Minutes 10-31-89MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN
COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA
TUESDAY, OCTOBER 31, 1989 AT 5:00 P. M.
PRESENT
Gene Moore, Mayor
Robert Olenik, Jr., Vice Mayor
Arline Weiner, Commissioner
Lee Wische, Commissioner
George Hunt
Interim City Manager
Betty Boroni, City Clerk
Raymond A. Rea,
City Attorney
Mayor Moore called the meeting to order at 5:00 P. M.
1. SECOND READING AND PUBLIC HEARING OF PROPOSED ORDINANCE
NO. 89-39 - TRADEWINDS
City Attorney Rea had not arrived at the meeting, so Betty
Boroni, City Clerk, read proposed Ordinance 89-39 on second
and final reading, by title only, as follows:
"AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON
BEACH, FLORIDA, AMENDING ORDINANCE NO. 80-19 OF SAID CITY
PURSUANT TO AN ORDER OF THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT BY REZONING SEVERAL PARCELS OF LAND WITHIN
THE CITY OF BOYNTON BEACH, FLORIDA, FROM R-lA (SINGLE FAMILY
RESIDENTIAL), R-3 (MULTIPLE FAMILY DWELLING) AND C-2
(NEIGHBORHOOD COMMERCIAL) TO PLANNED COMMERCIAL DEVELOPMENT;
PROVIDING FOR ADDITIONAL SQUARE FOOTAGE OF COMMERCIAL
DEVELOPMENT; SAID PARCELS BEING MORE PARTICULARLY DESCRIBED
HEREIN; AMENDING THE REVISED ZONING MAP ACCORDINGLY; PROVID-
ING THAT ALL DEVELOPMENT OF SAID PROPERTY SHALL PROCEED IN
STRICT COMPLIANCE WITH THE DEVELOPMENT PLANS AS SUBMITTED
AND APPROVED AND ALL APPLICABLE ORDINANCES OF THE CITY OF
BOYNTON BEACH, FLORIDA; PROVIDING A CONFLICTS CLAUSE; A
SEVERABILITY CLAUSE, AND AN EFFECTIVE DATE; AND FOR OTHER
PURPOSES"
Mayor Moore understood this would carry the partial
settlement into effect. It did not include the enhancements.
Mayor Moore informed Vice Mayor Olenik that the enhancements
and changes would not come up until the meeting on
November 7, 1989.
Commissioner Weiner thought City Attorney Rea should be
present. Mayor Moore asked if there was any input from the
public. There was no response. THE PUBLIC HEARING WAS
CLOSED. Mayor Moore stated that this matter would be
deferred until City Attorney Rea could explain this.
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
City Attorney Rea arrived at the meeting at 5:07 P. M.
(See page 4 of these Minutes for Continuation of this
matter.)
AGENDA APPROVAL
Vice Mayor Olenik moved to adopt the agenda as presented,
seconded by Commissioner Wische.
Discussion of Complying With Research Litigation
for City Hall
City Attorney Rea wished to add "Discussion of Complying
With Research Litigation for City Hall". Commissioner
Weiner thought every item on a special agenda had to be
advertised and it was not proper to add to an agenda at a
Special Meeting. City Attorney Rea apprised the Commission
that he made this request to the City Manager's Office by
memo dated October 26, 1989. Somehow, the agenda was not
modified accordingly. City Attorney Rea thought it was of
sufficient emergency to address the issue tonight. They
could address it next week, if the Commission desired.
Mayor Moore did not think it had to be advertised. If it was
an emergency, he felt he had the authority, as Mayor, to add
it to the agenda for discussion purposes. Vice Mayor Olenik
referred to Robert's Rules of Order and advised that if, at
a special meeting it becomes urgent and an emergency to take
action for which no notice is given, that action, to become
legal, must be ratified by the organization at the next
regular meeting.
City Attorney Rea wanted conceptual approval because the
City is against a "time bomb". Every day the City delays
will potentially cost the citizens of the City thousands of
dollars. Commissioner Weiner objected to City Attorney Rea
adding this item to the agenda. Under the Charter, Mayor
Moore said the Mayor has the right to call an emergency on
any item. Vice Mayor Olenik argued there must be due
advertising of an emergency meeting. Mayor Moore responded
that they could talk about it and not take any legal action.
