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Minutes 01-24-90MIb~TES OF THE SPECIAL CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA WEDNESDAY, JANUARY 24, 1990 AT 5:00 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 A Special City Commission meeting was held on Tuesday, January 23, 1990 at 6:00 P.M. The meeting took place on that date and was also scheduled to continue on Wednesday, January 24, 1990. These are the Minutes of the second half of the meeting, held on January 24, 1990. Commissioner Arline Weiner requested a verbatim record of the segment of the meeting addressing the Tradewinds Settle- ment Agreement. Relative to the following discussion on retainage of archi- tectural construction management services for the construc- tion phase of Fire Station ~3, please see the Minutes from the January 23, 1990 portion of the meeting for previous discussion on this topic. Mayor: Voice: Mayor: Miller: Mayor: Miller: Call the Special Meeting to order. Mr. Miller, have we received some additional information? We backed around on Miller, Meier, architectural .... Can't hear you Gene. We're not on? We're on? I've asked for somebody to come down and make sure that they're on, so in the interim I think you're going to have to speak a little louder. Okay. Item 2 talks about architectural services. You've indicated that Gee & Jenson was going to charge us 40 plus thousand to come into it and I think we received some additional information from another group. Could you bring us up to date on that. Yes. The cost that Miller, Meier was going to charge for the construction phase of the 1 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: (Con't) Olenik: Mayor: Miller: Olenik: Mayor: Miller: Olenik: Fire Station 93 was $23,160, in or around that number. Gee & Jenson was called in and asked for a proposal from them to con- duct similar work. Their cost on the (inaudible words) came in about $43,000 at the maximum. Today I received interest from The Wascon Group out of West Palm Beach. They're construction consultants and they have reviewed over the plans including specifications of the architec- tural agreement and their fee for this ser- vice expressed in their letter dated today, January 24th, in the amount of $23,000. That would not include normal out-of-pocket expenses and of course really none of the architects, most of the architects put in for that anyway. So, this would be before you for consideration relative to going with Miller & Meier on the architectural services for Fire Station ~3. It says there's a brochure that they gave to you. Are they, do they seem like a reputable firm? Let me say I have personally been acquainted with Mr. Wasser who's the lead guy° He's an architect. They have a trouble-shooting outfit that goes in and takes troubled projects and works them out. They have a construction company, architec- tural, the whole eight yards. And this is what they do. Their specialty is construction managers. And they are basic trouble-shooters and this is common down the line, the work that they would do. I've seen some of it and I know of some of it. It sounds like what we want and it's in the price range you wanted. I don't have any problem with it. Do you have any feeling on it? You've met with the guy and talked with him? Yes° I've met with the individual and he's very enthusiastic about doing it. He could be on the job tomorrow. We don't have any, do we have any liability problems with not, you know, we're offering this to one guy and not... 2 MINUTES - SPECIAL CITY COMMISSION MEETING BO~NTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Mayor: Miller: Mayor: Wische: Miller: That is something that the attorney would have to go over. The problem that I have right now is that we issued the notice to proceed on January 8th. To the contractor. To the contractor. He's out there and every day he needs an architect or somebody to keep the work moving. I don't want to be placed in the position where he's going to come back later and say hey, because the City vacillated back and forth at the beginning of the contract, now I'm going to ask for additional time. If you don't give it to me I'm going to (inaudible words) so forth and so on. I don't want to be put in that position. That's why I want to try to get this thing taken care of as soon as possible. There isn't a lot of faith in Miller Meier. I can't find anybody that's going to make the sun rise in front of me based on their performance. I'm not too pleased with some of the bills I've been having before me, across my desk relative to their extended service on this building and some of the other buildings. I could not go to Gee & Jenson because of the amount of money. I can't justify $20,000 more. However, this is down the line to $23,000 and in discussing with this indivi- dual, he can be on, he can be on-site tomorrow relative to carrying this project forth without any further delay in time. My personat feeling is that I have utterly no confidence in the guys that did this building. They've overrun, we don't know how much yet. I don't know, it's going to be a long time before we know, if the building is ever completed or when it's completed. Have you contacted Miller Meier that you were taking them back on the job? I had a meeting with Miller & Meier on, today's Wednesday... yesterday afternoon. And at that time I said that I would have to recommend that Miller Meier remain on the job based on the costs that I had received from Gee & Jenson. And that's been my... MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: Miller: Wische: Miller: Wische: Rea: Wische: Mayor: Wische: Miller: Mayor: Would we be in any legal problem because of an oral agreement? I have made no oral agreement with Miller & Meier. I indicated .... What I'm trying to (inaudible) are we bound in any way? The only thing that you're bound by is relative to the Architectural Agreement between the City of Boynton Beach and Miller Meier. They're contending, Jordon Miller is contending the fact that the City has no legal right or legitimate right to exclude them from performance in their ser- vices, architectural services for this construction phase of the Fire Station. I'm contending the fact that the City retains that right at any time to relieve them of any section. What does our attorney say? I agree with Mr. Miller that we retain the right to release them at any particular phase. So in essence, if we want to take this com- pany and you notify them tomorrow, you both feel confident. That's it. We've already taken that, we've already taken that action once and then we rescinded it. We rescinded it and then we were going to take Miller & Meier back. I also want to point out to the Commission too that down the line~ it is my belief that we'll probably be in Court relative to the fees in Miller & Meier. Because some of the fees that they're charging the City right now are so exorbitant, it's unbe- lievable. Just the down down-sizing of the Fire Station on Congress from 1.8 million to 1.56 million, they are charging the City $30,000 for that. That's .oo They're billing... MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Mayor: Miller: Mayor: Wische: Mayor: Miller: Wische: Mayor: Wische: Mayor: Olenik: Wische: Mayor: Wische: Mayor: Olenik: Mayor: Voices: Mayor: They're billing us. Okay. Well they're trying to charge us. I have problems, what I'm saying is, you know, totally they're asking a lot more than what I believe the contract allows them to be entitled tom So we'll probably down the line be in litigation with them over that. However, the proof is going to have to be them through the Courts that they're deserving of that. By contract, I don't believe they are. We're already in litigation, we're already in litigation with that counter-claim situation. Right? Right, all right... (inaudible words)? I don't see any problems with it. I don't see any problems with (inaudible word). Okay, is there a motion then to... I'll make the motion. (inaudible words) ... to retain Wascon... What's the motion? To retain Wascon Group to oversee the Fire Station %3 project that is... Replacing Miller & Meier. Replacing Miller & Meier. Is there a second? Second. All in favor say Aye. Aye. Unanimous. Thank you. Ail right. Is there anything else or do we want to get back 5 MINUTES - SPECIAL CITY COMMISSION MEETING BOYIgTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) Miller: into a continuation of the Tradewinds sub- ject? No, just a note that after we're done with the Tradewinds settlement Mayor, I'd like to spend a little time on water. Mayor: Water? Miller: Yes. Mayor: Okay. Miller: Afterwards. Mayor: Okay. Miller: I think the to review. that. Mayor: Rea: Wische: Rea: Wische: Rea: Wische: Rea: financing vehicle, I just want I'll give you an update on Okay. Ail right, Mr. Rea? ...ah, a few more seconds to pass these out. I'd like to ask a question of the attorney before we even start on it, relative to this. Once you're seated. Okay, last night we went through draft ~3 so to speak, and we made some changes. We're now pre- sented with draft ~4. Am I to believe that all the changes we made in the agreements last night are now incorporated into this final draft? Every one has been addressed and I think addressed satisfactorily. We've added just a few more issues. Let me just, if you don't mind, I'll just point out where those changes are. Fine. We've also changed the format from a short paper vehicle to a legal format. Ah, let me address first the document that's entitled Stipulation and Settlement. Okay. The Stipulation and Settlement document, we had a number of issues, we did a, just a 6 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: (Con't) Wische-. Rea: Wische: Rea: few stylistic changes that really are of no significance. But, on page 6 of the new document... What number? It's actually the continuation of paragraph 11, addressing the height issue for the Home Depot. We indicated that the building shall be one story in height with the roof not to exceed 35 feet in height. Okay, that's (inaudible) Yeah, we addressed that issue there. On page 7, paragraph 16, related to a poten- tial additional road requirements. We con- sidered the provision actually half way in the paragraph, that the City