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HomeMy WebLinkAbout1995 03 20 City Commission Special Minutes SPECIAL MEETING CITY COMMISSION CITY OF WINTER SPRINGS MARCH 20, 1995 The meeting Special Meeting of the City Commission of the City of Winter Springs was called to order by Mayor John F. Bush at 7:05 p.m. ROLL CALL: Mayor John F. Bush, present Deputy Mayor John Langellotti, present City Manager John Govoruhk, present City Attorney Frank Kruppenbacher, present COMMISSIONERS: Larry Conniff, present John Ferring, present Cindy GenneU, present David McLeod, present Settlement of litigation with The Veria Co.. The Rouse Co. and The City of Oviedo: Attorney Kruppenbacher stated that we are presently in litigation involving the Veria Co., The Rouse Co. and the City of Oviedo for which we will be discussing resolving that litigation tonight. Additionally, we were served a lawsuit today, by the Tuscawilla Homeowners Association and Mr. Khemlani as plaintiffs against the City. There are two issues I will preface this meeting with, 1. the parties to the lawsuit involving Veria, Rouse and Oviedo have agreed that discussion at tonight's meeting both by myself, the client, are in the nature of settlement discussions and cannot be used against the interest of the City of Winter Springs should we not resolve this matter~ additionally I would advise you that given the service, or delivery to me a copy of the lawsuit against you, that there will be times when I caution you that I do not want you to discuss an issue, given the pending nature of that case. Mayor Bush stated the agenda will be that the developers will speak first, then the traffic consultant, then the Attorney will go over the settlement agreement, we will have a recess, we will reconvene for public input at that time and after the public input the Commission will take action. John Reinhart, Gladding Jackson Curtrain & Reinhart, representative of Veri a Co., and Rouse Co. in the application for Oviedo Crossings~ provided an overview of the project for the Commission and public. The property is bounded on the North by Tuscawilla, the project has three phases of development. The first phase has no changes proposed from what was originally approved approx. 5 years ago. The changes proposed in the substantial deviation include a phase two, which is the development of a regional shopping center on approximately a 90 acre piece of land and then development of Winter Park Memorial Hospital's Medical Campus. Those two uses, the medical campus intends to have a variety of services including a wellness center, ambulatory care facilities, therapy facilities and medical offices~ all as a part a desire to serve this area of the County and Community. The regional shopping center will contain approximately 1.2 million square feet of development, it will have (as conceived at this time) five anchor stores~ it is in size slightly larger than Fashion Square Mall and a little less than the Altamonte Mall. The plans for development and phasing are that phase 2, which includes the hospital and regional shopping center are scheduled to Special Meeting City Commission March 20, 1995 94-95-16 Page 2 be completed in 1997. Phase 3 includes some retail services, around the regional shopping center as well as some other portions of the property as well, and that will be complete in the year 2000. The facility has gone through review by the Regional Planning Council and a variety of other agencies, it is in the process of the hearings before the Planning Council with the full Council hearing later this week. It is also in the process of being reviewed in Seminole County for Comprehensive Plan amendments and for the substantial deviation for approval. Mike Bryant senior development director with the Rouse Co., showed slides of some of their other projects in the new town of Columbia, Miami Bayside, Manhattan, Jacksonville, Louisville, Boston and Baltimore. Mr. Bryant also showed a diagram of the Oviedo Crossings Mall. Mr. Reinhart stated for this project to be successful we need to have access to S.R. 426 as well as to Red Bug Lake Road. In the design of the project, we have been very conscious of that need and we have tried to be attentive to the issue of the cut-through traffic that might be potentially projected to occur and how that could be dealt with in a sensitive a manner as possible. Tim Jackson, Gladding Jackson Curtrain & Reinhart, stated the market area for the mall is primarily to the South and East, in the traffic forecast for this project there are estimated to be about 2 1/2% of the traffic to and from the whole project that would come to or from the project on S.R. 419 from west ofTuscawilla Road. About 2 1/2 to 3% would come to and from the project from the Deer Run area using Lake Drive. The estimated volumes are about 2,700 