Minutes 01-10-90MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN
COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA
WEDNESDAY, JANUARY 10, 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
Mayor Moore called the meeting to order at 5:00 P.M.
S~eoial Election Results
Betty Boroni, City Clerk reported Lillian Artis was the
winner in the January 9, 1990 Special Election. The City
Clerk administered the Oath of Office to Commissioner Artis.
The City Commission welcomed Commissioner Artis to the dais.
Tradewinds Settlement
Vice Mayor Olenik requested that this portion of the meeting
be transcribed verbatim.
Mayor:
Okay. The next item is the Tradewinds
settlement. Does anybody want to start
talking about it or...
Wische:
I'd like to make a motion.
Mayor:
Commissioner Wische.
Wische:
We can have a discussion after it. The
motion that I would like is verbatim° My
motion is to approve settlement with
Tradewinds by the payment of $8,000,000
cash, in addition to the already agreed
upon enhancements of the additional 5.1+
acres of commercial property, the addi-
tional 121,000 sq. ft. of commercial space
for the retail shopping center and the
additional density of up to a total of 600
multi-family residential units and instruct
the City attorneys to execute the
Stipulation and Settlement Agreement pro-
posed by Tradewinds. The second part of
that motion, this I'll have to get a legal
opinion on~ is to authorize the Mayor to
review, approve and instruct the City's
attorneys to execute the Stipulation and
Settlement Agreement resolving all
1
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JA~NUARY 10, 1990
Wische:
(Con't)
Weiner:
Wische:
Weiner:
Wische:
Mayor:
Weiner:
Mayor:
Weiner:
outstanding technical issues relating to
the Tradewinds project which has been pro-
posed by Tradewinds.
Sounds like you had your own attorney on
that motion~
Pardon me?
Sounds like you have your own attorney on
that motion.
I do. If you recall, Commissioner Weiner,
when I took office, I said I was going to
be just like a Congressman and a Senator
and surround myself with people with exper-
tise in every field. I do have a lawyer.
I do have a CPA. I do have a Judge and
many others. Thank you.
The only thing that I would input at this
point, I would hope, that if it is
$8,000,000 that we end up settling on~ that
we talk to the Tradewinds people and see if
they will take a portion of the bond we're
going to have to float on this thing, and
leave that up in the air, rather than a
cash settlement. But, be that as it may:
is there a second to the motion? Hearing
none, Commissioner Weiner, you don't desire
to second it?
I do not.
Mr. Olenik? You do not? I think it is
singularly unfair for Commissioner Weiner
and Commissioner Olenik to place the burden
upon a newly elected official to assume the
responsibility for settling this matter, on
Commissioner Artis, when they were part and
parcel of the cabal, and I will call it
that, that caused us to be placed in this
position of paying an $8,000,000 judgment
because of wrongdoing on behalf of the City
Commission. But, do you desire to second
it? If you won't, I will. I'll second the
motion and I'll pass the gavel. I ain't
got a gavel. I second the motion.
Mr. Mayor, I think it's unfair°
2
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYI~TON BEACH, FLORIDA JAt~QARY 10, 1990
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
For discussion now, let's go. I'm not
through with blasting you yet.
Thank you very much.
Okay, good.
I think it's genuinely unfair to put
Commissioner Artis in this position, having
just taken her seat on the Commission, to
vote on such an important subject. I think
it would make her job much easier if she
could have time to review all that is
leading up to this proposed settlement. It
is hardly fair to her or to the City or to
our attorneys or to anybody to have her
make a decision on a matter of such impor-
tance, just as she is taking her seat.
She's been briefed this afternoon on it.
She has a (inaudible). Okay?
She had a very short briefing with our
attorney.
That's right. Do you understand that
because we delayed this thing two weeks
that there's another $20,000 in interest
involved, because you do not have the poli-
tical fortitude or courage to address the
issue which you are partly responsible for
doing?
I think I have plenty of fortitude.
Let's see, let's see what courage
that Commissioner Artis has. I've got con-
fidence that she will face the issue and up
or down. The time is beyond us, but there
is a motion on the floor. Is there any
further discussion?
Yes. I have some discussion.
Go ahead. Let's hear it.
I would like to hear the recommendation of
the attorneys hired by this City to settle
this case. Mr. Critton.
Mayor: Go ahead.
3
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Critton:
Wische:
Critton:
Wische:
My name is Robert Critton. My partner and
I, Michael Burman and our firm, Slawson,
Burman& Critton, were retained by the City
to represent them in the Tradewinds litiga-
tion; two lawsuits, one the 1986 suit and
secondly, a 1987 suit, which is the damage
suit which is under consideration tonight.
We have over the course of many months sent
correspondence to the City Attorney and as
well we have had the opportunity to meet
with the various Commissioners on a one-to-
one basis which includes a meeting that we
had tonight with soon to have been sworn in
Commissioner Artis, now sworn in
Commissioner Artis, where we had approxima-
tely an hour to explain all of those issues
which related to this litigation. We have
provided our recommendations to the City
based on what we considered to be our
firm's best legal advice, based on experts
who were retained on behalf of the City to
provide their best advice. We have used
numbers to this point, assumptions which
are almost 100% or certainly substantially
those of Tradewinds in making our recommen-
dations. We have advised each of the
Commissioners individually that the numbers
are untested. They are unaudited. We have
not done discovery to the extent that we
can say with 100% certainty that each and
every item, or whether even most of the
items put forward by Tradewinds are 100%
correct. Taking Tradewinds' assumptions
and the numbers that they have provided,
factoring in the opinions which we have
gotten from our experts and have shared
with Tradewinds in an attempt to have a
free-flow of information, we recommended to
the City, assuming that the City was found
to be at fault and assuming that a damage
award would come down against the City,
that they pay up to $5,000,000.