acknowledges, represents and agrees that all development contemplated by this Stipulation and any prior Agreements or Stipulations whether confirmed by Court Order or not, has been viewed and approved by the City for compliance with all existing Codes, Ordinances and regulations of the City of Boynton Beach and that same are vested as of November, '86. Further, the parties agree that they will jointly and vigorously defend any action brought by any party challenging the vested status of these approvals provided, however, that Tradewinds agrees to bear the cost of any such defenses. That was one of the signi- ficant issues. On page i0 of that docu- ment, paragraph 21, again, there was the cost issue, in the middle of paragraph 21. Both parties hereto, do hereby agree to jointly and vigorously defend against any such appeal or challenge the expense of which shall be borne by Tradewinds. We elected to incorporate this letter that you all received yesterday, you saw the October 31 letter from Bob Critton, or addressed to Bob Critton from Marry Perry. We addressed that issue by inserting a new paragraph 23: A Letter Agreement dated October 31, 1989 between the City and Tradewinds is attached hereto as Exhibit "A" and made a part hereof for purposes of comprehensive con- tinuity. And finally, 24, it's an issue that will have to be addressed and basi- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: (Con't Weiner: Rea: Weiner: Rea: Weiner: Rea: Weiner: Rea: Guidry: Rea: cally it's a new issue. The Tradewinds people found out that we are near capacity in our water treatment system and they want our paragraph 24 put in saying: The City agrees to reserve 650 equivalent residen- tial connections of utility capacity for the use of the P.U.D. and P.C.D. That's the only substantive change. Why the 650? I thought it was 600 dwelling units. Well actually 650 equivalent residential connections is a quantity of water based on the residential units and the square footage of commercial property. It's a catchall phrase for identifiable quantity. It's not giving them 50 more residential units? No. It actually is reserving water based upon square footage of commercial space and a number of residential units that we already agreed to. John might want to address that issue. Have you gone over this? We've just gotten it again. Have you gone over this line by line? We've gone over it line by line. Believe me. And not only once but twice and three times. This draft? This draft. Exactly. I came back with my copy and we were just waiting on additional copies to be provided. Every substantive issue that the Commission requests is being addressed here. All the other issues remain unchanged except for again, item 24. What's the question? I'll be glad to answer it. Would you explain to the Commissioners exactly what an equivalent residential con- nection is and why there is this concern for reservation of that capacity. 8 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Guidry: Rea: Guidry: Rea: Guidry: Rea: Wantman: Guidry: Wische: Guidry: Miller: Weiner: Guidry: Weiner: Guidry: Weiner: The regulatory agencies track us by what is called an equivalent residential connection which allows a base calculation on 350 gallons per ERC. The State of Florida has a great computer where all of our operating reports are logged in monthly and they pretty much know exactly where we are and where we stand. With respect to the 650, I was just talking to Joel Wantman. The 650 ERCs assumed for this project do include the Home Depot. Is that correct Mr. Rea? Right. We ran a calculation in our office this afternoon with Joel present and the addi- tional ERCs that we're seeing as far as the square footage in the multi-family units comes up to 536 units. The Home Depot unit is already permitted. So it would be an additional 5? So it would be instead of 650, tional that we need to commit (Inaudible words). the addi- to is 536. 536? It's close. (Inaudible words). Home Depot. The total was... Plus or minus 550. In answer to Commissioner Weiner's question, there are no longer additional residences included. That was her question and concern. I didn't hear the question. No residential. No additional... Residential. No additional residential units. My understanding... So our settlement is for 600 residential units, not 650 residential .... 9 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Guidry: Oh, I thought it was 650. That was the number I had. Rea: No, no, no. 650. She's talking about actual buildings. 600 residential units. You're talking about.. Guidry: Rea: Guidry: Weiner: ~uidry: Weiner: Guidry: Rea: Guidry: Rea: Wische: Guidry: Rea: Guidry: Rea: ~uidry: Rea: 650 ERCs. Exactly. And I think that, tell her how... We break it, we break it down in gallons. I understand. That's what we're controlling. Thank you. Do you need anything else? Do we have that type of capacity right now, John? I beg your pardon? Do we have, what did you say were the number of units, ERCs? 650. A total of 650, I guess, is what we're looking at. 650 for the entire project. That's including Home Depot which has been permitted. Okay, so then we're actually ... 536. Do we have that capacity now? Ah, we're going to discuss that later. We feel as the Utility Department that we can ethically and legally commit to that, but there is a discussion that the City I~nager will go through tonight. Okay. So that's the only substantive change that this Commission didn't see yesterday. I have no problem with that from a legal point of view because if we 10 MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA JANUARY 24, 1990 Rea: (Con't) Wische: Guidry: Wische: Guidry: Wische: Rea: have to ultimately deny development rights to anyone for lack of water, we shouldn't deny development rights to these people for lack of water and should commit the system and the system capacity to them. I think that's really a reasonable request on their part, to be quite frank. Well after we get a detailed report on the water situation we can decide what we will do for the future but I would have to agree the 650 should be, if we have it, set aside. They've been at this for four years so it's not that it's a new development. It did start in 1986. Yeah. Ail right. It's 1990. Okay. Ail right. So when we get into that report we'll find out what we're going to do about the others. Okay, so okay, then the others, are there any other questions on this particular document that I just addressed? None. Okay, if not, the next document is entitled Stipulation of Settlement and Agreement for Entrance of Final Judgment. The changes made here, this is one change I made of my own direction, was page 4, the last sen- tence of the continuation of paragraph 5. It starts about 3, 6, 7 lines up from the bottom of the paragraph: Payment to Woolbright Place Joint Venture pursuant to this paragraph shall be compensation speci- fically for... I put that in primarily for insurance purposes, just to specify more, specify exactly why we're making the payment of $8,000,000. This was primarily for insurance considerations. The other issue that the Commission wanted to address yesterday appears on page 5, the last sen- tence of paragraph 11, stating that Tradewinds agrees to bear the cost of any required legal defense associated therewith. That's dealing with any possible third party or intervenor (inaudible word) action. And the only other change then of this document as com- 11 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: (Con't) Mayor: Weiner: Cassandra: Weiner: Cassandra: Weiner: Rea: Wische: Rea: pared to the one you saw last night is the signature lines for the three individual defendants. They would be entering into this agreement and they would be required to comply with paragraph 8 that starts on page 4, which remains unchanged. So tech- nically this document with those revisions is the identical document that you saw last night. If there are any questions on this, I would like to answer them for you now. Does any member of the Council or Commission have any additional questions of the attorney regarding the content of this proposed agreement? I'd like to ask the three former Mayors if they have had a chance to look at this and do they have any questions or remarks? Commissioner Weiner, I have been delegated to speak for all three of us at the same time. We met with the attorney at approxi- mately, I would guess, 4:00 today on this particular issue. Yes, we did meet with him. And you are in agreement with this entirely? Ye s. ...concerning...Okay. And then finally is the Final Judgment Pursuant to Stipulation, the three page document and what we've done here is deleted the individual defendants and entered judgment against the City only. Other than that, this document remains unchanged. If I recall last night.., can you hear me? If I recall last night, part of this agreement was a separate agreement whereby the three individuals would sign something to the effect that they wouldn't impede or (inaudible word) or talk about Tradewinds while (inaudible word). Yes. That's exactly .... 