Loading...
Minutes 01-23-90MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA JANUARY 23, 1990 Motion Vice Mayor Olenik moved to keep Miller, Meier, Kenyon, Cooper as the Architects of record for. the construction phase of Fire Station ~3. Commissioner Weiner seconded the motion. Mayor Moore emphatically stated they should get rid of Miller, Meier, Kenyon, Cooper. The cost of $43,000 will be cheap compared to what the City will end up with, and there will be change orders. Mayor Moore stated it better be in the contract that the City is not responsible for any change orders, field orders, or anything else. The job should be done for what was bid. A vote was taken on the motion, and the motion carried 4-1. Mayor Moore voted against the motion. 3. Settlement Agreement between Tradewinds and the City of Boynton Beach Martin Perry, Attorney for Tradewinds, and others had not arrived. Therefore~ item 4 on the agenda was brought up next. (See page 5 of these minutes for continuation of this item.) 4. Selection of Bond Counsel for the Proposed Bond Issue Projects for the City of Boynton Beach City Manager Miller apprised Vice Mayor Olenik that the City is at the point now of having bond issues in Tradewinds and the water and sewer projects. The City can get involved in legal questions that the Financial Advisors and the City Attorney, as well as the Finance Director, are not in a po- sition to be responsible for. Vice Mayor Olenik questioned whether the City had an agreement with a Bond Counsel. City Manager Miller found nothing saying the City has Bond Counsel on record or that the City has to go out through Requests for Proposals (RFPs). Mayor Moore recalled the City has had a Financial Advisor, who has taken upon himself to impose Bond Counsel upon the City with the City Commission having any say on who pays what. He thought that should be looked at. Grady Swann, Finance Director, informed the Commission that Howard Wt~itaker is a lawyer with the firm of Greenberg~ Traurig, Miami, and was recommended to the Commission by James Vance, former City Attorney. 4 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JAi~UARY 23, 1990 Commissioner Wische suggested they have a workshop meeting so they can hear from people interested in being the City's Bond Counsel. Mayor Moore hoped they were going out for bids for value engineering and project management. At that pointl he recommended if the City needs an underwriter, the underwriter, who will sell the bonds, will do the job for 1.5% and pay all expenses connected with the project, including retaining Bond Counsel. Mayor Moore thought the Commission was being premature, because they were waiting for bids to come in on the project management and value engineering. Vice Mayor~ Olenik noted they had questions relative to how they can sell bonds for the Tradewinds settlement. City Manager Miller answered that Tradewinds is not as important an issue as the water and sewer are. He believed Tradewinds was fairly straightforward. City Manager Miller was trying to get. some direction from the Commission. He stated this could be put off until they get the RFPs. Discussion ensued. Mayor Moore informed Vice Mayor Olenik the value engineering and project management are two different things. Vice Mayor Olenik was not convinced they would tell the City which way to go. Mayor Moore told him project management will retain bond counsel independently for the flat fee and tell the City when they should go forth. City Manager Miller agreed that what Mayor Moore brought up (that the underwriters do everything at 1.5%) was the way to go. After discussion, Mayor Moore informed Vice Mayor Olenik one bid was received that said they have bond counsel in-house that will give the City the financing aspects along with the engineering aspects. The bids, as he read them, request that information. 3. Settlement Agreement between Tradewinds and the City of Boynton Beach Some time last week, City Attorney Rea said the Commission received a proposal submitted by Tradewinds and three docu- ments (a Stipulation and Settlement Agreement, a Stipulation of Settlement and Agreement for Entrance of Final Judgment, and a Partial Final Judgment Pursuant to Stipulation. In yesterday's mail, they received a counter-proposal City Attorney Rea put together. He said some of the issues the City would be concerned about were not necessarily in accordance with the proposals submitted by Tradewinds. City Attorney Rea said they jointly worked out the three documents provided to the Commission this evening. He called MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 attention to the document entitled "Partial Final Judgment Pursuant to Stipulation" and said the bulk of the document was contained on page 2. In the original document provided by Tradewinds, it indicated Tradewinds would recover from the defendants, the City of Boynton Beach, Nick Cassandra, Carl Zimmerman, and Raffaele Marchese, the sum of $8,000,000 that shall bear the legal interest rate from the effective date of the stipulation upon which the judgment is entered. Execution shall issue 120 days from the date of judgment. That indicated that from the day the City entered into the Stipulation, the judgment would start to accrue on the $8,000,000, but the $8,000,000 would not be due and payable for four months. Further, it indicated that judgment would be against the City plus the three individual defendants. The counter-proposal provided by City Attorney Rea would delete entering judgment on the three individual defendants and would also not have interest accruing until four months from the date of the stipulation and judgment being entered. After their day of negotiation, City Attorney Rea said the City and Tradewinds still could not agree on removing the three individual defendants and tried to come up with some verbiage that would strike some middle ground. City Attorney Rea suggested the Commission agree on all three documents