After a disagreement between Mayor Moore and Vice Mayor
Olenik, Mayor Moore emphatically stated the Commission would
discuss the item without taking any action. Both
Commissioner Weiner and Vice Mayor Olenik voiced their
objections.
Commissioner Wische called attention to the memo the City
Attorney sent to the City Manager. Vice Mayor Olenik
pointed out that the meeting was advertised on October 19th
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
and the memo was sent on October 26th. City Attorney Rea
explained he asked that it be put on today's agenda because
he spoke to a number of attorneys who are intimately familiar
with construction litigation. Considering the fact that the
City Hall project is winding down and the City is in a
position where it has to make major decisions, prior to
those decisions becoming critical in the next week or so,
the City needs some time to get people on board who can make
decisions that are appropriate to be made in this matter.
By waiting until the next Commission meeting, they will be
delaying it a week. People are demanding that certain amounts
be retained, and the City has to make a decision as to
whether or not they should do this.
Emergency Meeting, Monday, November 1, 1989 at 8:30 A. M.
Mayor Moore asked Commissioner Weiner and Vice Mayor Olenik
if they still did not wish to discuss this. Commissioner
Weiner had not heard anything of an emergency nature.
Mayor Moore called an emergency meeting for 8:30 A. M.,
Thursday, November i, 1989 to discuss this issue.
Commissioner Weiner stated that she will be out of town.
Mayor Moore reminded her of other times when she has been
out of town and added that he thought it was a sorry comment
that Vice Mayor Olenik and Commissioner Weiner did not
accept the advice of the City's legal counsel.
Vice Mayor Olenik responded that they have been enduring the
problems at City Hall for months. He questioned why it would
change all of a sudden during a one week time frame. Mayor
Moore replied it was because City Attorney Rea said it.
Vice Mayor Olenik referred to Tradewinds.
Mayor Moore stressed the former City Manager's acceptance of
possession of this project before a certificate of occupancy
(C.O.) was issued put the City in dire legal trouble. He
referred again to Commissioner Weiner and Vice Mayor Olenik's
objections and gave further arguments. Vice Mayor Olenik
asked whether Bill DeBeck, Project Manager, was present, and
he questioned whether the City was ready to discuss the
issue tonight. Mr. DeBeck was not present. Mayor Moore
emphasized it was a legal problem, and Mr. DeBeck was part
of the problem° Vice Mayor Olenik did not know that
Mr° DeBeck was part of the problem. There was an argument
between Mayor Moore and Vice Mayor Olenik.
Commissioner Wische interjected that City Attorney Rea
wanted to bring the Commission current with what is going
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
on. He referred to a lot of things going on that the
Commission does not know about. There were further
disagreements, and an argument developed between Mayor Moore
and Commissioner Weiner.
Mayor Moore wanted the record to reflect that the Attorneys
came to discuss and advise the City Commissioners on a set
appointment. The Attorneys were 20 minutes late, and
Commissioner Weiner chose to cancel the appointment, and
made the Attorneys come back today, which will probably cost
the taxpayers $1,000 an hour. Commissioner Weiner vehemently
objected, explained why she could not wait for the Attorneys,
and stated that she met with an Attorney the next morning.
She did not believe it cost anyone anything.
1. SECOND READING AND PUBLIC HEARING OF PROPOSED ORDINANCE
NO. 89-39 - TRADEWINDS (CONTINUED)
City Attorney Rea explained the reason he was late for
today's meeting was because he was speaking with Martin
Perry, Attorney for Tradewinds. Mayor Moore asked what
happened at the hearing this morning. City Attorney Rea
answered that they entered into an agreed Order the Judge
issued, which retroactively amends the City's 1986 Compre-
hensive Plan to accommodate the changes necessary to rezone
the Planned Commercial Development (PCD) by this Ordinance.
Technically, the 1986 plan has been amended by a judicial
Order, so this project proceeds under the terms and condi-
tions of the 1986 Plan. Mayor Moore questioned whether that
stipulation was incorporated in the Court Order. City
Attorney Rea answered affirmatively and confirmed that the
City is in compliance with that.
City Attorney Rea stated a damage issue is to be addressed.