vehicles per day on S.R. 419, west of Tuscawilla that want to go to and from the total project in the year 2000 and about 2,800 from Lake Drive. That has been forecasted as the maximum numbers that would try or potentially want to cut through. We forecast the volumes that would use those roads and looked at conditions in the area~ Tuscawilla Road is being widened to four lanes, Red Bug Road has been widened and will be widened to six lanes, so you have a very good alternate route from the Lake Drive area. From Tuscawilla at 419, 434 is being widened and the Greenway is new, so again you have a good alternate route for that trip. Our estimate would say that a very small percentage of all these trips would in fact choose to travel through the Tuscawilla PUD to access this site from Winter Springs Blvd. at this location. To address that, you are familiar the proposed actions to limit movements to and from Winter Springs Blvd. in the Tuscawilla PUD and the Oviedo Crossings project, the proposal is to realign the eastern most section of Winter Springs Blvd. so it becomes Oviedo Crossing Terrace and turns south to come through Oviedo Crossings site and end up at Red Bug Lake Road. The proposal would limit, and actually make it physically impossible to make a turn from the Oviedo Crossing site going northbound onto Winter Springs Blvd. to come through the Tuscawilla PUD~ the same way it would make it impossible for an eastbound vehicle onto Winter Springs Blvd. to make a right turn and come into the Oviedo Crossing PUD. Furthermore, there would be no V-turns at the median crossings at the Publix and at 426~ it is our opinion given those mitigating actions that the volume of traffic and speeds of traffic that would chose to cut through the Tuscawilla PUD would not be significant such that it would impair the safety within this community. Mr. Reinhart stated with the redesign of Winter Springs Blvd. and the intersection of Oviedo Special Meeting City Commission March 20, 1995 94-95-16 Page 3 Crossing Terrace with Winter Springs Blvd., we would have the opportunity as the road came through to add an entrance feature to Tuscawilla and help define Tuscawilla as a community. This would be beneficial to Tuscawilla being that it will remove the appearance of Winter Springs.Blvd. being a through street so as cars come from 426 headed toward Oviedo Crossing they would follow the road into the project and the entrance to Tuscawilla would give the immediate impression that you are entering a residential neighborhood. The intersection would be signalized to allow cars to have a clear and safe passage, this is part of the proposal in terms of the design of that intersection. Attorney Kruppenbacher gave the Mayor and Commission a draft of the settlement agreement. Attorney Kruppenbacher preface some inaccuracies that were alleged in the lawsuit that was filed today against the City. I take offense to that lawsuit because a week has gone by since this Commission established publicly that it was looking at the issue of resolving this and the first draft settlement agreement was issued; this document would alleged that by your approving this agreement tonight, that you are in fact conveying the easement, that is inaccurate and untrue. You are not conveying the easement should you decide to approve a settlement tonight. You are in a staged process and you would have the jurisdiction and authority to decide whether or not you then passed and Ordinance, if you didn't pass the ordinance this settlement agreement would then become void. It is an inaccurate allegation and it's untrue; additionally it is untrue where there is a representation by the attorney that demand was made upon the City to honor the prior settlement agreement; there has been no demand made upon the City by anyone. There are some other inaccuracies, but suffice to say I want to clarify the statement represented by the lawyer in this document and it was clearly stated by me if you will recall at the session when you went over the first draft that there were steps or processes that you would have to go through to be able to implement any agreement. With the understanding of all the parties that what I say tonight is in the nature of settlement negotiations; Mr. Tipton of Tipton & Associates, Mr. Tipton Jr., is here tonight. Let me summarize sincintly it is my understanding from Tipton & Associates that based upon the analysis of the proposed access to winter Springs Blvd., it is their professional opinion that based upon that redefined access (which is different then what they looked at back in June) and the numbers they have run, that with police enforcement that this agreement would insure that we would have, there will not be reacted a negative cut through traffic problem for the Tuscawilla PUD. Mr. Tipton Jr., stated that is