At Thursday's Gateway Services District Board of Supervisors meeting, once again, Country Club wetland 47 will be on the agenda. Wetland 47, which the club damaged with a tractor. Wetland 47, which has cost Gateway residents over $100,000 already. Wetland 47, which, last week, the two agreed to settle. Hold on. Not so fast. The residents are upsetting the golfers. Everyone on this side of the tracks, you are mean-spirited S.O.B.'s with nothing but 7-iron envy. How dare you upset the Tiger's of the world. Shame on you!As a result of the negative peasant attitude toward the golfing community, the Country Club board is asking the district to change the agreement in 23 places highlighted by attorney Charles Mann asking the district to change wording as "not to upset" the Country Club. Poor babies. Are your feelings hurt? Are your balls slicing too far to the left? Are your knickers in a wad?
If you read the comments from the country club it's easy to see that, to this day, they deny that their was a violation, they refuse to admit they caused the damage and they are trying to claim that a conservation easement is not needed (SFWMD has told me on several occasions that clearly it is needed before anything proceeds). But those are just a few of the demands Country Club attorney Charles Mann is making which, in my opinion, puts us right back to square one.
Here is the AGREEMENT prepared by the district
Below are the 23 demands the club is telling us to make to that agreement.My brilliant observations are added in blue.
Comments from the Gateway Golf & Country Club
First, I think as a general proposition, we were hoping for one agreement to simplify things. Since we aren’t in litigation or even really a dispute at this point, the “settlement” agreement and separate maintenance agreement seemed unnecessary. However, if the District feels strongly about the current setup, we will agree.
A second more general comment is that the “Whereas” clauses seem unnecessary and too detailed. If you feel that it needs that level of detail, then it needs to be rewritten, but I would prefer to just leave much of it out. Even if factually accurate, it paints the wrong picture and we would like it to be more objective given that we have differing views on these issues. To illustrate this better…if I had taken the first draft, this would have been like me spinning all of the whereas clauses consistent with our assertions. The Club, and I, don’t feel that approach is conducive to finalizing this. As I am sure you have experienced, once a settlement is reached, it is better to leave out unnecessary contentious statements as it just causes one party or the other to get upset again. Please pare these down considerably. Well my gosh we wouldn't want the same guys who were openly laughing at the Supervisors to get upset now would we?
Comments from Country Club Attorney Charles Mann
Settlement Agreement
- If you must have the 6th whereas clause, then we need one indicating that the Club expended considerable monies as well. As well you should. You've always wanted to maintain the wetland - AND YOU DAMAGED IT
- In the 7th whereas clause, the SFWMD is requesting, not requiring the conservation easement. You could provide other mitigation. SFWMD has to this day been saying the CE is needed before anything. Otherwise why would we be jerking around with you people?
- In the 8th whereas clause, please clarify that the easement in favor of the District is a drainage and water management easement.
- The 9th whereas clause should just be deleted. We could argue that you should be responsible for some of our fees, and whether these resulted from the NOV, etc. Its better to just leave it out. Like hell. You caused the problem from the beginning. We cannot even get you to admit that. It's to the benefit of your own wallet if you keep denying a violation occurred hoping the residents will sue. You win. We continue to lose.
- In #1 of the body, why do you need a check from my trust account?
- #2 is largely resolved and should be modified since the SFWMD agreed that if I send a letter prior to issuance then we don’t need the CE right away. Also, we have our form approved, but if there were changes, we will agree to make them so long as they are “reasonable”. Like your elitist board of directors has been reasonable at any step along the way in this matter.
- #4, our agreement was to pay for the planting of the trees, not actually plant them. Understood. Lawyers and golfers never do yard work. They have "people" for that.
Also, there was no agreement regarding success criteria and certainly no reasonable reason that any of it is performed to the satisfaction of the District in its sole and absolute discretion. Plus, in B, I am not sure that Phase 2 exotic removal is defined. It should be the scope of work FF agreed to. Other work to be done by Friendly Fire was to be coordinated directly with Friendly Fire.
-There should be a companion to #4 as well that spells out that the District is going to perform all of that other work. You are doing it on our land and the details should be in there.
-There needs to be a fully reciprocal release from both parties for all prior claims, etc.
Would be the biggest mistake the board makes on this matter. Especially after the board is being blackmailed by the country club. They have not given up the CE, even to this day, so the district can get freed from the grip of the state (SFWMD)
- In #5, this whole paragraph needs to be deleted. Not only do we believe it inappropriate, we think it is directly contrary to what was approved by your board.
Maintenance Agreement
- Again, the 4th clause should detail the type of easement.
- The 8th whereas clause should be deleted. The clause Mann refers to is that they caused the violation. And, of course, the denials continue. It's exactly what happened and there is no denying it.
- The 11th whereas clause should recite that strict compliance by the district is an integral part of the club agreeing to enter into this agreement.
- Paragraph #2 should have a companion paragraph relating to the fact that the District is maintaining other parties of these wetlands and that it will maintain them in accordance with the permit, etc.
- There is no need for #3 as we have any concerns covered via the agreement, the CE, etc. Again, this is our land, and while we might be willing to provide these things when requested, we are not going to agree to that being a part of this agreement.
- The first two sentences in #4 should be deleted consistent with the above. The rest of it is okay so long as there is a reciprocal provision for the District work in the remainder of the wetlands.
- In #5, we will agree so long as there is a reciprocal paragraph for the District to do the same.
- #6, in its entirety, needs to be deleted. Really, it should be the reverse but we are okay without it since the SFWMD won’t likely let the District do anything without our consent
- In #8, the agreement should be longer, or at least it needs to recognize that we have the right to maintain the mowed areas any way we want so long as they are in compliance with the CE and with the Permit. The entire agreement gives the appearance that these areas are owned by the District not the Club, when in fact it is the opposite that is true.
- #10 is okay so long as there is a reciprocal provision. Same for #11.
- #12 will be generally fine once you clean up the part about the records we turn over. However, the last sentence seems unnecessary. Why would we turn over everything? Again, we are the landowner.
- In #13, we think we should just agree on the amount of insurance now. We think $100,000. Please advise. Also, as expressed before, the indemnification is for anything arising out of the other party’s work (or work of its agents, etc.) in the wetland. It should not be general, and most importantly, it must be reciprocal. Unless you have some other authority I am not aware of, the law is clear that the CDD can absolutely indemnify us, particular for liability caused by the CDD itself.
- #17, this should be reasonable discretion and should be reciprocal.
We look forward to seeing the revisions. Once these changes are made we can quickly review and hopefully get this approved and done with.
Thanks
Charles
