Item V3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
TIME CERTAIN: 5:30
Meeting Date: January 15, 200
AULNUA ITEM WORDING:
Division: County Attorney
Attorney -client closed session with County Administrator Jim Roberts, County Attorney
Richard Collins, Jim Hendrick, Esq., Hugh Morgan, Esq., (Caren Cabanas, Esq., Tyson
Smith, Esq., and Bob Freilich, Esq. in order to discuss the Shadek v. Monroe County
litigation.
ITEM BACKGROUND:
Reports on case status have previously been reported to BOCC.
PKEVIOUS RELEVANT BOCC ACTION:
See above.
STAFF RECOMMENDATIONS:
Conduct private meeting with counsel as provided under F.S. Sec. 286.011(8).
1 UTAL COST:
COST TO COUNTY:
APPROVED BY:
County Attorney ■
DIVISION DIRECTOR APPROV
DOCUMENTATION: Included ❑
BUDGETED: Yes ❑ No ❑
OMB/Purchasing ❑
To Follow ❑
Risk Management ❑
Not Required ❑
AGENDA ITEM # V31
BOARD OF COUNTY COMMISSIONERS
NOTICE IS HEREBY GIVEN that on Wednesday, January 15, 2003, at 5:30 PM at the Truman
School, Harvey Govt. Center, 1200 Truman Avenue, Key West, Florida, the Board of County
Commissioners of Monroe County, Florida, will convene in an attorney -client session with County
Administrator Jim Roberts, County Attorney Richard Collins, Jim Hendrick, Esq., Hugh Morgan,
Esq., Karen Cabanas, Esq., Tyson Smith, Esq., and Bob Freilich, Esq. in order to discuss the
Shadek v. Monroe County litigation. Pursuant to Sec. 286.011(8), FS (1999) this meeting will be
closed to the public. A transcript of the session will be made part of the public record upon
conclusion of the litigation.
Dated at Key West, Florida, this 8th day of January, 2003.
Publication dates
Key West Citizen 1/10/3
Keynoter 1/11/3
County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Fables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
May 25, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tern David Rice, District 4
-
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1 l 11 121h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Shadek, et al. v. Monroe County, Case No.: CA-P-1995-398
Dear Mr. Madok:
Please find enclosed herewith the transcript of the January 15, 2003 closed attorney/client
session of the Monroe County Board of County Commissioners regarding the above -
referenced matter. Under F.S. 286.011(8), the transcript may be part of the public record
because the litigation has concluded.
Thank you for your assistance with this matter. Please contact me should you have any
questions.
Si;obert
erely,
B. Shillinger
Monroe County Attorney
Enclosure
MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
CLOSED SESSION
RE:
SHADEK vs. MONROE COUNTY
Harvey Government Center
1200 Truman Avenue
Key West, Florida 33040
January 15, 2003
6:43 - 7:20 p.m.
IA
PRESENT:
MAYOR DIXIE M. SPEHAR
COMMISSIONER DAVID P. RICE
COMMISSIONER MURRAY E. NELSON
COMMISSIONER CHARLES "SONNY" McCOY
RICHARD COLLINS, COUNTY ATTORNEY
KAREN CABANAS, SPECIAL COUNSEL
JAMES HENDRICK, SPECIAL COUNSEL
ROBERT FREILICH, SPECIAL COUNSEL
JAMES ROBERTS, COUNTY ADMINISTRATOR
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(The proceeding commenced as follows:)
MR. HENDRICK: We will now go on the record for
Freilich is entering.
MR. FREILICH: Ladies and gentlemen.
MR. HENDRICK: We have the same four members of
litigation. Mr. Freilich as special counsel. County
Attorney Richard Collins, and County Administrator Jim
Roberts. I will turn this over to Mr. Freilich who will
describe for you the efforts that he's made.
