HomeMy WebLinkAbout2018-195BBOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
OCTOBER 23, 2018
10:28 a. m. - 10:29 a. m.
11:38 a. m. - 11:39 a. m.
COUNTY COMMISSION CHAMBERS
COUNTY ADMINISTRATION BUILDING
1801 27TH STREET
VERO BEACH, FLORIDA 32960
IN ATTENDANCE:
Peter D. O'Bryan, Chairman
Bob Solari, Vice Chairman
Susan Adams, Commissioner
Joseph E. Flescher, Commissioner
Tim Zorc, Commissioner
Dylan Reingold, County Attorney
Kate Pingolt Cotner, Asst. County Attorney
Jason E. Brown, County Administrator
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CHAIRMAN O'BRYAN: Folks, as we mentioned
earlier in the meeting we have a time certain at 10:30 for
a closed attorney/client session, and this is the
commencement of the attorney/client session.
The estimated time of the closed attorney/client
session is 90 minutes. Present at the meeting will be
Commissions Bob Solari, Susan Adams, Joseph E. Flescher,
Tim Zorc, and me, Peter D. O'Bryan; also present will be
County Attorney Dylan Reingold, County Administrator Jason
Brown, and a certified court reporter.
At the conclusion of the closed attorney/client
session, this public meeting will be reopened. And with
that, we are adjourned.
CHAIRMAN O'BRYAN: We will call the meeting back
to order. And the public meeting is hereby reopened and
the attorney/client session is now terminated.
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STATE OF FLORIDA )
: SS
COUNTY OF INDIAN RIVER )
CERTIFICATE
I, GREGORY CAMPBELL, Notary Public of the State
of Florida at large, certify that I was authorized to and
did stenographically report the foregoing proceedings and
that the transcript is a true and complete record of my
stenographic notes.
DATED this 14TH day of NOVEMB
GRE OR CAMPBELL, COURT REPOR E
Commission No. EE 907742
My Commission Expires 8/6/2019
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BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
ATTORNEY/CLIENT CLOSED SESSION
IN RE: MARTIN COUNTY, et al., v. U.S. DEPARTMENT OF
TRANSPORTATION, et al.
CASE NO.: 1:18-cv-00333-CRC
*** SEALED ***
OCTOBER 23, 2018
10:36 a. m. - 11:30 a. m.
COUNTY COMMISSION CHAMBERS
COUNTY ADMINISTRATION BUILDING
1801 27TH STREET
VERO BEACH, FLORIDA 32960
IN ATTENDANCE:
Peter D. O'Bryan, Chairman
Bob Solari, Vice Chairman
Susan Adams, Commissioner
Joseph E. Flescher, Commissioner
Tim Zorc, Commissioner
Dylan Reingold, County Attorney
Jason E. Brown, County Administrator
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VERO BEACH, FLORIDA: OCTOBER 23, 2018
WHEREUPON:
CHAIRMAN O'BRYAN: It's 10:36. The Board of
County Commissioners hereby commence a private pending
litigation meeting with counsel to discuss the following
pending case: Martin County et al. v. U.S. Department of
Transportation, et al. pending in the United States
District Court for the District of Columbia, Case No.
1:18-cv-00333-CRC.
The subject matter of this meeting is confined
by statute to settlement negotiations or strategy related
to litigation expenditures. In this case, all statements
made at this meeting are confidential and privilege. They
are being recorded by a court reporter. The court
reporter's notes will be fully transcribed and filed with
the Clerk within a reasonable amount of time after the
conclusion of this meeting. The transcript of this
meeting will be a part of the public records upon the
conclusion of this litigation.
And present are all five county commissioners,
the County Administrator Jason Brown, and the County
Attorney Dylan Reingold. And with that, Dylan, why don't
you go ahead and start, please.
ATTORNEY REINGOLD: Thank you very much. As you
are aware, all the papers have been filed in the federal
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case. At this point we are simply waiting for a decision
from Judge Cooper and/or a scheduling of an oral argument.
Also relative to the federal case, the private
activity bond allocation, the last extension was granted
back in May and it runs through December 31st.
In September we had an initial face-to-face
meeting with representatives from All Aboard Florida also
representatives representing CARE were present as were
representatives from Martin County and Indian River County
to see if there was a meaningful settlement discussion
that could be had between the parties. Since that time --
We've had that one meeting.
