Item H1
* 1: 30 P.M. CLOSED SESSION *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 8/19/09 - KL
Bulk Item: Yes No ~
Division: County Attorney
Staff Contact Person: Bob Shillinger. #3470
AGENDA ITEM WORDING:
An Attorney-Client Closed Session of the Board of County Commissioners ill the matter of Tropex
Construction Service, Inc. vs. Monroe County, CA P 06-44.
ITEM BACKGROUND:
This suit was filed by the former general contractor for the Tavernier Fire Station which walked off the job
prior to the commencement of construction. The County has filed a cOlmterclaim alleging breach of contract
and included the General Contractor's surety as an additional defendant. In addition to the case between the
County and Tropex, Tropex is in litigation with its surety. As part of a continued effort to settle both cases, a
mediation session is scheduled for August 17, 2009. The mediation will also encompass issues in dispute
between Tropex and its surety. If that mediation session produces a proposed settlement agreement and the
Board desires to discuss that proposal in a closed session, a closed session would need to be scheduled for a
future date to be determined by the Board.
Legal staff desires direction from the Board. Per F. S. 286.011(8), the subject matter of the meeting shall be
confined to settlement negotiations or strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County Attorney
Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, special litigation counsel Ira Libanoff, Esq.
and a certified Court Reporter.
PREVIOUS RELEVANT BOCC ACTION:
12/19/07 BaCC approval to hold Closed Session 1/16/08
1/16/08 BaCC held Closed Session
7/15/09 BaCC approved Closed Session for 8/19/09 @ 1:30 in Key Largo
CONTRACTIAGREEMENTCHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: Est. $200 INDIRECT COST:
BUDGETED: Yes ---X- No
COST TO COUNTY: Est. $200
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No X
AMOUNTPERMONTH_ Year
APPROVED BY: County Atty ~ aMB/Purchasing _ Risk Management_
DOCUMENTATION:
Included
Not Required X
DISPOSITION:
Revised 2/05
AGENDA ITEM #
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Holly Merrill Raschein,District 5
Mayor Pro Tem James K.Scholl,District 3
The Florida Keys Craig Cates,District 1
., Jl Michelle Lincoln,District 2
Robert B.Shillinger,County Attorney** David Rice,District 4
Pedro J.Mercado,Sr.Assistant County Attorney**
Cynthia L.Hall,Sr.Assistant County Attorney**
Derek V.Howard,Sr.Assistant County Attorney** Office of the County Attorney
Christine Limbert-Barrows,Assistant County Attorney** I I11 12'Street,Suite 408
Peter H.Morris,Assistant County Attorney ** Key West,FL 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X.DiNovo,Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
January 17, 2024
Kevin Madok, CPA
Clerk of the Court, 16'Judicial Circuit
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
In Re: Tropex Construction Service v. Monroe County, Case No.: 06-CA-44-P
Dear Mr.Madok:
Please find attached scans of the transcripts of two attorney-client closed sessions held before the Monroe County
Board of County Commissioners, on January 16, 2008, and August 19, 2009, in connection with the above-
referenced litigation. The litigation has concluded;under Fla.Stat.286.011(8),the transcripts may be made part
of the public record once litigation has ended.
Thank you for your assistance in this matter. Please contact me if you have any questions.
Sincerely,
Dg,Ufy,nedbyCY IhiaLHa0
,Ih,,L H,11 o-Mo�e
Cynthia L. Hall
Senior Assistant Monroe County Attorney
Attachment: Scans of Closed Session Transcripts dated 01/16/2008 and 08/19/2009
y I�;i
1 MEETING OF THE ,
2 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
3 ATTORNEY-CLIENT CLOSED SESSION
4 RE : TROPEX CONSTRUCTION SERVICE, INC. VS . MONROE COUNTY
5 CA P 06-44
6 MURRAY E . NELSON GOVERNMENT CENTER
7 102050 OVERSEAS HIGHWAY
8 KEY LARGO, FLORIDA 33037
9 WEDNESDAY, AUGUST 19, 2009
10 1 : 34 P.M. - 1 : 55 P.M.