May I ask you a question?
Yes sir.
You interviewed each one of the
Commissioners and I was one of the persons
that spoke with you and Mr. Burman. I
asked you two questions at the end of the
interview. There were two cases, correct?
4
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Critton:
Wische:
Mayor:
Critton:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Olenik:
Yes sir.
I asked on one, what were our chances. I
was told we probably would loose. I asked
on the other, what were our chances. I was
told 50/50. I also asked what possibly
can we get hurt by going to court. I was
told $12,000,000 or so. That's all I can
say.
Mr. Critton, I'm a lawyer myself and I've
practiced for probably 37 years. Let me
ask you this question. You say, don't
settle for more than $5,000,000. Will you
make a deal with the City that you will
handle this forthwith on a contingency
basis that if we get stuck more than
$5,000,000 that you will charge the City
nothing and that you will give back the
monies we have paid you solar?
No, Mr. Mayor, I will not make that
commitment.
Okay, I think you've answered my question~
Of course, that's a joke, right?
It's not a joke.
That's a joke.
We're dead serious here and there's nothing
funny about $8,000,000.
That was a funny joke.
You're playing Russian roulette with the
taxpayers' heads here.
When the commotion down that side is
completed, I have some comments to make.
First of all, the issue again and this is
the second time I'm repeating this in as
many times as it's been brought up. The
issue tonight is not whether Tradewinds
deserves damages or not. I and I think the
comment that Mr. Wische (inaudible) from
our attorney says that we probably are
liable for damages, as far as the breach of
contract portion of the suit. And I fully
MINUTES - SPECIAL CITY COmmISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Olenik:
(Con't)
Artis:
Mayor:
Artis:
agree that we are liable for damages. The
events that occurred in the past have
occurred. We were proved wrong in many
facets of our judicial system. The issue
tonight is how much is those damages, how
much are those damages worth. $8,000,000
is a number that the Tradewinds people put
on the table for us to take or not on
December 27. And in a 2-2 vote we decided,
we voted, we couldn't get a majority to
take it or not take it. My concern then is
my concern now that $8,000,000 is too high,
because when it's $8,000,000 plus some
$3,000,000 of additional enhancements we
have already given them, by Ordinance, on
the use of that property. So in effect, an
$8,000,000 cash settlement tonight is some-
where in the range of $11,000,000. I met
jointly with our attorneys, their attorneys
and the developers themselves last week and
asked several questions because I was
getting conflicting information from both
sides. So I put everybody down together
and asked the questions at once and got the
answers that I at least felt more comfor-
table with from both sides of the table.
And at the end of that meeting, I still did
not feel comfortable with $8,000,000 and
personally said that I could live with and
could support a $6,500,000 settlement, at
which point they did not accept that and the
meeting ended. I tonight still feel, based
on our attorneys advice and the studies
that they have done and I know there's
disputes on both sides for both group stu-
dies, that if $5,000,000 is the high end on
our side and Tradewinds feels that
$15,000,000 or $20,000,000 or $30,000,000
or whatever the final number is on the high
side that they feelt but they can live with
$8,000,000. I can live with $6,500,000.
Those are my comments.
I have a question.
Yes Maam. Mrs. Artis. Commissioner Artis.
Thank you first Mrs. Weiner for being con-
cerned about me having to face this at my
first meeting. I have though had a crash
course. I have also been doing as much
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY i0, 1990
Artis:
(Con't)
Mayor:
homework as was possible with the infor-
mation that was available to me before
becoming a Commissioner. So, I'm sure that
I don't understand, don't know all of the
facts, but I have made myself aware of the
things, of the facts that were available to
me at the time, without being a
Commissioner. Today I have been in crash
courses all day. There is one question
though. When the motion was made, you, Mro
Mayor made the comment about an amount in
cash and an amount in bonds. Could you
help me understand that?
I simply say that we're going to have to
get the money somewhere. I don't think we
have that unless somebody's got it buried
in a surplus of the Utility Fund and I
haven't got an answer to that. There will
probably have to be a bond issue of
$8,000,000, if that is the settlement
figure or whatever it is, floated. And
hopefully we can simplify the thing by...
I've talked briefly to the Tradewinds
people and they will take a certain amount
of the bonds in settlement to compensate.
I suggested $5,000,000 and then we've got
to get about another $3,000,000 that we
have to sell to pay their attorneys, okay?
Because they want cash. But that would be
a possibility of simplifying the complica-
tions of underwriters and I think I've
already got banks that would bind the
$3,000,000 in cash and that's something
open for discussion but if the settlement's
$8,000,000 we've got to work with them to
try to simplify the ability of getting
those funds soon. I've checked and I've
got bond counsel's opinion that we can
pledge the full faith and credit which will
make it an easy bond issue and probably an
AAA rating at a higher interest rate or a
lower interest rate, because you can deal
with the full faith and credit of the City.
