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Minutes 02-08-07 MINUTES OF THE CEMETERY BOARD MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON THURSDAY, FEBRUARY 8, 2007 AT 6:00 P.M. Present: Michael Enkoff, Chair Janet Prainito, Secretary Harry Dale Hatch Susan Morrison Karilyn Norem Hohner James Cherof, City Attorney Billl Mummert, Finance Director Tom Balfe, Parks Manager I. Call to Order Chair Enkoff called the meeting to order at 6:00 p.m. II. Attendance Secretary Prainito called the roll and determined a quorum was present. III. Agenda Approval Secretary Prainito and Chair Enkoff agreed New Business Items A and B, and Unfinished Business Item D, be moved up on the agenda to be discussed with the attending City Attorney and Finance Director. Motion Secretary Prainito moved to approve the agenda as amended. Ms. Hohner seconded the motion that unanimously passed. IV. Approval of Minutes - January 11, 2007 Mr. Hatch moved to adopt the minutes from January 11, 2007. Ms. Hohner seconded the motion that unanimously passed. V. Receipt of Revenue/Expense Sheets - December 2006 Mr. Hatch moved to accept the Receipt of Revenue/Expense Sheets. Ms. Hohner seconded the motion that unanimously passed. VI. Receipt of Sales Reports - January 2007 Secretary Prainito indicated the quarterly payment received from the Mausoleum was included on this report. 1 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Motion Mr. Hatch moved to accept the Receipt of Sales Reports. Secretary Prainito seconded the motion that unanimously passed. VII. Unfinished Business D. Benches at the Mausolem (taken out of order) Chair Enkoff questioned if the City is responsible for the upkeep of the Mausoleum and is also responsible for the people visiting there, can the City place benches at the Mausoleum or do they have to be off the Mausoleum property? Attorney Cherof indicated he had reviewed the contract executed in 1978 between the City of Boynton Beach and Boynton Beach Mausoleum, Inc. He noted that although it had served until now, it was one of the worst contracts he had reviewed and contained almost no detail. According to the contract which expires in a year or so, the Company constructs each Mausoleum and then turns it over to the City. During construction, the City has the duty to provide landscaping, furniture, fixtures and lights; so that implies benches could be placed. Once the Mausoleum is turned over to the City, it sits on property owned by the City, not the Mausoleum Company. Attorney Cherof's opinion is that the City has control over that issue and the Board has the power to make rules, regulations or recommendations regarding the placement of benches or seating of any type. The contract indicates that the Company has some rights and responsibilities with respect to construction; that the Company has to indemnify the City and hold it harmless. However, that is not a restriction on the City's right to place other objects out there. Chair Enkoff also inquired about the possibility of the City maintaining a relationship with a granite company and selling benches through the City to families requesting them. He explained that the City had been approached by a home and garden company that expressed interest in providing benches. From a profit standpoint, can the City buy granite benches at wholesale and publicly sell them to families that have people entombed there? Attorney Cherof suggested he would approach it differently. He suggested the benches be licensed with a fixed term as opposed to being sold. A license is a long, or fixed term, legal right to use something or have it under your control. Since the maintenance and placement of the bench still belongs to the City, a license fee might offset other associated costs. 2 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Attorney Cherof also suggested that the number and location of benches should be designated and fixed (time certain) to avoid overpopulation of benches. It is possible that a family wanting a bench with the family name on it today might not be around in 25 years. Therefore, the use of benches could be recycled to other families. Also, the style and criteria for benches would be determined by the Board for consistency throughout the grounds. Chair Enkoff voiced that would be acceptable. He suggested moving the bench item to March and making a final decision at that meeting. Attorney Cherof interjected that in a year or two, when the agreement with Mr. Osborne expires, the Cemetery would be under the City's exclusive control. Since there are still provisions in the Code that make reference to the Company and Mr. Osborne, the Board might want to think about cleaning things up by making amendments to the Code so, over the next year or two, those references to the Company would disappear. Then the references to control rules and approvals would only make reference to the City through the Board. He offered to take the entire code section and make suggestions as a starting point, updating archaic language and adding definitions, such as the distinction between a cemetery and a mausoleum. The draft would have to be fine tuned and recommended to the Commission for adoption. Chair Enkoff then advised that Attorney Cherof would be invited back soon to discuss preparation for the exodus anticipated with the opening of the new VA cemetery. He is anticipating mass disinterments and disentombments, and although a disinterment no longer