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BCC Minutes 03/22/2005 Closed Session (#12A-DCA & Cty of Naples/G.G.Overpass) MINUTES DCA & City of Naples (Golden Gate Overpass) March 22 , 2005 • • IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327 June 1, 2005 CASE NO.: 2D05-392 LT. No. : 04 GM 240 Collier County, v. Department Of Community Florida, Affairs+City Of Naples, Appellant/ Petitioner(s), Appellee/Respondent(s). BY ORDER OF THE COURT: Pursuant to the notice of voluntary dismissal filed herein, this appeal is dismissed. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Robert G. Menzies, Esq. Dwight E. Brock, Clerk Jacqueline Williams Hubbard, Esq. me gifuLt, James BaWiold €R Clerk T j — C7 L/1 _ �+ •c;t Second District Court of Appeal Case Docket Page 1 of 1 Florida State Courts Courts j Opinions � New Query j Help =1 - - Florida Second District Court of Appeal Docket Case Docket Case Number: 2D05-392 Final Administrative Other Notice from Collier County COLLIER COUNTY,FLORIDA, vs. DEPARTMENT OF COMMUNITY AFFAIRS+CITY OF NAPLES, Lower Tribunal Case(s):04 GM 240,04-1048 GM (_—Printer Friendly view j Date Docketed Description Date Due Filed By Notes 01/26/2005 Case Filing Fee 01/26/2005 Notice of Appeal Filed Jacqueline Williams Hubbard, Esq.0468126 01/26/2005 order appealed agency order with attachments 02/10/2005 Notice of Related Case Robert G.Menzies,Esq.0394386 SEE NOTICE 03/16/2005 Motion for Extension of Shaw P.Stiller,Esq. to file index of record Time 03/I7/2005 Grant EOT(general)-74c 03/31/2005 to file index to record 03/24/2005 Mot.for Extension of time Jacqueline Williams Hubbard. to file Initial Brief Esq.0468126 03/242005 ORDER GRANTING EOT 04/19/2005 FOR INITIAL BRIEF 03/30/2005 Index State,Dept.Of Community Mils 0000045 04/18/2005 Mot.for Extension of time Jacqueline Williams Hubbard, to file Initial Brief Esq.0468126 04202005 ORDER GRANTING EOT 05/03/2005 FOR INITIAL BRIEF 05/03/2005 Mot.for Extension of time Jacqueline Williams Hubbard, to file Initial Brief Esq.0468126 05/04/2005 ORDER GRANTING EOT 06/20/2005 FOR INITIAL BRIEF 05/31/2005 Notice of Voluntary Jacqueline Williams Hubbard, wlthdmwai of notice of appeal Dismissal Esq.0468126 06/01/2005 ORDER GRANTING VOLUNTARY DISMISSAL 06/01/2005 Dismissed-Order by Cleric 06/01/2005 Case Permanent 02/122019 Case Desmnyed PrinterFdendt Vjn_,A http://199.242.69.70/pls/ds/dsdocket 4/18/2013 March 22, 2005 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, March 22, 2005 CLOSED SESSION Item #12A — DCA & City of Naples LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, as has been created according to law and having conducted business herein, met on this date at 12:00 p.m., in CLOSED SESSION for agenda item 12A, in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Fred W. Coyle Frank Halas Tom Henning Donna Fiala Jim Coletta ALSO PRESENT: Jim Mudd, County Manager David Weigel, County Attorney Jacqueline Hubbard, Assistant County Attorney Page 1 — Item #12A (DCA & City of Naples) March 22, 2005 Item #12A CLOSED ATTORNEY-CLIENT SESSION PURSUANT TO SECTION 286.011 (8), FLA. STAT., TO DISCUSS STRATEGY RELATED TO LITIGATION IN THE PENDING CASE OF COLLIER COUNTY V. DEPARTMENT OF COMMUNITY AFFAIRS AND CITY OF NAPLES, CASE NO. 041048GM, PENDING IN THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS AND THE SECOND DISTRICT COURT OF APPEALS CASE NO. 2DCA#2D05-392. — CLOSED SESSION MR. WEIGEL: Well, I'll start and introduce this. In effect, this is agenda item 12A, a closed session brought pursuant to 286.011 of the Florida Sunshine Law, and it was properly noticed at the last board meeting by appropriate request and is before us today to talk about the case involving Collier County and the Department of Community Affairs and the City of Naples, and Jackie will, perhaps, start with a little bit of the facts as to where we are in the litigation at this point in time, and then we'll talk about strategy. MS. HUBBARD: Okay. Jacqueline Hubbard, assistant county attorney, for the record. Where we are in the litigation is we have filed a Notice of Appeal, and the Department of Community Affairs asked for a two-week extension to file the record for the appeal, and we requested a two-week extension to file our initial brief in the appeal. Meanwhile, we've been concurring -- we being our office -- with Carlton Fields, who you know had some involvement in the hearing regarding the petition to find