We simply have to budget it over a period
of time. The longer we have to float the
bonds or pay the bonds off, the more it's
going to cost. If we settle for $8,000,000
it's probably going to cost us $11,000,000
to $12,000,000 because of the interest fac-
tor. So the quicker we pay it off the
7
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY i0, 1990
Mayor:
(Con't)
Wische:
Artis:
Wische:
Weiner:
Mayor:
Welner:
Mayor:
Critton:
better. That was just simply a side or
attempt to facilitate, you know, to give
the money to these people and get rid of
this mess° But that's a work out deal. If
we can agree on a figure and get that
behind us then we will do the best, with
the City Manager's help, we will make the
best deal we can to get the money to them
at the earliest possible date to get this
paid off and behind us.
Commissioner Artis.
Me s.
I don't know if you were present at the
last meeting. I came up with a proposal of
how to go about trimming the budget, which
came to roughly, a little over $2,000,000.
And I suggested and it was merely a
suggestion, the rest of the Commission hit
the budget books like I did, probably to
come up with more outstanding ways of
raising money, possibly making a deal of
four year equal payments of $2,000,000.
And the way I presented my proposition
there were no reductions in levels of ser-
vice, but we would have to tighten our
belts. I don't think the issue here before
us is how we are going to pay the money.
The issue is do we want to pay $8,000,000
or not. After that we will have to get
together, whether we form a committee with
the Commissioners or business people or
what to see what is the best way of raising
the money. But that is not the issue
tonight.
Mr. Mayor. Mr. Critton had one other
suggestion that I would like this
Commission to hear.
If you've got a turn why don't you pass it
on to us then?
I would rather have Mr. Critton put it in
his words.
Can you give, some other input?
One of the suggestions that I made and
again any time you have two opposing sides
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Critton:
(Con't)
Mayor:
Wische:
Critton:
Wische:
there is always give and take. There are
other opportunities Mr., Commissioner
Olenik referenced mediation the other day
as a possibility. There is also the possi-
bility that if the City believes that the
$8,000,000 figure is too high and
Tradewinds believes that their figure of
whatever is not high enough, that a settle-
ment could be reached wherein there was a
high/low type figure, such as the City
would pay X dollars today in terms of a
cash settlement and there would be a high,
an admission or at least the.., irrespective
of the outcome of the suit, X dollars would
be paid in the event Tradewinds was suc-
cessful with their position. A cap would
be placed on it and some place in between
would be the settlement figure° If it
turns out that the City's position or at
least a position that the case has a value
of something less than $5,000,000,
$5,000,0000 or less, then the Plantiffs
would be entitled only to the lowest
amount. But they would be entitled to a
sum certain. That is the low figure. If
in fact Tradewinds is right, that their
case is worth X times $5, then irrespective
of what-ever amount would be awarded in
Court, they would be capped by the upper
figure. There are a number of different
ways to resolve the case. It was expressed
by one of the Commissioners at a meeting
two weeks ago. It is very difficult to
attempt to negotiate in an open forum.
Right, let me ask you one more time...
You're discussing something in the form of
mediation. Am I correct in assuming that?
More or less... There are various ways.
Not really. Item 2 that I discussed, in
terms of a high/low is a matter of reaching
an agreement with the opposing side saying
we agree that a figure between $3,000,000
and $9,000,000 is the figure. And we go
and we try the case and if it turns out to
be 9 they get paid 9. If it turns out they
get 3...
Let me ask you this. Whatever the figure
may come to, (cough) pardon me, if either
9
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Wische:
(Con't)
~oice:
Critton:
Wische:
Critton:
Wische:
Critton:
Wische:
Critton:
Wische:
Critton:
Mayor:
Olenik:
Mayor:
party doesn't agree upon that figure, they
have the right to appeal don't they?
He's saying go to Court.
No. It's a matter of...
You're talking about going to Court?
I'm saying if the parties proceed to
Court...
Okay.
A jury renders a decision. If the jury
finds that the City was not at fault, that
they did not breach the contract, that they
are not guilty of a civil rights violation,
if the low figure is 3, the City is paid 3,
or the City will pay 3, irrespective of the
outcome of the litigation. In the event
the City is found liable and the jury comes
back with $15,000,000 and the cap has been
put on at $9,000,000 or whatever the cap
is, that is the amount that is ultimately
paid to the Plantiff under those cir-
cumstances.
Why do you think that Tradewinds would
agree upon a deal like that when they can
go in and ask for the moon if we don't
approve it tonight?
Well what makes...
Without a cap or without a bottom line.
Tradewinds may come back to you tonight.
Again, an open forum (inaudible).
Let me answer that question. We've already
been, you've gotten information, $6,500,000
is the settlement figure, right? So why, if
they're telling us that, would you go to
three?
No, no, no. 6 is something that I put on
the table.
That was based on the advice of the attor-
neys, right, after your meeting with them?
*Should be
Olenik. See
1/16/90
Minutes.
10
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Olenik:
Mayor:
Olenik:
Mayor:
Perry:
Mayor:
Perry:
Mayor:
Perry:
No, they said, our information says between
$5,000,000 and $5,500,000 as the upper end.