12 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: Rea: Olenik: Rea: Olenik: Mayor: Olenik: Is it in there? And then there is this last document that I talked about. That is covered in page or paragraph 8, page 4. And that remains unchanged from what it was last night. That's why we're having them sign onto this agreement. We received a letter this afternoon from David Segal, our financial advisor, talking about judgment bonds and his concerns because they've never been used before in recent times in the State of Florida. He recommends that language be placed into one of these agreements stating that the City will be going to validate these bonds. I'm not sure I understand totally what they're talking about here. I see Mr. Segal (inaudible word). Segal is concerned that judgment bonds, at least from his understanding, have not been specifically used in the State of Florida and he suggests certainly that when we go through the bonding process, we go for a validation hearing and it could~ you know, it certainly could be challenged. There is no question about that. I think the provi- sions, the only problem I have with those provisions that he suggested putting in is that he doesn't come up with some other provisions just in case the validation hearing goes against us. We will have, we will have a problem, no question about it, in the validation hearing process, if we have some type of intervention and a suc- cessful challenge to the issuing of judgment bonds. We'll have to come up with money elsewhere or by some other mechanism. Does this body feel comfortable going ahead with judgment bonds in view of the fact that we may be the first municipality since the Florida Constitution has been rewritten that has tried this out? I defer to the Mayor here. He has more experience in this than I do. That's Mr. Segal's opinion, okay? Yes, Sir. 13 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Voice: Mayor: Rea: Mayor: Rea: Mayor: In one meeting with him about four months ago~ I was advised by the bond counsel that he was proposing there would be no problem, absolutely no problem whatsoever. I have no concern about it. But let's get it out on the table. What's going to be the bottom line here? Is the general con- sensus of the Commission that they want to go forth with this or is there any other reservations of any nature whatsoever? I have a couple of reservations. If you want me to go first, I will. Sure. I think that without including the three former Mayors in this judgment that we are blowing the possibility of recovering under the bond. I don't think any bonding com- pany in my experience has ever paid on a bond unless there was a judgment in Court against the coverage, whatever it might have been. And I think that Mr. Rea told me today that he has a potential conflict of interest because he is representing the City and also the three individual former Mayors and that he intends to protect the three former Mayors which, in my opinion, subjugates the interests of the citizens in this City. I didn't say that Mr. Mayor. Well, okay, well, the phrase conflict of interests came up. I didn't say that Mr. Mayor. Well, I'm telling you right now that if we do not include the three former Mayors in this judgment, then you can take the bond and put it where the sun don't shine, okay? That's the way it's coming down. I don't agree with your opinion that we will ever be able to collect on the million dollars, so it's not going to be an $8,000,000 settlement. It's going to be a $9,000,000 settlement. And I fail to see the reti- cence of the three former Mayors (inaudible word) included in the judgment, when we have indicated that we're going to get the money to take them out. There will never 14 MINUTES - SPECIAL CITY COMMISsIoN MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) Olenik: Mayor: Olenik: Rea: Mayor: Rea: Mayor: Rea: be any financial obligation on them. We defended them and we are going to pay the interest. There will never be any finan- cial obligation to them. And I do not see where your opinion is that there will be six years lingering problem. I don't accept that either. Two questions. Ye s. One, is the, this is the errors and omissions policy? Is that specifically for elected officials or does it also cover staff and the City in general? It also covers the "Entity", the City of Boynton Beach. It covers these three gentlemen. Nobody's arguing about that. They're covered and we're going to get it but I'm not saying we're going to get it, I mean, they're going to say we structured this settlement to collect under the bond. We will have to address that issue. But, if they are not included in the judgment, I can tell you right now that you probably won't even have any standing in Court to get in because there never was a judgment rendered against them. I have... You can forget it. It's going to cost us another million dollars based on Mr. Rea's advice. I have to respectfully decline to accept Mr. Moore's legal opinion on this. First of all, the fact that the judgment is entered against the insured, which is the City, is sufficient enough. Number two, we structured the settlement document, hope- fully sufficiently to trigger the coverage provisions of the insurance. Thirdly, if there is any problem, I can't anticipate any insurance company saying here's your million dollar check, take it, without a fight. The real issue from insurance coverage, especially the people that have 15 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: (Con't) Mayor: Rea: Mayor: Rea: Mayor: Rea: Mayor: Rea: Mayor: Rea: Mayor: been talked to today, is the structuring of the Settlement Agreement itself and for the most part, including the three individual defendants in the final judgment, having a judgment issued against them, is a legal irrelevancy. You know... Is the~re any question of conflict of interest between you representing them individually and representing the City? I have, this Commission... To whom do you have a higher duty, the City or these three individuals? I have a duty to all of them and I would like to remind our Mayor that it was pri- marily at our Mayor's suggestion that I was put in this position in the first place. Maybe we ought to remove you from that position and get some outside counsel to represent them. That's the, that's the Commission's prero- gative. But I would like to say that again; as far as the City's interests are concerned, we can't force the three Mayors to enter into and have a judgment put against them, number one. Number two, it would be even further against our interests to insist upon that because if they refuse, we will then be forced, under our own Ordinances, to cover expenses, legal expen- ses for their defense. No. No. No, you're wrong. And actually what I'm saying is... (inaudible words).., and if they prevail, we pay, okay? I hate to disagree with you, Mr. Mayor. (inaudible words) Ail right, but I mean, okay. A/e you again saying that you stake your professional reputation on the fact that the way you structured this we can collect from the bonding company and you will go to jail if you're wrong? 16 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: Mayor: Weiner. Rea: Mayor: Weiner: Mayor: Weiner: Mayor: Weiner: Mr. Mayor, let me suggest this. (inaudible) I would like to request a verbatim transcript of this meeting. Mr. Mayor, let me suggest and use one of your former quotes when you were formerly City Attorney of the City of Boynton Beach. The City Attorney is hired to give advice, not to take it. It is my opinion that this Settlement Agreement is structured as good as we can, under the facts we are dealing with. Number two, I'm of the opinion that there is no need to have the individual defendants have a judgment entered against them for $8,000,000. I would not advise the City to force that upon them, nor would I advise them as individuals to accept that. Speaking as the Mayor, I have totally no confidence in any opinion you might give because we sit here and discuss an $8,000,000 impact against the citizens and taxpayers of this City based upon your advice and that is why we are here tonight. So that's my opinion. Mr. Mayor, we do not have to conclude this tonight. I understand that. We can revisit the situation regarding the attorney representing the City, regarding the attorney representing the three former Mayors. We can revisit rehiring the firm of Burman& Critton. I never thought that they should be taken off this case in the first place. I do not feel comfortable with the advice we are getting either. I have said that over and over and over again. And I don't see any rush if you think (tape turned over) I do not see any reason to rush through this Settlement Agreement tonight. Okay, I appreciate that. Take 24 hours. Look at it. Think about it again and see what we can do to get our- 17 MINUTES - SPECIAL CITY COMMISSION MEETING BO~NTON BEACH, FLORIDA JANUARY 24, 1990 Weiner: (Con't) Mayor: Weiner: Mayor: Weiner: Mayor: Olenik: Rea: Otenik: Mayor: Olenik: Mayor: Olenik: Mayor: selves out of the spot that you say we're in. Do you have any problem accepting the com- fort level based on Mr. Rea's advice? I (inaudible). We may be blowing another million dollars. We've got... Mr. Mayor, no question. Thank you Maam. Same question that I had. If, if this judgment bond is challenged and is thrown out in effect by the State or in the Courts, if the former Mayors were still a part of the judgment, would they, could they be held financially liable for the $8,000,000 if the judgment bond was thrown out? Unequivocably. So I guess, there is a concern if we leave them in in the judgment and the judgment bond is challenged and is not upheld by the State or the Courts, then they would have a financial responsibility. How do you think we got here Mr. Olenik? I mean why are we facing paying $8,000,000? Did it just drop out of the sky? Did some- body do something? Did somebody defy a Court Order? A body... Did somebody refuse to comply with a Court Order? A body up here, a body of individuals in 1986, whatever the exact dates were, made decisions and changed decisions and that's %~at got us here. Okay. ~%d we're offering to pay the 8,000,000 bucks out of the taxpayers' pocket. 