the amendment not in compliance. That hearing, we think, resulted in the City of Naples conceding that the amendment should not apply to the Golden Gate overpass and in the event the Golden Gate overpass construction is proceeding at Page 2 — Item #12A (DCA & City of Naples) March 22, 2005 the pace, and I think the city has conceded that it would be extremely difficult, if not impossible, to stop the construction of the overpass at this point, which gets us back to where we are. Where we are is that the City of Naples has decided to pursue the claim for attorney fees and costs that resulted from the filing of our petition to find the amendment not in compliance. They have indicated that the amount of attorney fees and costs they have expended thus far total approximately 85- to $88,000. We feel that based upon the standard that must be used by the hearing officer in the case that they are not likely to prevail at a hearing to receive the attorney fees and costs from the county. There's always the possibility, of course, that the hearing officer would do something different and decide to award the attorney fees or some portion of them; however, we think that the law clearly is on our side in terms of whether or not they're entitled to attorney fees and costs, which we feel that they are not. There was definitely merit to our claim. And the fact that the petition wasn't granted is not the standard that you would use to determine whether or not there was any legal merit to our filing of the petition. As you are well aware, the ultimate holding by the hearing officer was that the county had no standing to file the petition because we couldn't show that the amendment would be used against the Golden Gate overpass. So we're -- we were in a Catch 22 situation. Even though we know from the public record that the City of Naples has said, even at a public hearing, that the amendment was drafted to stop the Golden Gate overpass and, in fact, at one hearing even voted to apply the amendment to the Golden Gate overpass -- and that's a reality, and we know that the whole idea of filing an amendment was -- had one purpose, which was to impede, slow down, or stop the Golden Gate overpass. Since it hadn't been officially applied, according to the hearing Page 3 — Item #12A (DCA & City of Naples) March 22, 2005 officer, he felt we didn't have standing, and that was really the basis of his opinion. He also ruled on approximately 11 other issues that were raised in the petition. Some of those -- most of those he found there was merit to the issues that we raised, and a couple minor ones he found that there were not. So we think we have a pretty good chance of prevailing on the issue of attorney's fees. If I had to give you a percentage, which I'm not wanting to do, I would simply say that probably 80-to-20 percent chance that we would prevail on the issue of attorney fees related to the hearing. Now, the decision that has to be made and the direction that I am requesting from the board has to do with the amendment, number one, and the circumstances as we currently see them regarding -- regarding the appeal of that amendment. What has occurred is that there has been some discussion between me and the attorney for the city. At a meeting in which there was sort of an off-the-record kind of comment made by the counsel for the city, he came up to me at a bar meeting and basically said, you know, I think we might be willing to settle for $20,000. And I said I wasn't prepared to discuss a settlement at the bar meeting and didn't feel that was an appropriate place to discuss it. And he then joked like, oh, I was just kidding. I was just joking. So I assumed he was just joking and just kidding. After that conversation, apparently he spoke to one of the attorneys at Carlton Fields and indicated that that was not a joke, that they might be interested in settling for something like that. Then I recently spoke with him, let's see, about a week and a half ago and suggested to him that, perhaps, in view of the fact that the city and county's relationship is in pretty -- you know, doesn't appear to be moving along quite well, perhaps, it's as a good will gesture, I thought I could recommend, I felt, to the Board of County Commissioners Page 4 — Item #12A (DCA & City of Naples) March 22, 2005 that, perhaps, one way to resolve this would be if the county decided what they would pay would be the hard costs expended