He read Section 4 of the updated Ordinance and said the
City received the traffic report on Monday. The City's
Traffic Engineers reviewed it, and the City still needs to
have discussions with regard to some of the aspects mentioned
in the report. Concurrent with the adoption of the
Ordinance, City Attorney Rea said they are trying to draw
an additional stipulation with Tradewinds. He thought there
would be an agreement by 5:00 P. M. today. They are so
close, they could have an agreement by tomorrow. That
would require that the City open the public hearing and then
continue it until tomorrow, if the Commission can have a
quorum tomorrow.
Mayor Moore asked if this was the Ordinance that includes
the enhancements. He inquired whether the City was giving
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
up everything. City Attorney Rea replied that some of the
enhancements will fall into place by adoption of the Compre-
hensive Plan. Mayor Moore asked what would happen if the
Commission did as City Attorney Rea recommended (held the
public hearing tonight, deferred final adoption, and then
the Ordinance would not take effect until ten days after the
second reading.) City Attorney Rea informed him that the
Ordinance is worded so it will take effect immediately upon
passage. The rezoning Ordinance should take effect
immediately.
Commissioner Wische asked whether the City would be granting
five or six acres of commercial, in addition to what they
originally asked for. He wondered what price the City was
putting on that. City Attorney Rea answered they are work-
ing on an arrangement between 2.4 and 3.4 Million Dollars.
Commissioner Wische asked if the amount of money the City
decides the land is worth would be deducted from the final
settlement. City Attorney Rea replied that was the idea.
There was discussion. City Attorney Rea stated that part of
the agreement to go hand in hand with the final adoption of
the Ordinance would include the dollar figure.
There was discussion about deferring the Ordinance. City
Attorney Rea told Mayor Moore it was essential to get it
passed this week. It raises an opportunity to get it vested
prior to the chain of events of the County.
Michael Burman, Attorney at Law, Slawson, Burman& Critton,
representing the City, explained the reasons the City did not
have a Resolution were (1) because the City's Attorney had
been on trial and unable to attend any of the meetings. The
backup Attorney had not been in a position where he could
act without a decision from Michael Burman, the lead
Attorney. (2) It was agreed to have the $294,000 damages
the City would pay to the Court to be considered compensatory
rather than punitive because if they are punitive damages,
they would go to the Clerk of the Court, and the City could
say good bye to the $294,000. As compensatory damages, the
City would agree that a portion of the damages would go back
to the City and a portion would be given to the developer
but would go as a credit against the final settlement.
Attorney Burman assured Mayor Moore this has always been in
their stipulation. If the City's Attorney was at a meeting
this week, they would have had it done. The other issue was
on the enhancements. According to what they did in
Tallahassee, if it cannot'be approved, the City will lose
the opportunity to save $3,000,000.
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
Attorney Burman did not interfere with what the Attorneys
were attempting to do. They were supposed to have meetings,
and they have not had one meeting. He reminded City
Attorney Rea that his firm agreed to give the City
compensatory credit for the monies paid to the Court. They
also agreed on the range for the enhancements, which was
something which needed to be determined. The range is
significant (2.4 million to 3.2 million).
If the Ordinance was adopted on second reading with an effec-
tive date of November 7th, Mayor Moore wondered if that
would give the Commission the latitude to hold back or
rescind it through that date. City Attorney Rea did not
think (1) they could adopt the Ordinance unless they had the
signed agreement. (2) Attorney Perry had indicated they
could adopt the Ordinance with an official vote tomorrow and
have no problems. He suggested they could open and close
the public hearing and continue the matter as far as the
vote until 8:30 A. M. on Thursday. After discussion,
Attorney Rea advised the agreement has to be signed
concurrent with the adoption of this Ordinance.
There was discussion about the settlement agreement. City
Attorney Rea suggested that the matter be temporarily tabled.
When he had called Attorney Perry, Attorney Perry was still
working on the agreement.
(See page 8 of these minutes for Continuation.)
SHORT LIST FOR POSITION OF CITY MANAGER
Mayor Moore had submitted information to all of the
Commission through the City Manager. He asked whether they
would have three or five men here on November 10, 1989. The
Commission had received reference checks on the five. Mayor
Moore felt there was definitely adverse input about two of
the five men. Based on that, he stated he would not use the
taxpayers' money to bring Messrs. Higginbottom and Little
here. There was disagreement between Mayor Moore and
Commissioner Weiner about these two applicants.
