Message-ID: <23740288.1075855236344.JavaMail.evans@thyme> Date: Wed, 23 May 2001 01:26:00 -0700 (PDT) From: ann.white@enron.com To: kay.mann@enron.com Subject: Status of AEW's projects Cc: barbara.gray@enron.com, jeffrey.hodge@enron.com, taffy.milligan@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: quoted-printable Bcc: barbara.gray@enron.com, jeffrey.hodge@enron.com, taffy.milligan@enron.com X-From: Ann Elizabeth White X-To: Kay Mann X-cc: Barbara N Gray , Jeffrey T Hodge , Taffy Milligan X-bcc: X-Folder: \Kay_Mann_Jan2002\Mann, Kay\Florida X-Origin: Mann-K X-FileName: kmann (Non-Privileged).pst 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 entere= d 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 n= otice 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 incorporat= es changes that Greg and I discussed last week with he and Darren Inoff. = David Layman at Greenburg Traurig (our Florida counsel) also needs to incor= porate 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 the= n 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 i= n 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 vot= e. 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 la= nd for a retention pond. Chris is also working on some title commitment letters for the option we ju= st 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 an= d 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 e= vening of June 12 and you have indicated that you will attend. I'll send t= hem 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 ke= ep in mind here is that in Pompano, unlike Deerfield, the same group that w= ill 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 f= or $1.5 MM in annual payments. I've laid a copy of the agreement Debbie ha= s prepared on your chair. 2. In an effort to block the power plant project, Broward County has draft= ed 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 pr= oblem is, they expressly do not have the power to have any say in the air p= ermit process. That is expressly delegated to the Dept. of Environmental P= rotection ("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 reason= able 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 opin= ion on the likelihood that Broward County will be able to do something that= is legally defensible. Once they started looking into this, it became qui= te the legal search because at one time BC did have the authority to pass s= pecial acts. However, in 1977 their special act authority was cut off but t= he legislature ratified all rules they had in effect at that time. After t= hat, they were granted charter power to adopt have such authority as a char= ter county to adopt their own home rules as long as they were not inconsist= ent 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 DE= P has expressly not given them the right to have a say in air permits for p= ower 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 to= gether, go talk to the county attorney and show him that they don't have th= e right to do this. The hearing on adopting this ordinance is 2 p.m. on Ju= ne 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 attorn= ey and to the DEP. Indications are that the DEP will strongly support us a= s this could be a turf battle for them. The county attorney may come to hi= s senses and advise the commission that passing such an ordinance will be c= ostly as it is unenforceable if challenged. We can also ask the DEP to iss= ue 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 inte= nsive 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 sam= e 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 ag= reement, then it would be substantially used in the same manner in Deerfiel= d. 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 bas= ically 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 p= roperty. I've told Steve Krimsky the latter can be a headache because if t= hey 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 agree= ments and we can use those as go-bys. They may also want a "fire service f= ee" if we give one to Pompano. There's also lots and lots of negative publ= icity on a daily basis and Eric Thode is wanting to respond with an editori= al in the Sun-Sentinel. I'll forward the most recent version they have bee= n sharing amongst themselves and not we lawyers. The hearing in Deerfield = is June 8th and you may want to attend it as well. =20 I'll copy my notes for you. THANK YOU for covering for me. Here are numb= ers you can send e-mails to or call and leave a message: Walter and Marlena Schilling=09=09011 49 8218 89351=09schilling.jun@freenet= .de Monika and Bernhard Steinacher=09011 49 8232 8932=09m.steinacher@schwabmuen= chen.de Walter and Bernhard and Bernhard's daughter, Susanne, speak pretty good Eng= lish and Monika's isn't bad. Marlena doesn't speak it very well so ask for= Walter. Bavaria is 7 hours ahead of Houston.