11
12 Commissioners Present :
13 COMMISSIONER HEATHER CARRUTHERS
14 MAYOR PRO TEM SYLVIA J. MURPHY
15 MAYOR GEORGE NUGENT
16 COMMISSIONER MARIO DIGENNARO
17 COMMISSIONER KIM WINGINGTON
18 COUNTY ATTORNEY SUZANNE HUTTON, ESQ.
19 CHIEF ASSISTANT COUNTY ATTORNEY BOB SHILLINGER, ESQ.
20 COUNTY ADMINISTRATOR ROMAN GASTESI
21
22 ALL KEYS REPORTING
23 Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
24 Marathon, Florida Key West, Florida
305-289-1201 305-294-2601
25
A
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1 THE MAYOR: We are closing the regular BOCC meeting
2 and reconvening in a closed session.
3 MS . HUTTON: You called the closed session to order .
4 For the record, this meeting is being held upon the
5 request of County Attorney Suzanne Hutton, who announced
6 at a prior public meeting held on July 15th, 2009 that I
7 needed advice concerning the pending matter of Tropex
8 Construction Service, Inc. versus Monroe County, CA P
9 06-44 . At that meeting, the board approved holding
10 today' s closed session, and public notice was given at
11 the July 15th, 2009 BOCC Meeting and through publication
12 of the agenda for the August 19, 2009 BOCC Regular
13 Meeting.
14 For the record, and the benefit of the court
15 reporter, each of us will state our name and position,
16 commencing with the commission.
17 COMMISSIONER CARRUTHERS : Heather Carruthers,
18 district three, commissioner .
19 COMMISSIONER DIGENNARO: Mario DiGennaro.
20 Commissioner, district four .
21 THE MAYOR: County Commissioner George Nugent, for
22 district two.
23 COMMISSIONER MURPHY: Sylvia Murphy, commissioner,
24 district five .
25 COMMISSIONER WINGINGTON: Kim Wingington, county
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1 commissioner, district one .
2 MS . HUTTON: Suzanne Hutton, county attorney.
3 MR. GASTESI : Roman Gastesi, county administrator .
4 MR. SHILLINGER: Bob Shillinger, chief assistant
5 county attorney.
6 MS . HUTTON: Just as a reminder, we will only be
7 discussing settlement negotiations and strategy relating
8 to litigation expenditures . You cannot take any decisive
9 action at this meeting. We can only provide information
10 and you can provide direction to the attorneys . Any
11 decisions this board makes concerning the case must be
12 done in a meeting open to the public. And if it takes --
13 if you decide, during this closed session, that you will
14 take action then we will ask you to add -- open up the
15 regular agenda, to add an item on for that action to be
16 taken. And I 'm going to turn this over to Mr .
17 Shillinger.
18 MR. SHILLINGER: Good afternoon.
19 THE MAYOR: Good afternoon.
20 THE COURT : We ' re here today to talk about the
21 construction litigation case, Tropex versus Monroe
22 County. We counter sued them. Monroe County versus
23 Tropex, and their surety company, and that ' s the name of
24 the case . We have your standard warnings at closed
25 sessions . Everything we say in here is privileged. It ' s
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1 a limited privilege that exists during the course of the
litigation. The court reporter is taking everything
3 down. I would encourage you not to disclose anything
4 that we say until either the matter has been tried to a
5 verdict and we 've get a judgment entered, or we settle
6 and we have a signed settlement agreement .
7 COMMISSIONER DIGENNARO: Question.
8 MR. SHILLINGER: Yes .
9 COMMISSIONER DIGENNARO: Are you saying not discuss
10 it until we come back in and put it on the record, you
11 said come back and then reconvene?
12 MR. SHILLINGER: We can vote on it then, if we ' re
13 going to go ahead and vote on it.
14 COMMISSIONER DIGENNARO: So then wouldn' t we be
15 violating by going public anyway, before we have a
16 signed --
17 MR. SHILLINGER: We have a signed settlement .
18 COMMISSIONER DIGENNARO: We have one?
19 MR. SHILLINGER: Yes .
20 COMMISSIONER DIGENNARO: I didn' t know we had one .
21 MR. SHILLINGER: Yes . We have one . It ' s a question
22 of whether you want to ratify it .