correct all of our analysis have indicated that with enforcement this directional connection, restricting access to and from the PUD would not create any cut through traffic problem through the Tuscawilla PUD. Attorney Kruppenbacher stated that you now know why we have not asked while we were in litigation, for a written opinion that could be used against us; additionally that opinion appears to be consistent with the opinions of traffic personnel within the other governmental agencies from East Central to Seminole County that have looked at this particular issue. Mr. Tipton has been the traffic consultant to the City for years and has done all the projects and has given us opinions the way they see it. With that I would like to go through line by line the settlement agreement and read it so it is understood. Special Meeting City Commission March 20, 1995 94-95-16 Page 4 Attorney Kruppenbacher read the settlement agreement and asked if there were any comments as he read the agreement. Commissioner McLeod stated that there was an attachment of "D" in subparagraph 2-c, of the sketch and the pictorial which is now "E" and was "D". Attorney Kruppenbacher said he would add that in. Commissioner Gennell said she would like to see the paragraph where is states "...open to the public... "she doesn't want any opening at all. Attorney Kruppenbacher said it has to be opened when they get the certificate of occupancy. Commissioner Gennell said yes but not prior to that. Discussion. Attorney Kruppenbacher asked if Commissioner Gennell would like added "gates and barriers" so that no traffic will use the road until the certificate of occupancy. It was the consensus of the Commission to add in having gates and barriers. Commissioner Gennell asked ifwe could include in paragraph 5-B, including 426, where no U turns could be made. Attorney Kruppenbacher said yes he will include that. Commissioner McLeod asked on 7-B, the dollar range. Attorney Kruppenbacher stated that currently we estimate if they annexed in today, under the existing impact fee ordinances in the City for transportation, police and fire, the sum to be somewhere between $350,000 and $360,000, if they annexed in today and paid those fees to the City, those fees would be restricted for use with transportation purposes (the portion paid under transportation impact fee) and for police and fire uses for that amount paid under. They have agreed in this agreement to waive the restriction that we have to use it for any particular purpose and left that to the discretion of the City; so assuming this agreement is approved, and the annexation takes place and get $350,000, if you leave your current ordinances in effect, you get to do with it what you want to do with it, you would not have that ability to do it if they did not waive it. Commissioner McLeod said that is over and above the million dollars we are talking here is the $350,000, along with the $84,000 and the other numbers we've heard. Attorney Kruppenbacher said yes. Commissioner Gennell asked if what the Attorney just read, these conditions that you just read set forth in the DR! are identical to the original DR!. Attorney Kruppenbacher stated yes. Commissioner McLeod said on paragraph 15-C, we had talked about taking that out. Attorney Kruppenbacher said what we wanted was to provide for a contractual remedy for injunctive relief and we did further research on that and then came back with the theory that we would want 30 days to cure, just to protect ourself if somebody says there was a default. We were concerned that if we didn't have a cure provision we could just inadvertently end up in another lawsuit. It is very standard in agreements of this magnitude. What I deleted from the original one, was originally there were provisions that talked about if reasonable efforts were being made to cure it, neither side could declare a default. Commissioner Gennell said she didn't see it under default about Parcel 14 saying with us if the rest of contract fails. Attorney Kruppenbacher stated it is stated in the earlier part; it specifically says if Special Meeting City Commission March 20, 1995 94-95-16 Page 5 the annexation doesn't happen the whole thing goes away - in paragraph 17-A. Commissioner McLeod stated in paragraph 21, is that not also suppose to have on the wall "Welcome to the City ofWmter Springs" Manager Govoruhk stated that Exhibit "E" did not have that but we left it open, when the project is built we will come up with several ideas to present to the Commission for their decision. Attorney Kruppenbacher said should you decide to approve the agreement, you will approve it subject to that being included. Commissioner McLeod said in the first draft of the agreement, there was a Section 21 that said ".. this agreement shall be binding upon the parties, their heirs, assessors