at one time but said certain issues would have to be addressed by the Commission on an individual basis. For example, in.this document, there was the propriety of keeping the individual defendants in for having a judgment entered against them for $8,000,000. It would be jointly and severally and would be on the books until all of the obligations of the agreement are complied with. City Attorney Rea could not agree with that and thought it was of no legal effect as far as the City's insurance coverage was concerned. Tradewinds thought the three individuals should remain in. Commissioner Wische believed his motion was that the three individuals should be part of the enhancement, that there would be a walk away figure of $8,000,000, and that the three people mentioned would not be legally bound or receive any legal papers or anything pertaining to monetary remuneration. He did not understand why, when the motion was accepted, it was being rejected now, so he wanted to hear from Tradewinds' representative. F. Martin Perry, Attorney for Tradewinds, 1665 Palm Beach Lakes Boulevard, Suite 1000, West Palm Beach, FL 33401, 6 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 told Commissioner Wische that was not the case. He clari- fied that the release of the three individuals was dependent upon the City's performance by the payment of the $8,000,000 under the agreement. Attorney Perry brought out the fact that the project has a few more years to go in terms of implementation. The agreement provides for full and complete releases to each of the three, provided the City (a) pays the money; (b) that the City performs under the agreement; and (c) that the three individuals cease and desist from their activities so this will be put to bed. Attorney Perry stated that if the agreement is entered into and performed, not only by the City but by the three individuals, the three individuals will be free to go. As to liability for $8,000,000, once the City pays the money~ Attorney Perry said the three individuals will be free financially, but the aspect of any activities is another issue altogether. If the three individuals would sign a form to cease and desist, Commissioner Wische asked if they could be released. City Attorney Rea suggested there was a provision in the next document that is basically a cease and desist Order. The practical effect of entering judgment against the three defendants is that until all of the conditions of the three documents are performed, which can be as long as five years down the road, the three individual defendants have an unsatisfied judgment of $8,000,000 recorded against them. Commissioner Wische did not understand why the three had to be included. City Attorney Rea advised there was no legal benefit to Tradewinds or the City to have judgment entered against the three individuals. Mayor Moore alluded to Mr. Zimmerman sitting on the Planning and Zoning (P&Z) Board, voting against issues approved by the City Commission. Once the City pays the money, Attorney Perry stated nothing of record will interfere with the three individuals. Assuming they do not wish to sign the agreement, Attorney Perry told Commissioner Wische the individuals will remain in the lawsuit from a standpoint of the $8,000,000 aspect and the damages. If they do not want to sign the~ agreement, City Attorney Rea said Tradewinds would not drop the law- suit. Under the City's indemnification provisions and its Ordinance, the City would pick up the tab to defend the three individually in the continuing lawsuit. Mayor Moore did not think the City had any responsibility to defend them. Under th~ City Ordinances, City Attorney Rea said the City has the responsibility to defend them. Discussion ensued about the individuals and the $8,000,000. 7 MINUTES - SPECIAL CITY COmmISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 Commissioner Wische asked the three individuals if they were willing to sign the document under those conditions. Nick Cassandra, speaking only for himself, stated the City has not defended them as individuals, as the record would show. He said they just received the documents tonight. Since the Commission, by a majority vote, removed the Attorney of record and put Raymond Rea as their Attorney of record, Mr. Cassandra wanted time to speak to the Attorney. Mr. Cassandra stated he had not agreed he was guilty of $8,000,000. The Commission agreed they felt the City was guilty of $8,000,000. Therefore, Mr. Cassandra could not sign the stipulation saying that he was guilty for $8,000,000. He never had the chance to defend himself by a proper Attorney. If their Attorney recommends he sign it and feels he (Cassandra) should have no concern about liabil- ity, Mr. Cassandra said he would sign it. Mr. Cassandra asked the Commission to return to him the Attorney of record they had removed, because of the continuity of knowledge the Attorney had, instead of finding another Attorney and starting from scratch. He was told that Attorney had a conflict problem because of the developer. If the Commission felt there would not be a conflict, he would call Burman and Critton tomorrow. If they advised him to sign the document, he would sign it. Mayor Moore responded that Attorneys Burman and Critton would not advise Mr. Cassandra to sign the document because they said to only settle for $6,500,000 as opposed to $8,000,000. He said Mr. Marchese and Mr. Zimmerman went to see Attorneys Burman and Critton on their own, so that will probably cost the City another $1,500. Attorney Perry interjected that what he was particularly interested in was a written commitment from the three individuals that they, individually, are not going to take any action in the future relative to the entire project. If they were prepared to commit to that, he would agree to remove their three names from the provision relative to the judgment. Attorney Perry wanted the protection of knowing the three individuals were tied in