years from the date of the settlement. That would be two years from today irrespective of when we put our ordinance into effect, and assuming we'll have our ordinance into effect early 2009, they are essentially asking to be able to operate as part of this settlement for an additional year. So that would be -- CHAIRMAN HENNING: But there's an appeal process for LDC amendments, right? Are we going to get into that? MR. KLATZKOW: No, I think it's -- they're asking basically for two years to operate as of today irrespective of what we do with the LDC. CHAIRMAN HENNING: Right. But if we adopt the LDC -- the other option is, when we adopt it, give them one year. MS. HUBBARD: No, from the date of the execution of the Page 7 — Item #12A (Bonita Media) September 9, 2008 agreement. If you approve the agreement today -- CHAIRMAN HENNING: Right. MS. HUBBARD: -- his attorney indicated to me that they are here today and they will sign this agreement today, so today would be the execution of the agreement. So we would count from today. CHAIRMAN HENNING: Today and then for one year? MS. HUBBARD: Uh-huh. That's the first proposal. The second one is, they want two years from today. MR. KLATZKOW: Whose proposal is for one year? MS. HUBBARD: That was mine. MR. KLATZKOW: No, no. But they wanted -- Commissioners, what they want is two years basically from today top rate, so they can basically recoupe. MR. MUDD: And they're only willing to sign $225,000 in damages from the county to them and two years. MR. KLATZKOW: And two years. MS. HUBBARD: Correct. MR. MUDD: Okay. They're not willing to sign a one-year and 225,000? MS. HUBBARD: That's what they say. MR. KLATZKOW: That's what they say. CHAIRMAN HENNING: Okay. Now I understand. COMMISSIONER FIALA: So let me ask, just to make sure I understand. So if we pass this, what we're saying is, we'll give them $225,000 and let them operate against our sign code anyway? MR. KLATZKOW: We don't have a sign code right now, Commissioner, on this. We would have to -- COMMISSIONER FIALA: So they get all this money and then they still have their business and still operate? Boy, what a sham. CHAIRMAN HENNING: But it was ruled that our sign code was unconstitutional. MS. HUBBARD: The Court made that ruling a long time ago. Page 8 — Item #12A (Bonita Media) September 9, 2008 MR. KLATZKOW: I've got to tell you, I'm not even sure if when we're done with this we're going to be able to really shut down this business practice anyway. COMMISSIONER HALAS: It's a billboard. MR. KLATZKOW: Well, it's a billboard, but it's also a motor vehicle that's moving, and they're flashing some signs, but we have, like our CAT buses. They move and they flash signs all the time, too. So getting our ordinance to the point where we can ban this constitutionally, it's not simple. COMMISSIONER HALAS: I would think that there would be some communities someplace in the continental United States that has a sign ordinance that we can -- MS. HUBBARD: Well, Hillsborough County, we're using the same expert -- MR. KLATZKOW: That's Hillsborough. MS. HUBBARD: We're using the same expert that -- COMMISSIONER HALAS: Pardon? I'm sorry -- MS. HUBBARD: No one came in. That's okay. The development services department has retained a consultant to redraft your sign code, and that consultant is the same consult that the Hillsborough County -- MR. KLATZKOW: That's correct, but their -- MS. HUBBARD: -- hired. MR. KLATZKOW: -- ordinance, I'm not entirely sure has been attacked for this particular issue. MS. HUBBARD: It was attacked and then they passed a new one, and then the case was dismissed is what happened. So we're assuming their ordinance is okay, but we don't know. CHAIRMAN HENNING: Any questions on the proposed settlement? Commissioner Coyle, and then there's a lady here. No wait a minute. Who is younger now? COMMISSIONER HALAS: I am. Page 9 — Item #12A (Bonita Media) September 9, 2008 COMMISSIONER FIALA: He's younger. COMMISSIONER COYLE: I'm always younger than the old lady. COMMISSIONER FIALA: The lovely old lady. COMMISSIONER COYLE: That's true, that's true. We're still expected to have to pay the attorney fees in addition to this settlement? MS. HUBBARD: No, this settlement includes that. COMMISSIONER COYLE: It's inclusive. MS. HUBBARD: It's inclusive of everything, attorneys' fees, costs and damages. The 225- covers everything. Attorneys' fees, costs and damages. They were demanding close to $500,000 in attorneys' fees and costs. About 450- in attorneys' fees and damages, and then there would be additional costs. So what we're settling for is less than half of their demand and I think significantly less in our potential exposure. MR. KLATZKOW: Well, our own estimate is that their business damages are between 77- and 155-. If you cut that in half, it's about 125-. We'd have to spend another 125- to finish up that, so we're already up to 150- that we know about in hard costs, which means their total attorneys' fees we're paying is 75, which is probably fairly reasonable, all said and done. COMMISSIONER COYLE: Is our insurance company going to pick up any of this? MS. HUBBARD: No. MR. KLATZKOW: No. COMMISSIONER COYLE: I think it's a bargain, considering we've got unconstitutional ordinance. MS. HUBBARD: We came in, you know, with our hands tied behind our back. . So I think -- for me, anyway, I think it's a pretty good settlement. Page 10 — Item #12A (Bonita Media) September 9, 2008 CHAIRMAN HENNING: Well, I think the application