Okay, well the $5,000,000...
I said $6,500,000.
Okay, let me ask Mr. Morton one question.
Mr. Morton, this has been kicked around in
the newspapers. Will your firm, your
people take a nickel less than $8,000,000
in settlement? Are we beating our head
against the wall now? Mr. Perry, somebody
said we're at fault or Mrs. Weiner and
Commissioner Olenik were at fault for not
coming back and making a counter offer to
the 8. I've already personally gotten the
answer myself. But you tell me again, for
the record.
For the record, the answer is no.
Thank you.
I would like to make one comment, Mr.
Mayor. I'd, I'd
Go ahead.
This is on Mr. Critton's last comments
about the possibility of, if we were going
to go to trial there is no way that we
would agree to a cap. I mean if we're
going to go to the trouble to prepare to go
to trial, we'll roll the dice on that.
We're confident of our position. Number
two and more importantly, I think relative
to the question that you raised, I'm not
going to make a commitment to you tonight
that on the issue of whether or not they
will agree to purchase some of the bonds.
I think that we would be willing to sit
down with the City and discuss that in
terms of what types of bonds we're talking
about. Are these going to be General
Obligation Bonds or be on the credit of the
City. You know those are items that we can
discuss in terms of assisting you as to a
method of payment. But that really is not
the issue on the table.
11
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Mayor:
Olenik:
Mayor:
Olenik:
Mayor:
Olenik:
Mayor:
I agree, I agree. I just wanted that out.
I've already done a little bit of research
on it. I think we can, we can give you
full faith and credit bonds and it would be
the tax (inaudible).
If, you know, if there is a settlement
agreement reached tonight, I think the
motion should be very plain and simple that
we settle for X number of dollars with the
details to be worked out by staff or com-
mittee or whatever and you're motion is
probably a little too specific. You're
probably tying too much in it in the out-
set.
I think it's clear that we want everybody
connected with the City including past
Commissioners, past Mayors, etc., out of
the deal, out of harm's way, if you want to
put it. I'd like to recognize Mr. McGoun
here, Mr. McGoun, Editor from the Post.
Glad to have you here.
I have yet to hear any comments, except
from the Mayor, any comments from other
Commissioners as to something other than
$8,000,000. All we do when another number
is entered about is defer to Tradewinds
and ask them, you know, will they accept
it. What will you accept as another member
of this body? Or why won't you accept
$6,500,000 or some other number, other than
$8,000,000?
I said 8 because they said that's the least
they're going to take. And you put it out
that we're just giving them anything they
ask for. They started at $24,000,000.
Then they had economic experts to back it
up.
When you're on the high end, it's infinite
where you can start.
Well you've got to recognize and that's why
I asked a specific question of their attor-
ney, Mr. Perry, they said $8,000,000 is the
least they are going to take. So you buy
it or you don't.
12
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
It sounds, it sounds always to me like
something out of Franz Kafka to hear our
Mayor belittle and berate two Commissioners
who are trying to give someone who is suing
the City as little as we possibly can.
That is all we are trying to do. We're not
trying to ....
Do you need a lobotomy to...
I do not need a lobotomy, Mr. Mayor and I
certainly resent that.
...to understand that on every (inaudible
case, six times in a row, (inaudible) you
are a part and parcel. This happened on
your watch Maam. You are responsible. You
will bear the burden of the taxpayers, of
my great grandchildrens' debt.
Mr. Mayor you are our Mayor, not our
lawyer. Who's side are you on? I will
bear no burden. We'll all bear the burden.
And you sit there with a smile on your face
and you come up with nothing~
I am trying to forgive you.
Okay. Well let's ah, anybody got any
further discussion on it?
I do have further discussion.
Yes Maam. Go ahead. I recognize the
Commissioner from Hunters Run.
It's really dreadful that you can't control
yourself, Mr. Mayor. I do forgive you.
Thank you.
Mr. Critton has said that there are alter-
natives. Mr. Perry tonight has said he
will not accept them. He said this is an
open forum. I don't think that we need
rush into this. You think that it's been
going on and on but $8,000,000 is a tremen-
dous amount of money. I think we ought to
explore every single alternative that our
attorneys can come up with. I do not think
13
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYI~TON BEACH, FLORIDA JANUARY 10, 1990
Weiner:
(Con't)
Mayor:
Weiner:
Olenik:
Mayor:
Olenik:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Wische:
Olenik:
Mayor:
Artis:
we should settle for a number just because
that is the number that that attorney seems
to be willing to settle for. If he was so
sure he could get $25,000,000 in Court, he
wouldn't be willing to settle for
$8,000,000.
Does it give you a comfort level, Maam, that
our attorneys won't take this on a con-
tingency basis? Does that scare you?
Would you take it on a contingency basis,
sir?
Of course not, because I think we're wrong.
I don't think anybody would take a case
like this ....
Well then there's something wrong with it.
This is not a negligence case.
If we're that right, then you'd take it on
a contingency basis.
This is not a negligence case.
~nat's the difference?
That's the difference. No attorney's going
to ....
We've lost six times in a row. Okay,
that's all.
Can we have a vote please? We can go on
all night back and forth and I don't think
that's why we're up here.
