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Minutes 01-30-76M!~TTES OF SPECL~L CITY CO~CIL ~ETING OF THE CiTY OF BOYNTON BEACH, FLORIDA, HELD IN CITY HALL, FRIDAY, JANUARY 30, 1976 PRESENT Joe DeLong, Mayor Joseph F. Zack, Vice Mayor Emily M. Jackson, Councilwoman Norman F. Strnad, Councilman Frank Kohl, City Manager Robert B. Reed, Jr.,City Atty. Tereesa Padgett, City Clerk Mayor DeLong called the meeting to order at 4:00 P. M. and announced it was a special meeting called by the ~ayor of the City Council of Boynton Beach. He then requested Mr. Reed to deliver the information to the City Council regarding the court proceedings this afternoon. M~. Reed stated he would first like to review this entire case, which has been referred to generally as the "water softening case" cud was filed by J. Earl Pratt. The complaint asked for an injunction to prevent the City of Boynton Beach to prevent installation of a lime softening process in conjunction with the expansion of the water treatment plant. In January, 1975, the City passed Resolution 75-A for the City to sell water and sewer revenue bonds. On February 27, 1975, the Circuit Co?3~rt validated those bonds and authorized the City to sell bonds series 1975. There apparently was much discussion, review, and consideration of whether this expan- sion of the water treatment plant should include a lime soften- ~ g process. These discussions culm-~nated in the Cit re uest- lng bids 8~ December 16 from contractors who would oe~er q ~ - to construct the expansion of the water treatment facility. Their bids were to include the installation of a lime softening process. At th~ time the resolution was passed enabling the City to issue Water and sewer bonds, the resolution included reference to the fact that this expansion would proceed in accordemce with the plans and specifications of the City Con- sulting E~ginee~s which were to be on file of the City Clerk. The f_nal ~udge~ent an~ bond validation proceeding also? in- cluded referenc~ that the project would Droceed on the oasis t~?se ~l~aas.and specifications being Sn file in the City ±er~js o~fice. The City sent out a request for bids on ecemoer 16, 1975. M~. Pratt filed a complaint on December 17, 1975, asking the Circuit Court to prevent the City from including the lime softening proce:ss. The plaintiff hs.s indicated that he and the members of his group are not against the expansion of the plant, but the lime softening process. The basis of this complaint is t ~hat it would be dangerous to the health of the inhabitants of ithis co~r~unity with many residents older in years. The complaint alleges that this City Council was grossly negligent in requesting bids to include a lime soft- ening process. 'The complaint also alleges there was an MINUTES - SPECL~L CITer COUNCIL ~TING BOYNTON BEACH, FLORIDA JANU~RY 30, 1976 abusive loss of discretion which will cause serious damage to health. The plaintiff has asked for an injunction against the City awarding the bids on this basis including the lime soften- ing process. After receiving the complaint, the City filed. It was cited to the court that a Florida Supreme Court case in reference to the exercise of discretionary functions, that municipali- ties are immune from judicial control. Only in cases where there are fraud, corruption, violation of law, or gross abuse of power ~o courts step in. The pla:~tiff alleges that the City is guilty of exercising gross abuse of power because of the. possible adverse health possibility that lime softened water will have on the inhabitants. This afternoon, they had a hearing before the court lasting about one half hour and as a result, the judge demied the plaintiff,s request for a temporary injunction. However, the request for a permanent injunction was still pending. This was brought to the court,s attention mhd they asked to dis- miss the case or set for trial. At that second hea~ing, the court ruled that, in the judge,s opinion, the complaint did not contain sufficient facts upon which to proceed any~fur- ther with the case becamme in the co~t's opinion, the facts did not ~now that this City Council decision to permit lime softening was a fairly debatable issue. The court said in order for the plaintiff to proceed, he would have to file a complaint that the actions of this City Council are not de- batable by reasonable means. Accordingly, the court gave the plaintiff three days to fil~ an amended complaint. The second hearing was held this past Monday. They had previously set this afternoon at 2~30 for a hearing to dismiss or hear the amended complaint. The hearing this afternoon resulted in the judge finding the facts stated in the amended complaint, which was changed only to provide additional facts which the plaintiff felt made t_eH issue debatable, in other words, that the City Council in authorizing a lime