MR. FREILICH: It's my pleasure again to be here
before you. As you will recall, I was present with you at
an earlier closed session last fall, as well as through a
telephone communication conference. And since that time,
at the request of the court, we met with, in mediation,
with a mediator by the name of Joseph Agonost (ph) and with
counsel for the plaintiffs, Shadek and Harrison plaintiffs,
named Douglas Halsey. And we went there with the
authorized amount that the Board of County Commissioners
had granted to us, but that amount was not made known to
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the plaintiff's party, it was made known only to the
Imediator who did not disclose that amount to the other
After approximately 12 hours of intense
negotiation with the county administrator present as the
county's designated representative, James Roberts, the
plaintiffs came down from their initial offer of 10 million
dollars to a figure of 5.9 million dollars, and at that
amount, it was determined that we would bring that amount
back to the Board of County Commissioners with respect to
seeking your judgment and advice on settlement of the
In addition to the amount of money that was
discussed, the settlement issues also resulted in a number
of significant other conditions to the settlement that I
wanted to make you aware of.
First of all, the settlement of 5.9 million
dollars would be payable in three installments; the sum of
2.5 million dollars will be paid on or before March 14th of
2003. The sum of 2 million dollars will be paid on or
before March 15th, 2004. And, the sum of 1.4 million
dollars shall be paid on or before March 15th of 2005.
Secondly, in the event that the county should
fail to make one of the payments, the condition is that we
be given notice by certified mail, return receipt request,
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and that the county have 30 days to make proper payment and
to cure any default without any payment of interest,
attorneys fees or anything else, and that is to cover the
monies from one account to the other in order to make the
payment that the county will -- these are not strict
deadlines. They are subject to the county being able to
cure any default under those circumstances.
lexecute a general release to the other parties. These are
not mutual general releases. They are not just confined
from the county releasing the plaintiffs and the plaintiffs
releasing the county, but the general releases will release
all of the plaintiffs and their parties, all their heirs,
administrators, representatives, successors, assigns,
agents, attorneys, insurers, et cetera, of all judgments,
orders, liability, causes of action claims, attorneys fees,
specifically including any fees under Section 1988, but all
other attorneys fees, all court costs, all witness fees,
all investigative expenses, and every other expense or cost
and expense involved in the litigation. So, the sum of the
5.9 million is all inclusive of all fees, all attorneys
fees, and all costs and expenses attached to the property.
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In addition, the plaintiff will release the State
of Florida and any federal agencies, as well as the county,
from all liability, this being important because no claim
could be made by them against the state or the federal
government which would then turn around and seek any
liability from the county. So this is a complete general
Irelease.
In addition, the plaintiffs are required to
obtain an order of dismissal with prejudice, meaning that
they cannot bring back any claims in the circuit court
case, which is the case before, right now, before Judge
Garcia. In that circuit court case, the court will not
only dismiss the case with prejudice against any further
renewal of the case, but in addition, the order of
liability that the judge issued in the case finding the
county guilty of a taking on July 17th, 2001 will be
vacated, and it will be vacated and will be preclusive
against all parties, you know, in the case. All the
plaintiffs, including the fact that they will not be able
to bring any claim against any other party or any other
case.
The court order will not be -- you know, will not
be able to be entered in any other case against the county.
So it will be dismissed with prejudice, and also, it will
also be dismissed with total claim preclusion, res
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judicata, collateral estoppel and any other document or any
other theory that could be brought against the county in
lany other takings cases or any other liability cases
pending against the county or that could be raised in the
future against the county based upon the actions of the
county during the period of 1982 to the present time, with
regard to the judge's findings, with the fact that there
was a continuous taking up to the year 2001 for 1982 with
respect to the moratorium, the MDM, major development
moratorium, and the subsequent HCP moratorium.
Other cases that are also pending in the United
States District Court, that case will be dismissed with a
stipulation of dismissal signed by the plaintiffs and the
county, and a motion will be made for dismissal with
prejudice in the United States Court of Appeals for the
Eleventh Circuit where the first takings case against the
county was brought in 1992.
