Subject: Status of AEW's projects
From: [email-masked]
To: [email-masked]
Cc: [email-masked], [email-masked], [email-masked]
Date: Tue, 22 May 2001 15:26:00 -0700 (PDT)

Kay

Here is an overview of what projects are active:

1.  Midway - Greg Krause

The hot item is a Property Owners Association Agreement that will be entered 
into between Midway Development Company, L.L.C. ("MDC") and Cooney-Midway 
Groves (the owner of the property on which MDC has an option to purchase).  
The agreement will not be entered into or effective until MDC has given 
notice it will proceed with the project (and, thus, we control the trigger).  
I have asked Chris Boehler at A&K to turn a redline draft that incorporates 
changes that Greg and I discussed last week with he and Darren Inoff.   David 
Layman at Greenburg Traurig (our Florida counsel) also needs to incorporate 
some changes now that the platting has been done.  Chris is to send his 
redline to Greg, David and you.  David is to make his additions and then send 
a composite to Greg, you and Chris.  This will probably take a week or so and 
then it can go to the counterparty when everyone on our side is in agreement 
with the changes.  The biggest issue we have right now is that Cooney-Midway 
Groves wants to maintain control over the property as long as they own an 
interest in one of the tracts and we are not willing to allow that when we 
will own 2/3 of the property but have less than 1/2 of the vote.  This is 
because the agreement is designed to give one vote to each acre.  There are 
three tracts, of which CM will own one and MDC will own 2, but the 3rd tract 
is not alloted any votes since it must remain undeveloped land for a 
retention pond.

Chris is also working on some title commitment letters for the option we just 
secured from Clyde Thompson and Paul Freeman.  There's no rush on those and 
can definitely wait until I get back.

2.  Pompano - Steve Krimsky

Pompano has 2 issues that are hot.

1.  The infamous Developer's Agreement.  Debbie has turned another draft and 
has asked that we bless it before Thursday so that she can go visit with the 
city attorney on Friday.  The hearing in Pompano is scheduled for the evening 
of June 12 and you have indicated that you will attend.  I'll send them a 
note to tell them you'll be there.  We need to have a deal worked out with 
the Pompano commissioners before the public meeting.  The thing to keep in 
mind here is that in Pompano, unlike Deerfield, the same group that will be 
approving our request for a zoning change is the same group we have to 
negotiate the developer's agreement with.  Allegedly, they will settle for 
$1.5 MM in annual payments.  I've laid a copy of the agreement Debbie has 
prepared on your chair.

2.  In an effort to block the power plant project, Broward County has drafted 
a proposed ordinance that will place a moratorium on the approval of any 
power plant air permits until the matter can be studied at length.  The 
problem is, they expressly do not have the power to have any say in the air 
permit process.  That is expressly delegated to the Dept. of Environmental 
Protection ("DEP").    However, the DEP hasn't taken the clean approach and 
said they have NO authority but it has stated that BC is entitled to 
reasonable rules and regulations and DEP will let them have some permit 
approvals; HOWEVER, air permits for power plants are expressly not delegated 
to BC.   Greenburg is probably a week away from being able to give us a legal 
opinion on the likelihood that Broward County will be able to do something 
that is legally defensible.  Once they started looking into this, it became 
quite the legal search because at one time BC did have the authority to pass 
special acts. However, in 1977 their special act authority was cut off but 
the legislature ratified all rules they had in effect at that time.  After 
that, they were granted charter power to adopt have such authority as a 
charter county to adopt their own home rules as long as they were not 
inconsistent with state or federal law or the constitution.  In 2000, they 
repealed all prior acts relating to the issuance of air permits and said they 
would rely on their charter power to make up their own rules.  Problem is, 
the DEP has expressly not given them the right to have a say in air permits 
for power plants.  Needless to say, this is sticky and icky.  My 
recommendation is that we don't jump out and incur litigation costs.  Let us 
get a memo together, go talk to the county attorney and show him that they 
don't have the right to do this.  The hearing on adopting this ordinance is 2 
p.m. on June 12, same day as the commissioner's meeting on the Developers 
Agreement.  Between now and June 12, Debbie Orshefsky would like to talk to 
the attorney and to the DEP.  Indications are that the DEP will strongly 
support us as this could be a turf battle for them.  The county attorney may 
come to his senses and advise the commission that passing such an ordinance 
will be costly as it is unenforceable if challenged.  We can also ask the DEP 
to issue a "declaratory statement" and it is likely that statement would say 
that state law is pre-emptive and the ordinance is invalid.

This is a very, very broad brush of what is a very legislative history 
intensive issue.  Debbie will be looking to you to read the memo that will 
come next week and agree on a strategy on going forward.

3.  Deerfield - Steve Krimsky

Unlike Pompano where the commissioners who vote on the rezoning are the same 
who vote on the developer's agreement, in Deerfield they don't have a say 
over any of the approval process.  However, to facilitate coming into the 
city, they expect something.  If we can agree on the form of developer's 
agreement, then it would be substantially used in the same manner in 
Deerfield.  In Deerfield, they have said they want 3 things:  a payment in 
lieu of taxes, a landscape fund to fund upkeep of a particular street (which 
is basically an adopt a street program and is required of any new business 
coming into Deerfield) and they want an easement to put a cellular tower on 
our property.  I've told Steve Krimsky the latter can be a headache because 
if they are successful in leasing the space on the tower to third parties, 
that creates a lot of traffic going across your property.  It is very 
do-able, we just need to structure it correctly. I've done several radio 
tower agreements and we can use those as go-bys.  They may also want a "fire 
service fee" if we give one to Pompano.  There's also lots and lots of 
negative publicity on a daily basis and Eric Thode is wanting to respond with 
an editorial in the Sun-Sentinel.  I'll forward the most recent version they 
have been sharing amongst themselves and not we lawyers.  The hearing in 
Deerfield is June 8th and you may want to attend it as well.  

I'll copy my notes for you.  THANK YOU for covering for me.  Here are  
numbers you can send e-mails to or call and leave a message:

Walter and Marlena Schilling  011 49 8218 89351 [email-masked]

Monika and Bernhard Steinacher 011 49 8232 8932 [email-masked]

Walter and Bernhard and Bernhard's daughter, Susanne, speak pretty good 
English and Monika's isn't bad.  Marlena doesn't speak it very well so ask 
for Walter.  Bavaria is 7 hours ahead of Houston.