Vice Mayor Olenik questioned whether the City was able to
verify the information, based on a source it could rely on.
He did not want the City to open itself up to a lawsuit
because of neglecting someone due to hearsay. In the
reference verification, Mr. Hunt said the City attempted to
ask those questions. Before the Commission were some
alternate explanations of what took place. Mayor Moore
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
pointed out that it was in the paper, and no one was sued
for libel.
There was discussion'about the list. Commissioner Wische
was surprised that the department in the City that was
responsible did not check on the sources the newspapers used
to find out these things. The two people mentioned had been
on his list, but he believed what the newspapers said. If
it was not true, the papers would have been sued.
Commissioner Wische thought they should go with the
remaining three.
After discussion, Vice Mayor Olenik stated he had no problem
with crossing the two people off the list because of the
reasons stated, as long as the City had no potential
liability. There was further discussion. Commissioner
Weiner thought they should wait until City Attorney Rea
returned to the meeting.
(See page 10 of these minutes for Continuation.)
2. PRIVATIZATION OF ISSUES RELATIVE TO UTILITIES
John Guidry, Director of Utilities, explained to
Commissioner Weiner that at the last Sewer Board meeting,
there was a discussion about contract operations for the
Regional Wastewater Treatment Facility. Not everybody was
comfortable with the idea, and staff was asked to do some
research. There are approximately five major, big time
contract operators who operate more than 20 facilities
across the country. Mr. Guidry recalled Vice Mayor Olenik
was concerned about personnel. The presentation tonight
would more or less be a "pro contract" presentation.
Mr. Guidry informed the Commission that at the Special Board
Meeting scheduled for November 9, 1989, they will be discuss-
ing Requests for Proposals (RFPs). He explained to Commis-
sioner Weiner that on November 9th, the Board will be pre-
sented with a draft of a request for proposals, and they are
to address some policy issues. Mr. Guidry further explained
that a group of five people will come in with the proposals,
saying what they do and how they do it. Commissioner Weiner
questioned when the City of Boynton Beach and the City of
Delray Beach, sitting as the Board, would decide whether
privatization is something they want. When firms make pres-
entations to them and they decide it becomes prohibitive, or
not in the best interests of the two Cities and the Board,
Vice Mayor Olenik replied they can decide not to go with
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
privatization. They will not be "locked in" unless they
sign a contract.
(See below for Continuation.)
1. SECOND READING AND PUBLIC HEARING OF PROPOSED ORDINANCE
NO. 89-39 - TRADEWINDS (Continued)
Mayor Moore announced that Martin Perry, Attorney for
Tradewinds, would be here at 6:30 P. M.
(See page 10 of these minutes for Continuation.)
2. PRIVATIZATION OF ISSUES RELATIVE TO UTILITIES (Continued)
Mr. Guidry made the presentation. Larry Martin, Executive
Director of Utilities, Delray Beach, assisted him with the
slide presentation. Mr. Guidry outlined the services the
Contractor would provide and emphasized that they provide
sludge disposal. He stated sludge disposal must be fully
addressed other than hiring a sludge hauling contractor.
Four of the five contract operators they talked to have
sludge disposal mechanism capabilities and take full respon-
sibility for the sludge problem.
Mr. Guidry outlined the contract elements. He agreed with
Mayor Moore that fine protection is very important. The
last time the Board looked at contract operations, fine
protection was something no one was willing to do. Of the
five staff talked to, several absolutely do this as a part
of their operation. There was discussion, and Mr. Guidry
expounded. Mayor Moore thought that was a plus.
Mr. Guidry called attention to what the client controls and
said the City would not be giving up any of the elected body
role. Commissioner Weiner asked how often the Contractor
would have to come to the Board if the Contractor wanted to
raise the rates. Mr. Guidry referred to the amendments to
the tax laws. This will be discussed at the Board meeting.
Mr. Guidry showed how Contractors could save money for the
City and elaborated.
City Attorney Rea returned to the dais at 5:50 P. M.