by the city. In other words, what if we -- we acknowledge that you're not entitled to our attorney fees, but as a gesture of good will, if you've expended a few thousand dollars on hard costs, such as court reporters and transcripts and things of that nature, experts or whatever, we would suggest that the board agree to pay those costs if you will, you know, dismiss your claim for attorney fees. And he didn't laugh out of hand or dismiss it. And he said, what sort of range are you talking about, and I said, around $10,000, or up to $10,000, something in that range. Why don't you tell me what your hard costs are. Mr. Menzies e-mailed me back and said, I think the hard costs are something like a few thousand dollars, you know. They haven't really analyzed it that closely. And then we had a conversation by telephone, and what we agreed to is as follows: I indicated to him that we would have a closed session today to discuss the status of the litigation and the manner in which the litigation should proceed, including the settlement discussion, I suppose, and I would present the idea to you for direction. And if the Board of County Commissioners decided that it might be reasonable to offer to the City of Naples to pay for their hard costs, say, up to $10,000, or $10,000, whatever is decided, I would let him know after the closed session, and he agreed that he would present this to the City of Naples at their next regularly scheduled council meeting, which is either tomorrow or next week, I'm not certain when, and they would discuss it and get back to us. And that basically summarizes where we are. MR. WEIGEL: I'm going to jump in a moment, if I could, before questions, and that is, as far as the strategy aspect of this discussion today, we had filed, as you know, the Notice of Appeal, and with a Page 5 — Item #12A (DCA & City of Naples) March 22, 2005 proviso that had the basis of, if the city does not go forward, which they chose to do -- and in any event the Notice of Appeal that we have is in regard to the Department of Community Affairs, the DOCA, administrative law judge's opinion on the amendment to the City of Naples comp. plan regarding the overpass. So we are at, call it a crossroads, or at least a timing point where, in about two weeks Jackie would need to prepare and file a brief itemizing and presenting the arguments on why we think an appeal is appropriate. We are, of course, pretty familiar with the standards of appeal, and I've chatted with you on other cases in regard to the likelihood of success on appeal from time to time, and we know that statistically in the second district court of appeal, the statistics of successful appeal by someone who's had a bad -- what they believe is a bad decision at a trial court is fairly low. It doesn't mean that any individual case has all the opportunity in the world to be a successful appeal. We recognize that the standard with the Department of Community Affairs is -- was the decision of the hearing officer based upon competent and substantial evidence. And as we know, often from even our legislative quasijudicial hearings that we have here locally by this board, that there can be a lot of competent and substantial evidence that may lead one way or another ultimately by the decider of the matter. Sometimes it's a board and sometimes it's a judge. So the burden on appeal is a little tough. It's not merely like 50 percent plus one or something like that, that you're more correct than another. It's certainly not beyond a reasonable doubt like a criminal standard, but is there a lack of competent and substantial evidence for the decider, in this case the administrative law judge, to have made the decision that he did, he or she did. And so that is, as you might say, a relative high degree of difficulty in absolutely having an assurance of succeeding on appeal. Page 6 — Item #12A (DCA & City of Naples) March 22, 2005 In this particular case we do note in looking at risk/benefit analysis from a dollars and sense standpoint -- sense, being S-E-N-S-E -- that if we go forward with the appeal we will, of course, allocate additional resources toward attempting to prevail as far as that goes as well. We certainly have always felt that the matter that we challenged the city on, and this was, of course, at the behest of the board, Norman Feder and our county manager, was that we did not want to give any opportunity for them to stop, delay, impede