and assignees", why is that out of here? Discussion. Commissioner McLeod also asked about paragraph 22 from the original draft agreement. Attorney Kruppenbacher stated that he didn't think that was an appropriate legal provision for the City to enter into; I do not believe you can contract with anybody that will exercise your powers, the way that was written. Commissioner Gennell said we were going to put something in that there would be no repayment if there were changes made later on. Attorney Kruppenbacher said it is in there, page 7 paragraph "C" - No party shall be required to pay any other party compensation for it's approval". Commissioner McLeod said back to the binding effect, he would prefer to have that in the agreement. There was no objection to having that section put back into the document. Attorney Kruppenbacher stated for the record, your current lawsuits, the two lawsuits that were filed against Rouse and Oviedo, we evaluate as 50/50, we evaluate at least with a number of those issues, simply to be a process of education and that they can correct anything we've raised or modify. You then move over to the condemnation lawsuit filed against us, Mr. Bricklemeyer and Mr. Smoker evaluate to be: we do have a conservation easement, there are two issues with regard to that lawsuit, one is whether or not the judge would conclude there was a public purpose - the arguments would be the purpose of improving the roadway network in Oviedo and economic development; our counter arguments would be no it is not it is for the development of a mall. The second would be under Florida Statute 704, condemnation of a conservation easement is prohibited so the attack would be that this is not truly a conservation easement. The settlement agreement that was entered into with Winter Springs Development Joint Venture, called for the granting (paragraph 16) Winter Springs Dev. Joint Venture agrees to grant and convey a 10 foot easement to the City. In the process we came up with the concept of making it into a conservation easement, because you mayor may not approve this document, I don't want to say more than that other than if you look at the minutes there are multiple comments about what this easement was or was not. This Judge could conclude that this is not a conservation easement as contemplated by that Statute. If you look at the easement itself, the grantor, the fee holder, reserved it's right to cross it, build a road on it for purpose of developing their adjacent property, go through it, do a number of things with it. I will tell you when you go to court not a lawyer out there can guarantee you what is going to happen. That issue of condemnation, is an issue that can be litigated, if we loose it the down side is horrific, because we have no control Special Meeting City Commission March 20, 1995 94-95-16 Page 6 of that area then, if we win it we have it, we've blocked the access, there is no guarantee in the condemnation case either way. Discussion. This case started as an issue relating to traffic, the further modifications, our expert is giving you the opinion negative impact and you now have two options, you can move to approve this settlement agreement as modified by you tonight, directing your Attorney's office and City Manager to take the legal steps necessary to begin the process to affecuate. This settlement comes in stages, you can approve it or disapprove it tonight, you then get to an ordinance on vacating, you can approve or disapprove that, kill the deal; you then get to an inter-local agreement, you can approve or disapprove that and kill it there; at this stage you have the terms of the agreement in front of you. Commissioner Gennell asked if the original easement was done by ordinance. Attorney Kruppenbacher said the original easement as adopted pursuant to the final order of the settlement agreement. Commissioner Gennell asked if the original easement was established by ordinance. Attorney Kruppenbacher said the original agreement being pursuant to a settlement agreement, I don't know whether or not we adopted, we amended an annexation ordinance in order to accomplish this, I don't recall a specific ordinance enacting the easement; that is one of the reasons I say there is a second prong to this, we will have to go through and check everything, between now and then I'm not worried about that. Commissioner Gennell said on page 12, the second line, that she is not comfortable with that, she realizes that the traffic consultants have said to us that we may get requests to open it. It reads ".. in addition at it's sole cost and expense Wmter Springs shall retain the right to affect modification of the turning movements so as to permit some or all of the prohibited movements which ~t deems to be in the public interest". We are dealing with traffic concerns and