23 COMMISSIONER DIGENNARO: Understand.
24 MR. SHILLINGER: Okay. A little bit of a history.
25 Tropex was awarded the contract to build the Tavernier
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1 Fire Station, in 2004 . They were slow in getting their
2 documents . We finally signed the contract in February
3 2005 . March 2005, we had a preconstruction meeting.
4 They confirmed, at that meeting, that they would get all
5 the permits . And that they, especially the OSTS permit,
6 the off-site sewage treatment disposal system permit.
7 Nothing went on for a couple more months . In June of
8 2005 they sent a letter saying, we ' re terminating the
9 agreement. We actually also sent them a letter, at that
10 same time saying, why haven' t you done X, why haven' t you
11 done Y. But that wasn' t a termination letter. We sent
12 them a termination letter in July, when they didn' t
13 respond to our letter.
14 They sued us in January 2006 . They basically beat
15 us to the courthouse . We were preparing to sue them
16 anyway. We -- so we counter-claimed against them. Our
17 claim is really the viable claim. They' re claim isn' t
18 really worth much. We awarded a replacement contract, in
19 August of 2006 . The job was completed in 2007 .
20 COMMISSIONER DIGENNARO: I thought it was through
21 another company?
22 MR. SHILLINGER: Through another company.
23 COMMISSIONER DIGENNARO: Gotcha.
24 MR. SHILLINGER: Their contract was $535, 430 . The
25 replacement contract was about $450, 000 higher, $984, 458 .
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1 Remember, back in the fall of 2004, to the summer of
0!5211�
2 2006, this is during the construction boom. This is
3 during the Chinese dam, that was sucking up all the
4 concrete, all the hurricane repairs, all the cost
5 escalations .
6 COMMISSIONER DIGENNARO: Whatever.
7 MR. SHILLINGER: Right . So, there was a lot of cost
8 estimates .
9 COMMISSIONER CARRUTHERS : Beijing.
10 MR. SHILLINGER: Their claim, they' re saying they've
11 lost their ability to make a profit and that we didn' t
12 provide them with the plans that they needed to proceed.
13 Then the architect, they could never reach. He was
14 M. I .A. And their claim is -- it ' s a nominal claim. And
15 they' re willing to abandon that claim if we would drop
16 our claim against them, directly, and only go against the
17 surety. So that ' s how little they think of their claim.
18 We ' ll walk away. Just leave us out and go against our
19 insurance company.
20 COMMISSIONER DIGENNARO: I got a question.
21 MR. SHILLINGER: Yes .
22 COMMISSIONER DIGENNARO: How deep are their pockets?
23 MR. SHILLINGER: No. Very shallow.
24 COMMISSIONER DIGENNARO: They have no pockets?
25 MR. SHILLINGER: The -- Tropex has very shallow
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1 pockets .
2 COMMISSIONER DIGENNARO: Shallow pockets?
3 MR. SHILLINGER: Yep. They' re on the verge of
4 bankruptcy.
5 COMMISSIONER DIGENNARO: But they do have insurance?
6 MR. SHILLINGER: They do have a surety. Which --
7 which is who we ' re working with. That ' s who we ' re
8 working with.
9 All right . So, our defenses to their claim is that
10 they wrongfully walked off the job. They, basically,
11 explain what their motivation is . In the second bullet
12 point you ' ll see it . They have written to their surety,
13 sometime between the preconstruction meeting when they
14 terminated from us, saying, we got to get out of this
15 job. We ' re going to get killed. The price escalations
16 are so high that we 've got to either rebid the job or
17 walk off. So we know that that was their true
18 motivation. And so it wasn' t because they had problems
19 with the permits . It wasn' t because the language was
20 ambiguous . The language was pretty clear. They were
21 supposed to get all the permits .
22 And the replacement contract . The proof is that the
23 replacement contractor had no problems getting the
24 project done, in a very short period of time, and getting
25 all the permits . No, we didn' t have to get them. Our
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1 counterclaim. This is our claim against them. We have
2 damages in the amount of just under 450, which is the
3 amount that we had to pay extra to the replacement
4 contractor. The interest would be a fight . We claimed
5 at mediation, it was almost to 180 . That ' s probably an
6 inflated sum. I think the realistic number would be
7 about 100, 000 . It ' s disputed over the starting date, of
8 when you start calculating the interest .