this project through what appeared to be the subterfuge of a comp. plan amendment. And as Jackie indicated, there were certain statements on the record by individuals, not necessarily with a vote taken, from the city council and mayor that indicated that that's precisely what that amendment was about. It didn't grow in a vacuum. It grew out of the impetus, they believe, created by the Golden Gate overpass. So from that standpoint, we have had success. We have had admissions from the city that they are not going to apply this to the Golden Gate overpass, and from that standpoint, we've gone forward in an unfettered way with no other litigation complications from the city. So what Jackie and I are talking about right now is, if the board, coming out of this closed session, says, stay the course, at this point we'll go forward and file the appellate brief in a few weeks, and then the other side will have to file its appellate brief in response. Well, if they ultimately were to prevail on the attorney fee aspect, which is claiming that our litigation was frivolous, which we absolutely don't agree, they would have some additional attorney fees to add on to their 85- or 88,000 right now. And interesting enough though, and I'd be remiss not to tell, is that even if we appeal and lose the appeal, in the sense that they don't overturn the decision of the administrative law judge, the fact is that Page 7 — Item #12A (DCA & City of Naples) March 22, 2005 there is a possibility in this appellate proceeding that they recognize that these issues, yes, had merit, it's just that we don't ultimately prevail, or we might prevail, we don't know. MS. HUBBARD: It's positive. MR. WEIGEL: So there can be a positive in regard to the attorney fees issue even as we go forward with the appeal. It's kind of a strange situation, but ultimately, we're trying to boil it down to a dollars and cents with what to proffer an offer of. We suggest up to $10,000 so that they drop their attorney fee case and that we do not pursue the appeal, or do we kind of stay the course and see what happens? There still may be potentialities for settlement, but we do know that we have some work to do because the appeal time is running right now, and they would have some responsive work to do once we file our appeal. COMMISSIONER COLETTA: If I may. MR. WEIGEL: Certainly. COMMISSIONER COLETTA: Now I normally take a hard line on these things, you know, when we're dealing with individuals that are out there taking advantage of the county one way or the other, we're going to court to hold them there, just so that we don't have them coming back to the feeding troth time and time again. This is a different case. We're talking about another government entity that we have to work with on a daily basis, and I don't think it would hurt us one bit to offer $2,000 to cover hard costs to bring this thing to an end. In other words, show good faith on our end, just to bring an end to it. I think we're going to win in the end, but everybody's going to spend a lot more money getting there. It's all the taxpayers' money in the end. But in the end we might have the city council who will feel like they're disenfranchised, they might not feel any kind of kinship to their county commission. I'm for putting this bed with, if we can, for $2,000, to at least show a good faith to make an offer like that. Page 8 — Item #12A (DCA & City of Naples) March 22, 2005 COMMISSIONER HENNING: Can you throw in a spaghetti dinner, too? MS. HUBBARD: Yes. There's a memo I wanted to show to everyone. Go ahead, Mr. Mudd. MR. MUDD: Mr. Chairman, Commissioners, Jim Mudd, county manager, for the record. While this was going on, Jackie got her offers at a bar meeting, and I'm assuming that's a bar meeting with lawyers and not in a bar. MS. HUBBARD: Yes. MR. MUDD: I had offered to the city manager a sum of$50,000 to be used for, I think, it's Burnt Tree Road that's by Royal Poinciana with the light. They had made an agreement with the community prior to annexation that they would fix the access road to Goodlette-Frank that they have for their community, which hasn't been done yet. This board held up taking the traffic light down at that particular place until they could fix that road, and that was one of the things we were directed to do as far as that, but Norm's held off on that particular event. They have to fix that road. There are some things that are happening