Mayor Moore noted there would be no workers' compensation
or Union problems. Mr. Martin has had a lot of questions
from employees about what will happen to them. Specific
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
conversations in that area with three Contractors showed
they lease an employee. For example, if someone had
completed eight years, the person would be leased for the
two additional years, so the employee could vest in the
program. Their program vests in five years.
Mr. Guidry reminded the Commission that the City has a major
expansion coming up that will require additional injections
of human resources. If all personnel at the Board level
could not be absorbed into the Contract Operator's scheme,
it is possible they could be transferred into either of the
cities.
Mr. Guidry continued by stating the benefits to the clients
and the employees. He also mentioned the contract elements.
One thing that Mr. Guidry said nurtures a problem is they
meet quarterly, approve the minutes, and take at face value
what the next item on the agenda might be without monthly
operating reports given to the elected body. If monthly
reports were given to the Board, they could make corrective
decisions much quicker. Mr. Guidry then outlined the
complex areas.
When they go out for RFPs and the presentations come back,
Vice Mayor Olenik asked if the organizations will be treated
as engineering firms. Mr. Guidry felt the Board should be
able to correlate a minimum/maximum number of their percent-
ages relative to operation in the development of their
services.
Mayor Moore asked how long it would take to get
and back for consideration. Mr. Guidry thought
achieved by February 1st.
the bids out
it could be
Mayor Moore recognized the presence in the audience of
Bill McGowan, Investigative Reporter for the Palm Beach
Post.
After explaining, Commissioner Weiner wondered if they could
have a committee of the two cities look into plants which
have gone from municipal control to private contractors.
Vice Mayor Olenik thought they could have the firms come
back with examples in their RFPs. Mr. Guidry expounded
about what the staff had done. He was commended for giving
an excellent report.
3. APPROVE POSITION RELATIVE TO THE GRANT APPLICATION TO
D.C.A. (DEPARTMENT OF COMMUNITY AFFAIRS)
Tim Cannon, Senior Planner, stated that the application was
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
sent to the D.C.A., but the contract has not come back.
Mayor Moore explained that the State Legislature passed a
law to help the City pay its costs of implementing its
Comprehensive Plan. Mr. Cannon added that the State Legis-
lature allotted $39,000. Mr. Hunt informed Mayor Moore the
City's costs were over $100,000.
1. SECOND READING AND PUBLIC HEARING OF PROPOSED ORDINANCE
NO. 89-39 - TRADEWINDS (Continued)
City Attorney Rea read the proposed agreement.
While waiting for Attorney Perry, Commissioner Weiner asked
Robert Critton, Attorney at Law, of Slawson, Burman&
Critton, North Palm Beach, if there would be an additional
charge of $1,500 to the City because she was unable to keep
the appointment last night and a new appointment was made
this morning. Attorney Critton did not anticipate it would
be that amount. Mayor Moore reiterated his previous state-
ment that there would be a charge because Attorney Critton
had to come back because Attorney Weiner could not wait 20
minutes. Commissioner Weiner inquired whether that was
correct. Attorney Critton replied that at Commissioner
Weiner's request, he made a special trip to Boynton Beach.
Commissioner Weiner thought she should have been informed of
that before Attorney Critton made the appointment, and she
stated she would be interested in seeing the charge.
(See below for Continuation.)
SHORT LIST FOR POSITION OF CITY MANAGER
Based on adverse information from the newspapers, the
Contractors' Association, and gleaned from Mr. Little and
Mr. Higginbottom, Mayor Moore asked if these two names could
be deleted from the short list without incurring liability.
City Attorney Rea did not think there was any possibility of
liability. This was agreeable with the Commission. Mayor
Moore told City Attorney Rea the applicants should be here
November 10, 1989.
THE BOARD TOOK A BREAK AT 6:20 P. M. and went into an
Executive Session. The meeting resumed at 6:45 P. M.
1. SECOND READING AND PUBLIC HEARING OF PROPOSED ORDINANCE
NO. 89-39 - TRADEWINDS (Continued)
Martin Perry, Attorney for Tradewinds, Suite 1000, 1665 Palm
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
Beach Lakes Boulevard, West Palm Beach, FL 33401, submitted
to the Commission copies of a letter written by him,
addressed to Robert Critton, Esq., Slawson, Burman&
Critton, dated October 31v 1989. Mayor Moore questioned
whether it was the same letter City Attorney Rea had just
read into the record. City Attorney Rea noted there were
changes, and he read the letter in its entirety. (See
"Addendum A" attached to the original copy of these minutes
in the Office of the City Clerk.)