some way to a commitment that they, individually, are not going to take any action relative to the agreement or to the project from this day forward. Discussion ensued about the commitment. Attorney Rea said paragraph 8 on page 5 of the second docu- ment he provided the Commission with contained that non- interference. All they had to do was have the three individ- uals sign that document as well. Commissioner Weiner had MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 trouble with all of the documents because the Commission just received them, and she thought the matter should be tabled so they would have time to look at them and discuss them with the City Attorney. She elaborated, and there were further comments by Commissioner Wische and her. Commissioner Wische read paragraph 8 on page 5 of the "Stipulation of Settlement and Agreement for Entrance of Final Judgment" and told the three individuals that was what they were being asked to sign. Mr. Cassandra believed the three of them, in no way, would disagree or act in any way against what the Commission would agree on tonight or tomorrow. He added they would not sign until their names are scratched off entirely and until they are held harmless by the City. Attorney Rea explained the position he was in. He stated he was now counsel of record for the City, as well as counsel of record for the three defendants. He would not advise the three defendants to allow a judgment of $8,000,000 to be entered against them individually° Mayor Moore asked whether City Attorney Rea saw a conflict of interest, because he hoped City Attorney Rea was retained to protect the taxpayers of the City. Attorney Perry was looking for an affirmative statement that the three men were prepared to agree with the language Commissioner Wische read. He again read' the para- graph and emphasized that if the three individuals were pre- pared to agree to that, he would delete their names from the final judgment so they would not be in there with the finan- cial obligation to pay any part of that money at any time. Attorney Perry needed to have the assurance that he had the agreement of the three individuals to that provision. He noted Mr. Cassandra was the only one who spoke, and he was only looking to Mr. Zimmerman and Mr. Marchese at this point. Mr. Ralph Marchese informed Mayor Moore that the three indi- viduals have never opposed the construction or completion of Tradewinds. He stated that Mayor Moore does not speak with facts. Neither now nor in the future was it Mr. Marchese's intent to interfere with the development of that property because the City needs a tax base. Accusations were made by both Mayor Moore and Mr. Marchese. Mr. Marchese emphasized that he did not intend to interfere with the settlement. He noted Mayor Moore said he and Mr. Zimmerman went to an Attor- ney after the Commission fired the Attorney. Mr. Marchese adamantly called that a lie, and he advised that the date for the meeting with the Attorney was set before the Tuesday 9 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 night the Commission fired the Attorney. There was an argu- between Mayor Moore and Mr. Marchese as to who should pay the Attorney. Mr. Marchese further commented. He told Commissioner Wische he will sign the document if his name is released completely. Mr. Carl Zimmerman referred to Mayor Moore accusing him of sitting on the P&Z Board and voting against Tradewinds. He stated that he has not. If he did not excuse himself, he voted for Tradewinds. Mr. Zimmerman stressed that he had no intention of blocking this development. If it will do the City a lot of good, he will resign from the P&Z Board. Mr. Zimmerman wanted to see his Attorney before signing any documents. Mayor Moore asked which Attorney Mr. Zimmerman was referring to. He reminded Mr. Zimmerman that the City had furnished him City Attorney Rea, and he asked whether he would accept City A~torney Rea's counsel. Mr. Zimmerman wanted to hear from City Attorney Rea about signing the document. If the three names are removed from the final judgment, Attorney Rea replied he would recommend that the three individuals sign the required releases. He stated the three names would be added to the other document for their signatures. Mayor Moore explained they would not be included in the judgment, and the City would pay the $8,000,000. Discussion ensued about the three individuals signing. Whether the meeting should be continued was also discussed. Commissioner Weiner moved to continue the meeting until Wednesday, January 24, 1990 at 5:00 P. M. Vice Mayor Olenik seconded the motion. City Attorney Rea suggested that he could explain the substantive changes, and they could set a Special Commission Meeting for tomorrow evening. That way the Commission would have an opportunity to digest the documents. If they have any questions, they could go to his office and talk to him. After discussion about what procedure the Commission should follow, Commissioner Wische expressed that he wanted to stay and resolve this. Commissioner Weiner refused to remove her motion. Vice Mayor Olenik withdrew his second to the motion, and the motion died for lack of a second. Partial Final Judgment Pursuant to Stipulation City Attorney Rea explained the major issue in this was whether the three individuals should have a judgment entered t0 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 against them. He assured Commissioner Weiner that if the three individuals signed the documents they would never be held for anything pertaining to Tradewinds, except they would have to comply with non-interference. They will not have a judgment for $8,000,000-or possibly more that is technically unsatisfied. Commissioner Weiner asked, "Not even for 30 days? Not even for 30 minutes?" City Attorney Rea answered, "Not even for 30 days. Not even for 30 minutes." Vice Mayor Olenik asked why there was a Partial final judg- ment and a Final Judgment. Attorney Perry