with the Goodlette-Frank widening that will help them in their costs. Knowing that they had this commitment to that community after they were annexed into the city and knowing that we would spend additional monies on legal fees as we proceeded to go through the appeal and for the final cost proceedings on attorney fees, I thought it would be prudent to make an offer to the city that basically says, hey, look it, I'm not really arguing about past fees and if it was valid or not, I'm basically saying you're going to spend $25,000 of taxpayer dollars to go forward with this as we go through the appeal process at another hearing, and we will probably spend the same. Wouldn't it be better to use those monies instead of continuing to Page 9 — Item #12A (DCA & City of Naples) March 22, 2005 actually benefit in some physical way, the community and the city, that would go out onto a county road, Goodlette-Frank Road? I offered that, I want to say now it's been over a month, Jackie, because we talked about it on the phone, and I have not received a reply, and I have not seen it on a city agenda anywhere either. So it's even more than this offering. Maybe this offering of $10,000 or whatever for hard costs will get that discussion back again, and maybe the city manager will bring up an offer that the county manager made in the process. But I tried to offer something to get us off the dime to amend some things that were going to preclude further costs, attorney fees, as we continued. MS. HUBBARD: I would -- I'm sorry. Commissioners, I have to share this with you, too. COMMISSIONER FIALA: Okay. I feel that the $10,000 range is a good one because there comes into play here saving face, and that's really an important thing, especially between two governments. We're going to have to work together a long time. I think $2,000 is -- might be a slap in the face, but maybe $10,000, low as it is, it's still offering them a goodly amount. And I think we need to foster good relationships. MS. HUBBARD: All right. In light of that you had suggested that we secure a memorandum on these issues that I feel that we should share. Don't you, David? MR. WEIGEL: I think I've fairly stated them, but it's not a problem to share them. MS. HUBBARD: Would you prefer -- MR. WEIGEL: I don't think that it's really necessary, as counsel to counsel. MS. HUBBARD: All right. MR. WEIGEL: It was talking in terms of the likelihood of success on appeal. COMMISSIONER FIALA: I'm sorry. Talking in terms of what? Page 10 — Item #12A (DCA & City of Naples) March 22, 2005 MS. HUBBARD: Likelihood of success on appeal. MR. WEIGEL: Talking really about the likelihood of success on appeal. And our outside counsel, Carlton Fields counsel, worked with us, of course, in the case in chief against the city on their amendment, you know, has provided us with some information indicating that there are at least three elements of appeal but also indicating that the standard for appeal being merely a quasi decision based on competent and substantial evidence. It's a low standard to uphold the decision made at the lower level. And so that's really what it went into some detail on. I'm really not too concerned about that. MS. HUBBARD: All right. MR. WEIGEL: What I am thinking though, Jim, is that you talked about the city manager. I have a feeling he didn't talk with their outside counsel, Bob Menzies, I'm surmising. But that may be, to some degree why there seems to be a disconnect, a nonconnect. MS. HUBBARD: Well, right. If we make this -- CHAIRMAN COYLE: Well, Commissioner Henning -- Halas. COMMISSIONER HALAS: So I'm going to direct this question back to the county manager. To start with, the city is the one that initiated the problem in regards to coming up with this DCA amendment. MS. HUBBARD: Correct. COMMISSIONER HALAS: The thing is that we want to get off the center here. Do you feel that the $10,000, if we use this as a peace offering, that this is going to address not only the problems in regards to paying for their lawyer fees, but do you think that this is going to initiate the possibility of getting this off center in regards to Burnt -- CHAIRMAN COYLE: Burning Tree. COMMISSIONER HALAS: -- Burning Tree Road there. MR. MUDD: It could, sir. I'm surprised it hasn't gone anywhere. CHAIRMAN COYLE: Well, I'm surprised the Burning Tree Page 11 — Item #12A (DCA & City of Naples) March 22, 2005 Road hasn't gone anywhere. COMMISSIONER HALAS: Well, they haven't done anything yet. CHAIRMAN COYLE: That's right. And that was raised to me at our last workshop meeting I attended with the city council. One of the council members wanted to know what our plans were for removing that light. I said, hey, we've been waiting for you to decide when you're going to have that road done. COMMISSIONER HALAS: That new road. CHAIRMAN COYLE: And so -- and we told them a long time ago that we wanted to do that as quickly as possible because Norm wants to get that light out of there. COMMISSIONER HALAS: Yep. CHAIRMAN COYLE: So I'm surprised it hasn't gone any further than it has. But we can certainly -- COMMISSIONER HALAS: I hope they don't think we're going to pay for that road, too. CHAIRMAN COYLE: That's right. I think we can certainly move that issue forward, but if the county manager can find some way that we can be mutually beneficial there and, thereby, wipe the slate clean with respect to these legal fees, that's great, but I tell you, David, I have no confidence in a successful appeal. COMMISSIONER FIALA: In what? CHAIRMAN COYLE: In the success of an appeal. I think it's money thrown down the drain. I think we're going to wind up in the same place after we've gone through the appeal that we're in right now. MS. HUBBARD: Well, let me just say this, if I may. When you balance the costs that have been expended by the two parties, the city has between 85- and $88,000 in expenses with outside counsel, we have 25. CHAIRMAN COYLE: Yeah. Page 12 — Item #12A (DCA & City of Naples) March 22, 2005 MS. HUBBARD: In terms of the costs that we estimate to pursue the appeal, all the work being done in-house in our office, there wouldn't be any outside counsel costs, so we think it might approach somewhere -- didn't we say like $5,000, perhaps. Relatively small amount. The likelihood of prevailing, I mean, you can say, we have three issues that are worthy of an appeal. The main one, we think, is the standing issue. The second one being whether or not you need adequate data and analysis. They really presented only anecdotal analysis for sustaining this amendment. And basically the DCA and the city took the position that this was an aspirational amendment, and, therefore, it really didn't need any data and analysis. We don't -- we have looked, our office, Carlton Fields has looked, there are no cases on this issue. So we're talking about a case of first impression because the statute says you need adequate data and analysis. The hearing officer's holding that you really don't. The DCA's taken the position that you really don't. And so that's an issue CHAIRMAN COYLE: So they'll make the same argument to the appeal court. MS. HUBBARD: Correct. CHAIRMAN COYLE: And the likelihood that it's going to be the same outcome is pretty high? MS. HUBBARD: Yes. MR. WEIGEL: I'd say so. CHAIRMAN COYLE: So I'm just suggesting that whatever the commissioners want to do with respect to settlement, we ought to proceed with that right now and forget about the appeal, because I don't think the appeal's going to get us anywhere. MS. HUBBARD: Well, it's going to -- it still -- they're valid issue. They shouldn't be just summarily discarded because if they take Page 13 — Item #12A (DCA & City of Naples) March 22, 2005 a hard line with us, and say that they're going to pursue the attorney fees and costs, we won't be able to bring that back to you before the -- I don't think, before the time for filing the initial brief, so -- MR. WEIGEL: I think that's correct, Jacqueline, but I think what Commissioner Coyle is discussing here is that part of the posture of the county potentially is to indicate that we're not going to appeal, and perhaps make an offer of some kind to close the books and get everything squared away. CHAIRMAN COYLE: And then what is their alternative if we do not reach an agreement on the attorney fees? MS. HUBBARD: We go to hearing on the issue of attorney fees, which I think is probably a good step to take. CHAIRMAN COYLE: Yes. And I think then you begin to question why $85,000 was spent on attorney fees on the one hand, whereas $15,000 was spent on the other hand. MS. HUBBARD: Right. CHAIRMAN COYLE: You say at this point in time we don't even have any verification that the $85,000 is the real figure, do we? MR. WEIGEL: No. The one thing we know -- MS. HUBBARD: Pretty much. CHAIRMAN COYLE: Do we? MR. WEIGEL: One thing we know, Bob Pritt doesn't do their