Since that time we've had, I believe, two maybe
three phone calls and actually a draft of a settlement
agreement was presented by All Aboard Florida to CARE FL,
Martin County and Indian River County. Since then, we
have provided some response comments and, thus, I thought
it was important to now have this meeting so we could talk
about as set forth under statute settlement negotiations
and litigation expenses.
I'll just generally lay out the framework of the
settlement agreement as being discussed currently and then
we'll be seeking from you thoughts about any other
essential points that we may have missed.
So first like, first off, basically, what
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Brightline will be doing is they will be agreeing to
various improvements at railroad crossings that have been
reviewed by our public works department, these include:
The ones in the unincorporated areas of the county, also
include the two crossing in Sebastian, and also the Hawk's
Nest one.
The railroad crossings that lay within the city
have been forwarded on to the city folks for their review
and analysis. But basically under the agreement is, we
would come to some sort of understanding of what
Brightline will be building at their expense.
COMMISSIONER ZORC: So using 41st Street as an
example, turn lane, sidewalks, we would pay the additional
so we would have a formula to pay or would they include
those?
ATTORNEY REINGOLD: So generally what we're
looking at is for them to be... it's -- The negotiation is
still going back and forth. But what we would be looking
for is,
we would
like to have them
and I
believe they
would
agree to,
is that they would
build
the improvements
at the crossings that they've already agreed to under FRA;
they would then build the additional stuff we wanted them
to do, including sidewalks, and then that would all be at
their cost and from there on that would turn into
maintenance cost for us moving forward.
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Now, with regards to the maintenance side, the
concept that has been discussed between the parties so far
is that there would be a 14 -year cap on maintenance costs
and cost at the crossings. What we're still in a bit of
negotiation over is how that's going to work out. But I
think, generally, what we've gotten to is the concept of:
We would figure out what has been our average cost over
the last 10, 12 years or so for the improvements at the
crossings --
COMMISSIONER ZORC: Could --
ATTORNEY REINGOLD: -- and that would then serve
as a cap on how much we would pay per year for 14 years.
So if nothing is done at the crossing, it wouldn't go up
to that cap; but if it exceeds that cap then we're just
only on the hook as a county for paying up to what our
average had been historically.
COMMISSIONER ZORC: Okay. Precluding the last,
say, 12 to 14 months where they've gone through and
they've done work at virtually every crossing through the
county so this most recent year has spiked way up. So if
that's an average is, it's going to...
ATTORNEY REINGOLD: And so we've actually -- And
that's why my proposal is to do it over a longer period of
time so it sort of dilutes out the impact of the most
recent year. And that we've... the budget departments
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been great in producing their analysis of what we've been
spending per year since Fiscal Year of '5/'06.
COMMISSIONER ZORC: What was the spike last
year?
ADMINISTRATOR BROWN: So over the, over the
13 -year period beginning in '05/'06, the average with the
license fees and all that stuff is about 3006,000 a year.
However, the last couple years, '17/'18, was 555,000; it
was a little over 400,000 in '16/'17; a little over
500,000 in '15/'16; and 534,000 in '14/'15. So the last
four years have been higher than, than that average time
period so that might be something that we need to work
into to the equation as well. But we've tried to do is go
over a 13 -year period but we can certainly talk about
maybe excluding the last couple years or something as far
as this, as far as an average cost.
ATTORNEY REINGOLD: And we're still negotiating.
But the concept would be, is that, to the extent in Year 2
of the project we would anticipate not much -- very
little, if anything, happening at those crossings, maybe
just the annual inspection fee and that's going to be well
below. But as they actually start to do these
improvements and now that they've expanded the number of
gates or the number of improvements, we would anticipate a
steep increase in the cost and that's why we would have
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All Aboard Florida and FEC essentially agree to this cap.
ADMINISTRATOR BROWN: And another thing, I think
we would like to have in there is if it's this 14 -year
period that it doesn't then spike up in Year 15, that we
may have some cap of increase of 5 or 10 percent increase
per year or something like that following that time
period.
COMMISSIONER ADAMS: That was going to be my
question.