of the ordinance is unconstitutional. MS. HUBBARD: Yeah. And given that -- and given that you think that and the courts ruled the same way, I mean, I can't see us risking any further exposure trying to litigate what remains in the lawsuit. COMMISSIONER FIALA: Can we limit it to one year rather than two? MS. HUBBARD: They've indicated they will not agree to the settlement proposal if it's less than the two. COMMISSIONER FIALA: But is that a poker move or is it -- MS. HUBBARD: I don't think so. MR. KLATZKOW: This is why -- the way the legislature set this up, you've got your hands tied behind your back. If this was a regular commercial negotiation, we'd be going back and forth and we'd be hitting it, but here we've got a settlement proposal, it's going to come to you at one o'clock, you're going to vote yes or no, and if you vote no, make a new offer, we got to go through this whole thing again. It's -- CHAIRMAN HENNING: Yeah, enough's enough. MS. HUBBARD: We've really negotiated this. MR. KLATZKOW: This is an awful process. MS. HUBBARD: We've negotiated -- let me just tell you that I've sat and negotiated a settlement and the case and the mediation and the production of documents ad nauseam, I mean, really a lot. And finally, at the end of our rope -- remember? We had -- we started -- bear in mind that the initial offer that our office made to them to settle was 200,000, which was three or four months ago, and so they've -- you know, we've only gone up an additional 25,000 in terms of-- and they've probably expended that much in their fees probably since. Yes? Page 11 — Item #12A (Bonita Media) September 9, 2008 COMMISSIONER HALAS: Do you believe that this person, prior to setting up this business, had looked at our sign ordinance, since this is kind of a unique way of advertising, and decided that there was a loophole here and that's why he set the business up, and it was up in Bonita Springs and coming back and forth across this -- MS. HUBBARD: Well, you know, frankly, I -- you know, my opinion has always been that the amount of damages that's claimed that they've submitted to us were unwarranted. You know, they say they have $251,000 in damages. The documents that they produced in support of it in their economist's report, in my opinion and Jeff s also, are not supportive. I mean, they've basically said, here are the documents to prove we've lost all this money. We've looked at the documents. Some of them are in the name of entities that aren't even involved in the lawsuit. So we don't understand why they're submitting those. COMMISSIONER HALAS: But my question is, do you assume or can we assume that they set this business up with the intention of going after our ordinance? MS. HUBBARD: That's entirely possibly. COMMISSIONER HALAS: That's what I think. MS. HUBBARD: It's possible. CHAIRMAN HENNING: Go ahead. COMMISSIONER COLETTA: Doesn't make any difference. Let's deal with what we've got to deal with here. We're between a rock and a hard place. The only thing we can do is drag it out longer, have the costs keep incurring. If it's unconstitutional and they ruled against us on that, the clock is still ticking. If we don't settle this thing today, we're going to have to settle it in another week or month or -- COMMISSIONER HALAS: My question had nothing to do with where I was at. I was just trying to put my own mind -- COMMISSIONER COLETTA: No, I know that. I just want to make sure that we don't get too far afield. Page 12 — Item #12A (Bonita Media) September 9, 2008 COMMISSIONER HALAS: Oh, no. That was just -- CHAIRMAN HENNING: We can't by sunshine law. This is about a settlement strategy and we need to stick to that item. That's what the Florida Statutes say on sunshine. MS. HUBBARD: The question was well taken because it looks -- when we checked with the Secretary of State, we found so many different business organizations involving the individual who's head of this one, at the same address, you know, different limited liability companies, some very, I think, questionable activity, but -- MR. KLATZKOW: But the ordinance was declared unconstitutional. CHAIRMAN HENNING: Anything goes in Bonita Springs. COMMISSIONER HALAS: Make a motion that we approve this -- MS. HUBBARD: Oh, we have to do that outside. COMMISSIONER HALAS: Okay. CHAIRMAN HENNING: Right. MS. HUBBARD: Right. We don't make any decisions. CHAIRMAN HENNING: We all done with 12A? Any other -- MS. HUBBARD: Any other questions? COMMISSIONER FIALA: Yes. Are we going to resubmit some kind of an ordinance so we -- our streets aren't proliferated with these types of vehicles? MR. KLATZKOW: Yes. We're working on it as we speak. MS. HUBBARD: Development services has hired a consultant to help write it. CHAIRMAN HENNING: And I've listened to him, and he is very, very good. COMMISSIONER FIALA: Oh, good. MS. HUBBARD: Good. He came very highly recommended. MR. KLATZKOW: Good. CHAIRMAN HENNING: Okay. Page 13 — Item #12A (Bonita Media) September 9, 2008 MS. HUBBARD: May I have all of those documents back, please, except the copy that goes in the sealed transcript with the court reporter. Thank you. (The closed session concluded.) ***** STATE OF FLORIDA ) COUNTY OF COLLIER) I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription is a true record of my Stenograph notes taken at said proceedings. Dated this 22nd day of September, 2008. TERRI L. LEWIS, Notary Public, State of Florida; My Commission No. DD 447012 Page 14 — Item #12A (Bonita Media)