Is there any further discussion?
(inaudible words) .... gavel.
Wait a minute.
I have one other question. Just for a
matter of clarification. In my crash
course I was told that the original settle-
ment was in 19867
14
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Mayor:
Wische:
Artis:
Olenik:
Weiner:
Wische:
Olenik:
Artis:
86? I think so, yes.
Yeah.
Well, I'm just trying to justify in my mind
that this is not new, this is ....
Again, tonight, tonight, it's very easy to
get caught up in what we're voting on.
We're not voting on whether we did wrong.
We're voting on the value of what the wrong
was. We know that there was a settlement
agreement in '86. We know the Courts told
us several times and were upheld and
Tradewinds was upheld that we were cited
for contempt of Court. (Tape turned over)
.... are guilty of a breach of contract,
okay? What we're here tonight is how much
does Tradewinds deserve for what we have
done to them. It has no bearing on, that
the Court case, that the settlement
agreement happened in '86, only to the
extent of what the value of that time is,
between the settlement agreement and the
time they are able to begin developing this
property. 8, you know, $8,000,000 plus
some 2.8 or 3.2 million dollars of enhan-
cements is somewhere in the $11,000,000
range. I have put on the table, which no
side seems to be too crazy about, a 5½, 6½
plus the 3 some odd million dollars of
enhancements....
I'm crazy about it. I like it very much.
If you like it so much let's vote. We're
going on and repeating everything.
I just wanted to clarify it for
Commissioner Artis, that whether
is a true issue at hand tonight,
find the value of the settlement.
the issue
it's to
One other thing. In talking to the attor-
neys I did ask a point blank question.
Could they assure me, or assure us that we
have a possibility of winning in Court if
it goes to a jury trial and in all honesty
they could not assure me of that or give
that assurance to the general public. So
in that sense I am saying if by chance we
15
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYiqTON BEACH, FLORIDA
JANUARY 10, 1990
Artis:
(Con't)
Olenik:
Artis:
Otenik:
Mayor:
Olenik:
Rea:
Olenik:
Rea:
Wische:
are not successful and it goes higher than
$8,000,000 and they have no ideat they can-
not give us a figure as to how high it
could possibly go, we're putting an awful
burden on the taxpayers.
You know, I mean, the only thing that con-
cerns me tonight is that first of all we
opened up discussion with a motion and I'm
not sure that was the way to go. We should
have had discussion and then a motion.
What concerns me is maybe we, what if this
Commission made a $6,500,000 offer to
settle and let them know that there is a
majority of Commissioners that would agree
to that and see and put the ball back in
their court. The ball's always been in our
court. And we are talking to them over the
net. We haven't given the ball back to
them. Really I think, I'm concerned that
we're doing this at ...
Many of us would like to see a much lower
settlement. But when we are getting one
answer from them, "No, I'm not going to
accept it", it makes it very likely that
it will go to a jury trial.
Is there any further discussion then? I
don't want to belabor this.
I take it you answered your question. We
asked them flat out. Would you go less
than 8 and they said no. I mean, we did
exactly what you said. Call the question.
Any other discussion?
Can I just interject something about the
motion?
I would like clarification on the motion.
Yeah. I would like to see if, I think it
should be clear that that motion includes
both lawsuits as being settled, that it
includes all named defendants with a
signing of you know, releases.
Whoa, say that again, the last part.
16
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Rea:
Mayor:
Molina:
Mayor:
Molina:
Mayor:
Molina:
Mayor:
Molina:
Mayor:
Olenik:
Mayor:
Olenik:
Mayor:
Olenik:
Wische:
Olenik:
All named defendents and holding releases
in escrow for all the parties involved.
Plus the understanding, clear understanding
that if there's any problem with Mr. Molina
and Mr. Lehnertz, or whatever his name is,
continuing the lawsuit on the side thing,
it's okay I see you...
I want to speak ....
No, it's not a Public Hearing. That the
Tradewinds people would assume respon-
sibility for .... we're out of it... the
City's out of it. If we pay them
$8,000,000, we walk. Okay? That's
included in the motion, okay?
You should have had a Public Hearing in
the...
We had a Public Hearing before.
No you didn't.
No, we had a Public Hearing before.
No you didn't.
Just a second now. We had a full Public
Hearing.
Go ahead.
I would...
It's all going to be worked out by the
attorneys, Okay, but I mean, the details.
If we pay $8,000,000, then we'll work out
the details.
The motion on the floor is an $8,000,000
cash settlement.
The motion on the floor, as I read it will
be amended by whatever Raymond Rea said and
with the agreement of the Commissioners.
Ray, will you please state, would you
please state what you feel the motion
17
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Olenik:
(Con't)
Mayor:
Olenik:
Mayor:
Olenik:
Wische:
Rea:
Wische:
Rea:
Mayor:
Rea:
should be and if the seconder and the
maker will amend it, we'll go for the vote
that way. I mean, on an $8,000,000 issue,
I don't want to be caught on a tech-
nicality.
Well you're voting against this anyway.
You're home free.
No. I think maybe I've just been wanting
to~treteh this out.
Okay, all right, good deal. I apologize.
Ray, if you could kind of verbalize the
motion, then...
Would you like me to go over the motion?