ATTORNEY REINGOLD: Yeah. That's something
we've been trying to push on, they've been pushing back on
that; but again, it's part of the negotiation and I can
push harder on that front. So there's also a significant
portion of the agreement that talks about bridges. Again,
it's more of a Martin County/CARE FL issue but clearly
their bridges' use are going to be resolved, need to be
resolved as part of an overall settlement agreement.
One of the... a couple different concepts that
we've been starting to talk about was Aviation Boulevard.
One of the issues that we talked about with staff was...
and also was: Is there a place that we may want a flyover
over the railroad. Now Aviation Boulevard is a little
complex because not only do you get a flyover for the
railroad but then you have a flyover over U.S. 1 as well.
And so one of the things we reached out to All Aboard
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Florida talking about was: Would they be agreeable and
amenable to some sort of cost sharing as if we did a large
flyover, we eliminated the railroad crossing and then we
were able to connect up and then work on improvement to
the hospital. You would have one guaranteed spot in our
county where you have a consist road over the railroad
that wouldn't be closed due to traffic -- Brightline
traffic and/or freight traffic. Now, that's a very costly
number. I think Jason and I probable talked about
something in the 30 -million -dollar range. The concept we
had was, is that something we could say: Let's go to the
State and the Feds, see if we can get a FDOT grant, a
USDOT grant, and then have All Aboard Florida to
Brightline and us then sort of split the baby on the rest
of the cost of that.
COMMISSIONER ZORC: Yeah, there's --
VICE CHAIRMAN SOLARI: On that one, when you
explained it to me the other day the initial, it was
initially 50/50 between Brightline and the government; and
the way you just describe it that way, could be saying 25
private sector and 75 percent government. If I understood
what you said.
ATTORNEY REINGOLD: Right. So the concept that
we had proposed, I'm glad you ask for the clarification,
let's say it cost 35 million or 34 million to build the
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road. That would be 17 and 17 between us, the county, and
All Aboard Florida. Let's say we got a grant for or a,
you know, some sort of agreement with for the Feds that
knocked it down to 10 million dollars, it would be 5- for
All Aboard Florida, 5- for us was the concept.
VICE CHAIRMAN SOLARI: But again, the way you
just said that, we wouldn't be knocking down... knocking
it down to 10 million dollars. The price would still be
the same, it would just be our share.
ATTORNEY REINGOLD: Yes.
VICE CHAIRMAN SOLARI: So, I mean, my point on
this is that it should be the private sector's portion and
the government's portion. So I'd be very reluctant to
say: You know, feed on the big tit of Washington, you can
off paying less. It's still taxpayer dollars and the
source of it for me would be more indifferent as to where
they're coming. They're taxpayer dollars and I would like
to put a cap on the taxpayer dollars. If they're willing
at one point to go half of it with just between Indian
River County and them, I'd look at is as they can go half
of it between the taxpayer and the private sector folks.
ATTORNEY REINGOLD: And I appreciate that and I
will push back on it. My guess is they're probably going
to say, knowing that it's about a 30 -million -dollar
number, they are probably not going to be willing to cost
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share 15- to 17 million. I'm pretty -- I'm going to say
no on that.
COMMISSIONER ZORC: And there is an alternative
on that that I've gone through a brief exercise with Eric
at the airport and Phil from MPO, just, if you take 36th
Street and make that a flyover only for a dedicated route
to the hospital and it picks up with the airport... if
Aviation Boulevard there's a fly road that goes to
Aviation Boulevard East or the one that goes around the
water plant, that could then flyover on 36th Street.
If you take Aviation Boulevard and you take
what's going to be a five -lane east/west/north/south
intersection and you want to completely close that
crossing, 35- I don't think is in the ballpark -- probably
looking at more, like, 50- -- because you then have to
take the traffic over, you have to have loop arounds to
get back to U.S. 1 with new signalization, I mean,
massive, massive cost and taking of huge chunks of land.
If we really want to have a dedicated route to
the emergency room, the 36th crossing would be much less
but it would be primarily emergency access to the hospital
where you would go over 36th Street, U.S. 1 and 36th
Street would still have a right turn in and then it would
blend into the downslope of the bridge; westbound would
still go west to U.S. 1 and turn right but you would have
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a two-lane overpass but you wouldn't try to interconnect
in.