It is, as I indicated to you, it is a material
circuit court's findings of facts, conclusions of law, and
order dated July 17, 2001, will be dismissed. The total
conclusive effect and the judgment and that order of
liability will not be published and it cannot be used by
citation or as precedent in any other court case in which
might be involving the county, the state, or the federal
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settlement is that the parties, the plaintiffs and the
parties agree that the execution of the settlement will not
limit the right of the county to pursue by any and all
appropriate, available, administrative and legislative
means to seek contribution or indemnification from the
(State of Florida based on the principle role of the State
requiring the county to include in 1986 language in the
county code which stated that no development rights would
be received under the HCP until the State of Florida under
the CARL property acquisition program has an opportunity to
acquire properties, and third when the state purchased the
properties in 1990 where they did not require a release
from the plaintiffs of any general liability on the part of
the county or other agencies when they acquired the
properties.
The next condition is that the agreement will not
the general release or any of the exchange or consideration
will be construed in any way as an admission of liability
by the county and the county expressly denies any and all
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liability alleged in all of those proceedings.
And finally, the presentation tonight seeks the
individual, individual statements of each commissioner.
Because this is an executive meeting, you cannot take any
the settlement will be presented to you on February 19th at
your regularly scheduled meeting for consideration and
ladoption.
Again, I want to state that if you -- if you are
in assent for this settlement, there will not be an
opportunity at the February 19th meeting to change minds or
to change discretion, because this will be communicated
back to the court. The trial date set for January 27th,
28th and 29th will be -- is being removed from the court's
docket, and the basis of the settlement is the good faith
of the county in going forward with a decision, the
individual decisions of the -- that you make tonight.
You're not under any obligation to approve or
disapprove, and you are free to make your own decisions.
But, after you make your decision this evening, that
decision will be communicated to the court. The court will
only retain jurisdiction over this matter for the sole
purposes of enforcing the terms of the agreement in the
event that the county fails to make payment in proper
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Iauthorized to enforce the conditions of the order against
either party.
No party may assign, the plaintiffs have no right
to assign or to covenant or to assign their proceeds in
this matter.
And lastly, you should understand that on
February 19th, you will be asked to approve a resolution
approving the settlement agreement with all of the terms
and authorizing the county administrator to execute the
documents in the name and on behalf of the county.
So those are the terms of the agreement. I also
wanted to point out one other thing, is that in our
(discussions today and during these past days, we will be --
we will also be reviewing county regulations, county
relationships with the State of Florida and the federal
agencies, the Comprehensive Plan policies and LDRs and all
pending litigation to assure that in the future, and from
present on, that the county will not be subjected again to
takings liability or constitutional liability for actions,
but that in fact these regulations and an entire program
for making sure that as we go forward in the future, the
county will be on solid legal constitutional and
appropriate planning, administrative and legislative
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grounds, and will be assured, and that will be something
that will be presented to you as the scope of services at
the February 19th meeting, as well.
I have nothing further to say. Karen Cabanas is
the trial counsel appointed by the county. Is there
anything, Karen, that you wish to discuss on this matter?
MS. CABANAS: No, I have nothing to add.
MR. FREILICH: Mr. Hendrick, do you have any
MR. HENDRICK: I would just like to point out the
piece of legislation that got us into this trouble is part
of our 1986 Comp Plan and LDRs. Those were prepared with
the advice of outside experts. I believe it was Charles
Seamans who was representing the county at that time. And
obviously, we got into some trouble which we, as soon as I
became county attorney, when I became land use counsel some
years later, I became aware of this case and I told your
predecessors that I thought this was the one case that
would really seriously impact us in the future.
What Mr. Freilich is suggesting, I think, does
two things. Number one, it takes us to the state to talk
with them about their role in this matter. And, it looks
toward the future to a number of things, including whether
we stay in critical area and, if so, what the state's role
will be in the critical area, and how we achieve our growth
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Have I misspoken in that respect, Bob?