we are dealing with traffic consultants telling us that based on the information with the turning restrictions there, we won't have impact and we are potentially voting to approve or disapprove this based on the restricted turning movements. So this I am not comfortable having it in there, I would rather not invite that kind of a situation, I'm not basing my deliberations here on the potential of opening it up, that is not part of my consideration. Discussion. Attorney Kruppenbacher said you have the right to propose opening it up whether you have that in here or not, but one of the reasons you have it in here is so they can't object if you want to open it up. Discussion. It was the consensus of the Commission to leave that statement in the agreement. Commissioner Ferring said having been a party in the discussions that we undertook with the developer, with the Duda Veria Group, with their Attorneys, our Attorneys and after over a year we reached a cross road. The cross road was what do we do. Do we go ahead and say hell no, hell no, hell no, or do we take a chance and going into a litigation process, because we were at that point, where subpoenas were coming out and we had to make a decision whether or not we were going ahead with the litigation or try to get something that would guarantee this community control of their own destiny. We can take it to court and if you win, you're a hero; but if you loose, you loose everything, you loose complete control of your whole area. So this is a decision that was placed on our shoulders, do we try to negotiate the best possible thing, make pains taking efforts to control our Special Meeting City Commission March 20, 1995 94-95-16 Page 7 own destiny and extract everything that we possibly could from the developers and from the group that was on the other side of the table, there was give and take on both sides; it was a very very difficult negotiation. I will say that the developers were sincere, they were in cavalier in their attitudes and they wanted to resolve and make this community as happy as we would like to see it. The beneficial parts knowing what would happen if you loose, you've got complete loss of control of what your destiny is. On the other side, what did we come out of this with? - pains taking efforts on traffic control where as far as I saw it, and to the best of my ability, it is going to penalize the people in Tuscawilla more that it is going to penalize anyone else because the people in Tuscawilla are not going to be able to utilize Winter Springs Blvd. to enter that mall. There was permanent funding put in place so that this City would ensure traffic enforcement for now and for ever in the future. There was revenue sharing and up front monies that were part of this agreement that I will ask my Commissioners, and I'm sure that we'll all agree to this, that it be allocated into a special fund to beautify areas of Tuscawilla that need beautification and to beautify other areas of this City that could be helpful in beautification. It is a permanent type of revenue that if you look over the long term, doesn't look like a million dollars, that is only part of the equation, it looks like several million, ifnot more, over the long run for the benefit of the Tuscawilla community and the rest of this City. If you put that up against what the minuses are, where you would have absolutely nothing, if you loose, my best guess was I didn't want to take that chance. Unfortunately, I have to make that decision, and this Commission has to make that decision, all I'm saying is that this Commission has worked very hard and outside of erecting a cul-de-sac on Winter Springs Blvd., we have taken every other pains taking method there is available to protect the community. Mayor Bush called for a break at 9:05 p.m. Mayor Bush reconvened the meeting at 9: 15 p.m. Paul P. Partyka, Joseph C. Bozik, Isabelle Laub, Rick Lecky, Jim Martin, Jim Mathews, Michael Blake, Tom O'Connell, May Claire-Branton, Kelly Smalwood, Adele Porzio, Jim Graber, Bill Grodsky, Tom Waters, Howard Schloewan, Ed Martinez, Michael Honnwacker, Gregory White, Harold Scott, Barbara Mitchell, William Reeves, John Tabbutt, Jan Bennett, Marty Trencher, Shawn McFadden, Barbara Fant, John Daniels, Stephanie Ceglia, Moti Khemlani, Terry Back, Omelia McFadden, all spoke regarding the connector road, traffic concerns, environmental impact and the mall. Mayor Bush asked for a motion to extend the meeting past 11 :00 p.m. Motion was made by Commissioner Langellotti to extend the meeting past 11 :00 p.m. Seconded by Commissioner Ferring. Vote: Commissioner Conniff: aye; Commissioner Ferring: aye; Commissioner Langellotti: aye; Commissioner Gennell: aye; Commissioner McLeod: aye. Motion passes. After the public input Mayor Bush asked if the Commission has comments they would like