answered the problem was that when the Commission voted on settlement, the three individuals had not commented on anything. As an alternative method of approaching this against the possibil- ity that for some reason they might not agree, he did not want to hold up dealing with the City. Mayor Moore asked whether it was the consensus of the Commission to eliminate the three individuals from any personal liability whatsoever as long as they sign. Commissioner Weiner could not answer for the three indivi- duals. Mayor Moore told her at least four Commissioners were saying the three individuals were totally "off the hook". He guaranteed a week from now the three individuals would say the Commission was responsible for paying $8,000,000, which they opposed, and they have no liability. On that basis, he was opposed to it. Mayor Moore said the consensus of the Commission was 4-1. Vice Mayor Olenik felt they should go through the documents paragraph by paragraph° Stipulation of Settlement and Agreement for Entrance of Final Judgment There were no problems with paragraph 1 of this document. Referring to paragraph 2, City Attorney Rea stated that both parties agreed to appoint Stewart Title Company as Escrow Agent to hold the releases. Mayor Moore informed the Commission that Stewart Title Insurance Company is under investigation for fraud, etc. After discussion, it was agreed Barnett Bank should be the Escrow Agent. Paragraph 3 remained unchanged. Mayor Moore questioned whether they needed to break down the $8,000,000 into attor- neys' fees and compensatory damages. City Attorney Rea answered negatively and explained how the City is covered. Mayor Moore asked whether the City has a valid claim against 11 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTOH BEACH, FLORIDA JANUARY 23, 1990 the bonding company, insurance company, or indemnification company to get the $1,000,000 back. City Attorney Rea thought the Settlement was constructed specifically so the City should not have any problem. The City may, if the company fights the City. Mayor Moore explained that a bond- ing company indemnified the City against a loss in cases of this nature. The City would be taking a $7,000,000 "kick" rather than an $8,000,000 "kick" if it has the assurance the Settlement is structured in such a manner that the City has a strong case so it can get the $1,000,000 back. In paragraph 4, Stewart Title Insurance Company was changed to Barnett Bank. In the 4th line of paragraph 5, after "($8,000,000.00)", City Attorney Rea deleted "exclusive of all enhancements or other concessions by the City". The remainder of paragraph 5 dealt with payment of the $8,000,000. City Attorney Rea offered payment in 120 days with interest to accrue in four months. Attorney Perry said there had been discussion of $5,000,000 in cash and $3,000,000 in bonds. Assuming those would be the numbers, if the $5,000,000 is paid within 30 days from the effective date of this agreement, interest on that sum will be waived and abated by the plaintiff~ If the $5,000,000 is not paid within that time, the interest will accrue and will continue to be due and payable. If the $3,000,000 is paid on or before 90 days from the effective date, interest will be waived and abated. If not, the interest will accrue. Attorney Perry explained the intent of the interest was to provide an inducement and an incentive to the City to move on the payment as opposed to waiting for the 120th day. He told Vice Mayor Olenik the effective date would be the date on which the agreement is signed. Vice Mayor Olenik questioned the meaning of paragraph 6. Attorney Perry replied it meant if the City does not do anything for 120 days, there is nothing Tradewinds can do to force the City to do anything. At the end of 120 days, Tradewinds can go forward and get instructions for levy or take action to ~orce the City to come up with the money. Attorney Perry confirmed Mayor Moore's understanding that the interest would be 12%. If the City floats the bonds at 6½% in 30 days, Mayor Moore said the City will have no interest problem. He thought that should be in the Settlement. If the City floats the bonds and there is an approving Bond Attorney's national recognition approval, Mayor Moore asked if Attorney Perry would agree to take $3,000:000 in bonds and $5,000,000 in cash. Attorney Perry answered that they were prepared to 12 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 do that, based on certain conditions. They would need to have assurances the bonds would meet certain requirements. There was discussion about floating the bonds. City Manager Miller did not want to get involved in paying interest. Mayor Moore suggested perhaps they could borrow from the Utilities Department. He thought they could work it out. City Attorney Rea again referred to paragraph 5 and said the last sentence was added and accepted. Paragraph 6 remained unchanged. Vice Mayor Olenik asked if everywhere there is $8,000,000, it would be offset from compensatory fines. City Attorney Rea answered affirmatively. Mayor Moore asked if it would be stipulated that it should be compensatory rather than punitive. Attorney Perry replied that he and Attorney Critton had a discussion with the Judge, where they raised this issue. The Judge indicated if they were in agreement on the point, he saw no reason for the money to be punitive. Mayor Moore asked if Tradewinds would pledge its cooperation in trying to do that. Attorney Perry answered, "Right." He confirmed Mayor Moore's statement that it would not prove anything° It would go to the Judge in a proper fund for Tradewinds to fight the City on. Attorney Perry also confirmed Commissioner Wische's understanding that the $290,000 is part of the $8,000,000 and not in addition to the $8,000,000. City Attorney Rea added, "upon satisfactory completion of all conditions precedent by Tradewinds" after "implement any of these actions" in line 4 of paragraph 7. Paragraphs 8 