MR. FREILICH: No, you have not_ And
negotiations and, in fact, compelling the state to honor
the provisions of Chapter 380 of the Critical Areas Act
which requires the state to withdraw the certification or
designation of this county by 1996.
There are many things that the county can do now
to get out of the dual level of regulation that the state
opportunities at the same time to reach similar
understandings as to how the environmental laws of the
(United States agencies will be carried out under clear and,
you know, on certain terms, to make certain that we will
not be under the press of federal agencies and then be left
responsible for any damages or constitutional violations
that have been pressed upon the county by those agencies.
Many, many things can be done. Since you adopted
the Comprehensive Plan in 1986 with the various changes
that were accompanied in 1992, and in some cases as late as
196, you're now in the twenty-first century. There are
many new techniques, many new planning programs, many new
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Imethods of equitable utilization of funding, equitable
funding to protect landowners against these types of
claims, and I think the purpose of an audit and bringing
the county up to date would be well served, and I think
that you will find that that will be well worth your while
to pursue that program.
We all understand that things happen. I think it
is also important to understand that while the county will
be participating now in the actual preservation of the land
monetarily in the North Key Largo area, you should also
understand that by virtue of that purchase of that land,
not all for naught.
Secondly, the cost of services to the hundreds of
units that would have been built there and the cost to the
county of maintaining police services, maintaining roads
and protecting lands in environmental areas would have been
very considerable over this period of time. And while I do
not use that as any, you know, as any justification for
what has happened, I want you to understand that when land
is in fact preserved in its entirety without development,
there are many cost savings to the county in terms of
services and other things that do lead down to the county,
including the protection of a major asset of open space and
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environmental beauty for the county.
So while this should not ever happen again, it
should not be perceived as a, you know, as an open
unmitigated disaster.
COMMISSIONER McCOY: You mentioned everything but
lost taxes.
MR. FREILICH: Excuse me?
COMMISSIONER McCOY: You mentioned everything but
lost taxes.
MR. FREILICH: Yes. Well, I do understand
Commissioner, and I think that you will find that for the
type of residential development that they had been
authorized under the BU Zones and so forth, with the
trailer parks and so forth, that the cost of services would
have well exceeded the cost of the taxes that it would have
drawn from that property. But, nevertheless, that is only
a point that I wish to bring to your attention.
I don't want the record, when this is ultimately
published, to believe that there is no benefit from having
open space land, you know, maintained in perpetuity in open
space. There is a great value to the county in having
that. The point is that it can be done now without the --
you know, without litigation, without findings of
liability, it can be done properly and appropriately and
can be done without general revenue cost to the county for
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litigation.
COMMISSIONER McCOY: I think we're committed to
go in that direction and, certainly, with the addition of
that pursuing the state as the perpetrator of all this
problem, that they somehow compensate us for the hundred
percent of this litigation.
MR. FREILICH: Well, we will pursue your
direction, Commissioner. That is included in the
settlement and we are free to see total indemnification and
contribution from the state, and to proceed in open public
way with the state with regard to that matter.
COMMISSIONER McCOY: Okay. You're going to take
a roll call?
MR. FREILICH: Yes. I have one other thing to
advise you. In a telephone conversation just shortly
before you have convened this meeting, Commissioner Neugent
expressed his personal view that he would vote to approve
the settlement. I just want to inform you of that fact.
COMMISSIONER McCOY: Do you want to call the
roll?
MAYOR SPEHAR: Have we agreed on the 5.9?
COMMISSIONER McCOY: Yes.
MR. FREILICH: Yes.
MAYOR SPEHAR: Do you need roll call on that?
COMMISSIONER McCOY: Do you want the commitment
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from each individual?
MR. FREILICH: The commitment from each
individual about the terms that I've expressed, all the
terms that --
IMCCoy?
