Council rejects proposed Esplanade settlement
For several months now, the Marco Island city attorney and attorneys for The Esplanade property owners have been laboring to come to an agreement about the impact that the construction of the replacement of the Smokehouse Bay Bridge may have had on the condo’s property.
During the construction of the bridge it was discovered that when The Esplanade development was initiated in 1998, the city staff had never had the requirements for either a temporary construction or permanent maintenance easements recorded as part of the development agreement filed with the county.
Those agreements would have removed any question about the city’s right to work on The Esplanade property during the construction phase of the bridge project and for future needs to maintain the structure.
As part of the proposed settlement with The Esplanade, the city would agree to pay for those easements after the fact. The city had already agreed to reconstruct any areas on The Esplanade property that had been impacted by the construction.
The city’s attorney had reported in January that he and Kenneth Jones, the attorney for The Esplanade property, had come to an agreement that would have cost the city $$83,915.43 to resolve the issues of easements, loss of riparian rights to The Esplanade Marina Association and attorney fees.
But that initial understanding evaporated on Tuesday evening when City Attorney Alan Gabriel informed council that added language that he could not agree to had been added to the final verbiage in the settlement agreement.
Both sides would have different opinions about the impact of that language, the centerpiece of contention revolving around the issue of waiving the right of the city to assert its sovereign immunity rights.
“I strongly advise against accepting this provision,” said Gabriel. “To my knowledge no other community has ever done this and I don’t recommend you do.”
Bill Trotter, president of the Esplanade I Association, attempted to convince council that the city would not be exposing itself to additional liability, while stressing it was his desire to limit the condo association’s exposure.
“Our hands are tied as far as wanting to add any additional exposure to The Esplanade owners,” said Trotter.
Councilman Larry Honig was reluctant to move forward without the consent of the city attorney.
“I agree with the city attorney, and would find it difficult to go against the strong words of the city attorney,” said Honig.
“I would hope the two attorneys could take this back and find an acceptable solution,” said councilman Joe Batte. “We just cannot deny advice from our council.”
Councilman Ken Honecker moved to return the original document to The Esplanade without the objectionable language as outlined by the city attorney. That motion prevailed, with Honecker, Honig, Bob Brown and Amadeo Petricca voting in favor. Councilmen Victor Rios and Batte voted no, with Batte preferring to have the attorneys make one last attempt at reaching a compromise.