9 Liquidated damages, that ' s where the claim, at least
10 on paper, it ' s a big claim, but they have no assets . And
11 we can' t get L. D. s against the surety. But the claim is
12 for $2 . 1 million in liquidated damages . But it ' s a paper
`5
13 claim because there is no money to get. And then our
14 attorneys ' fees to date is about 92, 000 .
15 COMMISSIONER DIGENNARO: How much surety do they
16 have?
17 MR. SHILLINGER: They have, 520 set aside, the
18 surety claim is on account that the face amount of the
19 bond, the penal amount of the bond is 520, or 530 . I 've
20 got it later in the slide . The surety' s defenses because
21 we were suing both the surety and the principal, and the
22 surety' s defense is, and they have some defenses . Is
23 that we didn' t terminate Tropex correctly and that voided
24 the bond. We didn ' t provide them all the documents and
CEN 25 that voided the bond. Anything that we did incorrect,
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1 they' re going to claim voided the bond. They' re going to
2 say that we waived any issues we had with Tropex
3 terminating -- quitting the job when we didn' t respond in
4 time to their letter of termination. And this is where
5 we have the -- this is why we ' re even agreeing to sit
6 down and talk with them. We do have some issues .
7 They sent us a letter, in early June of 2005 . While
8 we sent a letter that same day, or the next day, that
9 crossed in the mail . It didn ' t actually respond to their
10 termination letter. It was a letter that said, you
11 haven ' t done this, you haven' t done that. What ' s up?
12 What ' s the story? We didn' t send a letter responding to
13 their termination letter until July of 2005 . And the
14 contract says we have to, at least that contract said we
15 had to respond within seven days . Standard A. I .A.
16 contract .
17 We 've modified our language for subsequent contracts
18 now. So, we won' t have that problem again. We think
19 we --
20 COMMISSIONER DIGENNARO: Why didn' t you respond?
21 MR. SHILLINGER: Why didn ' t we?
22 COMMISSIONER DIGENNARO: Yes .
23 MR. SHILLINGER: I don ' t have a specific answer. I
24 can attribute it to mostly, to just bureaucracy. It
25 comes in. Gets shuffled to somebody' s desk.
i
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1 Construction management didn' t get it over to legal, that
iP��t
W 2 didn ' t get it to the outside counsel .
3 COMMISSIONER DIGENNARO: Strange question, but I
4 have been involved in lots of quarrels in my life and
5 seven days to respond to a --
6 COMMISSIONER CARRUTHERS : That ' s --
7 COMMISSIONER DIGENNARO: -- contract is ludicrous .
8 MR. SHILLINGER: Right. And that ' s what we would
9 argue is that we wrongly responded with the cross letter.
10 And number two, we responded as quickly as a bureaucracy
11 could respond. And we have taken that language out of
12 our future, you know, all of our -- went back to rebut --
13 go back and look at our standard contracts to see if we
14 actually -- you know, to take it out . And Nat advised me
15 that they had already taken that language out because of
16 this problem. So, they made an offer and judgment to us
17 of $5, 000, which was just kind of posturing before the
18 mediation. They obviously came up with a little bit more
19 than that at mediation.
20 The other complicating factor is the construction
21 company, Tropex, is in litigation with its own surety
22 company. The surety has sued Tropex saying, we 've had to
23 pay off claims for you. You need to indemnify us,
24 pursuant to your indemnification agreement . They've
25 already paid out close to $200, 000 in claims . We ' re the
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I remaining claim that they have on their bonds .
' 2 The court -- in the federal litigation between the
3 surety and the contractor, the court has enjoined Tropex
4 to post the $650, 000 in collateral . And of that I have
5 the breakdown, 520 is the penal amount of our bond. The
6 face amount of our bond was a 400-something thousand
7 dollar job, or 500-something thousand dollar job. And
8 the -- so that ' s the face amount of the bond. Plus, they
9 have set aside 130 for defense costs, which we can' t get.
10 So the number we ' re working at, on the bond, is the
11 520 . So the assessment of the case, the failure to
12 get -- allowing them or not giving them the plans, so
13 that they can get the sewer permit, we think that that ' s
14 a small issue we can get around. The real reason they
15 quit the job, as I said, the price escalation. The way
16 the termination was handled, that ' s our main concern in
17 terms of either surviving summary judgment motions or
18 surviving a trial . We think we can win on it, but there
19 is enough of a chance that we can' t, that we ' re willing
20 to sit and take a -- negotiate -- talk about a negotiated
21 result .