and 9 remained unchanged. City Attorney Rea deleted the last sentence in paragraph t0 because he looked at this document as imposing all of the terms and conditions about the City~ and the City would find itself trying to enforce this agreement against Tradewinds. Mayor Moore wondered why the City objected to this sentence. He referred to the track record of the City in living up to actions taken by the City Commission in this case when they repudiated Court Orders and contracts. This was a standard form that the unsuccessful party should bear the cost of being wrong. Mayor Moore thought if the City was wrong, they should pay Tradewinds' fees and vice versa. Commissioner Wische disagreed with the second sentence in paragraph 11. Mayor Moore agreed with Commissioner Wische that the City will support Tradewinds against the inter- vener, but Tradewinds is to pay the costs. Commissioner Wische recalled that was what he proposed, and it was agreed upon. Attorney Perry and his staff read the verbatim minutes 13 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 word by word. That was not agreed upon. He made a point during that discussion that he did not want to get into that posture where there is a potential of that plaintiff or any other third party claiming they are maintaining. There is a provision relative to maintenance. Attorney Perry was not going to let the City present his defense, but he wanted the City to make an active effort to cooperate in that defense. Other comments were made by Commissioner Wische and Mayor Moore. Michael Morton, Tradewinds Development Corp., recalled Trade- winds would pay the costs to defend the suit against the Interveners. After further discussion, Attorney Perry added the following sentence to paragraph 11: "Tradewinds agrees to bear the costs of any required legal defense." Vice Mayor Olenik observed that paragraph 11 specifically talked about Joseph Molina. He asked about another Intervener, such as Woolbright Place or anyone else, that may enter in. City Attorney Rea read the second sentence in the paragraph. City Attorney Rea read.paragraph 12 and explained that should a third party suit knock out the value of the enhancements, the City's obligation is to defend jointly with Tradewinds. Mayor Moore asked whether it said, "at the expense of Trade- winds." City Attorney Rea answered affirmatively. City Attorney Rea removed the original paragraph 13 because he thought it was redundant. Tradewinds wants the paragraph back in for a tax consideration. The paragraph does not affect the City. It was decided this paragraph should be left in. Paragraphs 14, 15, 16, and 17 remained unchanged. Attorney Perry explained that paragraph 18 was proof of authority. City Attorney Rea read paragraph 19 and said everybody will be released after five years. If the City pays $8,000,000, Mayor Moore wondered why the City would not be "off the hook." City Attorney Rea replied because there are obliga- tions on both sides to continue through the zoning process. Mayor Moore wanted a clause that Tradewinds would cooperate with the City in any way necessary as long as it would not be injurious to the City. Attorney Perry questioned whether that would be for the City's insurance. Mayor Moore answered affirmatively. Attorney Perry explained why he thought Tradewinds should give the City a separate agreement as to that. Mayor Moore wanted an understanding, without putting it into an agreement, that Tradewinds will assist 14 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 the City in any way that, on Tradewinds' side, there is at least $1,000,000 in Attorneys' fees due out of the $8,000,000. Attorney Perry thought they had already sub- mitted evidence of that. City Attorney Rea stated the document will be entered into by the City and the three individual defendants. Mayor Moore asked whether the bond is a cost bond or indemnifica- tion for malfeasance, misfeasance or nonfeasance. He wondered what type of claim the City womld make against the bond company to get the $1,000,000. City Attorney Rea answered that the City is covered for any wrongful act. The bond company defines a wrongful act as those acts related to any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty, including misfeasance, malfeasance and nonfeasance by the City. That statement will be in the Stipulation. City Attorney Perry read the last sentence which started at the bottom of page 2, in paragraph 2, which began, "These claims specifically include, without limitation, those related to any actual or alleged error . ." He stated that was what Tradewinds had alleged against the City and was releasing the City from. Mayor Moore suggested very strongly that there be a finding in the Judgment that is entered that this City, by refusing to adhere to the direc- tions of the Court and being found in contempt, was wrong in doing that. That would constitute malfeasance. Attorney Perry stated they could easily incorporate that. Mayor Moore felt there should be a judicial finding to that effect. Attorney Perry reminded him it would be a stipulated judi- cial finding. After further discussion, City Attorney Rea said that could be in the Final Judgment. Stipulation and Settlement Commissioner Wische drew attention to paragraph 14 on page 6. Originally, Tradewinds asked for a-~gn no more than 50 feet in height. He observed it had been changed to no more than 45 feet in height and 400 square feet in area. City Attorney Rea said the Commission would notice all through the document, he had put "complete and proper appli- Cation''. A new paragraph I was added, which he read. Paragraph 2 remained unchanged. City Attorney Rea's changes with respect to outside road improvements were accepted. Old paragraph 4, now paragraph 5, was unchanged. Old para- graph 5 is now paragraph 6, and it remains unchanged. Old paragraph 6 was eliminated in its entirety. Paragraphs 7 15 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 