If we had -- if there was a bunch of money
sitting there free, you might look at the other but I
think you're really looking at 35- to 50- to really do...
to close the Aviation Boulevard crossing because that's
just a massive piece of work.
ATTORNEY REINGOLD: Well, and maybe we don't
need to be clear today on which 36th or Aviation --
COMMISSIONER ZORC: True.
ATTORNEY REINGOLD: I mean, obviously at some
point that we're going to need to figure that out pretty
quickly because we don't --
COMMISSIONER ZORC: Correct.
ADMINISTRATOR BROWN: Yeah. And I think that's,
and I think that's kind of the policy question is: Is
that's something that's worth fighting for for us, you
know, that we're going to be asking them for a large
amount of money. It's going to commit us potentially to a
significant amount of money.
I would say from an overall deal standpoint --
So there are a lot of things that are similar that are
mirror images from Martin County and Indian River County,
the 14 years of the crossing approvals and all that stuff
is going to mirror each other. They've got the bridge
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over, over the river there which they've got to get
resolved.
I say from an overall deal standpoint, Indian
River County needs to get something else so that we're not
getting the short end of the stick, if you were -- if you
will on any deal that, Hey, Martin County came out better
in this, I think me need to make sure we're get something
else. The question is: What is that something else? Do
we want it to be a flyover or something else.
COMMISSIONER ZORC: Correct.
ATTORNEY REINGOLD: No. Martin County's
indicated they'd like a pedestrian pass -- crossover but
it's clearly not in the realm of something like this type
of project... so that's one concept on the table.
Another concept on the table is, and we've
consistently pushed back on Brightline, is station hasn't
been our issue, it hasn't been part of our negotiation
strategy, and so one of the issues obviously you've seen
recently is Stuart and Fort Pierce have been kind of
drumming up some interest in that.
One of the things I think Martin County was
pushing for recently was: If there's a stop in the
Treasure Coast it either needs to be in Indian River
County or Martin County and so I wanted to hear from you
as a board in terms of a potential settlement agreement.
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Is there anything different or new on the station front?
COMMISSIONER ADAMS: So for me, and I know I'm
new to this process, I'm not as against the station in
Indian River County only because I think that there's
potential for future travel needs in the community; and I
think that Indian River County is a good halfway point. I
know that they're looking for certain things that we
probably don't have in the Vero Beach area. Sebastian has
indicated they don't have locations in their area.
But when we talk about it, if we look at... and
I know this might be a little crazy idea... but if we look
at the 510/U.S. 1 corridor, you know, there's the Graves
Packinghouse there, there's some property on the other
side of the track that's available, there's another
packinghouse across 510. We're talking about expanding
510 right now. It's kind of been an economically
downtrodden area so there might be some potential there.
I know we don't own those properties but we
might be able to facilitate something happening there and
it might be a catalyst for continuing that Wabasso
Corridor Plan and drumming up some economic development in
that area. It might be not idea right now, but it might
make more sense in the future so just a throw -it -out -there
as a concept.
CHAIRMAN O'BRYAN: So it's been, I don't know,
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eight years now but there was talk about Amtrak rail going
up the coast and at the time it was kind of decided that
the old historic train station would be the good location,
there's already parking there, would be downtown, all that
so that can be worked out but I would rather see us fight
for a station than the flyover. I've always thought all
along, you know, the Brightline trains aren't going to be
at a crossing very long unless there's an accident or
something. They're going fast and that gate will come
down and the thing is going to zip by, the gate will come
up. Our biggest problem currently is when a freight train
is off schedule because we only have a very short piece of
dual track, so if they're off schedule the train has to
stop and that's when they're blocking three to four
crossings for 10, 15, 20 minutes that's when we have a
problem. If everything is dual track, I don't see that
being a problem going forward. I did ask Jason: I think
we should have Chief Stone talk to his counterpart down in
Palm Beach and Broward County because they're dealing
with, you know, this already --
COMMISSIONER ADAMS: Right.
CHAIRMAN O'BRYAN: -- and ask them, Okay, are
your ambulances having trouble getting across the tracks,
what's your experience. But I don't think it's going be a
big problem and I would rather... I don't think a flyover,
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the juice is worth the squeeze or whatever Wesley would
say at that point in time.