22 Tropex is nearly bankrupt . They have indicated that
23 if we get a judgment against them, that puts them over
24 the edge . We don' t think they' re working that much, so
25 they don' t have jobs we can attach the proceeds .
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1 COMMISSIONER DIGENNARO: Give me a little bit more
2 background. Do you know how many people they have?
3 MR. SHILLINGER: I don' t have that information. I
4 know it ' s a, you know, two director corporation and
5 they' re in litigation against each other because there
6 was an investment agreement that required the investor to
7 get indemnified by the original owner. And so that ' s
8 part of that federal lawsuit, as well . And I filed a
9 choate lien.
10 COMMISSIONER DIGENNARO: Can you also pierce the
11 corporation' s funds to the owners?
12 MR. SHILLINGER: We haven' t been able to find much
13 of any kind of assets to do that . So our best hope of
C�55,-
/
14 recovery is against the surety, so .
15 COMMISSIONER DIGENNARO: What have they done to put
16 up a corporate veil?
17 MR. SHILLINGER: Any kind of fraud, if there was any
18 kind of fraud -- in fact, we haven' t seen any kind of
19 fraud that would get us to that position. Again, the
20 surety is the only realistic source of recovery. And
21 they do have, at least a colorable defense . The proposed
22 settlement agreement, the surety will pay us $300, 000,
23 within 20 days of the board approving the agreement .
24 Settles all claims . Everybody walks away, pays their own
25 fees, so. And we get something. We get a nice chunk of
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1 money, to go back into the infrastructure fund because
2 that' s where the project was paid out of. And we settle
3 this case and move on to the next one .
4 We 've written checks for about $541, 000, of the 449
5 extra, that we had to pay Overhaul . Plus the, about the
6 92, 000 in attorneys ' fees, we paid our outside firm,
7 that ' s been handling this for us . So 300, 000 is about 55
8 cents on the dollar, a little bit more than 55 cents on
9 the dollar .
10 COMMISSIONER DIGENNARO: But that ' s a necessary
11 expense, the 200, 000?
12 MR. SHILLINGER: Well, yes .
13 COMMISSIONER DIGENNARO: So that ' s -- we pay 92, 000
14 in attorney' s fees . So that ' s 55 percent?
15 MR. SHILLINGER: Well, and you ' re talking about what
16 we ' re writing checks against . We 've written hard --
17 we 've written checks for the overage and for the
18 attorneys ' fees . So the total there is 541 . So 300, 000
19 is 55 percent of that .
20 COMMISSIONER DIGENNARO: So we would be out of
21 pocket, including -- including the -- the -- the overage
22 and the attorney fees, is going to be around, $240, 000
23 approximately? Am I looking at that the accurate way?
24 MR. SHILLINGER: I 'm -- I 'm -- I think I got your
��,; 25 math right . The way I looked at it was, I looked at the
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1 hard number that we wrote additional money for, and
2 figured out what the settlement would get us back. And
3 we can crunch the numbers the other way and find out . If
4 you take, you know, we ' re talking about 200, 000 in change
5 versus the 449 we had to pay towards overages . So if
6 you ' re looking at it that way then, yeah, it ' s under 50
7 cents on the dollar.
8 MR. GASTESI : Bob, of the 449, how much is -- is
9 real? Meaning, the cost overrun, if we were to just say,
10 okay, we bid this thing wrong. And there was the cost
11 escalation, there was a lot of problems, then --
12 COMMISSIONER DIGENNARO: Can' t hear you guys .
13 MR. GASTESI : How much is real, what have you?
14 MR. SHILLINGER: I think what happened, we would
15 have had to negotiate a change order --
16 MR. GASTESI : Right .
17 MR. SHILLINGER: -- with the original contractor .
18 It may not have been the 449 .
19 THE MAYOR: Yes . Counsel?
20 MS . HUTTON: Yes . I was just trying to find out if
21 Commissioner DiGennaro can hear Bob because he couldn' t
22 hear .