COMMISSIONER McCOY: Call the roll.
MR. HENDRICK: Motion to approve. Commissioner
COMMISSIONER McCOY: Yes.
MAYOR SPEHAR: Second? Is there a second?
COMMISSIONER McCOY: Just say yes.
MR. FREILICH: No, I don't think you need a --
it's not a vote.
MR. HENDRICK: It's not a vote.
COMMISSIONER McCOY: It's not a vote.
MR. FREILICH: This is just an individual, an
individual roll call of the commissioners.
MAYOR SPEHAR: All right.
MR. HENDRICK: Commissioner Nelson?
COMMISSIONER NELSON: I'm going to vote yes
against my better judgment, and I tell you -- could I make
a comment at this time?
MR. FREILICH: Yes, certainly.
COMMISSIONER NELSON: Because I'm going to say
yes, obviously. But, you know, we talked about this
yesterday. I don't know whether the other commissioners
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had an opportunity to discuss it. But there's three
commissioners right now that are going to come up for
reelection when this 2 million dollar bill gets paid in the
year 2004. Whether or not they care about being reelected
for not, it could represent a major threat to this existing
So I want to make sure that when this news,
whoever is going to be in charge of that, that the release
of this is couched in a way that is really, we're doing the
county a service by not exposing us to this horrendous 67
or 80, 70 million dollar risk. So, saying that, I vote
yes. I think it's the only prudent thing to do.
COMMISSIONER McCOY: And maybe by that time the
(State of Florida will have reconsidered their position and
find that they have an obligation here. And we will
politically do what we can to make sure that they're aware
of how we feel. So, I don't know if there's going to be
some kind of a brief prepared on how you're going to
approach this, but if there is, I'd like to see how it's
done.
MR. FREILICH: Well, again, to reiterate the
point, we have no opportunity, we've had no opportunity to
appeal the judge's finding of liability and the hearing on
January 27th, 28th and 29th was solely to consider damages
based upon that judge's order of liability.
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Jaward, you know, was permanent and was in fact levied
against the county in that extraordinary amount.
And, again, as understood from the documents, the
county, we believe that the case would on very strong terms
have been successful in the appellate court, but there was
lalways that risk that a judgment of 53 million dollars,
plus continuing interest during the period of the appeal
which would bring it over 60 million dollars, that it would
be prudent for the county to consider this.
And, again, understanding that the underlying
order is being vacated finding the county liable and that
the county admits no liability in this matter. I want to
make that very clear. And we will certainly present the
true facts to the county in the appropriate way to make
certain that this is fully understood and that the county
is moving forward to make sure that this will not happen
again.
MR. HENDRICK: Commissioner Rice?
MAYOR SPEHAR: This was 5.9 million based on
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(vacating.
COMMISSIONER McCOY: Yes.
MR. HENDRICK: Just to complete the roll call,
Commissioner Rice?
COMMISSIONER RICE: Yes.
MR. HENDRICK: And Mayor Spehar?
MAYOR SPEHAR: Yes.
COMMISSIONER McCOY: That concludes this.
MAYOR SPEHAR: Do we need an adjournment?
MR. FREILICH: I believe it does. I think we
should close the record at this point.
MR. HENDRICK: Just so we can wrap up on what
Commissioner McCoy was saying, do you have a preference as
to how we go about doing this as far as timing, who drafts
it, how it is presented?
COMMISSIONER McCOY: Yes. That's what I asked
for.
MR. FREILICH: Well, I certainly, if the county
administrator requests my assistance, I certainly will work
as well as I can with the county. I think there should be
several people involved in making sure that this represents
a comprehensive, across the board, county response, so that
this is well understood by the public. It will not be
released to the public until after your public meeting on
the 19th of February, but we can certainly use the proper
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time now to make sure that everyone is consulted and that
the true facts and the true position of the county is made
perfectly aware.
