may please the court my name is john petroski and i am an assistant county attorney representing the county of suffolk in the subpoena the most important issue that the county would like to impress upon this honorable court is that the district but six of the second seven car ports were built and put into operation that's correct and they still are in operation or as you know them if i say no you know i guess is there was said there were seven location and six of them were the other six were sort of in the same sort of bunkum is a bit of a different animal than it was the last one it was the biggest one it was a third of the megawat it's also one of the busiest if not the busiest train station on the island it's a major communal hub it's a one hundred twenty percent over capacity and i don't know if you've ever parked there but the parking on the streets the parking on fire lanes the parking on the lawn  so it was very important that they establish a five hundred to five hundred fifty space alternative lots so the cars that were being displaced during construction where the car ports were going would have someplace to park so it was during construction and after the car were they could move the parking back exactly that we needed a place to put the cars and they were going to do it and swaths of about five hundred so that five hundred spots of the lot would be closed down and cordoned off and then they would donate land amend a lease issue a building permit to somebody who's not entitled to it again in fact district court offered other and other understanding about why the duty to cooperate was breached it in its view i don't think was taking the position that the county had under all circumstances an obligation to issue a permit but it noticed a course of dealing that changed very enthusiastic about this project and he essentially told d p w to get it done and they did they cooperated and they issued conditional per building permits which they do not normally do and they were granted doing it because  f had problems with all that meeting all the special conditions that were in these building permits but they did it because on those smaller lots the county had greater control they were county buildings where county employees worked there were smaller stations they were more comfortable doing it to get this done for county executive steve levy however when county executive steve balonne came and well let me backtrack a little bit it was always e d s obligation to provide alternative parking it's in the lease it's section seven point three of the lease where e d f had to provide a construction schedule and ground he knew ronkonkoma was going to be difficult because it was oversubscribed it was about one hundred thirty percent of capacity and he testified that he did a lot of research he looked into things like running a shuttle bus  duty to cooperate doesn't require the county to do that the but under steve levy we tried we tried to get it done now when county executive steve blown took office he was not so enthusiastic about the other than wrong because he felt that these solar carports at their own count going to train station were inconsistent with the wrong konkona hub development that was going on the north side of the tracks and also the the lot that we were going to be donating was going to be used at the was clearly erroneous in finding that the county breached the lease because the duty to cooperate did not rise to the level of donating land or issuing a building permit that they were entitled to and they wanted entitled to the building permit because they didn't have an alternative parking lot  developed other them having the county donate the land did you do to cooperate similar to the covenant of good faith and fair dealing can only can only impose an obligation consistent with the other mutually agreed to terms of the contract it does not and a to the contract a substantive provision that was not intended by the pa by the parties  me please the court tyrus kogan a blank room i'd like to introduce my colleague with a real labyrinth the forty seven page findings of fact in conclusions of law went into great detail about the stalling tactics that the  county engaged in about the facts and documents to support that once county executive blown met with try tech real estate developer made a decision that  go forward and would like to address two misconceptions i believe that have been made number one wrong how come i was not the last project the last project actually was deer park deer park was also a long island railroad station also oversubscribed same type of issue as ronkonkoma and that occurred after the issues with respect to do to run co already arisen a special a permit with special conditions was given adjacent site was used and everything went smoothly now this statement that there was no agreement as to an adjacent parking lot is simply incorrect what the testimony showed and what the district magistrate judge found was that in fact e d f was prepared to go forward and do what ever was necessary to accomplish alternative parking valet airport near their ten years apart more which they could use but the county proposed and we agreed for a very good solution th an adjacent lot we were going to develop that what we were going to improve the lot so we could be used for parking and in fact an agreement was reached the county actually advocated an environmental review hearings for approval of that situation and a lease was drafted and ready for signature by both parties but once the county executive made the decision that under no circumstances despite knowledge of the of the lease would he approve of ronkonkoma going forward because he wanted to reserve the land instead for a local real estate developer once that was whole project i see it referred to it what it was as i understand it was on the other side of the tracks there was going there was a proposal for commercial hub development like stores and so forth along with the long island railroad station there would be restaurants stores and the like and this this particular real estate developer apparently said look i might want to develop the other side as well i don't know i can tell you my understanding is nothing has been developed at this point but once that meeting took place what to do what district court found was that there was a policy to stall and you will see emails referred to in the decision in which people said i have no stalling tactics left they cancelled meetings they didn't return