But I do think the station would be something
that would be a benefit and would help slow the trains
down, you know, maybe not every train but at least the
ones stopping would have to start slowing down as they
come through, then, a little speed up time so I think that
will improve the safety aspect of it.
And I don't, you know, if this is something
we're going to negotiate, I don't think that we have to
document that we have, you know, 100,000 people per acre
to meet their ridership study. This is a negotiated
station and so they're going to stop here regardless what
a ridership study's going to show. And the point I'd
bring up to them then is: They've already publicly
claimed they can make millions of dollars going from Miami
to Orlando so their claim it's going to be profitable with
those riders so I would think a quick five-minute stop,
even if a few riders get on, that's all gravy because
they've already said they can make money Orlando to Miami
and back and forth so I don't think that we have to have
the density numbers.
But... and I do think, you know, I would like to
get on a train here in Vero if I'm flying out of Orlando
Airport, not pay the parking there, not have to, you know,
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worry about the hassle of getting there and I think a lot
of people would want use it so if this is something we're
going to negotiate out, I would rather have a station than
a flyover is where I'm sitting.
VICE CHAIRMAN SOLARI: And my view on this is
it's just a red herring anyway and it's not coming but
if -- so I'm not interested in supporting it, period; but
if the board members want to, I think you have to go down
the path that you are taking, Commissioner O'Bryan, and
say that this is part of the settlement: We get the
station --
ADMINISTRATOR BROWN: Correct.
VICE CHAIRMAN SOLARI: -- and we get the
station --
CHAIRMAN O'BRYAN: Yes. It's not like we're
going to apply for the station, we're going to get the
station.
VICE CHAIRMAN SOLARI: And we get the station
for as long as Brightline is running from Miami to Orlando
and we'll get, I will start with, four stops each
direction each day because whatever the lowest number is,
that's what you're going to end up with. So, I mean, I
would start with at least those three things to make it
somewhat meaningful.
But at the end of the day, I actually believe
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some of the stuff about the need and high-speed rail for
density and stuff like that, but it's just... the one good
thing now, I would be happy if actually Indian River
County and Martin County both negotiated for a station
because that's just going to lead to a worse financial
situation that much more quickly so if they did come, it'd
just go out -- I'm serious -- they'd go out of business
that much faster.
But I believe at the end of the day it's just a
red herring and that we're wasting our time going down
that track and it's, it's meant on their part to first
divide us and, second, to undermine public support for our
flight against their related project so...
CHAIRMAN O'BRYAN: And I would agree with your
points. I think we get a station, we don't have to apply
for it, minimum four each way, I'm good with that, because
it's got to be worthwhile so I'm good with all that
because everybody else is.
COMMISSIONER ZORC: And divided throughout the
day not four that all come between 11:30 and 12:30, some
type of crowd people scheduling.
CHAIRMAN O'BRYAN: A couple morning, a couple
afternoon or whatever.
COMMISSIONER FLESCHER: I'm up to the scheduling
part yet because I don't know, I didn't leave my notes in
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front of Commissioner Solari but I can easily stay ditto.
I think that we have too much invested into this in
taxpayer dollar and there's been solely the same few folks
are there regardless of what we say, Well, it's pick it --
a negotiation factor maybe perhaps we can soften this up,
I think this is all in vain.
CHAIRMAN O'BRYAN: So maybe before we get too
deep in this part, Dylan, why don't we review, you know,
where we are with the federal case. I know you mentioned
we're waiting on Judge Cooper's ruling --
ADMINISTRATOR BROWN: Right.
CHAIRMAN O'BRYAN: -- and... well, one, what I
understand is if they find buyers for those bonds, say,
this week, that the likelihood of the Judge revoking those
bonds is pretty slim to none so we have that staring us in
the face: They, they have the permission to sell them so
that's out there. So if they sell them -- if they get
them sold quickly, we're in a bad position. If the
federal judge rules against us, we're... are we about out
of moves at that point?
ATTORNEY REINGOLD: Well, I mean, at that point
you'd be looking at an appellate option: Taking it up to
the appellate court for the District of Columbia.
COMMISSIONER ZORC: But they'd already have the
bonds sold by then.
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CHAIRMAN O'BRYAN: Then, the bonds would be sold
and we don't our... much of a bargaining position at that
point.