COMMISSIONER McCOY: I'm really concerned about
how you prepare the case against the state.
MR. HENDRICK: Well, we will circulate, from what
I hear you saying, we'll circulate the proposed release to
you, to each of the commissioners.
COMMISSIONER McCOY: Well, right from the
beginning, was the county coerced in doing this? Were they
just a pawn in this whole thing? Was this an area of
critical state concern problem? Were we moved to do these
things? Were we forced to do these things?
MR. ROBERTS: That should be ready at the time --
COMMISSIONER McCOY: And finally, and finally
when it came time for them to get out, they forgot to let
us out and they were remiss in this and they have a
responsibility now of taking that full obligation.
COMMISSIONER NELSON: But I --
MR. FREILICH: I should add one -- I'm sorry,
Commissioner.
COMMISSIONER NELSON: Yes. I just wanted to make
this one point. I've got a little headache so if I close
my eyes, it's not because I'm going to sleep.
MR. FREILICH: That's fine.
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COMMISSIONER McCOY: If I close my eyes, it's
because I'm going to sleep.
MR. FREILICH: Mine are doing the same thing. I
didn't bring my allergy pills down here. I'm importing
into my body every allergic substance that exists down
here.
COMMISSIONER NELSON: Certainly, we've made this
decision. And now, because Representative Sorenson
basically would want to know about this based on the right
timing, I don't want to say something to him about this
prematurely or have this circulate through the county
prematurely. This is a closed session and this is going to
be big news.
Would it be appropriate, and so the other
commissioners are aware of it, too, should we basically sit
on this until the settlement is completed?
COMMISSIONER McCOY: What we really need is
somebody to prepare the case against the state.
MR. FREILICH: Well, --
COMMISSIONER McCOY: And give it to us in
outline.
MR. FREILICH: -- I think we can discuss that in
full and we can come back to you in a matter of a short
period of time and tell you exactly how we will deal with
all of the contacts and all of the public information.
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COMMISSIONER McCOY: Well, we all need a copy of
that script.
MR. FREILICH: I do want to point out that
Charles Seamans, who was the one who prepared much of the
county code regulations, --
COMMISSIONER McCOY: Errors and omissions.
MR. FREILICH: -- was, in effect, obtained
because the governor's cabinet had put together a task
force to develop the HCP or the habitat conservation plan
for this county, and that task force was the one that was
working closely with Seamans and recommending much of this
on this code revisions and, you know, the provisions of the
plan. I think that, again, that's a fourth way in which
the state, you know, was clearly involved in pressing upon
the county onerous regulations which should have been
handled in alternative ways.
COMMISSIONER McCOY: You used the key word,
ionerous.
MAYOR SPEHAR: Onerous.
COMMISSIONER McCOY: This concludes.
MR. HENDRICK: You declare the adjournment?
MAYOR SPEHAR: We're adjourned.
(Concluded at 7:20 p.m.)
All Keys Reporting
Marathon - (305) 289-1201 / Key West - (305) 294-2601
22
CERTIFICATE OF OATH
STATE OF FLORIDA, )
COUNTY OF MONROE, )
I, SUZANNE F. EX, CVR, Court Reporter and Notary
Public in and for the State of Florida, do hereby certify
that I reported the foregoing closed session; and that the
foregoing pages numbered from 1 to 22, inclusive,
constitute a true and complete record of the proceeding.
I further certify that I am not an attorney or
counsel of any of the parties, nor a relative or employee
of any attorney or counsel connected with the action, nor
am I financially interested in the action.
Dated this 24th day of February, 2003.
Suzanne Q. Ex, CVR
Notary Public, State of Florida
Y ry SUZANNE F. EX
My COMMISSION # DID 042901
EXPIRES: July 27, 2005
?f ` Banded Thru Notary Public Underwriters
All Keys Reporting
Marathon - (305) 289-1201 / Key West - (305) 294-2601