requires a permit through the Department of DPR, the law suggests a funeral director be present. He suggested the Board might need to review and adjust the fees for disinterment and disentombment to recoup some of the funds associated with the increased activity. It was also emphasized that during disinterment and disentombment, dangerous and bio- hazardous things can happen very quickly. The City needs to be in control. Ms. Hohner suggested disinterments and disentombments would be set at specific times of the day to avoid interference with burials. Chair Enkoff agreed there would need to be specific times with guidelines to avoid conflicts with City staff regarding burials and mourning periods when family members would be present. This reorganization would benefit the City. Attorney Cherof confirmed he would be available, especially in light of the increased liability. After checking on rules and regulations adhered to by other Cemeteries in anticipation of these conditions, he will report back to the Board. Chair Enkoff indicated there were a couple of large, conglomerate cemeteries, like Lake Worth Memory Gardens owned by Service Corp International, and 3 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Queen of Peace, that spend millions of dollars on legal fees to be sure everything is done correctly. He suggested we secure a priority list of how they deal with these issues. Attorney Cherof concurred. VIII. New Business A. The establishment of an escrow account for the future engraving of crypt and niche fronts at the Boynton Beach Mausoleum (taken out of order) Chair Enkoff explained that current fees for opening and closing the Mausoleum and graves are very low compared to those of other cemeteries and need to be reviewed. He recommended increasing interment, entombment and engraving fees when the City takes over in a year or so. Other cemeteries are charging $1,000 to $1,200 for interment/entombment with $200 to $230 inscription fees. He offered the possibility that the City set a fee that is changeable every 24 months or so. Attorney Cherof opined it would be more effective to provide a rule that the engraving fee be paid prior to interment, as opposed to collecting it at the point of sale, holding it and then applying it at the appropriate time. The buyer would be aware of the rule that the payment would be made at the time of interment. This eliminates the need for an escrow account. He indicated he would draft a proposed rule for delaying but requiring the payment at the time of interment. Chair Enkoff stressed the City wanted to do something fair for the public that would be acceptable to the Commission. All members agreed. Ms. Hohner inquired about crypts that have already been sold without that rule of collecting money in place. These crypts will need to be inscribed. Attorney Cherof explained the rule could be written in a manner to capture those that came before without any rule applied to them. The City can be prospective in nature so, if it takes place at the time of interment, that is when the fee kicks in and the requirement for engraving as well. Ms. Hohner voiced concern about a purchaser who was assured there would be no additional charges. At the time of their death, we could not ask for more money. Attorney Cherof replied that each agreement would have to be reviewed to identify the agreements signed with Mr. Osborne stating people would not owe any more money. There was a brief discussion on the probable difficulty of securing those agreements from Mr. Osborne. 4 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Mr. Balfe conveyed that Mr. Osborne believes since the City has agreed to provide permanent inscriptions moving forward, it is the City's responsibility to provide bronze lettering when old lettering needs to be repaired or replaced. He no longer provides lettering, even with the date of death. The City is currently repairing and recycling the letters taken off other crypt fronts, which takes time and costs money. When sand blasting is resumed, it is unclear which entity will be responsible to pay for the engraving on the crypts that are presently unsold. Mr. Balfe inquired if the City could recoup the cost from Mr. Osborne. Attorney Cherof responded that if the issue is one of perpetual care, one option is to use funds on hand to pay that cost. Members agreed it was an issue of perpetual care. Mr. Balfe continued that his concern was that Mr. Osborne had collected money, and is still collecting the inscription fee for what the City will be providing; but has not turned the funds over to the City. The total amount owed had not been determined. Although State and Federal Laws require that the contracts be itemized, they are not. Mr. Osborne has never provided an itemized bill, nor has he told the City how much he charges for letters, although he shared what he pays for the letters. It has been estimated that bronze letters for a basic crypt front cost over $200. There must be multiple sources for letters and the City could acquire them from another source, but that was not the issue. Attorney Cherof indicated if that was happening, it was not legal. The City was entitled to those funds. He will research bringing those issues to the forefront to determine whether it was appropriate to demand the funds we are entitled to and/or compel an audit prior to the contract termination. The City must do whatever is necessary to put everything in order before