softening process were guilty of discretio=, but this is not a debatable question. The judge in reviewing the case must read the allegations of the complaint and consider all the allegations are true. The Judge, at the hearing this afternoon, found that the allega- tions of the amended complaint were not a deeatabze~ ~ question. However, the co~t fel~ it could not grant our motion to dis- miss this afternoon. In proceeding with the law suit, he was not permitted to file a motion for summary judgement since they were to award the bids no later than January 31. A hearing cannot be se~ for twenty days. The judge must look a~ all facts. He must look at the question as to whether the City Council was E~ilty of abuse of discretions. Being in a time bind, he -2- MINUTES - SPECIAL CiTY COUNCIL ~ETiNG BOYNTON BEACH, FLORIDA J~MU~Y 30, 1976 had to file a motion to dismiss. Their alternates ~_~e to file a motion for su~sary judgement or move to have this case set for trial for full judgement. He also explained how the plaintiff had the same alternates. This is the status of the case at the present time. ~. Reed continued that he feels obligated to m-~k.e some recoma mendation to the City Comucil with respect to awarding of the outstanding bid for construction of the water treatment plant including the lime softening process based on the status of this case. It is his understamding that the bids that were requested were bids to construct this plant including a lime softeniP~ process and it is his understanding that these bids to ex_oand the plant and install the lime softening process are interwoven. Either they must take this bid with the lime softening process and expansion or they don't. He thinks it is of crucial imports_u~to this City Council to have a full and open discussion and clarification as to whether the out- stm~ding bid to expand the water treatment plant can go forward for a minimal reasonable period of time before monies and ef- forts have to he expended in regard to the lime softening pro- cess. A determination of whether the bids submitted ~o the City can be arranged in such a fashion is of utmost ~mportance. If they explore the possibility of whether the water treatment expansion can proceed by itself for a reasonable time and if it can be done with those bids outstanding without having to ask for additional bids, it is his opinion it would be the best course to f~llow if it would not involve additional sums of money. However, if this cannot be done and if they must take the entire project as one package and/or it would cost substantial sums of money, it is his feeling that the City of Boynton Beach under the present circumstances would not seriously subject itself to .legal liability at the present time. At-the present time, the installation of the lime softening process is an acceptable and approved method to be used in ~ater treatment plants approved by the State of Flor- ida and Palm Beach County Health Department. At the present t~me, that is the law and ac,cording to the Consulting Engi- neers, approximately 70% of the municipal water supplies in the State of Florida uss lime softening. Therefore, there are many basis on which this City Council can rely to go ahead with this lime softening proc:ess. If it is possible to proceed with expansion without installing the lime soften- ing process for a minimal period of time, 30 to 60 days, in view of the pending ls_w suit mud the fact that it cannot be resolved for a minimum of ~0 days, that would be the most prudent course to follow. Mayor DeLong stated it was his understanding, after conversa- tions with the Consulting Engineers, that in order to go without the lime softening process, there must be revised plans. He doesn't think~it would cost too much for the re- vision, approximately $4,000. He requested M~. Hallman to MI~IUTES - SPECIAL CITY B0¥NTON BEACH, FLORIDA COUNCIL ~ETING JANUARY 30, 1976 answer how much additional cost it would be to revise the plans to go without the lime softening process, whereby the plans sme going to be put into a position if they were forced to go into the lime softening process they could go ahead. M~. Hallman appeared before the Council amd advised them that they have spent considerable time in the last two days trying to get figures using the alternatives. To revise the olans and specifications to continue with the lime,softening-process to be added at a later date would be $40,000. There would be a delay in time of approximately four months in the prepara- tion of these plans for approval. Mayor DeLong clarified that this meant they would have to throw out the bids they have re- ceived and go for new bids and this would mean six months. Mx. Hallman stated that they see a delay of four months, but to get back where they are now, it would be six months. ~yor DeLong then read a letter dated January 29, 