Well, let me suggest some language and
listen to me while I'm working it. That,
for the sum of, I guess you're saying
$8,000,000?
Right, in addition to.
In addition to the already agreed enhance-
ments that have already been mentioned,
that this is an all encompassing settlement
to include the '86 and 1987 lawsuits, that
the issues for liability are resolved
against all named defendants, that there
are releases to be held in escrow pending a
final Court authorization of the settlement
agreement and that Tradewinds, Tradewinds,
all the parties in interest, all related
parties, not necessarily by the name
Tradewinds, anyone who has a present
interest in the property or potential
future interest in the property, releases
the City and all named plaintiffs of any
potential liability.
Including the intervenors.
Plus, yeah, one other thing I forgot too.
And that $8,000,000 is reduced by the
amount of the money presently held by the
Court which we were agreeing to as being
compensatory, which amounted to two hundred
and some thousand dollars.
*Should be
str a ight en.
See 1/16/90
Minutes.
18
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Olenik:
Wische:
Olenik:
Mayor:
Olenik:
Mayor:
Olenik:
Mayor:
Rea:
Olenik:
Mayor:
Olenik:
Rea:
Mayor:
Rea:
Mayor:
Rea:
Mayor:
Does the maker agree to that motion?
Oh yeah.
Does the seconder agree to that motion?
Sure.
Whether I agree, whether I vote for or
against this motion, I want to make sure
that the City is protected in whatever gets
approved here tonight. That's why I want
it clearly specified what the motion is.
Is there any further discussion?
One further point. I think the City
Attorney ought to bring back to us the
final form of the Stipulation, for final
approval by the Commission. We're agreeing
in principle.
I agree.
Okay? At the meeting, I will call another
special meeting tomorrow night or the next
night, whatever.
It will take longer.
We have another meeting Tuesday, so.
Okay, Tuesday, have that before us.
We'll have it Tuesday, Ray?
There are a lot of technical problems. We
have to have...
At the earliest possible date. Can you
handle it from your end, Mr. Rea?
We'll still need (inaudible) as well.
You can't handle it from here?
I could, but I think it would be
advisable...
Well you know I've got a bunch of notices
of depositions, a big package that I could
hardly lift this morning. I mean, if we're
19
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Mayor:
(Con't)
Rea:
Perry:
Mayor:
Olenik:
Mayor:
Olenik:
Mayor:
Perry:
going to settle this thing, I don't want
continuing obligation for attorney fees on
something that's behind us, okay?
We have, I mean if it's the will of the
Commission, I would suggest that the
Commission, especially since they've been
intimately involved in the process that
they be continued on until the final ink is
dry on the Settlement Agreement.
Mr. Chairman, by way of clarification, I
wasn't sure whether I heard Mr. Rea or
someone else mention releases of the inter-
venors. I think it is important that you
should clearly understand that there is
pending litigation by the intervenors
against the City, as part of this on-going
litigation. And we for one have no inten-
tion of releasing the intervenors as long
as the intervenors...
Well, I brought the point up and I said if
you guys would assume full responsibility,
if they blow your deal for settlement, but
we're out of it. And you would undertake
the responsibility to take care of them,
blow them out, which I think you will and
take care of any responsibility for
defense, further defense of that interven-
tion.
The City has no more...
If we pay anything, we're going to walk.
Now, if we have to defend ourselves because
they're intervening against us, I then, I
don't know how we can end that. We can't
Nobody can release anybody, I mean ah,
Let me suggest, Mr. Mayor, that there, we
are not going to agree to that. I mean
this settlement, let me be perfectly clear.
This settlement is going to require that
the City help us defend this settlement.
If these intervenors are going to continue,
the City is going to have to continue to
defend. We're not going to have the City
20
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Perry:
(Con't)
Mayor:
Perry:
Mayor:
Perry:
Mayor:
Perry:
Mayor:
Weiner:
Critton:
laying down and playing dead the way they
did the last time we entered into an
agreement with the City. If that's not
acceptable, then we're all wasting our time
and we may as well go to trial.
No, I wasn't saying that. We will do
anything we can to cooperate with this
but I think it's a frivilous intervention.
As long as we understand.
We'll back that up. That's my opinion.
One final point, just for, so that we're
all certain to understand, on the issue of
the fines that have been paid in Court
that were mentioned as part of the motion,
ah, you need to be clear in your
understanding that that is subject to the
discretion of the Court. We have all
agreed previously that those fines should
be compensatory in nature. But that's up
to the Judge. I believe that he'll agree
to that, but make sure that you understand
that.
Subject to Court
goes against us,
right?
approval of that. If he
it's $8,000,000 net,
Right.
Okay.
Mr. Critton, do you have any recommendation
on the issue of the intervenors?
I think the City's position is clear that
they don't think that the intervenors'
appeal that they've taken is merited. We
entered into, as part of the enhancements
settlement, in conjunction with Tradewinds
and the Ordinance that we felt that if
everything was done and approved by Judge
Garrison is 100% okay. I don't see why
Tradewinds cannot agree to argue the City's
position or at least pay on behalf of the
City. The City is on record in terms of
supporting the enhancements and everything
that occurred as a result of the Order on
21
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY i0, 1990
Critton:
(Con't)
Rea:
Critton:
Mayor:
Rea:
Mayor:
Rea:
Mayor:
Rea:
Mayor:
Perry:
Mayor:
Perry:
October 31, 1989. The City, if the City
approves what's been proposed tonight, it's
a small price to pay. Again, you all can
do whatever you want in that regard, but I
don't understand why Tradewinds cannot
assume the City's responsibility with
regard to that appeal. The City is on
record as to what their position is. If
they're, if should the City decide to
approve it, then the City should be out of
this matter.