18 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JAi~JARY 24, 1990 Olenik: Mayor: Otenik: Mayor: Olenik: Mayor: Wische: Mayor: Because they represented the taxpayers at that time. And they made a real big mistake, okay? Based on Mr. Rea's advice, okay? If I for a moment felt that I was up here spending all the time that I spend for the benefit of this City, to think that I am risking my future, financially or other- wise, I mean I'll turn in my resignation tomorrow. Then you don't understand the obligations and the duties of this office. You are exactly, that is what the position you're in if you do something that's wrong, okay? But it's not a matter of who's wrong or who's right. It's a matter that the City's going to pay the $8,000,000. We're going to bite the bullet. We're going to do it. But I'm telling you that you're going to lose a million dollar claim against the insurance company if it's not structured properly, that these people aren't included in there, with the understanding that we're going to pay ~hatever it is. What happens if we don't have the money to pay? What if, what if the judgment... They're going to take over City Hall and they're going to take all the property the City owns and I can tell you they will enforce the judgment against the City owned property. Ail right. I think it's my turn. We've beat this like three or four times. We even voted on it and the consensus was that they were to be taken out. Now we could beat this all day long. You can say we're not going to get the million. Mrs. Weiner will want to table it and discuss it longer. It's still not going to solve the question. The question is we voted on it. They were to be taken out of it. The fact that you voted opposite of the majority, tough. I'm on the losing end many times too. But you have to accept it. I agree. So, let's get the consensus what... 19 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: Mayor: Wische: Mayor: Olenik: Wische: Olenik: Mayor: Wische: Olenik: Mayor: Weiner: Wische: Mayor: Wische: Olenik: Mayor: Wische: We (inaudible). Make the motion. What is it? I make a motion that we accept it the way it's written with the three ex-Mayors out of this judgment. Is there a second? Is this the motion now on the final Settlement we've talked about? No, they're talking about the three... Well, your motion says we're accepting the judgment. We're taking it the way Mr. Rea recommends, okay? We're taking the judgment that the attorney recommended that the ex-Mayors are taken out of this. Understanding the motion, I'll second that motion. Any further discussion? I'd like it repeated and understanded. Are you saying that we accept this Settlement Agreement as it has been given to us? Is that... In reference to the three ex... The whole thing. The whole thing. The whole thing, yes. As far as I'm concerned... I'll withdraw my second then because I'm not clear on the motion. It's changing as we speak. Well let's... First of all, there's no need for a motion about the three men. We already took care of that° 20 MINUTES - SPECIAL CITY COmmISSION MEETING BOYNTON BEACH~ FLORIDA JANUARY 24, 1990 Olenik: Wische: Weiner: Wische: Weiner: Wische: Weiner: Mayor: Wische: Weiner: Wische: Mayor: Olenik: That's exactly what I think. So what you're discussing about postponing it and not agreeing that we're not going to get the million on, that's irrelevant. We already voted that they're to be taken out. That's been done. We now heard everything here. Everything in here was changed to the way we proposed it. They didn't renege on that. All right. Why we need to discuss it any further, I don't know. We discussed it last night. The Mayor has brought up some, some... Valid points... ...interesting legal problem... You wanted to get rid of the .... Just a moment, Commissioner Wische. Wait a minute. He's still (inaudible). ...the legal problem. You wanted to get rid of the attorney. Mr. Moore voted to get rid of the attorney so I don't think anything you're going to say is going to be in his favor. What attorney? Meaning .... Okay, Commissioner Weiner, on another issue, I mean. Let me throw out one other point. There has been a grave shadow of doubt cast over our ability to get this money in the way that we figured we're going to get it and get it fast, okay? Does this Commission feel that we input from independent bond counsel on whether there's any validity to what this guy from Prud Bache says before we go ahead and com- mit to get money within 30 days or else interest starts running at 12% on the (inaudible word). I'd like to get bond counsel, a bond coun- sel that we feel comfortable with to tell us that. 21 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Miller: Mayor: Wische: Mayor: Olenik: Mayor: Artis: That we can either do it or we can't do it or how quick we can do it or whatever. Mr. Miller, do you have any input on that? I gave you some propositions or recommen- dations from bond counsel. Yeah. I would like bond counsel on this Settlement. I don't have a name offhand. I have. Mr. Wische, believe me. Ever since, every waking moment since I got elected has been to settle or resolve this thing and to spit it out. But I would recommend sincerely that we have bond coun- sel take a look at this and call a special meeting, continue this until next Tuesday and get input as to whether, where we can get the funds. I mean, I'm direly, I feel strongly, it looks like I'm going to go down, maybe, I don't know, on this thing with, including these guys in and why they would fail to refuse to cooperate to do every step that we can to get the million dollars. And I will stake my professional career that if they aren't included, and it don't mean nothing to me because I don't get paid (inaudible word)... Mr. Mayor, aren't we... .°.that we will lose the suit, the bonding company, we won't even be able to get into Court. I can tell you that right now. But anyway, forget that. If that's the way the vote comes, all I can do is vote against it. But the point is, I think we direly need input from independent bond counsel on the funding of this thing before we sign or tattoo a contract that we're going to come up with the money in 30 days or else interest starts running at 12 points. On 8 million that's a big hunk of cash. I agree. I don't want to put it off, but I think that it's something, that we would be imprudent if we have or have not been imprudent up to this point of this whole thing, to try and get that information. I think the motion that we made last night still stands. 22 MINUTES - SPECIAL CITY BOYNTON BEACH, FLORIDA COMMISSION MEETING JANUARY 24, 1990 Olenik: Mayor: Olenik: Mayor: Wische: Mayor: Perry: Mayor: Perry: Mayor: There (inaudible) a motion. There's no motion on the floor at this point. I just think we continued it and we're still looking into this. There's now a motion on the floor. Well, it died for lack of a second. Okay, there's not a second. But we'll restructure that. Ail right, Mr. Perry. Mr. Perry. Mr. Perry. I'm a bit curious as to where you're going. I mean is this going to get postponed again? I don't know. I don't know. I'm strongly, I feel strongly about not including these guys in there and I'm totally at a loss as to why they wouldn't agree if we're going to take them out anyway. And to give us the best shot, the Stipulation ain't going to cut. My experience with any bonding company is that they will not pay any coverage under a bond or whatever the alleged coverage is until there's a judgment by a Court. We're going to obviously have to face the fact that we structured this Judgment, okay, by Stipulation and we can fight that. But I don't think we can fight it if we, in effect, have exonerated anything that would cover coverage under the bond. Okay, tell me, if we continue it tonight, what are you going to do? Are you withdrawing the offer? I'm saying we need input from bond counsel as to whether we can perform. We've got, you're not privy to this... (inaudible words) ...our fiscal guy came in at the eleventh hour tonight and tries to stampede us into the fact that we're not going to be able to get the money and we're going to wreck our credit and there's a lot of other stuff in there, right? 23 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Mayor: Miller: Mayor: Perry: Mayor: Olenik: Mayor: Olenik: Mayor: Olenik: Mayor: I think, I think all he's saying... I mean, it's (inaudible word) as far as I'm concerned, okay? I think all he's saying in that letter is that we should have a bond counsel and we should get it validated. Well, that's time and you can say what yo~ want to but, you know, it's 45 days to get it validated, with or without ~ujection and no...if validation is a criteria, you've got a 30 day period after that. I mean, we're looking at probably 120 days to get it done. That's what he's saying. -I don't agree with him. But I mean, I think we can,_if a Judgment's entered, I think we can pay that thing and I think we can get full faith and credit proposed but I can't tell you that. We've got to get a bond counsel to tell us that. I would like to see us hire a bond counsel tonight and have that input in the next couple of days, so we can do what we say. If we tattoo this, we owe you the money and now we've got opi- nions from our financial, fiscal advisor, that we can't do it. I, with all due respect, I mean, I (inaudible word) few minutes with my client. Okay. Does anyone want to talk about bond counsel now or... We could talk about bond counsel... Use the office right through there, if you need to. Well, I mean, this guy's saying we can't do it. He's not bond counsel either. Is Mr. Flanigan here? Okay, here's John Flanigan. He's with the firm of Moyle, Flanigan (inaudible). I first got a propo- sition from them, the total 24 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) Olenik: Mayor: Miller: Mayor: Miller: Weiner: Mayor: Weiner: Mayor: qualifications.., have you reviewed that Mr. Miller? I think they're a qualified bond counsel. Moyle, Flanigan? Moyle, Flanigan. Moyle, Flanigan. Ye s. I got him first and asked him if he could give us some input on the 60, 30, 40 million dollars on the (inaudible words). They were very reasonable and they indi- cated to me that they, first of all, they've got total qualifications to serve as general bond counsel. And I would frankly feel more comfortable and I'll confer with Mr. Miller on the input of whether we need them and whether we go ahead and get them to review this settle- ment proposal and tell us how and when and the timing on when you can get this thing done. I think there is a need for a bond counsel relative to the Tradewinds settlement and I have no problem with the firm that the Mayor has recommended. They're qualified, very professional. I, I have a problem with the fact that, with all due respect Mr. Mayor, that we just hired an engineering firm on your recommendation. Now we're hiring a bond counsel on your recommendation. No other names are offered. I think that I would like to see some other names. I would like to have this Commission at least involved in, somehow in the choosing. I don't want it to look all the time as if we're accepting, a phrase I've learned from you, a sole source. Okay Maam. We're a little bit (inaudible word), as they say, but... I understand that. I can only tell you that any recommendation I make is based upon 37 years of practice in this County and the people that I know I 25 MINUTES - SPECIAL CITY COmmISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) Otenik: Weiner: Miller: Wische: Miller: Mayor: Miller: Mayor: have confidence in. If you don't want to accept it, then you come up with a name. You're probably right. Mrs. Weiner, you know, I also, normally would'have concern about just picking a name or taking, you know, one name and voting on it. But I know John Moyle and I have the utmost respect for this firm. It would certainly not shortchange us or give us bad information. Well, do you know them? Have you ever heard of them? Yes I do. I should also note too that in the past several weeks I have had discussions with two other interested par- ties relative to bond counselling and I have not recommended them because I wasn't sold on their services. They do not have the reputation that I believe that these gentlemen possess and, therefore, I have no problem with them. Please remember that I'm coming from Broward County and the bond counsels that I've worked with down there are not necessarily the ones that are up here so I've been doing as much,As I can relative to it. But they're a professional firm. They're good. I have no problems with them. I have talked to two others in the past several weeks and I have not been favorable to them. So you've .... I have no problem with them at all. We're going to have to deal with these people sooner or later because... We need bond counsel. .