and 8 remained unchanged. The end of paragraph 9 was changed to r~ad, "and to be constructed in accordance with City Code." In line 4 of paragraph 10, after the word "process", City Attorney Rea added, "provided that park dedications meet the requirements of the subdivision and platting regulations and that any public parks which are dedicated shall, in the judg- ment of the City, be of a configuration which is suitable for neighborhood recreation facilities." After "adjacent Lake Boynton Estates Subdivision," he had added, "or adjacent to said subdivision. City Attorney Rea continued to read the sentence beginning, "Further, if Poinciana Park is relo- cated and may be used for multi-family residential purposes." He had added, "In such event and if it is determined that a Comprehensive Plan Amendment is required to use the existing park property for multi-family residen- tial purposes, then the City shall amend its Comprehensive Plan in accordance with Ch. 163.3187 (i) (c), Florida Statutes, within 60 days or other minimum time which may be necessary to comply with the requirements of Florida Law." Attorney Rea and Attorney Perry did not believe that would apply. There were further comments. At the bottom of paragraph 11, City Attorney Rea added, "excepting when it is determined that the proposed structure will encroach upon required off-street parking areas, drives, aisles and required landscaping, including city maintained and operated underground utilities." Vice Mayor Olenik did not feel comfortable with this paragraph. He asked why they had to be specific and talk about Home Depot. City Attorney Rea answered it was because Home Depot will be added to. Attorney Perry explained that the language was taken from building codes. The Home Depot building has an exterior garden center, which is outside their building. It is a screened enclosure type of thing. Every Code Attorney Perry ever dealt with does not calculate the square footage of the garden center as part of the retail area. The City's Code is not very clear on that. Unless they clearly spell that out, Attorney Perry said they will run the risk of someone asking if this would constitute additional lease of all the square footage area. This would throw all of the numbers off. Attorney Perry told Vice Mayor Olenik the only calculations the retail area and garden center are utilized for are the parking spaces. He further explained why they should not be charged with that as being account- able gross leaseable space. 16 MINUTES - SPECIi~_L CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 Vice Mayor Olenik noted the buildings shall be one story in height. He questioned whether it would be one story buildings, 45 feet in height. Mr. Morton answered the approved plan is 24 feet. Attorney Perry assured Vice Mayor Olenik it would be under 30 feet. Discussion ensued. Vice Mayor Olenik wanted a number in the document. Attorney Perry responded they could have it first thing tomorrow morning because it is on file in the Building Department. There was further discussion. Vice Mayor Olenik referred to paragraph 9 and asked if the additional curb cut on S. W. 8th Street had been approved by the Commission. Attorney Perry believed it was on the plans that were submitted. He explained to Vice Mayor Olenik that the items in the agreement have been the subject of discussion and negotiation with the City's staff for over a few months. It was a housekeeping type of document. There was discussion as to whether they should continue tonight or come back tomorrow night. City Attorney Rea said paragraph 12 basically remained un- changed. Paragraph 13 was changed to read, "The City agrees to permit "rather than "allow". With reference to paragraph 14, City Attorney Rea stated they were variance requests. Discussion ensued about giving Tradewinds variances. Vice Mayor Olenik felt Tradewinds should get a variance. Commissioner Artis thought it should go through the proper channels and be addressed by ~he Board of Adjustment. Commissioner Wische did not think it was up to the Commission to handle variances, when a Board handles that° That was the consensus of the Commission. City Attorney Rea determined they were talking about deleting all of paragraph 14. Don Jaeger, Building Official, explained to Commissioner Wische why the monumental sign would require a variance. Paragraph 15 addressed changes City Attorney Rea made, and he explained. Tradewinds had accepted the addition City Attorney Rea made to paragraph 16. In reference to the traffic report dated January 10, 1990, City Attorney Rea said the City was provided today with a traffic report dated January 23, 1990. Theoretically, they should be substantively the same, but he wanted Walter Keller to agree that was the case. Attorney Perry informed Vice Mayor Olenik the "Developer": by definition, means Tradewinds, its successors or assigns. 17 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 City Attorney Rea drew attention to the last sentence in paragraph 17 and said he changed it to read, "Further, the CITY agrees it will be responsible for any off-site traffic improvements which it requires ." Tradewinds had worded it, thinking of the possibility the County may come in and impose other requirements. City Attorney Rea felt there should be no reason why the City should be responsible for some other governmental agency and what it plans on doing. The Commission agreed the verbiage should be as City Attorney Rea worded it. Attorney Perry objected, explaining the City is in a better position to deal with Palm Beach County on an issue of this nature than they are. They all agreed that 1986 controls. They have a traffic report saying everything is okay, and they think they are all right. This was intended to get the City to protect the agreement. Otherwise, Tradewinds will not have the enhancements and improvements the City is try- ing to give them. The Commission listened to Mr. Keller say if they