City Attorney Rea noted a typographical error in the first
sentence of the third paragraph on page 2 of the letter.
Ordinance No. 89-8 should be changed to Ordinance No. 89-39.
Mayor Moore asked if City Attorney Rea and Attorney Critton
could recommend this was the way the City should proceed.
He inquired if they recommended acceptance of the stipulation
letter. Attorney Critton did and thought it was in the best
interests of all the parties.
Vice Mayor Olenik drew attention to Enhancements 1 and 2 and
determined they had agreed on a value range between 2.4 and
3.4 Million Dollars, but they did not agree to anything on
Enhancements 3 and 4. Therefore, he guessed the City would
go to an Arbitrator. If this was signed tonight, the City
would not be agreeing to a value.
Attorney Critton pointed out a time frame was involved.
They have until the 7th of November, but they may agree at a
later date as to what the values are. Attorney Perry
referred Vice Mayor Otenik to the last paragraph on page 2.
The contemplation was they will try to develop, at the very
least, a range of numbers. If they are unable to do that,
they can go to arbitration.
Vice Mayor Olenik noted the Arbitrators were asking for
shopping center developers if they went to arbitration on
94, which dealt with the Planned Unit Development (PUD).
He inquired what a shopping center developer would know
about a PUD. Attorney Perry thought Vice Mayor Olenik's
point was well taken. He did not think they would have
that much difficulty reaching a balance of numbers in that
area, but he felt Vice Mayor Olenik was right about shopping
center developers.
Attorney Perry asked if Mr. Burman would agree to AIA
Appraisers on that value or if he wanted to go to residen-
tial developers. Mr. Burman answered that he would want to
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BOYNTON BEACH, FLORIDA
OCTOBER 31, 1989
go to residential developers. Attorney Perry thought they
should interlineate at the top of page 3 that they would
utilize either shopping center or residential developers as
the particular case merited.
Mayor Moore asked City Attorney Rea if there would be any
objection to incorporating the letter from Attorney Perry
into the legal Ordinance the Commission was adopting, after
it was signed by counsel. City Attorney Rea saw no problem
with that.
Attorney Critton referred to one aspect, in the event of a
third party threat. Attorney Perry thought they could
insert language that would spell that out after the word
"threaten". He thought they could insert "threaten the
implementation". The intent was something more than a bold
statement of intent. Attorney Critton commented it would
take more than someone just filing a motion. It would
almost take an Order. Attorney Critton and Attorney Perry
both agreed they understood each other. Attorney Perry felt
the two of them could develop acceptable language to identify
that.
Mayor Moore asked if there was any indication from the
Interveners. Commissioner Weiner wondered if they had been
informed of all of this. Attorney Perry answered that the
Interveners were certainly informed as to the hearing.
Mayor Moore stated the Interveners received notices of
hearings and had an opportunity to find out about the
contents of the letter if they wanted to. At this point,
there had been no overt actions on their part to thwart the
actions.
City Attorney Rea thought the agreement would probably
stand on its own. Be hated to incorporate this, when it
deals with future changes to the Comprehensive Plan, to a
Zoning Ordinance. Attorney Perry thought City Attorney Rea
was correct. He thought the letter was intended to go
forward as an agreement, and he did not know how they could
incorporate it into the Ordinance. Attorney Perry preferred
to see a written document and thought the Commission should
authorize Attorney Critton to sign the letter.
Motion
Mayor Moore asked for a motion authorizing Attorney Critton
to sign the letter agreement, subject to the comments made
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
tonight, prior to the enactment of the Ordinance.
Commissioner Wische so moved, seconded by Vice Mayor Olenik.
Vice Mayor Olenik hoped the agreement would be set up in a
mode to mitigate any damages from the enhancement standpoint.
He wanted the public to know the enhancements are there to
provide additional value for the developers so if the City
loses a damages suit, it can offset some of the costs.
Mayor Moore asked the record to reflect that was the purpose
of this.
A vote was taken on the motion, and the motion carried 4-0.