23 COMMISSIONER DIGENNARO: I couldn' t .
24 MS . HUTTON: So you understand that what they' re
25 talking about is, about whether some of that 449, we
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1 would have had to pay anyway --
2 COMMISSIONER MURPHY: Anyway.
3 MS . HUTTON: -- because of the escalated cost .
4 MR. GASTESI : Sounds to me like you have a
5 contractor that bid the state --
6 COMMISSIONER DIGENNARO: Underbid. Underbid.
7 MR. GASTESI : -- got stuck. And then got cold feet
8 and ran away.
9 MR. SHILLINGER: That ' s exactly what we ' ve got .
10 MR. GASTESI : That ' s what we ' ve got here . So, you
11 know, the guy just bid it wrong. You know, so we ' re
12 trying to get -- we would have spent another 300, 000 . I
13 don' t know the numbers .
14 COMMISSIONER DIGENNARO: One other question. How
15 much were the bids on it?
16 MR. SHILLINGER: I don' t have that information on
17 the top of my head. The -- I know when we went out for
18 the rebid, the lowest bid was the 900 one from Overhaul .
19 So, this --
20 MR. GASTESI : That ' s a big deal that that guy' s --
21 COMMISSIONER CARRUTHERS : Which is twice .
22 MR. SHILLINGER: Yes .
23 MR. GASTESI : That ' s twice . He ' s --
24 COMMISSIONER CARRUTHERS : Well, we ' re recovering
25 half of it .
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1 MR. GASTESI : Next case .
ON
2 MR. SHILLINGER: Our best day, my assessment, we
3 get -- everything breaks our way, we get awarded 775, 000 .
4 So our damages for the overruns, the thousand dollar --
5 100, 000 on the interest, and we get our attorneys ' fees
6 and costs which, from based on today, to what we would
7 get there would probably cost us another 133 to get us
8 there . So that ' s a net, best day, the way I figure it,
9 of 642 . Our worst day, they prevail after a long jury
10 trial, we owe the surety' s, their attorneys ' fees because
11 they've done the offer of judgment, contracted attorneys '
12 fees .
13 COMMISSIONER DIGENNARO: Bob.
14 MR. SHILLINGER: Our attorneys --
is COMMISSIONER DIGENNARO: Bob, take the money. Take
16 the money. We ' re wasting time .
17 MR. SHILLINGER: All right . You want to get to the
18 bottom line . This is the context of different fees
19 cases . You know, you' re -- you know, this is just to
20 give you some background. They do get expensive .
21 Juries . We haven' t had a lot of success in front of
22 juries, in Monroe County. These are the last five jury
23 results . If you want the details, I can go into them.
24 If you don' t settle, it ' s going to set us up for motions
25 and then a trial in November.
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1 COMMISSIONER DIGENNARO: Appeals . Bob -- Bob.
2 MR. SHILLINGER: You' re there . Let me just get to
3 my --
4 COMMISSIONER DIGENNARO: I 've never been -- I would
5 like to recommend to my fellow commissioners right now --
6 MR. SHILLINGER: If you don' t like the results, you
7 can always blame me . This is what everybody else has
8 been doing around town, so.
9 COMMISSIONER MURPHY: But we like that . It ' s always
10 Bob ' s fault.
11 MR. SHILLINGER: It is always Bob ' s fault .
12 COMMISSIONER DIGENNARO: We have got another case of
13 you and this --
14 MR. SHILLINGER: All right .
15 COMMISSIONER DIGENNARO: I would recommend to my
16 colleagues that we accept this .
17 COMMISSIONER CARRUTHERS : I would motion --
18 COMMISSIONER DIGENNARO: Accept this . Bring it back
19 to the public. Let ' s get the funds and then --
20 MR. SHILLINGER: Is this your recommendation, take
21 the money and run?
22 THE MAYOR: Wait a minute . Hold on a second.
23 COMMISSIONER DIGENNARO: Just a minute .
24 THE MAYOR: Hold on a second.
25 MR. SHILLINGER: All right .
�iiaaa
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1 THE MAYOR: We understand Mr. DiGennaro' s position.
2 MR. SHILLINGER: Right.
3 THE MAYOR: But the rest of the commission like to
4 entertain any thoughts on it?
