Subject: Status of AEW's projects
From: [email-masked]
To: [email-masked]
Cc: [email-masked], [email-masked], [email-masked]
Date: Wed, 23 May 2001 01:26:00 -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.