phone calls and with respect to the so called safety concerns they were never once communicated with respect to the adjacent parking lot that we  don't we no longer want to give it to you that was never communicated a complete failure of the duty of cooperation set forth in section thirty five of the lease and that is what magistrate judge where you have agreed to that and have received the lease which was negotiated between counsel you have at least a duty to say we've changed our mind please e d f you know you talked about the airport land go ahead and use we no longer want to do that instead there was radio silence there were e mails from the from the internal e mails at the county saying what do we do we have the lease what do we do and the answer was stall the answer was no communication shall come from the from the department of public works it has to come through the county attorney you will see that in fact there was a permit ready for signature signed by the deputy county architect llewellyn johnson in which the ronkonkoma permit with special conditions with the adjacent lot was prepared and signed by him it didn't issue why not because of the factual finding made by the district judge that in fact under no circumstance whatsoever would he permit ronkonkoma to go forward so in terms of the the decision by the court that there has been a breach of the duty of cooperation that is so fully supported by the record that to say that that is clearly erroneous i think stretches  concept of trying to look at the facts now there are other issues with respect to what they've raised with respect and notice with respect to article seventy eight all of which i think we've addressed in our briefs but i do believe that the evidence at trial fully supported everything that the district court concluded i mean if you read some of the findings beginning in january of two thousand and twelve the county entered into a program of intentionally said a t f has been calling constantly and quote i don't have any more delay tactics left to use she found that no county representative ever told you d f that he could not use the adjacent par that the court further fell finds that the issues that the county now try to raise were part of a as part of the county's overall stalling tactic to avoid issuance of a boat building permit for the installation of carports the court rejects as not credible testimony that the decision not to grant the building permit to begin construction was based upon any film year of e d f to provide alternative parking or a phasing plan instead that decision was based completely upon the blunted ministration decision not to go forward with the runtime come a project these are not clearly erroneous findings and actual y we supported every aspect of their case we supported liability we supported every penny of their damages they try to argue that we shouldn't have ordered the the solar panels in advance the court rejected that argument is not is not credible finding that entering into what's called the method or frame agreement was in high really appropriate they tried to say that we should be entitled to them just because we could have sold off all the solar panels on day one at the original purchase price the court found that simply was not credible and in fact over time we did sell off ninety five percent of the solar panels which we had purchased e d f acted lee proper through out this proceeding and this is not a situation where the cut county can now say after the fact all guess what you didn't get a parking you didn't give facing had they simply said to us this is what you need it would have been accomplished as it was before and as it was after at your park but the fact that they did not even communicate any concern whatsoever despite pleas by e d f throughout the process despite letters from counsel throughout the process is an indication and a complete support to the district court's finding that the decision to not come forward at ron i'd just like to address one one aspect of the whole issue that's being made of stalling in reality we're talking about when dennis cohen the county executive i'm sorry county attorney at the time learned that there was a contract after he after he said market was not going forward because mark lesko the brick even superintendent tried tech had said we're building this big hub on the north side of the tracks and and county executive blown is very into economic development he made a policy decision i would prefer to move it to another location he didn't say you can't build it on conquered them he asked them to explore alternative sites he did decide he wasn't signing that leas which is perfectly within his right the lease agreement was being negotiated on the lease amendment to give them the land the lease amendment was being negotiated under the levy administration it got the d p w commission approval it got c e q his approval but and give them the alternative parking and guess what then happens then the obligation goes back to where it belonged for e d f to get alternative parking at that point it was up to them to go and do the shuttle at macarthur where do they buy land from brocade or dead it doesn't matter what the cost was because that's what was driving the decision not to do all those other and other things it wasn't that the county came up with a great idea it was that they were at a dead halt on getting alternative parking so the county came up with this plan and then the new county executive said i don't want to encumber that property i want them to look at alternative sites if they can get land somewhere else let them get land somewhere else but at when he said walking was not going forward that's what he meant and then he found out about the lease th whole stalling thing you learned about the lease on january twenty fourth and on february tenth six days sixteen days later he spoke to george known and said we prefer you to go to alternative sites now these are sophisticated  bill business people they have competent counsel if some if they're saying the county executive wants to build an alternative sites i think it's a pretty safe bet to say that we're not signing your lease agreement and they never asked for a follow up on it they completely abandoned following up for the lease amendment on that land thank you time has expired we appreciate your argument in the matter under advisement thank you both that concludes our oral argument calendar today we have two matters under submission united states versus trapped