1976, from Mm. James C. Williams, Director of Environmental Sciences and ~ngmneermng, addressed to M~. Fra~kKohl, outlining the vari- ous courses of action the City could pursue to orotect the health of the residents if temporarily prevente~ from award- lng this contract. M~. Reed asked N~j. Hallman if it was possible for the City Council to award the bid to the low bidder with the low bidder taking this project on at the same price and proceeding with expansion, but holding on the lime softening process for 30 or 60 days at which time this City Council could s~y aye or nay to this process? ~. Hallman replied that he could not answer this yes or no as it is up to the low bidder. The way the plans and specifications a~e drawn, there is no way to separate the process which~ill be used. The plans and specifications could not be separated and they could not re- quire this bidder only to prepare that work for the exps~sion without the lime softening process. He explained how differ- ent basir~, controls, etc. were needed. He added that he would also not be able to place the order for equipment. He would not be able to place an order for installation and con- trols that a~are interrelated with the process. The $40,000 he mentioned is to separate this. Mm. Reed asked if the same facility used in~h~_~e lime soften- ing process could be used for the alum colliquation orocess? He believes the alum colliquation process would require an additional facility. Can some of the same facilities be used for both processes~ad if so, could those facilities be put in f~ _rst to allow more time to hopefully resolve this law suit? M~. Hallman replied that he would like to be able to answer the question with yes, but there are certain facilities that could be utilized in any system, but the hydraulics of the plant, the installation of the basins, and the gravity flow of the water is all based on the installation. They just cannot build a piece and say they are going to go in any di- rection. -4- MI~UTES - SPEC~_L CITY COL~C!L MMETING BOYNTON BEACH, FLORIDA J~&NUARY 30, 1976 ~-~. Reed asked if there were certain facilities which could be interchanged and Ms. Hallman replied: yes, but the number is insignificant. Mr. Reed asked if they could still go with the same low bidder and Mr. Hallman replied that he didn't believe so as it is not in the design. He added that the contractor must place some of his orders for equipment or receives a penalty. Mr. Zack asked if a bid was awarded, how many days would it be ~efore it was started and Mr. Hallman ~eplied 30 to 60 days. He continued that the plansastate they must begin within 10 days, but on an installation such as this, it would take at least 30 days. If they award a contract to this contractor, they a_~e legally required to fulfill the contract unless they can show reason for voiding the contract because of his negli- gence. The contractor c~ place orders for all equipment. Mss. Jackson stated that it is going to take time and they know within 60 days, he will not get much done. It seems to her they would buy the time this way, but the design is the whole holdup? ~. Hallman informed her that they ran a cal- culation of what it would take to corporate with the colliqua- tion process. Just to revise the plans and specifications, they are talking $70,000 to make the alterations. Mayor DeLong stated that regardless how they stent, they still must wind up with a chemical preparation. Within one year, plans and specifications must be submitted showing a chemical preparation. ~ney must use a water softener. From all indi- cations and the presentations made, it looks as though the lime softening process is the safest. Mr. Hallman agreed. M~. Reed agreed that they coul~ not get away from some sort of chemical treatment. One type is lime softening, but they must ask here what type the City should use. Mayor DeLong stated that he was led to believe that there are only two roads that the Board of Health will permit them to go. One is the lime softening process, which according to the charts is the safest, and the other is the alum colli- quation, which was unsafe ~nd costs an additional sum of money. R~. Hallmen agreed, but stated it was just more ini- tial cost for alum colliquation and the quality of the water is harder to maintain. The water and sludge process is not as easy to work with either. It is more difficult to dispose of. According to their engineers, the alum colliquation pro- cess is much harder to dispose of, t~e water is harder to treat ~ud the operation is more expensive. Mayor DeLong referred to the case not bei~ dismissed ~ad a restraining order not having been issued and stated that this body Could not be held in contempt. Mr. Reed replied that in regard to the case, there is no temporary injunction against -5- MI~UJTES - SPECLaL CiTY CouNCIL MEETinG BOYNTON