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Hans Ottinot, City Attorney February 7,2008 Page 4 context of the parcel's unique and critical relation to three other adjacent lots that were already assembled by Starkman for development as the Epicure Project. The Epicure Project, which includes the contested parcel, has received the necessary governmental zoning approvals to develop approximately 241 condominiums in a lS-story building, but also over 77,000 square feet of office space and over 22,000 square feet of retail space. While I expect that the Court should have little doubt for finding a legal basis to grant our Motion in Limine to exclude all testimony and evidence relying upon this transaction as a basis for establishing the fair market value of Parcel 1, there is some possibility that the Court may choose to let this evidence in on the basis of it going to the "weight of the evidence" in addition to eliminating this as a post-trial appellate issue for the Respondents. It is also somewhat likely that Respondents will also attempt to introduce evidence of a real estate appraisal, which purported to value the entire three (3) sites known as the "Epicure Project". This particular appraisal was performed on behalf of Wachovia Bank, who apparently was the lender that financed Starkman's purchase of the Rascal Plaza transaction. That financing transaction encompassed funding to satisfy the outstanding mortgage on Starkman's earlier purchase of three lots (roughly $5-6 million) as well as additional money to purchase transferable development rights from another sender site. The TDRs were needed to accomplish the Epicure Project development goals. In essence the Wachovia appraisal for the Epicure Project opined that the fair market value of the assembled three (3) plus acres was $47,000,000. A subsequent addendum to the appraisal, by the same appraiser, then carves out, the fair market value for the three lots, excluding the Rascal Plaza transaction, at $33,000,000. I fully expect to prevail in another Motion in Limine to exclude all testimony or documentary evidence that relies upon or considers this appraisal or facts surrounding such to support valuation of Parcell or compensation to Respondent. In addition to Diskin's use of the Rascal Plaza transaction, he also used two (2) other expanding land sales to support his valuation opinion. I am aware that each of these land sales are transactions involving assemblage of a parcel to be used in, connection with major condominium/hotel developments on Miami Beach. The second land sale comparable was a site needed for additional parking supply to support the development of the Fountain Bleau hotel! condominium project at 43rdStreet and Collins Avenue. The third land sale occurred at Alton Road on Miami Beach and was also hinged on satisfying a unique development goal for the purchaser. Both, of these sales also are residential/apartment related transactions and have little relation to office or retail-type development. It is also important to note that Diskin's appraisal hinges on land sales with a significant, if not, exclusive residential component. LEGAL OPINION ON CASE VALUE AND SETTLEMENT In sum, in trial, I expect that Respondent's factual basis to support a $12,000,000 valuation opinion to be severelY dependent upon .convincing a jury that, as of April 2005, it was entirely reasonable to expect that Parcell would be maximally developed with a significant residential component. On the other hand, it is my opinion that a jury will more likely find it reasonable to believe Parcel 1 would be developed, if at all, primarily as an office type use with a limited retail component. To that end, I am confident that we can present a reasoned, practical and easy-to-understand case for why the jury FTLDOCS 5289886 1 SHUTIS & BOWEN LLP MIAMI FORT LAUDERDALE WEST PALM BEACH ORLANDO TAMPA TALLAHASSEE AMSTERDAM LONDON