litigation, so it's all outside, so it's all billable. CHAIRMAN COYLE: Yeah, okay. We try to use our counsel for assistance, outside counsel, but we try to do as much as we can in-house. CHAIRMAN COYLE: I understand. MR. WEIGEL: Still -- CHAIRMAN COYLE: But it's still open to the court's interpretation as to reasonableness. MR. WEIGEL: True. MS. HUBBARD: But there is a two-step process. The first step Page 14 — Item #12A (DCA & City of Naples) March 22, 2005 is the court has to rule -- the hearing officer has to rule that they're entitled to attorney fees. If they get past that hurdle -- CHAIRMAN COYLE: Yep. Then how much? MS. HUBBARD: Then how much? COMMISSIONER HALAS: I make a motion we give them 10 MR. WEIGEL: The motion will be outside of this room. You make your -- you make your determinations out there ultimately, but COMMISSIONER HALAS: I'd like to get this thing off the book and I'd like to make sure we're not going to tie that Burning Tree Road to this. Some way or another we've got to make sure that whatever we come up with on this that -- I don't know how we're going to get them off center to get that road addressed because that road is next to start getting widened. COMMISSIONER COLETTA: Can't they -- COMMISSIONER HALAS: No, you can't tie that with the -- MS. HUBBARD: Please don't. CHAIRMAN COYLE: But let me ask you this: Would it be okay if the county manager were to continue to pursue -- COMMISSIONER HENNING: Just take the traffic light out, you know. CHAIRMAN COYLE: That's the way to initiate it. If you want to call a hen, you take the traffic light out. COMMISSIONER FIALA: We should have done that a long time ago. COMMISSIONER COLETTA: It's going to be taken down. They can have a police officer there or whatever else they want at that point in time. CHAIRMAN COYLE: But I don't think you want to force us into another dispute, but they've had adequate notice, and I think that the important thing is that maybe the staff should set a date that this is Page 15 — Item #12A (DCA & City of Naples) March 22, 2005 the time we need to get that traffic light out. Now, of course, it's not going to make any difference when you start construction. We don't want to fabricate a reason for doing it just to irritate people, but, you know, we're going to be constructing on that road and we're going to want that traffic light out at some point in time. And if staff-- COMMISSIONER HALAS: Coincide with the building -- CHAIRMAN COYLE: That's right. COMMISSIONER HALAS: -- of the road, and if they intersect it with the -- how they're going to intersect it with Burning Tree Road. CHAIRMAN COYLE: That's exactly right. And then let the staff tell them what that date is, and then that becomes the date of which they've got to get that road done. Now, if we jump to the other issue, let's suppose we go with Commissioner Halas' motion, now is there anything to preclude the county manager from going back to city manager and saying, hey, have you given any thought at all to working out some trade-off between this project and these legal fees? MS. HUBBARD: I feel -- COMMISSIONER HENNING: I'd take out the traffic light, and, you know, that's off the table. We won't have to worry about it. COMMISSIONER COLETTA: I can see it, commissioner gets electrocuted taking out the light. MS. HUBBARD: I think David and I are both in agreement on this that we really shouldn't concede at this attorney fee issue. I feel that they were using it as some kind of hammer against us. I think the law is with us. It's certainly worth litigating over. And if we start talking settlements that approach the actual amount of attorney fees, then we get to the point where it makes us look bad. COMMISSIONER HALAS: Do you feel comfortable if we make a motion for $10,000? MS. HUBBARD: Yes, I feel comfortable. Page 16 — Item #12A (DCA & City of Naples) March 22, 2005 COMMISSIONER HALAS: Okay. MS. HUBBARD: Especially for the hard costs, as suggested. COMMISSIONER HALAS: Hard costs. MS. HUBBARD: I don't know if they're going to accept it. CHAIRMAN COYLE: Well, that's their decision. You know, they have to make a decision as to what they're going to do. But are we prohibited from giving the staff guidance to proceed with defining when that traffic light has to come out and notifying the city? MS. HUBBARD: It shouldn't be tied to -- CHAIRMAN COYLE: It has nothing to do with that. But can we do it while we're sitting here or do we do it