°.somebody has to put, sign their tattoo on it. I will say to you that there is a book called "The Red Book" that ah, purcha- sers of bonds, trust departments at banks, individual underwriters, unless there is a bond counsel of national recognition, the bonds are not marketable. And I'm con- fident these people are included among that. Some other people that we've talked to are not necessarily in (inaudible word). 26 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: Mayor: Wische: Mayor: Wische: Mayor: Wische: Mayor: Wische: Mayor: Wische: Mayor: Olenik: Mayor: Voices: Mayor: So what are we looking for? For them to make a presentation or just a motion to accept them? Well, I think we, in my opinion, before we can file this, we have to have somebody to tell us that's got the know-how and the knowledge that we can do what we're contracting to do here. Whether it's tonight or whether it's Tuesday or Monday or tomorrow night or noon tomorrow or whatever. So we have to hire a bond counsel. (Inaudible word) we have to hire them because nobody's going to buy the bonds. think we need some input... On the recommendation of the Mayor and the City Manager, I would make a motion that we hire the firm of... Moyle, Flanigan. Moyle, Flanigan. Is that it? Subject to reasonable terms, ah.. Right. compensation... ...subject to terms to be worked out... And to give us immediate input on this ~ning. I would second that. Okay. Ail in favor say Aye. Opposed? (Silence) Okay. That's that. So would you please meet with them at the earliest possible date, Mr. Miller, and give us the administrative input on that now. Do you want to defer this or go ahead and act on this, subject to bond counsel's approval that we can do what we're saying to do? Or, 27 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: Mayor: Olenik: Flanigan: Mayor: Flanigan: Mayor: Flanigan: Mayor: Flanigan: They're here now. Why don't we find out right now. Well I mean it's kind of unfair... You're not prepared. Are you prepared to give us an opinion at this point? Ah, we have done some preliminary research. I can give you the results of the preli- minary research. That will help. Come on up. This is John Flanigan with the firm of... This is Mark Raymond. Mark Raymond. He's also (inaudible). He did the research and Mr. Flanigan is going to tell us what he told him. Of course we haven't seen the Settlement. I haven't had a chance to talk to Mr. Rea or anything like that. We are aware of the case law on Judgment Bonds though. There is one case in Florida from 1941, as I believe, which does uphold the validity of the Judgment Bonds, a Florida Supreme Court case. The difficulty with that case is that the obligation upon which the Judgment was based predates the Florida's Constitutional provision which says that you have to have a referendum on GEO bonds. Here, of course, you don't have that situation. Both the debt and the bonds will come up after that provision of the Constitution exists. So our preliminary, our preliminary (inaudible word) indicates that we would feel much more comfortable with this issue if we had a Circuit Court validation. We would not require that it go to the Florida Supreme Court in order to be comfortable with it. But we feel that based upon first blush, and this is as you understand Mr. Mayor, we have not had extensive time to look at this, but based upon that point in case which looks like it's a leading case in Florida, that there would have to be time allowed for a vali- dation action. 28 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Flanigan: Mayor: Flanigan: Mayor: Miller: Mayor: Miller: Wische: Miller: Wische: Miller: Mayor: Miller: Okay, and approximately what time frame are you talking? 120 days? I mean, not pro- viding for the appeal period, 30 days? Well, 120 days for a Circuit Court valida- tion would be very, very generous. The... You could shorten it, shorten it. It could be shortened, yes. Ail right. Okay, so apparently we just tell them we've got a time problem then of getting the money up once we've agreed to get it, unless we can borrow it from the Utility Fund. And then, unless we can, okay? (Inaudible words) Tradewinds and then back up and we can give it to... We can borrow it from the Utility Fund, however, on one condition from the Commission, the (inaudible) adoption of a Resolution that that money be paid back... Sure. ...as soon as possible, as soon as the bond proceeds come in. Because there are some problems relative to utilizing these charges from other enterprise funds. So we can beat the 120 day period by getting some money upon our own %;hich we would repay as soon as possible. Well, if you have the 30, if 30 days at 120, if 30 days on the 5 million and what was it 90 days on the 3 million, that's the best we can do. We can meet that. We can. I mean borrowing from the Utility Fund. (Inaudible words) By doing that, I want to make, I want it, again, assurances from the Commission that that money will be repaid as a loan and that will be done through Resolution drafted by the City Attorney. 29 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Mayor: 'Olenik: Flanigan: Olenik: Flanigan: Mayor: Flanigan: Mayor: Flanigan: Mayor: Flanigan: Mayor: Flanigan: Mayor: ...through the proceeds of the bond sale. Right, Sir. Mr. Flanigan. The, if during the valida- tion process, the bonds are challenged,' what is the procedure? What happens then? Well... Who can challenge the bond? Any citizen can challenge it. A~nybody can come i~n and intervene in the case and if, it depends on the Judgment, if the Circuit Court validates the bonds, then it's up to someone to appeal. Certainly you wouldn't appeal if they were validated. If you lost the validation, then of course, you would have to, the City would have to appeal to the Supreme Court. On validations you go directly to the Supreme Court. You don't go through the District Courts of Appeal. It's an expedited process but even though it's expedited and it's most expeditious, it can~k~, it should take at least six months to go to the Supreme Court. But the intervention would have to be based on legal grounds that we do not have the authority to float the bonds. Absolutely. Of course they have to make... ...not that they don't like the project. That's right~ They have to make a good case in front of the Court. But you're not saying they couldn't inter- vene, that a Circuit Judge couldn't agree with them. People can... If the Circuit Judge totally throws it out, there's still at least a 30 day appeal period to appeal. Yes. Okay. 3O MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Weiner-. Olenik-. Flanigan. Mayor: Olenik: Mayor: Weiner: Mayor: Weiner: Voice: Weiner-. Mayor: Miller: Weiner: Mayor: Olenik: Mayor: I'd like to say... And then a six month process after that to the Supreme Court. The appeal time frame? If the Circuit Court validates the bonds and the 30 day appeal period runs, then they're precluded from filing any type of an appeal and you go ahead and close on the bond issue? (inaudible) approved opinion, right? Right. Okay. Mr. Mayor, I... Yes, Maam. I'm asking, please for your indulgence because this might all be perfectly clear to you but this if the first time I have ever heard of any of this. Is there some way I can get this written out so that I can take a look at it? Absolutely. I have never heard of Judgment Bonds before. Until I saw Mr. Segal's letter tonight, I didn't know that there was a problem. I have not even begun to talk about it. I hope that we're not giving somebody permission to start working without a written ... ...to give us competent legal advice. That's what we're asking for. (Inaudible words) The mess gets messier. Well said. Flanigan. think... Well put. Thank you Mr. Any other questions? I When, do you all have any time frame? Reviewing what we got here and getting it back to us... 31 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Olenik: Flanigan: Olenik: Flanigan: Mayor: Voice: Weiner: Mayor: Weiner: Mayor: Weiner: Mayor: Weiner: Mayor: Olenik: Mayor: Is Tuesday reasonable? Tuesday evening? Certainly. Absolutely. Is Monday reasonable or... Ye s. Whatever you want to do. Monday at 5:00 or when do you want to continue this (inaudible word) to now? Monday at 5:00 or, Mrs. Weiner, is that okay? And try to get... (inaudible words) I don't want to come here Monday at 5:00 and have yet another stack of papers put down in front of me that I have never seen before. Mrs. Weiner, what do you propose we do? On Tuesday if we could get the stuff in by Monday, perhaps we could meet Tuesday at 5:00. I would like some kind of jump on the things that I am sitting, being involved in. Have you made up your mind yet whether you're going to vote for or against this? Oh yes, I have certainly made up my mind. What is that? No? You're going to vote against the Settlement? When you take a vote I'll tell you how I'm voting. Well let's call it. Let's call it