BEACH, FLORIDA JANUARY 30, 1976 the City. The court has not said they cannot award the bid or install the lime softening process. The court has said to the~plaintiff that the facts alleged appear to be of an urgent enough nature to put in a temporary injunction. The cede is still pending. The legal question is han~ing as to whether they are violating their discretionary powers. If they go ahead and award the bid and the contractor begins to spend large sums of money e_nd later a court rules this City Council was wrong in permitting a lime softening process, the effect of such a decision on a project already being in process, he is not prepared to answer today. There does exist some pos- sibility that the court may say the City may be liable fsr damages and must ted~e out the lime softening process. He ex- plained how this could happen and tremendous sums of money would be involved. He thinks these chances are slim, but they must be considered. B~se~ on the discussion with Mr. Hallman, there are four alternatives. The alternate which he likes the best apparently is not feasible and that is to convince the b~dder to acce t ' · ~ ~ the b~d and proceed on the ex- pansmon of the water treatment plant, but not to install any facilities for the lime softening process only. Then, after 30 to 60 days, ~iving the City Council the alternate to give the word to go ahead. The second alternate would be not to award the bid and have the plans revised, which would cost $40,000 and incur a tLme delay of four months. The third alternate would be to award the bid. The four alternate would be to asktthe successful low bidder for an extension of time. It is his understs~uding the low bidder would be willing to do this, but it would cost approximately $50,000 per month. ~. Hallman agreed and added there would be one other alter- nate and that would be to reject all bids and re-advertise. When doing this, normally the cost of the installation goes up because all bids ~ad prices have been exposed. The chances are about 95% that it would go up. Mayor DeLong stated that in view of the fact that everyone knew the lo~· bid, possibly the bidders would sharpen their pencils and go lower. ~s. Jackson referred to the Post Times article s~ating it was a requirement to have a chemical preparation, but not water softening. M~. Kohl informed her that lime was a chemical preparation. ~s. Jack, on asked what direct filtration was and M~. Hallman informed her it was using a chemical to produCe microscopic flock, which is not acceptable in the State of Florida. Mayor DeLong referred to the charts presented previously showing the difference between lime and other treatment. He continued that it looked like ~L~. Hallman came mp with the best suggestion and that would be to re-advertise. He asked:if they would use the same plans and Mr. Hallm~ -6- MINUT~M - SPECL~L CITY COUNCIL -MEETING BOYNTON BEACH, FLORIDA J~UARY 30, 7976 replied: yes. M~. Hallman continued that he knew they wanted to take some action today, but with this contractor a 3.7 or 3.8 million project is pretty good, If they do not award the bid today or tomorrow, the contractor does not have to extend it. If it is satisfactory with the City Council, he would like to call the representative and meet with the consultant and see if he is willing to extend. He suggests asking him if he is willing to do any of this. Mayor DeLong replied that thsy were talking about big money. He certainly is not going o get lnvolve~ ~u something like this. He believes that Mr. H~llman shoulm have been prepared for this. Ms. Hallman re- plied that he did not want to jeopardize ~heir case today and did not meet with the contractor. When they start talking to a contractor about a few more days, etc., that information gets aromnd. Mayor DeLong point out that it was not going to be just a few more days, bu~ the City Council must use their own judgement. They also mustconsider that they are talking about taxpe~ers, mo~ey. M~s. Jackson cuestioned rejecti~gthe bids and having alternate bids sub~tte~ not going with the lime softening process and Mayor DeLong replied that it would cost $40,000 plus four months. ~s. Jackson remarked that she thought it would be better to reject the bids. ~. Zack asked if M~. Ha!iman could contac~ the low bidder to see if this bid could be extended and would it bs legal to the other contractors who bid? Mayor DeLo~ replied that it was his understanding that if they extended this, they would pay a penalty. ~. Hallman agreed that this is what the con- tractor has represented to date. He added that he may be willing to go to 30 days, if he thir2ms he is going to lose the bid. M~s. Jackson stated that alt these bids are k~o~wn to everyone and she believes it would be better to re-advertise, which would give them the time also. They may also come up with a smaller amount. M~. Zack