ADMINISTRATOR BROWN: One thing I think is
important is they don't have to... not only have the
bonds, they can, they can disallow the tax exempt nature
of the bonds which is a major risk to bondholders buying
that, you know, because if you're buying this assuming I'm
going to get 5 percent interest tax free and it turns into
5 percent interest that's taxable, that's a different
thing.
So I would agree with the overall concept that
if we get a bad outcome, you know, I will leave that to
Dylan, but we've got fewer, fewer options left but I still
think in the bond buyers' minds there, there is that doubt
of the tax exempt ability of the bonds. I think that
could still be ruled that they're taxable which, you know,
they still sold the bonds maybe but I think that impacts
the bond buyer and the market.
CHAIRMAN O'BRYAN: Okay. I just want to -- so
we're all clear on what our position, I think, going
forward --
COMMISSIONER ZORC: There's a window, yeah.
CHAIRMAN O'BRYAN: -- I would kind of agree with
Commissioner Solari and Commissioner Flescher, I do think
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it's a red herring. But what Rusty Roberts told me two
weeks ago is that the reason they've kind of brought this
up is their ridership studies are showing they are pulling
people from these counties so they think there might be
more riders than they first thought. Again, I'm just
passing on what he says. I don't know what, what
credibility there is --
ADMINISTRATOR BROWN: How many times has Dylan
ridden on that thing?
(LAUGHS.)
ATTORNEY REINGOLD: I rode on it once south and
once north.
CHAIRMAN O'BRYAN: Well, there you go. It's,
like, 100 percent --
COMMISSIONER ZORC: That's 100 percent increase
in Indian River.
CHAIRMAN O'BRYAN: But I think the point I was
getting to is instead of fighting for the flyover, let's
fight for a station because I think we may realistically
have a better chance of getting that than the flyover
thing.
COMMISSIONER FLESCHER: I agree with your
preference choice, however, it's very difficult to support
that action going forward. It's just another indication
that perhaps maybe we're looking at this as saying: It's
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inevitable, okay, we'll take the best option. And I think
it's disingenuous to our community folks.
We've talked about this for a number of years
and we know the public sentiment, whether it's access to
hospitals, whether it's access to other community needs or
necessity, it's, it's all about safety and the threat and
danger. Counselor, you mentioned that they're already
compelled to do all of those safety applications.
ATTORNEY REINGOLD: Well, there's a certain
level of safety improvements that they've have done per
FRA. There are things that we've requested, public works
has requested on top of that, the concept is to then wrap
in those requests and have those incorporated in as part
of their crossing development plans.
COMMISSIONER FLESCHER: Well, if the safety
applications significant... I understand we have some turn
"laning" concerns and some, something they call barrier,
we call fence. But again, is it significant where it
compromised public safety if that was part of the
negotiation tool.
ATTORNEY REINGOLD: They're going to argue,
obviously, that they've put in what FRA, the Federal
Railroad Administration, has required and, therefore,
they're meeting all their necessary minimum safety
standards in the light. And I would assume I would hear
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from them is what we're asking for is icing on the cake to
make our community safer. I will have to get back on that
issue. But, I mean, it's clearly things that our, our
folks, our public works department has reviewed carefully
in the plans and felt that they were necessary
improvements that they needed to see.
COMMISSIONER FLESCHER: And not the fact we're
looking at the gold standard and they are offering all,
because they're required to, at this, this silver podium.
ATTORNEY REINGOLD: That, that would be the
analogy of it I understand.
COMMISSIONER FLESCHER: Okay.
VICE CHAIRMAN SOLARI: Would it be safe to say
that when you add in all the public works' safety requests
that that would make each course in Indian River County a
quiet zone?
ATTORNEY REINGOLD: I believe it would make it
ineligible. But I will, I will note that there are...
there's at least one crossing, I believe two, that
actually they aren't going to be above 80 miles an hour or
meet 80 miles an hour. And Rich has requested for those
to be, essentially, a full sealed court order.
VICE CHAIRMAN SOLARI: I mean, we could use the
quiet zone as a way of establishing the bear minimum
requirements for each crossing.
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ATTORNEY REINGOLD: Yes. That would be a part,
yeah, of the --
COMMISSIONER ZORC: Dylan, you just mentioned 80
instead of the 120 that's on the plans. Is there a change
on the speed?