right now. If you're going...there's a motion and a second, I think, to accept the Settlement. There's no motion (inaudible words)... Ail right, all right, wait a minute. There will be then. The motion was made, sub- ject to input of the bond counsel, okay? We're going to flush everybody out. We're going to see what they're going to say. 32 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 (Loud noise) Mayor: Olenik: Mayor: Perry: (Inaudible words) What happened? Marty touched the wire. He may say that they're withdrawing the offer, I don't know. Well, we're real close to that, Mr. Mayor, you know. You all agreed two and a half weeks ago to settle this thing. You agreed to the amount. We've been working very diligently and maybe I'm just a little bit tired of... The concept of the bonds or the method of payment is not mentioned anywhere in these agreements. We have been free and open in terms of our willingness to discuss any method of assisting you in terms of payment. We agreed to methods of waiver of interest on portions of it for 30 days, on portions for 90 days. The issue of having bond counsel, I mean, that's fine. I mean you're entitled to seek any kind of counsel that you need relative to this but that should have had some input prior to tonight, particularly since that is an issue that really isn't tied up in the agreement. We're here to see whether or not the City wants to settle. We've agreed on all terms of the settlement. What you're talking about is an issue that goes beyond the settlement and goes into the method of payment and we've agreed to be cooperative in that. We've even agreed, depending on the type of bonds, to buy a portion of the bonds. We're not unwilling to cooperate with you in any respect but we want to know that this is put to bed. And I don't think that's unreasonable on our part after having spent all this time putting all this together. And we're here tonight. The documents have reappeared. There isn't anything in these documents that changes anything. The aspect of the method of payment, how long it's going to take you to do the bond issue and the rest of that, we've agreed to talk with you further about the bonds. If we need to talk further about timing relative to this, let's put it on the table right now. Let's talk about it. But let's get this thing done. This 33 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Perry: (Con't) Mayor: Artis: Mayor: Olenik: Mayor: Olenik: Artis: Mayor: Voice: Mayor: is, we agreed to take this course of action just as you have in order to end the uncer- tainty of litigation. But it is at some great expense to us and it's costing us money every day. We unlike you have got our money already flushed down the toilet. I mean it's out of pocket. And we pay for it every day. I want to get it finished. And if we're going to go on to next Monday, then maybe somebody else is going to come up next Monday with another reason for another delay, you know. And we can keep on going and we'll be here in February or maybe, you know maybe we ought to just forget about it and go to trial and let it go. I'm in favor of getting this thing resolved. I'm in favor of cooperating with you in your efforts to find the best method, the most painless method to pay it. But let's get the basic agreement done. You already agreed to do that. Let's get it signed. Okay. Can I have a little clarification on the borrowing from the Utility Fund? Borrowing from the Utility Fund, as I understand it, and then assure them that it will be paid back. That's right. Assuming the bonds are sold. (Inaudible words)...validated and sold. If the bonds don't get validated and can't get sold, then we don't, we have a problem paying back the Utility Department. We've now moved our problem of paying back Tradewinds to paying back the Utility Fund. How much time do~we have to pay back the Utilities? That's within our control. Right. I mean legally we have to pay it back. We have to agree to pay it back and if we 34 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) don't get the money, we've got to get the money somewhere. Perry: Let me, let me offer you one other thought because, you know, I mean I can remember you made a comment earlier Mr. Mayor rela- tive to us taking your nice new building that you're probably going to be in litiga- tion over and your fire trucks and everything. I've had a little experience with judgments against the City. I sued the City of Lake Worth and got a half million dollar judgment and had my eyes set on a nice big hook and ladder truck. But after doing some research I discovered that you can't levy on publicly owned property and the net effect of what would occur, you can't do this. Mayor: (Inaudible words) the tax power, Mr. Perry. Perry: That's right, the net effect is that...(inaudible words) Mayor: (inaudible words) Perry: That's right. You know, That's...(inaudible words) Mayor: ...that's poetic but, I mean... (inaudible words), taxing power, okay? So that's .... Perry: We're not looming here, we're not looming here to take your beautiful structure away. Mayor: I wish you would. (Laughter in audience) Perry: How much are you willing to pay in rent? Miller: We may have a used fire truck. Mayor: Okay, aside from the jocularity. Wische: Mr. Perry brought out the fact that, and it's a very valid fact that this entire proceedings never mentioned how we're going to pay. It's not in here. It's a separate entity. We're supposed to vote on the packet that was presented to us because this is the packet that we went over more 35 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Wische: (Con't) Olenik: Wische: Olenik: Wische: Olenik: Wische: Olenik: Wische: Olenik: Wische: Mayor: Artis: Mayor: Wische: Mayor: Wische: than once and made corrections, made addi- tions and this is the final draft. How we raise the money is our problem. Are we putting the cart before the horse here? Oh, now is the time to ask that question? After all these hours, months... It should have been obvious. Well why didn't you think of it then? Is it my responsibility? Well, you're the one that came up with it (inaudible words) I voted against the Settlement in the first place. I know you did. So the people who wanted the Settlement maybe should have thought of that. That's irrelevant. You're talking to hear yourself talk but I don't hear anything coming out. So I'm going to stop the non- sense right now. I make a motion that we accept this Settlement Agreement. Is there a second? I second. Okay. Now, for further discussion. Let's find out how the votes come out. I have one more thing to say. Yes. In good faith we entered into an agreement with these people to make a motion and vote on what is before us, not what is out in the horizon. That was our responsibility. We know we have to raise the money. We should have had the foresight to make arrangements to find out. Why are we eon- demning them for it? 36 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Artis: Mayor: Artis: Perry: Artis: Perry: Mayor: Perry: Mayor: Perry: Mayor: Weiner: Mayor: Miller: Rea: I have one other thing. Go ahead. We have, we do have some alternatives as to how to raise the bond money. You gave us some last night and you gave us some today. We have time to work on that. Well, let me suggest on the motion... But, I'm saying... ...that if your problem is a question of whether you have sufficient time within 120 days, I have no problem with agreeing to giving you an additional 30 days if you need it to resolve that issue of the bonds. I mean, I'm not trying to force you into a shoe that doesn't fit. We picked 120 because everybody thought that that was sufficient time. If you need additional time, we're not going to squeeze the box. But the interest is running at 12% within the time limit set forth in something we're going to sign. I mean... But we pay that interest too. I appreciate you're saying what you're saying. You're losing money at the same time because you've got investments. That's right. I'm not arguing about that point. Mrs. Weiner, how do you feel about it? Are you ready to take a vote on the motion? Yes Maam, just about. Any further discussion? Yes Sir, Vice Mayor .... or...Mr. Miller? Just a question~ so the 5 million would be due in 30 days and the 3 million in 90 days, relative to this Agreement? No, no. Voice: 37 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Rea: Miller: Perry: Miller: Perry: Mayor: Miller-. Mayor: It would be 60 days and ah, you're talking about also delaying execution by 30 days? I'm saying before the 12% interest goes into effect, we have 30 days to come up with 5 million... Let me, let me, let me make make it crystal clear for you, okay, so that there's no misunderstanding. You know and I'm just making sure he's looking the other way. If you need an additional 30 days on the 5 million, okay, that's an option. I mean (inaudible words) if you can come up with it fine, but if you need an additional 30 days, we'll give you that additional 30 days. If you need an additional 30 days on the 3 million, we'll give that. If you need an additional 30 days on the 120 days, I'll give that, but I want interest on that. On 120 days? Yeah, beyond the 120 days. So that if you don't pay the 5 on or before 60, okay, then I'm getting interest. If I don't get the 3 on or before 120, I'm getting interest, okay, and if you don't finish it up alto- gether and need an additional 30 days, I'm getting interest for that 30 days too. You couldn't be fairer. It's not your problem to get the money, it's our problem. Right, I just wanted to clear it .... Let me tell you this, that I got a bond counsel's opinion, who somebody tried to (inaudible word) on us that there was abso- lutely no problem with once the Judgment's entered, of floating full faith and credit bonds in the City and apparently that opi- nion was not worth much so if somebody says we didn't look into this aspect of the pr~olem, how we're going to fund it, we did, okay. So, but that's water under the bridge now. Now we're getting another opi- nion from our financial advisor that there could be a problem so that's why we've got a competent bond counsel now to advise us of the quickest and most expeditious way 38 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) that