Mayor Moore asked whether anyone had any input on Ordinance
89-39.
Shirley Jaskiewicz, 1917 S. W. 13th Avenue, asked if the
City was being mandated by the Court to make these con-
cessions. Mayor Moore answered that the City was not being
mandated. The City was making the concessions in an attempt
to mitigate any damages that might ensue because of the
City's delay in complying with the 1986 Court Order.
Ms. Jaskiewicz thought tonight was to be the settlement.
She noted this was just part of the settlement, and
Tradewinds is still pursuing a case against the City. Vice
Mayor Olenik clarified that he had asked whether Tradewinds
would be willing to not pursue the damages suit if the City
agreed to the enhancements. The City's Attorney advised
that Tradewinds was going forward on the suit. If the City
decided not to go with the enhancements, Tradewinds would go
forward with the suit regardless. If the City granted the
enhancements and would lose the suit, the City will not pay
whatever dollars are arrived at. The damages suit is a trial
by jury. The jury will decide if damages should be awarded
to Tradewinds. Vice Mayor Olenik further explained.
With regard to the rezoning Ordinance, Vice Mayor Olenik
said everything, with the exception of Section 4, had been
mandated by the Court. Section 4 was the additional 121,000
square feet of commercial building area. City Attorney Rea
confirmed Vice Mayor Olenik's statement that any site plans
would have to come before the Commission.
Mayor Moore asked Ms. Jaskiewicz if she understood the
Court held the City in contempt, and the City had to pay
a punitive fine of approximately $290,000 into the Court
because of its failure to comply with the 1986 Court Order.
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MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
Mrs. Joseph Molina, 811 S. W. 6th Avenue, referred to
surveyors from Home Depot being on the property. Don Jaeger,
Building Official, advised they are going through site plan
approval.
THE PUBLIC HEARING WAS CLOSED.
Motion
Commissioner Wische moved to adopt Ordinance 89-39 on second
and final reading. Mayor Moore passed the gavel and
seconded the motion. A roll call vote on the motion was
taken by Betty Boroni, City Clerk, as follows:
Mayor Moore
Vice Mayor Olenik
Commissioner Weiner
Commissioner Wische
Aye
Aye
Aye
Aye
Motion carried 4-0.
Cancellation of Emergency Meeting Scheduled for
Thursday, November 1, 1989 at 8:30 A. M.
Commissioner Weiner stated, for the record, that she will
be out of town due to medical testing. She had no knowledge
of an emergency meeting being called and could not change
her appointment, which will not be in the city. City
Attorney Rea stated the meeting could wait until Tuesday,
November 7, 1989, if the Commission desired. Mayor Moore
cancelled the meeting.
ADJOURNMENT
The meeting properly adjourned at 7:10 P. M.
14
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA OCTOBER 31, 1989
Mayor
ATTEST:
(Two Tapes) //
Commissioner
Commissioner
,,
15
October 31, 1989
Robert Critton, Esq.
Slawson, Burmah & Critton
Suite 300~
712 U.S. Highway #1
North Palm Beach, FL 33408
RE:
Tradewinds Development Corp. vs. City of
Stipulation Regarding Enhancements
Your File No. 89-116
Boynton Beach
Dear Bob:
Let me start by addressing the "fihe issue" in the 1986 case.
We are in agreement, that both p~rties will ask the Court to deem
the fine to be compensatory as opposed to punitive. Further,
the Court will determine the timing and the d±eposition of thee
fine. Also, the fine shall be used ss a setoff in the 1987 suit,
i~ the event of an adverse judgement.
With respect to enhancements, both parties desire to proceed
with certain zonin~ enhancements relating to the PUD and PCD,
which are commonly known as the Tradewtnds pro~ect. It im
agreed that these enhancements benefit both parties in the sense
that any value which is subsequently m~signed to these
enhancements shall be used by the City ms m setoff to any
adverse verdict which may be eatered ~gsinst the City of Boynton
Besch in the case styIed: Tradewinds Development Corporation
va. The City of Boynton Beach, Case Number 87-1638 AI.
The enhancements have been identified am follows:
1. The additional 121,000 square feet of commercial retail in
the Tradewinds PCD.