Just as an additional point, you all
received,
Wait a minute~ If in fact the Mayor wishes
to cease all attorneys fees that relate to
that, that's got to be part of the deal, as
well as the...
We'll see that I think in (inaudible)
You all received in today's mail, we just
received it today, a letter from Woolbright
Partners, the property owners of the south
side of Woolbright, who are putting us on
notice of their intent to sue as well.
Sue who?
Sue the City.
Who's that? Woolbright ...
Because of this project, and the settle-
ment. So the litigation may not
necessarily be over.
Okay.
Let me make one last comment. You know,
I'm sure Mr. Critton understands what I'm
about to say although it's possible he may
disagree. There is a rule, Mr. Moore, that
you're familiar with that relates to an
issue called champerty and maintenance. We
have no problem with undertaking this...
It's a footnote in law...
...so long as we do not get in the posture
of maintaining a lawsuit for another party.
22
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Perry:
(Con't)
Mayor:
Perry:
Mayor:
Weiner:
Olenik:
Rea:
Wische:
Olenik:
Rea:
Mayor:
Olenik:
Rea:
Wische:
Olenik:
I need to have, let's have a clear
understanding that the City will stand it's
own ground. The issue of fees, we'll fight
the battle, that's no question. The City
has got to be in there with a commitment to
back this agreement (inaudible word). You
know, that's my concern.
What I was intending to clarify, if, God
forbid, somebody should get in there, blow
the thing out and take away your enhance-
ments, we're out of it for $8,000,000,
okay? Is that.., that's understood?
I don't have any problem with (inaudible).
Okay, I think that's what we're talking
about here. It's not going to go up to 11
or 12 or 15 because somebody else makes
something happen.
It's already 11. At least 11.
Is there any further discussion on ~he
motion?
Could we just get clarification? I hate to
keep on interjecting but, was that agreed
that if someone knocks out those enhan-
cements in Court, that the $8,000,000
figure still exists?
That's right. It's a walk away figure.
Are they agreeing to that?
Are they agreeing to that?
Work out the details for settlement. I
think they did. It's beyond our control.
In other words, then they come back to us
and ask for the $3,000,000 cash.
Exactly. I think that should be understood
here.
Shannon, would you go back to the...
No, let's...
23
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Wische:
Mayor:
Wische:
Mayor-.
Wische:
Mayor:
Recording
Secretary:
Mayor:
Olenik:
Perry:
Mayor:
perry:
Wische:
...last stages of what Mr. Perry said in
reference to the...
He said yes.
... in case the enhancements aren't
approved...
He said yes in the record already.
We could walk away only with $8,000,000
period.
He said yes.
I'm not sure if I can repeat it, Sir.
He said yes.
I am requesting that this entire issue
tonight be verbatim for the Minutes.
Mr. Perry.
We have no problem with that understanding.
That's what I said a minute ago, with the
clear understanding that the City make a
good faith effort to defend. We have a
problem of a history here of the City
having made that agreement previously and
jumped over the other side of the fence.
And I just want that clearly understood.
If the City violates a good faith effort to
defend, then that deal's out.
It will have to be in the stipulated
agreement that we confirm, we commit to do
that because I think the understanding that
I have, talking to the bond counsel, we've
got to do this on a stipulated basis, a
judgment entered against the City, in order
to enable us to float the full faith and
credit in support of the bond issue to
settle this. It's got to be in there.
Just like if anybody defaults on that,
we're right back in the same box.
All I want is a default provision. That's
all I'm asking for.
Mr. Perry, don't leave yet. With reference
to your last statement, you stated that the
24
MINUTES SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY i0, 1990
Wische:
(Con't)
Olenik:
Perry:
Mayor:
Oienik:
Wische:
Mayor:
*Artis:
Olenik:
Weiner:
Olenik:
Mayor:
Weiner:
Mayor:
Weiner:
Mayor:
Weiner:
Olenik:
previous Commission or Commissions backed
off. I can tell you right now, whatever
this Commission votes on, I have full con-
fidence, they will not back off.
His point is, two years from now when a new
Commission takes over or three years from
now, that could change.
Ail I want is a default provision.
Commissioner Wische, stay healthy, please.
Any further discussion on this motion?
You all understand the motion? Any
questions on the motion? All those in
favor signify by saying Aye.
Aye.
Aye.
Aye.
Ail those opposed,
*This was added.
See 1/16/90 ~inutes.
signify by saying Nay.
Nay.
Nay. The motion carries 3-2.
I will say this. If they ever write a
sequel to Kennedy's Profiles in Courage,
Commissioner Weiner...
Hold your tongue, Mr. Mayor ....
(inaudible words)...by way of a footnote.
Hold your tongue.
You guys got us into this mess and then you
(inaudible word) tuck and run. Tuck and
run.
I did not get us into this mess.