we can get, within the time limits they've set, to get these bonds issued, give them 3 million, sell 5 and pay the debt. Olenik: Under my discussion, Commissioner Wische made the recommendation at our last meeting that we have a workshop meeting to discuss funding options for Tradewinds. Wische: No one picked it up. Olenik: I thought, you know, to me it made sense. If we had done that before we hammered out the final pages of this Agreement. It was on tonight's or last night's Agenda that we discuss the financing options. Wische: Yeah, why didn't we? I walked off the dais to go to the bathroom and when I came back everyone was gone. Perry: How long were you out? Wische: We never got to it. (Laughter in audience.) Mayor: The point is we needed some special input on what our legal rights are to get it to you. That's what we've done tonight. Olenik: We really never agreed that bonds are the only way to go. My only other comment is that from a consistency standpoint, indivi- dually, I was not in favor of $8,000,000 when we agreed and voted the last time on this. And from a consistency standpoint, I think you probably all know how I'm going to vote. Wische: No matter what arrangements were made, you were going to vote no anyway. Is that what you're trying to say? That's the bot- tom line. At least that's how I read your thoughts. Mayor: What would you feel comfortable with on the Settlement, if you're going to say now... Wische: Whoa, whoa, why are we going through that? We already agreed to... 39 MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA JANUARY 24, 1990 Otenik: Mayor: In answer to the Mayor's question, you know, I, I, six and a half that I had talked about (inaudible words). Okay, so that's a no vote. Mrs. Weiner, can we get a consensus from you before I (inaudible word)? Weiner: Are you taking a vote tonight? Mayor: Yes. Weiner: Well call the vote. Mayor: What's the vote? Wische: All those in favor... Mayor: Ail those in favor say Aye. Wische: Aye. Artis: Aye. Mayor: Okay. Let me say this. Weiner: Did you call opposed? Mayor: Opposed. Weiner: Nay. Olenik: Nay. Mayor: So it's two. So that leaves it right up to me. The easiest thing in the world for me would be to vote against this and get you guys painted into a corner because you've not come up with any other possible solu- tion to this problem and this happened on your watch. It is a sorry state of affairs for Mr. Wische, Commissioner Artis and myself, are called upon that had nothing to do with this thing happening or caused it to happen, to have to bail the citizens of the town out. I have strong reservations about the advice given to us by Mr., our City Attorney. I can almost predict to you right now that we will not even be able to file a suit or a claim against the bonding company for a million dollars. So that's another million bucks that the citizens and 40 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: (Con't) Olenik-. Mayor: Olenik: Mayor: Olenik: Mayor: Olenik: taxpayers are taken upon, okay? Because of poor advice. Bad advice. I would like to have had some type of input from Commissioner Weiner and Commissioner Olenik as to how they proposed to get us out of this problem. And I've heard nothing. Just silence. It's just a vote against it and you consistently .... That is not true Sir. You're making .... Well, okay.., say...I'll finish up what I'm saying. Go ahead. The easiest thing for me to do and I have serious reservations against voting for this thing with those three guys taking a hike and getting out of the problem. I can almost predict to you now with certainty, as I predicted three years ago and four years ago you were going to pay dearly for their flaunting a Court Order and being in contempt of Court and you're going to pay for it and we are right now. The easiest thing for me to be would be to vote with you two gutless guys that have no solution to get us out of this problem and then just take a hike and say okay, I abdicate my responsibilities as an elected official and you guys work it out. And go back and pay guys $1,875 to come down and talk to you for five minutes. That's part of the attorneys fees that are on our bill if you haven't looked at it. But I won't. Against my better judgment and against not including those guys in the Judgment which we're going to lose the bond suit, it's going to cost the City another million dollars. I can guarantee as I sit here. I vote Aye to accept the Settlement. Mr. Moore. Ye s. When I asked this Commission three some odd weeks ago to consider six and a half million dollars in settlement, I got no response from the gutless members that were up here. 41 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Olenik: Mayor: Olenik: Mayor: Weiner: Mayor: Weiner: Mayor: Perry: Rea: You got no response from them that they'd accept it. They told you it was 8 million or else. We never tried them. We never... Well...you must not have... We never said six and a half was going to be our final offer to see if they would jump. You're not going to be able to weasle out of it. You're running for reelection and I'm telling you I will be here to make the point. Those three guys sitting right there got us into this thing and they right now are laughing at us because they say they've been exonerated. They weren't included in the Judgment so they had nothing to do with the responsibility for costing the taxpayers $8,000,000. I can tell you right now, they're already blaming it on me. Ralph, (inaudible). Okay, and if you run for dog catcher, I will run and I guarantee I'll beat you. Mr. Mayor... Ralph. Please sit down, Ralph. Oh, that's okay. The vote is over. Done. We settled it. ~at includes the authori- zation to execute the Judgment or execute the documents, right? ~ld you will be in Court at the earliest possible moment? And we will scramble the best way we can to get the money to you. We need to intertineate or add those addi- tional 30 day periods in there. I mean, I'd be happy to sit with Mr. Rea right now and .... Can you handle that from here Mr. Rea? And get (inaudible words) but the next thing will be to go ex parte (inaudible words) and get the Judgment done and then that's it and Mr. Flanigan, we're looking for you to lead us out of the wilderness at the earliest, A.S.A.P., okay? 42 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JAS~ARY 24, 1990 Rea: Olenik: Mayor: Rea: Voice: Mayor: Miller: Mayor: Miller: Mayor: Miller: Mayor: Perry: Rea: Mayor: Rea: Mayor: Miller: May I ask a question? There's no meeting on Monday? Ah, I don't think we need any meeting now. Just come in... Do you want me to go out with him now and deal with this. Do you need me here, in the interim, Scott? Yeah. Is there anything else to come before the body Mr. Miller? Ye s. What? There is more discussion. Oh yeah, he want's to talk about water. I want to talk about financing. Okay. Can I borrow Mr. Rea, or do you want me to just interlineate it and bring it out for him to review it? Why don't you do that. We can always change the Judgment tomorrow. We don't have to do that today. We just have to change the agreement on... The motion included authorizing the Mayor to sign the necessary documents to imple- ment the Agreement. Right. Well we could change the Stipulation or the Final Judgment tomorrow. We just have to change the originals. What have you got Mr. Miller? I'd like you to turn to the last page. It's a long page that starts off saying Water/Sewer Capital Improvements Program. It was part of your Agenda last night. I do have extra copies here. Who else needs 43 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA J~NUARY 24, 1990 Miller: (Con't) one? Okay. John, do you want to come up please. If you look at the total potable water and capital improvements for Master Plan dated February, 1989, which sets forth the program in both the east and the west, we're looking at $40,694,000. Our sewer treatment plant upgrade to 7.5 million dollars, a good portion of this being for odor aba- tement and of course this 7.5 would be in line with the City of Delray Beach pitching in their 7.5 to come up to a total of 15 million° We're looking at a grand total on Boynton Beach's side of 48,194,000. On the water, we're going to start looking at some reductions, for the primary reason is affordability to the consumer. If we look at the water for the East Plant expansion, it is proposed to pay for that design and construction with the impact fees. The City currently imposes an impact fee and as of the date of September 30, 1989, we have a total in that account of almost $7,091,000. Impact fees are collected on new developments for the primary reason of expansion to the system, adding to the system. That's what we're doing on the East Plant and that's exactly what we're doing with the West Plant. Number two, looking at the disinfection program and it comes out to 6.9 million dollars, we're looking toward setting aside this portion of the project to approximately 1992 to '93 because Federal guidelines change periodi- cally on this. We can find out exactly what we need, exactly what the cost is going to be and then structure our financing accordingly at that time. It is my opinion that we only go forth with the water capital improvement project as what we need right now and add to it in the years to come, once we know exactly what we need to do. On the third item, setting aside the water mains to phase out private wells, this would be the Nickles Road rationale. Looking at a probable perfor- mance based budget issue on this so we can, on this reduction we're looking at one point, 1,380,000. Secondary piping repla- cement project. This would be throughout the system. Currently these type of capi- tal improvements should be done through your renew and replacement, your R & R 44 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, PLORIDA J~NUARY 24, 1990 Miller: (Con't) Mayor: Miller: Mayor: funding and your R & R funding should be set up as a percentage of your total enterprise fund for both water and sewer. So over a period of years, you have dollars set aside to make improvements and rehabi- litate those lines that are already existing in the ground. We're taking 1,740,000 from that as a reduction. Coming down to a total for the water project of $22,024,000. That