to raise at this time concerning any issues brought up by the public. Special Meeting City Commission March 20, 1995 94-95-16 Page 8 Commissioner Gennell stated on page 12, where it states"ln addition, at its sole cost and expense, Winter Springs shall retain the right to effect modifications of the turning movements so as to permit some or all of the Prohibited Movements which it deems to be in the public interest". In the interest of consensus here, I can't support that. Discussion. Motion was made by Commissioner Ferring to delete the above sentence. Seconded by Commissioner Langellotti. Discussion. Vote: Commissioner Langellotti: aye; Commissioner Gennell: aye; Commissioner McLeod: aye; Commissioner Conniff: aye; Commissioner Ferring: aye. Motion passes. Commissioner Gennell said in reference to the question that was raised about precluding us from if we ever desire to closing off Winter Springs Blvd., the way I read this agreement, it stops at the northeast section and anything west of the northeast section which is still east of Seneca, we could do whatever we want to, am I right. Attorney Kruppenbacher said you read it correctly, you control Winter Springs Blvd. once you move out of Oviedo and nothing in this agreement is intended to address that and we'll and in a sentence that says "Winter Springs Blvd. from the Oviedo line back is solely in your jurisdiction and in no way covered by any terms of this agreement". Commissioner Gennell asked about the surety bond. Attorney Kruppenbacher said that was an issue that was raised for various finance reasons, we were advised that it was rejected, we went back and forth in negotiations over that and the earnest money that was put up was the parcel 14 annexation, which takes place regardless of what happens. We determined (the committee) that Parcel 14, quite candidly getting it was more critical, if you were going to accept the deal and we would rather have that as the earnest money than any cash. Commissioner McLeod said regarding the police enforcement mechanism, the whole section of A is limited to the intersection portion only and does not interfere with the governing body of Winter Springs regarding the rest of the Winter Springs Blvd. Attorney Kruppenbacher said that is correct. Commissioner McLeod said another issue that he heard being brought up was four laning of Tuscawilla Road, and the four laning of Winter Springs Blvd., there will only be four laning from the intersection to S.R.426 and any additional road construction will only be in that sector, Winter Springs Blvd. is not intended, by no means, to be a bypass road through the Tuscawilla development at present or any other time with this development. Mayor Bush asked about the question being brought up regarding Pine Ave. Attorney Kruppenbacher said Pine Avenue was added after the fact, Pine Ave. was not part of the consideration of the Tipton and Assoc. Group when they analyzed the traffic. If you move Pine Ave. out of the consideration their evaluation was zero impact. Mayor Bush said he thinks the concern that was expressed was exactly when is this going to happen. Attorney Kruppenbacher said we cannot legally compel them to determine whether and when they will appropriate dollars for their comp plan. Given the fact that it is not an issue, it is a zero impact issue independent of Pine Ave. we accepted the term the way it was proposed. We did not get into creating a legal attack on the Special Meeting City Commission March 20, 1995 94-95-16 Page 9 grounds that they have somehow agreed to something in a comp plan statute that would trigger challenges in that way. Mayor Bush asked why that was in the agreement. Attorney Kruppenbacher said because we proposed it as a further way that the Tipton's thought would be an even better approach; I'm advised by the traffic engineers - zero impact, when they looked at it they said also do Pine Ave. and that will further assure that with the police enforcement there can't be any impact. We cannot require them, under the Statutes to agree when their comp plan is going to be funded or not funded, quite candidly if you took Pine Ave. out of this it does not change the Tipton's opinion. Commissioner Langellotti asked where was the northeast parcel. Attorney Kruppenbacher said the northeast parcel is the property there by where they would punch through. Mr. Reinhart showed the Commission where Pine Avenue would be extended. Commissioner McLeod said on exhibit "C" shows that the northeast sector appears on the exhibit, it appears to be the piece of parcel that is on the north side of Winter Springs Blvd. abutting the expressway to Seneca, is that true. Discussion. Commissioner McLeod asked that this is clarified, where is says north east is the same as they are showing. Motion was made by Commissioner Conniff that we accept