ATTORNEY REINGOLD: So what they've explained
and what I believe Rich has heard from them is there's
actually a couple of crossings in Indian River County
where they will not be going the full 105, 106 miles an
hour. I believe there will be many that they are reaching
those high speeds but because of some sort of turn or some
sort of geographical limitation --
COMMISSIONER ZORC: The 4th Street curve --
ATTORNEY REINGOLD: -- there's a couple of areas
that they would not be at that speed.
COMMISSIONER FLESCHER: Counselor, one of the
things that we just mentioned, quiet zones, have you
clarified that the operators still have the option to
utilize their sound device if they choose to?
ATTORNEY REINGOLD: To the best of my knowledge
the engineer has the ultimate discretion to blow the horn
in a quiet zone.
COMMISSIONER FLESCHER: Thank you.
ATTORNEY REINGOLD: So and then one other issue
I wanted to make sure that I talked about with you today
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is the cities. One of the things I presented to All
Aboard Florida in our last call was said, Hey, I'd like
the opportunity for our cities to be able to take
advantage of any deal that we get.
So as I've heard from public works, we've, we've
reviewed the plans in the unincorporated areas of Indian
River County, Hawk's Nest and the two Sebastian ones,
we've only forward on to the city their comments and so
the concept was: Do we want our cities to be able to take
advantage of a 14 -year moratorium or a cap on the fees and
have them be able to get their improvements and their
closings.
All Aboard Florida came back and said, Well,
what does that really look like considering there were
other things that we're agreeing to. But it was just
something I, I wanted to make sure you were aware of the
concept and wanted to get your temperature on it.
VICE CHAIRMAN SOLARI: I think we have to.
COMMISSIONER ZORC: I agree, yeah. Treat
everybody the same regardless --
VICE CHAIRMAN SOLARI: This is a county issue.
It's not unincorporated county --
ADMINISTRATOR BROWN: And we've been funding the
fight from the general funds so --
VICE CHAIRMAN SOLARI: This is All Aboard --
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ADMINISTRATOR BROWN: -- the municipalities are
paying too so weeding them out seems... (Shrugs
shoulders.)
VICE CHAIRMAN SOLARI: Wrong.
ATTORNEY REINGOLD: So those are some of the
concepts of the things we would be searching for and
getting a more definitive answer on on some of this part
of the negotiations.
There are things that they've obviously asked
from Indian River County and from Martin County, one is
probably the most obvious: We would dismiss our current
lawsuit; No. 2, generally, they would be looking for us
not to support or move forward in encouraging anyone to
support the Railroad Safety Study or legislation in
Tallahassee. The trait -- Well, I think in their view the
trade-off is if we put in the safety improvements that
you're asking for, Public Works Indian River County, I
don't want to then turn around and have you legislate
against me in Tallahassee for more than what we agreed to.
Now, I will say, one of the very difficult
points of this negotiation right now is the fact that
they, basically, wanted us to walk away from our right to
complain about/move forward on any future issues that
happen with Brightline.
And so what we've countered to them is: Look,
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we are willing to put down our lawsuits and our pushing
for safety legislation in Tallahassee through your
building of the train and maybe a year after; but the
concept for us is, let's say you start operating in Indian
River County and you do kill 20 people in the first three
months, I'm not going to put down our ability to go to
Tallahassee and say, Clearly, we've noticed something is
extremely wrong here, we need you to do more or, FRA, we
need you to do more. I cannot see negotiating that away.
Their counter to that appears to be, Well, then
basically, if you walk away from the deal four years out
then we're going to walk away from the deal four years out
and, thus, your benefit of the cap on your maintenance
cost will then disappear if you complain about something.
I don't think that's a tenable position.
I think the 14 years moratorium needs to be the
cap and that shouldn't handicap this board or any future
board from being able to recognize any threat to public
health and safety and welfare for this community. My
thought is: You guys are going to get the huge bargain of
our lawsuits going away and us not supporting the current
legislation in Tallahassee that lets you build your
project and from there we need to be able to protect our
community. But I wanted to get a sense of, those are some
of the ideas we've been talking about.
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CHAIRMAN O'BRYAN: Well, yeah, I would agree we
do not want to give up our future rights to take action if
something new pops up. I don't know what it might be. It
might be the LP Gas they want to truck through here or
something like that. But I don't, I don't see us giving
away any of our rights to take away future actions.