had to put the additional six lanes on Wootbright, it would be $i,000,000. Attorney Perry was say- ing they have a traffic report that was done properly, and it says that will not be necessary. However, he stated he will need a governmental body such as Boynton Beach to put in a word for them. Discussion ensued. Attorney Perry continued by saying five years of additional traffic that was approved by the City is on the road, causing the problem, that they had nothing to do with. Commissioner Wische questioned why the County should object to the traffic report, and he wondered why this clause should be in the Stipulation. Attorney Perry replied they are looking at the County coming forward with its County wide traffic performance standards. They had discussions with the County Attorney on this issue and think they will not have a problem, but he wanted some protection. If the County changes it, Commissioner Wische remarked that the City will pay for it. Attorney Perry replied the City could find someone else who is coming on line to take care of it. Mayor Moore did not think the City would go past giving Tradewinds all of the support it could, short of pay- ing for it. That was the consensus of the Commission. City Attorney Rea explained paragraph 18. Vice Mayor Olenik brought up the issue of the gopher tortoises. Attorney Perry apprised him the State of Florida is involved. Trade- wlinds' Biologist is working on almost a daily basis with the State, and they are relocating per State requirements and approval. There were further comments. 18 MINUTES - SPECIAL CITY CO~MISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 Paragraph 19 was unchanged. Tradewinds accepted City Attorney Rea's addition to paragraph 20. Paragraph 21 remained unchanged. Paragraph 22 brought them back to the issue of third party intervention. He added, ". .both parties hereto do here- by agree to jointly and vigorously defend, at Tradewinds expense, " It was noted this had been settled earlier. City Attorney Rea read paragraph 23. Attorney Perry wished to revisit paragraph 14, as he was not sure what the Commission did. It was his impression that the Commission opted to delete the whole paragraph, and he wanted the Commission to reconsider that by deleting para- graph "a" and leaving paragraph "b" in. He explained they have 600 residential units located north of Woolbright. Discussion ensued. Mr. Jaeger advised that Tradewinds' Engineer advertised a commercial development, which is not in accordance with the City's Sign Code, so they would need a variance for that, as well as an agreement from the Engineering Department to have the sign. Mayor Moore said Tradewinds is entitled to what everyone else is under the current Code. If a variance is required, it will be heard by the Board of Adjustment rather than by the City Commission. Commissioner Weiner recalled City Attorney Rea said there were three substantive elements in the Agreement. One was the three former Mayors and one was the traffic. She asked what the third one was. City Attorney Rea answered, "The Attorneys' fees and what might be non-City imposed traffic improvements." Except for these issues and City Attorney Rea's stylistic changes, Commissioner Weiner commented this was essentially the agreement Tradewinds suggested for the City. Further comments were made. Mayor Moore thought they had agreed on everything except the sign and the traffic standards. Mr. Cassandra totally agreed with paragraph 8, but a curve was thrown at the end which he could not concur on. He recalled they wanted a paragraph stating the City was at fault, and Mr. Cassandra stated he could not sign that. Attorney Rea advised Mr. Cassandra would not be signing that. Attorney Perry noted Mr. Cassandra was speaking of the Final Judgment, and the Judge would sign that. There was dis- agreement between Mayor Moore and Mr. Cassandra. City Attorney Rea interjected that a Final Judgment will be passed, pursuant to Stipulation. That will be entered by the Court with the proper verbiage. Mr. Cassandra's only concern was malfeasance and misfeasance. If the three 19 MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA J/~NUARY 23, 1990 individuals do not sign it, Mayor Moore emphasized there will not be a settlement, and he warned they would be left "waving in the wind". Discussion again ensued as to whether they should decide this issue tonight. Mayor Moore recommended that City Attorney Rea get with everyone. There was further discussion about continuing the meeting. City Attorney Rea advised Vice Mayor Olenik the City Charter is silent on the issue of calling meetings. Betty Boroni, City Clerk, advised there had only been a policy. At 8:25 P. M., Vice Mayor Olenik moved, seconded by Commissioner Artis, to CONTINUE the meeting until tomorrow evening (January 24, 1990) at 5:00 P. M. ~ Mayor ~ ~ Vic~ yor \ v Comf~i~sioner (Three Tapes) ~/ 20 MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA TUESDAY, JANUARY 23, 1990 AT 6:00 P.M. PRESENT Gene Moore, Mayor Robert Olenik, Jr., Vice Mayor Lillian Artis, Commissioner Arline Weiner, Commissioner Lee Wische, Commissioner J. Scott Miller, City Manager Betty Boroni, City Clerk Raymond A. Rea, City Attorney Mayor Moore called the meeting to order at 6:00 P. M. 1. Emergency Medical Services Agreement between the City of Boynton Beach and the Towns of Ocean Ridge, Briny Breezes and Gulf Stream City Manager Miller met with officials of the three Towns. At this time, all three are engaged in negotiations with Bethesda Ambulance Company relative to that company provid- ing them with services to their communities. Bethesda is not in a position to engage in service after January 28th. Therefore, City Manager Miller placed on the table a propos- al that the City of Boynton Beach will provide services at a cost of $250 per call for a period starting January 28, 1990 to the Towns of Gulf Stream and Briny Breezes. That period will not exceed March 1, 1990. Up