the settlement as amended. Seconded by Commissioner Ferring. Attorney Kruppenbacher asked if the second and the maker could withdraw that and I'll explain what the motion should be. Commissioner Ferring withdrew his second. Commissioner Conniff withdrew is motion. Attorney Kruppenbacher stated you have one of two options at this point. You can move to disapprove or you move to approve the terms of the settlement agreement as presented with the following revisions: page 7-C, would add exhibit "E"; page 7-C would add exhibit "E" along with exhibit "B"; page 7 - above the word "annexation issues" would include a provision that there will be barriers until the mall is open to the public, so that there could be no ingress or egress through that; page 8 - 8th line up, where is says "... shall take such action.." , it will be "shall take such action as is appropriate to consummate the annexation and to consider such land use approvals including the development as is contemplated" so the word issue would be consider; page 13 will be revised to specifically clarify that it only apply to the northeast portion where the intersection is within the City of Oviedo and that the City of Winter Springs retains all rights and authorities regarding Winter Springs Blvd. as it goes from the City ofWmter Springs limit back and that this agreement in no way is intended to curtail those rights; page 14 paragraph B will be revised to say "up to and including S.R. 426 no u-turns all the way up; page 15 middle paragraph the numeral 1000 will reflect 1,000,000; page 12 per the prior motion we will be deleting the top sentence "...in addition at it's sole expense" will be deleted; page 17 paragraph 8 in the introductory sentence, would read "with respect to that portion of the project which abuts the southern and eastern portions of Tuscawilla as shown on the attached master development plans(as contained in the DR! application); page 25 would be revised to add paragraph 21 of the old agreement that provided "binding effect, this agreement shall Special Meeting City Commisssion March 20, 1995 94-95-16 Page 10 be binding upon the parties their heirs successors and assigns"; page 25 paragraph 21 would be changed to reflect that exhibit "E" would show also the City of Winter Springs as discussed at your prior meeting; exhibit "C" would be revised to reflect the "red"portion as per Commissioner McLeod's discussion on the record. Attorney Kruppenbacher stated those would be the revisions and the motion would be to approve the terms of the settlement agreement as presented, authorizing the revisions to be made as has been reviewed. Included within that motion I want you to clearly understand that you are not by the adoption of this agreement as revised tonight vacating the easement, you will have to do an ordinance and decide in your discretion whether or not to pass that ordinance and if you don't this agreement goes by the wayside and if you do, that's a leg to it, you are directing that we take the legal steps necessary to get you in that position. If we determine that it is necessary to deal with the prior settlement agreement, we will prepare that process for your consideration also, so you are not violating that agreement, if we determine legally that you need to do that, then appropriate steps will be taken to put you in the position to consider that; you are not again, I stress tonight, by adoption of this agreement, agreeing to vacate this easement; you have to go through an ordinance process, the agreement is written so that you will then be exercising your discretion in deciding whether or not you approve the ordinance or not. With that, those are your two options. Commissioner Gennell said on page 16-B, where it lists the two million three hundred thousand, and adjust that. Attorney Kruppenbacher stated he will change it to "a sum of money". Commissioner Gennell said where it refers to third party lawsuits, does that infer that the developer is going to share in the costs of that defense. Attorney Kruppenbacher said everybody who is sued will have to incur their own costs in defense of the lawsuits. Attorney Kruppenbacher said your options are to disapprove or to move to approve the settlement with the provisions that I have read to you, directing your City Manager and City Attorney's office to take the legal procedural steps necessary to proceed forward with this document. Motion was made by Commissioner Ferring to approve the settlement agreement with the provision that the City Attorney has read into the record. Seconded by Commissioner Langellotti. Discussion. Vote: Commissioner Conniff: aye; Commissioner Ferring: aye; Commissioner Langellotti: aye; Commissioner Gennell: aye; Commissioner McLeod: aye. Motion passes. The meeting adjourned at 11 :40 p.m. Respectfully Submitted, ~?:b~ City Clerk