is what we feel to go forth at this time. I'm only bringing this to your attention because we're looking at some areas that we can reduce. Of course, we've got value engineering and program management coming on line. We'll know more about it, however, this kind of zeros in on what we're looking at as a scope of this water project that at right now, instead of looking at the 40,000,000 plus the refunding. Looking at the sewer, again, the sewer part for the odor abatement is 7.5 million. That's going to have to be decided before the board, the sewer board of Delray Beach and Boynton Beach. Okay, I guess in total, I want to make reference to John ~uidry's letter or memorandum to me. As of this date, we are reaching the 90% area right now and we are concerned and it's my feeling that we should move forth on some portion of this plant so that we can add available water to the system. Moving forth with the East Water Treatment Plant, the modifications being the sof- tening basins, the filters, etc, would upgrade the plant 3,000,000 gallons a day. We need that 3,000,000 at this time. We're coming to the point, again, we're reaching that 90%. Once we reach that 90%, for sure, the County's going to step in and say that's it. I want to be in a position to have ground broken and know that we've got 3,000,000 gallons coming on-line. You recommend we proceed before we get the value engineering report? I believe value engineering, Mayor, will help us on the west. I'm not so sure it will help us that much on the east. What are you... I appreciate your input on the overall project and... 45 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Mayor: Miller: Mayor: Miller: Mayor: Miller: Mayor: Miller: Mayor: Olenik: Mayor: Olenik: Weiner: Olenik: Weiner: Mayor: Voices: Mayor: Olenik: Weiner: What I would like... That' s what I've been beating my head against the wall on for six months .... What I would like to recommend that we go forth at this time with the East Plant expansion. For what. For bids? For bids. Yes, Sir. Does anybody have any objection to that? And hold off on the west until we get the value engineering in on the west. But I feel that we do need the east right now. Any objection? We need that 3,000,000. The consensus is to proceed with the bidding. Oh, why don't we put that in the form of a mot i on. In a motion... I move that we... So moved. · ..that we authorize the bidding for the East Plant expansion of the water facility. Second. All in favor? Aye. I vote no. I think you' re going to get salt water intrusion in there. I think it's poor engineering and I think it's a bad deal· 4-1, it passes. Wait, wait wait·.. I have never heard that before. I would like to hear it again. 46 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Weiner: Mayor: Weiner: Mayor: Weiner: Mayor: Olenik: Mayor: Olenik: Miller: Mayor: Miller: Guidry: You've been sitting up here. I've been talking about that for eight months, a year almost. Salt water intrusion? 4-1. You got it through. Salt water, you never heard of salt water intrusion? No, I have never heard of salt water intru- sion. (inaudible) Okay, well somebody give her an opinion. Give her one of your term papers on salt water intrusion will you? All right... Wait, wait... Next item. (gavel banged). Meeting adjourned. Ah, I have a question on... I'm entitled to my opinion. I have a question on the funding for the waste water sewer project. I spoke with Mr. Federspiel yesterday, the attorney for the board and we may have trouble with the bids as they come in if we delay the pro- ject due to lack of a funding source on either or both cities part. The 7.5 million dollars for that, I guess because it's not really an expansion, a capital expansion, you probably can't use impact fees for it. That is my opinion, however, we've got bond counsel here and of course an attorney. Let's let them solve the first problem first. That's something .... yes. If I may add something. Capital expansion can be derived from all those parts of the project other than the covers. In other words, the upgrading of that pump station and the electrical is to certify the installed 24 MGD capacity, moving it from 17.5 to 24. 47 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Guidry: Mayor: Guidry: Mayor: Weiner: Mayor: Weiner: Mayor: Weiner: Right. So that's capacity. That can go. But I guess 6.9 million was what the engineer's estimate was on the odor abatement. With no guarantee that it was going to solve the problem. Right, Mr. Guidry? You were outside having a smoke, but that's what they said. 52% possibility. 52%? I didn't pin them down that hard. Let me say this. I voted to go out for bids but I'm still not an (inaudible word) of solving those guys problems. Our people up in the north end could care less how bad it stinks down there, if it does stink. But I'm telling you that if we do go pri- vatization and I've gotten some stuff across my desk, I mean that was the biggest sandbag job I ever saw in my life when the employees came up with that 99 reasons why you shouldn't go private. I would like to hear, I'm sorry you were sick that night Mrs. Weiner. I'm sure you don't know about that either. But, I would like to get if we go private, I would like to see what those guys have an input. We're getting ramrodded to judgment on this thing. And part of the reason is that three of those guys down in Delray are running for reelec- tion and they're catering to those people that we don't represent. That is a long range project Mr. Mayor, and with all due respect, that's been going on for years, that we have been trying to get... But you and I haven't been involved in that until we got elected and before I go out and spend (inaudible). Oh no, I was involved in this before I got elected. Oh, were you? Oh, yes I was. 48 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Mayor: Weiner: Mayor: Guidry: Mayor: Guidry: Olenik: Guidry: Mayor: Oienik: Guidry: Mayor: Olenik: Guidry: Olenik: Guidry: Olenik: Mayor: I've got to believe that that's not the only answer to the problem. Well nobody (inaudible words) the problem. I would run orange blossom perfume through that plant before I would spend 11.3 to solve the problem. They used to sell that at the Five and Dime Store. I know you didn't shop there . I did. Okay. All right. The conversation with the Utility Director, Delray Beach, this afternoon indicates that the Delray Beach City Commission approved to put the bond issue, a 20 million dollar issue on their next Agenda for approval, covering this facility. To get their money? Yeah. I think this City... Well, they're doing other things. Water and some lines and what have you. Luckily we have enough surplus in our Utility Fund that we could borrow from our- selves, right? If we have to. I don't know. Can we? A portion of it. Probably 3.5 million plus 1 million for the electric, so that's 4.5. Well we're going to have to... ...from impact fees. That's out of impact fees. Now what about the 6.9 or whatever's left? Ah, it would probably have to be bond issue, but, you need to address that, Scott. I'd (inaudible) That's what he said. He's going to look into it and I think we all agreed. 49 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Olenik: Mayor: Olenik: Miller: Olenik: Miller: Mayor: Miller: Mayor: Miller: Mayor-. Olenik: Right, right. Understand Scott, we left the meeting last week saying that each City was going to aggressively ensure that the funding was there when we're ready to address the acceptance of bids. Was that after I left? It may have been. I don't know when it was, okay, if you were still there or not. I don't want this City, when we gave a unanimous vote of that board last time. I don't want this City being, being, holding up that project because all indications are that it's moving ahead. Okay, it's my... So, you'd better have funding in place. It's my opinion and this is something I need to talk to John about, that we can't use sewer impact for any part of that. Okay. And that 7.5 is going to have to be through bond issue or another vehicle. That is my opinion. I mean, I don't think you can pick and choose on a project. I can understand what John Guidry is saying but I'm taking a hard line basically on that. I agree with you. If we borrow it somewhere else, we've got to pay it back. I mean it's got to be, it's got to be (inaudible). You can borrow it from the Utility Fund but you're going to have to pay it back on the proceeds of the bond issue. You cannot take it. It is not an eligible expense, I feel, or an appropriation, under the impact fee. I personally think that we can include it in the bond issue for the plant expansion. Have you got the time frame? (Inaudible words) well, we can't let it... (inaudible words) 50 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA JANUARY 24, 1990 Miller: Guidry: Miller: Guidry: Weiner: Guidry: Mayor: Weiner: Mayor: Weiner: Mayor: Weiner: Mayor: There's enough to borrow from the, from that (inaudible word) ...sewer cap fees... ...if you needed to. In the sewer alone we have 8.9 million. We could borrow from that. However, when the proceeds come back at 7.5, we have to put that money back. Okay, so there is a vehicle that we're, if we go forth with it we would be able to do it. One other item, if we will remember discussion about budget time down at the sewer board, ah, about the famous 1.9 million dollars that's in the R & R fund. Grady and I talked about that this week. R & R fund? That famous R & R fund that they have down there. It's never been used other than for roofing and what have you. So there's another source. Okay. Any further business? (bangs gavel) Ah, excuse me, I would just like to say that my request for verbatim,Minutes only extends to that portion of the meeting that had to do with the Tradewinds settlement and not to the discussion of our water utility. Okay, you want verbatim Minutes of what? Of the Tradewinds settlement. Okay. Include the part that, now you don't want about the salt water intrusion? Okay. (inaudible words) Okay, adjourned. Thank you. 51 MINUTE~ BOYIqTO5 - SPECIAL CITY COMMISSION MEETING BEACH, FLORIDA J~UARY 24, 1990 ADJOURNMENT The meeting properly adjourned at 6:25 P.M. CITY ATTEST: Recording Secretary (Two Tapes) Mayor Commissioner 52