it all becomes City responsibility. Moving forward in anticipation of this contract coming to an end, Attorney Cherof noted it was time to start making written requests to begin the process of turning over records. Chair Enkoff quickly endorsed the idea and asked for assistance with the draft prior to termination of the contract. Attorney Cherof agreed to move on it quickly. Chair Enkoff expressed another major concern that people would be upset because the inscriptions are not being done in a timely manner. After brief discussion, Attorney Cherof confirmed since the inscriptions are considered part of perpetual care, it would be an appropriate use of the cemetery funds on hand, rather than charging the consumers. Attorney Cherof reiterated that treating the inscriptions as a perpetual care issue avoids the need to collect from people. The goal would be to review the records and identify and collect funds from Mr. Osborne, placing the funds in the Perpetual Care Fund to recapture costs. He wanted to know if the Board was 5 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 comfortable with a policy decision to treat the transition from plaques to engraving as perpetual care, with costs coming out of the perpetual care fund. Chair Enkoff indicated he would like to know the dollar amount prior to making a decision, and Mr. Balfe indicated the cost to finish existing crypt fronts with full inscriptions was estimated for a previous bid at $96,000 dollars. Chair Enkoff was adamant that since the money had already been collected by Mr. Osborne, it should not come out of cemetery funds. Secretary Prainito interjected that the Board had already agreed to take the money out of cemetery funds for all existing fronts. Chair Enkoff indicated that at the time the Board did not realize so many people were involved in the concept of "existing" and board members had not been properly notified. He agreed, however, that if we were able to recover the funds Mr. Osborne had collected and apply them to the costs, he would be on board with the concept of the money coming out of the Perpetual Care Fund. Attorney Cherof suggested the appropriate plan would be to first review the records, asking for full and complete disclosure. He reminded the Board there is no difference between this and any other legal matter in which the City becomes responsible for some large tract of land or operation. We want the transition to be seamless so the consumers that benefit from the product on the ground do not even realize there has been a transition. If they do notice a change, it should be an improvement. Mr. Balfe agreed this would be an easier way to handle the issue. Escrow becomes more complicated. Although we may receive $200 at time of sale, the same $200 twenty years from now (even with interest) may not cover the elevated cost. Collecting prior to interment will allow us to collect the necessary fees to cover costs. All members agreed that during this transition, all the crypt fronts should be properly marked and procedure should be maintained to ensure the families are appropriately taken care of. The families should not be involved or inconvenienced by this dispute between the Cemetery and Mausoleum owners. It is the City's responsibility to mark the crypts in a timely manner. Currently, labels will be placed rather than the costly grinding and repainting necessary to reuse letters. Mr. Balfe asked the members if they felt Mr. Osborne fulfilled his commitment by providing the bronze letters before we started doing the permanent inscriptions. Further, he questioned if the objective was to recoup funds from the inception of the sandblasting of crypt fronts. 6 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Attorney Cherof will put a plan together with Mr. Mummert and draft the documents to secure the information necessary to move forward. Sincere appreciation was expressed for Attorney Cherof's attendance and assistance. B. Discuss potential liability of correct placement of human remains in the Mausoleum for entombments (taken out of order) Chair Enkoff spoke with Mr. Balfe about this after a local funeral director questioned the correct placement of one full-body plus two cremains in an adult grave or Mausoleum. Where does the liability fall if it is deemed a person is not placed in the Mausoleum properly? Attorney Cherof indicated he would have to research the subject. It appears the owner of the facility and the City have some level of responsibility, although there is significantly more liability associated with the remains of the deceased prior to burial. He will research whether the liability is shared by the City and the funeral director, or anybody else, and will determine where the line can be drawn between them. He will identify if there is a way to limit the City's liability, if possible. A written legal opinion will be provided. VII. Unfinished Business E. Consider amendment to Cemetery Rules . Regulations to allow for the in-ground burial of one full-body and two cremated remains in a plot at Boynton Beach Memorial Park (Tabled) (taken out of order) In response to Attorney Cherof's questions regarding this issue, Secretary Prainito indicated Assistant City Attorney David Tolces had already provided recommended language, which includes the definition of an immediate family member. She overviewed the request from Scobee-Combs-Bowden Funeral Home regarding the burial of one full-body and two cremated remains in a plot at Boynton Beach Memorial Park. Up until now, one full-body and one cremains had been allowed. The Board had previously discussed the item and decided that, if allowed, the second cremains should be an immediate family member. Attorney Cherof asked if the language was an attempt to capture the concept of significant other that is not recognized as family member. Ms. Hohner elaborated the language was crafted to prohibit three total strangers from chipping in to save money by sharing a grave. Chair Enkoff added that there is also space limitation to be considered. 