VICE CHAIRMAN SOLARI: I don't see how we
possibly could as a responsible government.
CHAIRMAN O'BRYAN: So I think we've got --
COMMISSIONER ZORC: If we could say it would be
something that... these wouldn't be frivolous things that
we're just making up to be an irritant. It would have to
be based on, like to use the example of, unique instances
in an area of track that something else needs to be done
or... yeah, you can't, you can't... I can see why they
would want get a clean slate that you can't ever do
anything, but the practical side is we don't know what's
going to happen and what might need to be, to be done.
CHAIRMAN O'BRYAN: I don't think that we can add
language that if something does come up, we would be
willing to negotiate first and --
COMMISSIONER ZORC: Right.
CHAIRMAN O'BRYAN: -- you know, go through a
process before we ever did consider litigation. But, you
know, we wouldn't just jump to a lawsuit the very first
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time they had a hiccup but we still retain the right to
litigated if we needed to.
ATTORNEY REINGOLD: Or legislate, or legislate.
CHAIRMAN O'BRYAN: Or legislate, yeah.
ATTORNEY REINGOLD: One other thing, and this is
very attorney issue based but I just want to make sure I
ran it by you, they have thrown in a waiver of jury
provision into their draft and had put in venue in
Miami -Dade County. I, of course, took out the waiver of
jury and said, No, if it's a Martin County issue, it's in
Martin County; if it's an Indian River County issue, it's
in Indian River County. Not surprising, they pushed
re -back on me on that one.
Is there... if there was a trade-off, would you
guys support the waiver of jury if it happened in Indian
River County or would your preference be: We would be
willing to hold onto the jury option but we would be
willing to have it in Palm Beach County? I just didn't
need know where this board sat on these issues. And I've
got two people in the room with bar degrees or, at least,
aw school education.
VICE CHAIRMAN SOLARI: I just spent a lot of
time including e-mail this morning explaining why I'm
supporting voters' rights and then for and why I tried to
support individual rights in every part of the
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constitution. I don't think I'm ready to give up
constitutional rights to help Brightline in any fashion
so... but again, that's my own individual bias having
spent the last 16 months with certain type of books and...
drops.
COMMISSIONER FLESCHER: Venue where the ball
COMMISSIONER ZORC: What about the
jury/non-jury? I think if you get it local --
VICE CHAIRMAN SOLARI: When they've killed the
seventh Indian River County resident, I want a jury of
their peers deciding their case.
ATTORNEY REINGOLD: And part of it's going to be
really venue or disputes about this agreement. So it's
not that we're going to be designating where our venue is
if we sue them for something, it's going to be a: If
there's a perceived breach or violation of this agreement,
where does that happen.
COMMISSIONER ZORC: Anywhere but Jacksonville,
Orlando, and Miami. Anywhere else is acceptable.
VICE CHAIRMAN SOLARI: They used -- they gamed
us with this Palm Beach South/Brevard North/PAB gamut this
whole time. I think it's consistent to say that this
agreement is centric to the three counties so that's where
the litigation ought to be.
COMMISSIONER ZORC: And speaking of three
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counties, does St. Lucie get a free ride on this same
deal?
ATTORNEY REINGOLD: So our agreement does not
touch on St. Lucie County. It doesn't talk about them and
any maintenance fees or any other issues.
VICE CHAIRMAN SOLARI: And there goes their
station.
ATTORNEY REINGOLD: Well, I will tell you All
Aboard Florida right or Brightline said to me, you know,
We're moving forward with working with, you know,
Fort Pierce, Stuart or wherever they are right now and
said they were looking for a counter -proposal quickly on
this issue.
VICE CHAIRMAN SOLARI: Of course they said that,
they'd have to. It's consistent with anything else
they're trying to make us believe in this good, brilliant,
nice iridescent red herring.
ATTORNEY REINGOLD: So those are -- Are there
any other critical issues you guys that you think I've
missed in a discussion? I just don't want to go back and
have a conversation with them, saying, These are our
essential points, and having missed something.
CHAIRMAN O'BRYAN: Is there any possibility of
getting them to agree to a speed limit through the county?
ATTORNEY REINGOLD: The answer to that from them
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