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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 2 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 4 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 8 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 9 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 10 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 11 MINUTES - SPECIAL CITY COMMISSION MEETING 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 12 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. 13 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