7 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 Attorney Cherof suggested that in the case of an adult grave that can physically accommodate cremains, there should be no discretion. Exercising discretion is often incorrect and can sometimes be viewed as discriminatory, or give rise to an accusation of being discriminatory. He suggested the language in #17 would begin, ",..in an adult grave when, in the judgement of the Parks Superintendent space permits, the following will be permitted...". Then, if it is the intent to allow one non-family member to be placed, the rule is okay. Chair Enkoff indicated he wanted to put this issue behind them. He suggested rapidly getting the language together and placing it before the Commission. Secretary Prainito suggested they change the two rules and regulations at one time, facilitating notification to Mr. Osborne of both in one letter. Attorney Cherof agreed to have the language ready for the next meeting. VII. Unfinished Business A. Parks Division Report - January 2007 Mr. Balfe reviewed the report as written. Motion Secretary Prainito moved to accept the Parks Division Report for January 2007. Ms. Hohner seconded the motion that was unanimously approved. B. Review & Discussion of Fencing Options for Boynton Beach Memorial Park (Tabled) Motion Secretary Prainito moved to remove it from the table. Ms. Hohner seconded the motion that was unanimously approved. Mr. Balfe met with one vendor today and is meeting with another tomorrow. He is meeting with each of them to insure comparable quotes, enabling the Board to move forward with at least the walls. He and Ms. Rivers met with the architect who will provide designs for the archways, hopefully to be distributed before the next meeting. The companies bidding on the wall will also be asked to bid on the archway. Chair Enkoff inquired if the Board could be ready to make a decision by March. He recommended tabling the issue for one more month while diligently collecting the necessary data to address the issue in March. Then he commended Mr. Balfe 8 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 for his work, saying that even with the disrepair, the cemetery was one of the nicest parks around. C. Discuss the possible designation of one vendor to engrave all new crypt and niche fronts (Tabled) (taken out of order- discussion follows) D. Discuss benches at the Mausoleum (Tabled) (previously discussed out of order) E. Consider amendment to Cemetery Rules & Regulations to allow for the in-ground burial of one full-body and two cremated remains in a plot at Boynton Beach Memorial Park (Tabled) (previously discussed out of order) IX. New Business A. Discuss the establishment of an escrow account for future engraving of crypt and niche fronts at the Boynton Beach Mausoleum. (previously discussed out of order) B. Discuss potential liability of correct placement of human remains in the Mausoleum for entombments (previously discussed out of order) C. Discuss electricity to island at Boynton Beach Memorial Park Mr. Balfe mentioned to the City electrician the need for electricity in the island. He indicated the long distance from the building to the island might require a separate electrical drop from a nearby street light. FPL would do the work and charge for the additional drop. Then the City electrician would pull the line to the island. The electrical panel would not be near the island. Mr. Balfe will get a quote from FPL. Chair Enkoff reiterated he would like to see a fountain in the park because they are so peaceful. Secretary Prainito will table this issue for a vote next month. There was a brief discussion and agreement with all members that New Business items being tabled would be labeled as Future Agenda items. 9 Meeting Minutes Cemetery Board Boynton Beach, FL February 8, 2007 VII. Unfinished Business C. Discuss the possible designation of one vendor to engrave all new crypt and niche fronts (Tabled) (taken out of order) Mr. Balfe met with Finance and put together the samples. He is reviewing and evaluating the previous contract, which will go to Finance. He is hopeful an information package will be ready to be distributed to the Board before the next meeting. Mr. Hatch and Secretary Prainito indicated that once Mr. Blafe was satisfied with the information, the Board would review and approve, then send it back to Purchasing for bids to be released. Mr. Balfe is asking for a one-year term with three consecutive renewals. Chair Enkoff agreed. Mr. Hatch suggested this item be placed with other tabled agenda items to be addressed at next month's meeting. Secretary Prainito agreed. IX. Other None X. Adjournment Chair Enkoff commended everyone for accomplishing so much in such a short period of time. There being no further business before the board, the meeting properly adjourned at 7:15 p.m. Respectfully submitted, '(UTj 10