sometime else? MR. WEIGEL: Certainly not sitting here. COMMISSIONER HENNING: Why don't we do it under commissioners' -- MR. WEIGEL: Communication. COMMISSIONER HALAS: Comments, under comments. MS. HUBBARD: Now, my understanding, I guess you're going to make that decision when we get outside also whether or not we are going to proceed with the appeal in any event. COMMISSIONER COLETTA: And keep the discussion down next to zero, you know, so we don't blow any kind of ability we have. MR. WEIGEL: Jim's right. We've got the settlement question and the question directing us not to go forward with the appeal -- MS. HUBBARD: But they may reject the $10,000 offer. MR. WEIGEL: But it sounds like -- COMMISSIONER HALAS: So you want in the motion to reject the -- MS. HUBBARD: No, no, no. I'm saying the city -- the city may reject our offer. Whatever you decide outside to offer to them, they may still reject it, and so we need some direction regarding the way we proceed. COMMISSIONER HALAS: Then we want to throw out not Page 17 — Item #12A (DCA & City of Naples) March 22, 2005 appealing, is that what we want? MR. WEIGEL: Yeah. Mr. Coyle seemed to be indicating, I think, that we will, in light of comradery with the city, that our determination in light of everything is not to pursue the appeal and to offer a settlement with the idea of the dismissal of this attorney fee case. As Jackie indicated, we'd rather litigate that than just in some way concede to say that they should appropriately get attorney fees, because we don't think that's the case at all. It's not a frivolous matter. It wasn't brought up frivolously, it was argued in a professional manner with legitimate issues to be heard before the Department of Community Affairs. CHAIRMAN COYLE: So you want to keep the -- keep the appeal process going? MR. WEIGEL: No, that's not what I said. I said I thought that you were indicating that as part of us reaching out to the city, that we would not pursue the appeal. CHAIRMAN COYLE: But I thought your point was that if they refused -- MS. HUBBARD: If they refused. CHAIRMAN COYLE: -- the settlement offer, then what are your options? MR. WEIGEL: Well, your option -- if the appeal's still going, then in about two weeks we've got to file. If the appeal is not going, then the only matter that's left is us fighting their request for attorney fees based on a frivolous lawsuit, which I don't think is the case. CHAIRMAN COYLE: So you can drop the appeal and it doesn't affect your ability to defend against -- MR. WEIGEL: Not at all. CHAIRMAN COYLE: -- the award of the attorney fees? MR. WEIGEL: As I did mention -- MR. HUBBARD: No, it doesn't. Page 18 — Item #12A (DCA & City of Naples) March 22, 2005 MR. WEIGEL: A side issue with the appeal is that potentially, whether we win or lose on appeal, to some degree it sort of indicates that the issues raised below are issues of contention and merit. MS. HUBBARD: Right. I don't know if there's any reason to drop the appeal if they refuse our offer other than -- MR. WEIGEL: Well, it's a question of timing. They may not act within the two-week period left to file. COMMISSIONER HENNING: Are we done? CHAIRMAN COYLE: Do we specify that in the motion, that -- regarding the settlement offer, that we would agree to settle for $10,000 if you respond to us within 10 days or something of that nature? MS. HUBBARD: Yes. MR. WEIGEL: That would be fine. CHAIRMAN COYLE: And that gives you the option then of filing the appeal if you wish to do that. MS. HUBBARD: All right, great. CHAIRMAN COYLE: How does that sound? Commissioner Halas is going to make this motion? COMMISSIONER HALAS: I'll make this motion and give us direction to make sure that we've got -- we fill in all the missing spots. MS. HUBBARD: All right. Thank you. CHAIRMAN COYLE: So the motion will be that we're authorizing you to do what it was we talked about during lunch. COMMISSIONER HALAS: Ten thousand dollars, and we're not going to initiate the appeal, right? We're going to drop the appeal. MS. HUBBARD: If they accept. COMMISSIONER HALAS: Huh? MS. HUBBARD: If they accept. COMMISSIONER HALAS: If they accept. MR. MUDD: Mr. Chairman, are you going to close the -- CHAIRMAN COYLE: Yeah. We're going to close the closed Page 19 — Item #12A (DCA & City of Naples) March 22, 2005 session. (The closed session concluded.) ***** TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 20 — Item #12A (DCA & City of Naples)