5 COMMISSIONER MURPHY: I would like to hear .
6 MR. SHILLINGER: Our recommendation is take the
7 money and run. I mean, it really is . And this is the --
8 the potential for getting a negative result is there .
9 COMMISSIONER MURPHY: Yes .
10 MR. SHILLINGER: We have an opportunity to bring
11 300, 000 into the infrastructure fund, to settle a claim
12 that, you know, we could push for, get more . But I think
13 this is a good reasonable settlement. This is -- this
14 is the most we can push the surety for, at this stage of
15 the litigation.
16 THE MAYOR: Okay. Got it .
17 COMMISSIONER DIGENNARO: One other question.
18 THE MAYOR: Whoa, a minute . Commissioners, do we
19 all agree with that?
20 COMMISSIONER MURPHY: Yes . Have a motion.
21 THE MAYOR: There is no motion right now.
22 MR. SHILLINGER: All right. But if you are of that
23 mind set, you know, to actually do it, we can add an item
24 on the agenda. If anybody doesn' t want to do this and
25 wants to put it back --
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19
1 THE MAYOR: I understand.
2 MR. SHILLINGER: We can -- you know, we can put it
3 off.
4 THE MAYOR: I understand that. I just want to hear
5 the other commissioners .
6 COMMISSIONER WINGINGTON: Are we comfortable doing
7 that?
8 THE MAYOR: Looks like a no-brainer to me . Take the
9 money.
10 COMMISSIONER CARRUTHERS : Yeah.
11 MR. GASTESI : So, Bob, the bottom line is about
12 $700, 000, at the end of the day. We paid a million so
13 far, with attorney fees?
14 MR. SHILLINGER: Yes .
15 MR. GASTESI : We ' ll get 300 back?
16 MR. SHILLINGER: We get 300 back.
17 MR. GASTESI : So it cost 700?
18 MR. SHILLINGER: Yes .
19 MR. GASTESI : Originally, it was 5 --
20 MR. SHILLINGER: 50, yes . Or 555, something like
21 that .
22 MR. GASTESI : Right . So we got a good deal, at the
23 end of the day. We got --
24 COMMISSIONER MURPHY: We know that .
25 COMMISSIONER DIGENNARO: One more question, please .
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20
1 Can we take the money and run from the insurance company,
2 still keeping the company on the hook?
3 MR. SHILLINGER: Under the terms of the settlement
4 agreement, no .
5 COMMISSIONER DIGENNARO: Okay.
6 MR. SHILLINGER: You know, we have the signed
7 settlement agreement that washes it, you know,
8 completely.
9 THE MAYOR: My question Bob is, at what point in
10 time have we arrived at this point, or could we have
11 arrived at this point earlier by negotiating outside
12 to --
13 MR. SHILLINGER: The surety wasn' t ready to do this
14 until they had their federal claim resolved, this summer.
15 So they weren' t sure whether they were going to be
16 liable, on the hook for the bond, with respect to issues
17 that were between Tropex and them. So we really didn' t
18 have the bank, the insurance company, at the table
19 until --
20 THE MAYOR: So the surety was the one that wasn' t
21 there yet and we couldn' t have shorten this and expedited
22 it by saying --
23 MR. SHILLINGER: No.
24 THE MAYOR: -- you know, give us, $300, 000, we ' ll
25 bring it to the commission?
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1 MR. SHILLINGER: No.
2 THE MAYOR: Okay. You've got your direction.
3 MR. SHILLINGER: All right . Well, then when we come
4 back, we ' ll come back and ask to add an item.
5 THE MAYOR: Reopen the agenda.
6 MS . HUTTON: We ' re terminating the closed session;
7 right?
8 THE MAYOR: Was that it?
9 MR. SHILLINGER: Yes .
10 THE MAYOR: Okay. Closed session is terminated.
11 (The attorney/client closed session was concluded at 1 : 55
12 p.m. )
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1 CERTIFICATE
2 STATE OF FLORIDA,
3 COUNTY OF MONROE
4 I , Patricia A. Zischka, certify that I was
authorized to and did stenographically report the
5 foregoing proceedings and the transcript is a true
record .
6 Dated this 24th day of August, 2009 .
7 �k' -0,4,4 11 Zt",� —
Patricia A. Zischka
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