One comment I would like to make and I
guess it's an apology to Commissioner
Artis. I don't know how you feel tonight,
but I'm kind of embarrassed up here and I
would like if we could stop the small petty
talk that goes on in this body. We repre-
sent the citizens of the third largest City
25
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA JANUARY 10, 1990
Olenik:
(Con't)
Mayor:
Rea:
Mayor:
Miller:
Mayor:
Miller:
Mayor:
Hileman:
Mayor:
Hileman:
Mayor:
Hileman:
Mayor:
Hileman:
Rea:
Hileman:
Mayor:
in Palm Beach County. Can't we at least
look like we do? Thank you.
The last item on the Agenda is D. J.
Snapp's request. Do we have any input from
the request for a cash bond? Wait a
minute, let's see what he has to say.
We have a Resolution prepared.
To do what? Do we have a recommendation
from staff?
(inaudible)...
90%?
At least 90%...
Huh? All right,
to be heard. Is
Hileman?
we've got a guy that wants
90% agreeable to Mr.
No sir.
Okay, what do you have to say?
Mr. Mayor, since I represent one of the
suppliers on that job, the Hypoluxo project...
Could you please hold it down back there.
It's my understanding that a cash bond was
posted that's not in accordance with the
Code itself. We today filed a declaratory
action in Circuit Court asking the Judge to
declare what our rights are under this
bond. We remain unpaid $64,000 on this
project.
You filed a suit against the City?
Naming the City as well as the general
contractor (inaudible).
No, we haven't been served.
I'm sure you haven't been served.
this afternoon myself.
I filed
On behalf of a sub-contractor?
26
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JAzNUARY 10, 1990
Hileman:
Mayor:
Olenik:
Mayor:
Hileman:
Mayor:
Hileman:
Mayor:
Olenik:
Wische:
Mayor:
Voices:
Mayor:
Miller:
Olenik:
Miller:
A & P Water and Sewer.
Okay.
I move that we table this then.
You're saying this is in the Courts now?
Unless we release...
We'll have it served tomorrow.
You don't want the bond released because
you're...
That's right.
Have they bonded you out on your suit or...
I move we table this.
Second.
Ail in favor say Aye.
Thank you. Any other items to come before
the meeting? This is a special meeting.
Just a minute. I talked about getting the
position of City Engineer filled at least
temporarily. Mr. Miller, you've got some
input on that with the concurrence of the
Council? I think...
Basically, there is a need for a Certified
Professional Engineer on the staff. Right
now we don't have one. I'm hopeful in the
weeks and months ahead to contract the ser-
vices of one. In the interim, I would like
to get Council or Commission approval to
contract the services of possibly Gee &
Jenson to help the City out on engineering
services on a professional basis.
Can we do that without going out to bid?
Yes we can. We have, under the C.C.M.A.,
$6,000. I prefer to go on a month by month
contract. It would certainly be under
that.
27
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYI~TON BEACH, FLORIDA
JANUARY 10, 1990
Mayor:
Miller:
Olenik:
Miller:
Rea:
Mayor:
Olenik:
Wische:
Mayor:
Olenik:
Mayor:
Voices:
Mayor:
Olenik:
Mayor:
Miller:
Mayor:
Lehnertz:
(inaudible words) City Engineer, City
Planner. Fill all those vacant positions,
right?
Yes, sir.
What happens if we exceed $6,000?
We would not exceed $6,000 in a one month
period. I'll make sure of that.
We would do it as a month contract and with
very specific terminology that it will not
exceed $6,000.
Entertain a motion to accept that?
No, we really can't vote on it. Well, we
can vote on it tonight if we ratify it at
the next meeting.
Yes, that's what I want...
Second?
Second.
Ail in favor say Aye.
Aye.
Proceed.
That needs to be on the next Agenda.
Right, for ratification.
It will be.
I'll make just one statement. Have our
traffic engineers coordinated with the
Tradewinds people on the Home Depot to get
that thing moving forward? There was some
question about obstruction. I understand
that there was discovery of gopher tor-
toises on this property and they deter-
mined the burrows could not possibly be
older than six months, so somebody salted
the mine.
I was out there two years ago and saw
gopher tortoises.
28
MINUTES - SPECIAL CITY COMMISSION MEETING
BOYNTON BEACH, FLORIDA
JANUARY 10, 1990
Mayor:
Were you? Yeah, well you might be
involved. Let's see what the environmen-
talists say. And you~brought it up again
and you took part in the discussion and
argument, again, yet again,
Lehnertz:
Yup.
Mayor:
At the Planning and Zoning Board as a
member of the Board against Tradewinds and
you were instructed not to do it.
Lehnertz:
No I wasn't.
Mayor:
No you weren't what?
Lehnertz:
I wasn't instructed not to say anything.
Mayor:
Well you were instructed by this Council
not to take part in any discussion or
voting against where Tradewinds was
involved because you're suing the City.
Lehnertz:
This Commission (inaudible words).
Mayor:
The meeting adjourned at
ATTEST:
C~ty ~rk
Recording Secretary
(One Tape)
Another nail in your coffin. Another nail
in your coffin. Okay, meeting adjourned.
5:50 P.M.
/ / Mayor
, Vic~ Mayor
! ' Commissioner
C6mmissioner
29