until that point, Bethesda Ambulance Company will provide the service. As for the Town of Ocean Ridge, City Manager Miller said the City had an agreement to provide them with service for sixty days from the date of December 19, 1989. That would take them until February 19, 1990. The City will provide EMS services to Ocean Ridge at a cost of $250 a day not to go past March 1, 1990. City Manager Miller emphasized that after March 1, 1990, Boynton Beach will not render EMS service to any City but Boynton Beach. Commissioner Wische moved to accept the recommendations of City Manager Miller, seconded by Commissioner Artis. Motion carried 5-0. (SEE MINUTES OF CONTINUATION OF THIS MEETING HELD WEDNESDAY, JANUARY 24, 1990 FOR THE CONTINUATION OF THIS ITEM.) Architectural agreement between Gee & Jenson and the City of Boynton Beach for construction management services for the construction phase of Fire Station $3 City Manager Miller negotiated with Gee & Jenson, Engineers- Architects-Planners, Inc., West Palm Beach. They initially 1 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1990 thought they could come in and handle the construction phase of this project at a cost that would be competitive with the $23,000 cost of Miller, Meier, Kenyon, Cooper, Architects & Engineers Inc., West Palm Beach. After consulting with their insurance carrier and a further examination of the professional regulations, Gee & Jenson found they would not be able to handle the total assumption relative to design decisions at the figure given by Miller, Meier, as they wo~ld have to do additional work relative to design plans almost from the very beginning. Mr. Miller explained that Gee & Jenson could not touch the figure of $23,000. They would have to go all the way through from the beginning of the plans, take Miller, Meier's name off, put their own name on the plans, and certify them. There is a cost affiliated with that. Therefore, City Manager Miller recommended that the City Commission put Miller, Meier on as Architects for Fire Station ~3 with the proviso that his office should have authorization to contact Gee & Jenson if the City runs into a problem out in the field and needs consultation. Mayor Moore wanted nothing to do with Miller, Meier, Kenyon, Cooper, as he felt they were incompetent. He alluded to the City Hall project. Commissioner Wische concurred with Mayor Moore. He had no confidence whatsoever in Miller, Meier. City Manager Miller stated they were talking about $23,000 for Miller, Meier versus $43,000 for Gee & Jenson. This is a new building, and new buildings usually go up a lot easier. Hopefully, architectural problems will be non- existent. City Manager Miller's recommendation would allow him to utilize Gee & Jenson if he needed to as an overseer. In looking at the plans, he did not think they had anything that difficult. City Manager Miller added there is a different contractor, and he has a good background. Discussion ensued about field orders and Miller, Meier. Vice Mayor Olenik asked whether the City could get a performance bond from the Architect. City Manager Miller never heard of them. Vice Mayor Olenik was not happy with Miller, Meier, but he had a hard time doubling the cost to have Gee & Jenson. City Manager Miller informed Commissioner Wische that if Gee & Jenson would be called in, their fee would be based on an hourly basis. They would use the existing agreement the Commission ratified at the last meeting (Gee & Jenson as the 2 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JA~NUARY 23, 1990 City's Consulting Engineers). The Consulting Engineers could be expanded to include the Architect, land Survey, etc. City Manager Miller mentioned problems they could run into out in the field. Mayor Moore saw that Miller, Meier missed a two hour fire wall and there was a field order. He blamed Bill DeBeck, Project Manager for doing this, because Mr. DeBeck was specifically told, "No more field orders unless it is approved by the Commission." Mayor Moore asked if the City would have to pay for that. ~City Manager Cheney answered that the City would not have to pay for the architectural services. Mayor Moore reiterated his prior statements, and he adamantly said the City should get rid of Miller, Meier because they have already cost the City $1,000,000. Commissioner Artis asked if there was a figure on the hourly rate of Gee & Jenson. City Manager Miller did not have the figure. Don Jaeger, Building Official, confirmed Vice Mayor Olenik's understanding that the construction plans met Code. Discussion ensued about the contract with the Contractor. Mayor Moore had refused to sign it because it was an AIA contract, which protected the Contractor and the Architect, but not the City. City Manager Miller agreed with Mayor Moore's statements about the contract. There was further discussion about the contract, Miller, Meier, and Gee & Jenson. City Manager Miller did not think they would find an Architect who would take it. He read an excerpt from the Department of Professional Regulations which said a suc- cessor Architect seeking to reuse already sealed contract documents under the successor registered Architect's seal must be able to document and produce on request evidence that he has in fact recreated all the work done by the original registered Architect. Further, the successor registered Architect must take all professional and legal responsibility for the documents which he sealed and signed and can in no way exempt himself from such full responsi- bility. Further comments were made about what a successor Architect would have to do. City Manager Miller clarified that $43,000 would be the maximum cost of Gee & Jenson. The cost could be lower than that. City Attorney Rea entered the meeting at 6:15 P. M. Further discussion ensued about Gee & Jenson, Miller, Meier~ the recommendation of the City Manager, the plans, and change orders. *Should be City Manager Miller. See 2/6/90 Minutes. 3