Increased acreage in the PCD by adding to the PCD asreage
of approximately 5. 1 +/- acres which fs currently located
within the southeastern boundary of the PUD.
Changing the area on the PCD presently designed as Office
Commercial to Local Rethil. This area is approximately
five acres in size and lies westerly of the proposed
alignment of S.W. 8th Street.
Robert D. Critton~
October 31~ 1989
Page 2
Changing the PUD to allows. ~for up t~ 600 multi~fsmily
units. This eliminates t~e single family units. The 600
unit approval is based upon demonmtreticn that there will
be no significant increase in traffic for the PUD.
The parties will agree to enter into a stipulation which
provides for the setcf£s as set forth above. Further,
Tradewinds represents that the enhancements set forth in
Paragraphs 1 and 2 above go hand in hand and do not have
separate values apart £rom each other. In this regard,
Tradewinds acknowledges that the value of enhancements #1 and #2
combined may range from a Iow of $2~420~000.00 to a high of
$3,400,000.00. A determination as to a methodology that will be
used to determine a value to be assigned for purposes of setoff
is set forth hereafter.
Enhancement #1 ehall be adopted at the meeting scheduled for
October 31, 1989 which is the second reading of Ordinance No.
89-8. Enhancement #2 shall be handled through the change to the
Comprebeneive Plan redesignating the referenced acreage from PUD
to PCD, making this acreage eligible for rezoning upon
submission of applications by Tradewinde.
With regard to the enhancements referenced as #3 and #4~,
Tradewinds acl~nowledges that these may have substantial value,
but the parties have been unable to agree as to a specific value
t~ assign or a range cf values to assign~ as has been done with
regard to enhancements #1 and #2.
Enhancement #3 shall be approved through the November 7, 1989
adoption of the Comprehensive Plan.
Enhancement #4 shall be approved as a result of the
Comprehensive Plan adoption, and based upon a demonstration that
there will be no significant increase in traffic for the PUD.
The ultimate value arranged to be assigned to this enhancement
will be based upon req~eats made by Tradewinds in the number of
units ultimately approved.
The parties agree that
issue as an admission
pending damage action.
neither party will use the enhancement
of liability against the other in the
Absent agreement on a specific number for setoff as to each
enhancement, the parties agree that the values shall be
determined by arbitration. The arbitrators shall consist of
either three (3) shopping center developers having substantial
experience in the acquisition, and development of sites for
shopping centers in Palm Beach County, Florida or a combination
of such shopping center developers and an MAI appraiser selected
Rsber-t D. Critton,
October 31, 1989
Page 3
Esq.
by the shopping center developers. A list of acceptable
shopping center 'developers shall be developed between the
parties. Each party shall select one developer as his
arbitrator. The two developers.~hall select a neutral developer
or a neutral MAI appraiser ~nd the three arbitrators will hear
evidence regRrding the valise of the enhancements. A decision by
two of the three arbitr~tcrs shall he b~nding upon the parties.
The fee of the three arbitrators shall be split equally among
the part/es. It is further agreed thnt ~n arms-length sale~
transaction as to amy one or all of the enhancements shall be
considered competent substantial evidence cf the value of the
enhancement.
Final implementation of enhancements #3 and #4 will be es a
result of a subsequent rezoning application.
Ns setoffs for any enhancements will be provided until such time
as the enhancements are actually approved by the City Commission
of the City of Boynten Be~ch and are ~ble ~o be implemented by
Tr adewinds through development permits. In the event third
party ~it~gation threatens the enhancement~, then Tradewinds
reserves the right ts drop any ~nd all enhancements and have the
approvals contemplated by the 1986 Stipulation and Settlement
Agreement reinstated forthwith, in which event there shall be no
setoffs against damages as contemplated herein.
In the event that this proposal meets with the approval of a
majority of the City Commission, then we shall require their
further authorization ~nd instruction to you to sign this letter
in the manner indicated st the close of this letter, confirming
the proposal set forth herein.
APPROVED AND
pursuant to
Commission
cf
AGREED TO this day of , 1989
authorization granted by the Boynton Beach City
at a public hearing held on __ day
,1989.
SLAWSON, BURMAN & CRITTON
Robert D. Critton, Jr. Esq.
Attorneys for the City of
Boynt~n Beach, Florida