referred to his experience with bidding and Mayor DeLong also referred to the bidding on the dog pound. Mr. Kohl stated that he didn't think they could talk to this contractor too easily, as they will jeopardize themselves with other contractors. They have not given the other peoole the opportunity to talk. M~. Hallman stated that legally] they can only negotiate with the low bidder. They discussed this further. M~. Reed informed them that they would have to make a firm decision today whether they decide to reject all bids, ac- cept the low bidder's bid as submitted or accept the suc- cessful low bidder's bid with future conditions imposed. -7- M_YNUTES - SPECtraL CITY BOYNTON BEACH, FLORIDA COUNCIL MEETING J_&NUARY 30, 1976 The request for bids specified those bids would either be accepted or rejected within 45 days after December 16, which is tomorrow. They must decide whether to accept the bid, reject all bids, or accept the low bidder on condition. It is his opinion that to accept the successfulElow bidder's bid on conditions different than those sent out in the request would subject the City to liability from the other contractors. Actually, they would be accepting the low bid on conditions different than specified for the other contractors. This low bidder may be willing to extend without escalation and the second low bidder may give two months. Mayor DeLong agreed and added that it was his intention to ts~e definitive action today pending the court action of today. ME. Zack asked what assurance they had that this will be set- tled in 30 to 40 days and M~. Reed replied: none. M~. Zack suggested that after acc~ting the low bidder, they could ask for an extension. Mr. Reed pointed out that they must assess the alternatives from the standpoint of rejecting all bids today ~_ud holding off for re-publication of bids until the law suit is ended. They must look at the alternatives at what detrLment it is to the City to reject the bids. What disadvantages is it to the City? Mayor DeLong referred to the letter and how they could go along now, but somewhere along the line or later, they must have chemical preparation. ~s. Jackson asked if there ws~ any guarantee that the rules wouldn't be ch~uged an~ M~yor DeLong replie~ that he was under the impression that it must be done by one of two w~¥s. It looks to him as if it is com- pulsory. Mayor DeLong asked if they changed the plans, would it be set up to go both w~ys and Mr. Hallman replied that they would have m design which would be two accepted methods: lime softening to come at a later date or an alum co±l_quatmon system. M~yor DeLong questioned if the alum colliquation system could be adapted to lime and M~. Hallman replied: no, it is much easier to adapt lime softening to alum colliquation. M~yor DeLong asked if it was a question of engineering, as one does not fit into the other and M~. Hallman explained that it could be done, but is much more costly. M~yor DeLong clarified that they must go one way or, the other. ~. Strnad stated in view of the overwhelming majority of cities in the State of Florida using this particular tried and proven method, it is inconceivable that the courts would render a decision adverse to this method. Mayor DeLong pointed out that not only~was this group fight- ing this lime softening process, but they hays gotten the State Legislature involved in it. The rules could be changed -8- MINUTF~ - SPECIAL CITY COTJ~NCIL ~ETING BOYNTON BEAC~, FLORIDA JANUARY 30, 1976 completely and he referred to change~ made in the sewer plant. If they change the rules in the middle of the game, there is nothing they can do, but go along with them. There is no absolute assuranee of this. The Le.Eislature may start think- lng differently. Ke further discussed how i~ wasn,t exactly stated. ME. Hallman agreed with'him that they would not speci- fy the process to be used, but there are only two for this type of water. I~m. Strnad asked if this particular area of Palm Beach County was the only area under attack to change the water process and Mm. Hallman replied that it seemed this organization was concentrating in PaLm Beach County and South Florida. They discussed this further. Mr. Zack suggested assuming the court reached a decision within 45 days a~ud then re-advertising and questioned how long it would take? Mm. Hallman informed him that legally they must advertise for two weeks. He explained how they could set their own limit after that. Normally they receive bids thirty days after advertising and then there is thirty days until opening. ~ir. Zack clarified that they would roughly lose three months. Mayor DeLong pointed out that if they awarded the bid tod~v, he was sure the judge would consider it defiance on their part with going ahead. ~. Hallman stated that he wouldn't try to speak in defense of the Board of Health, but he has been in contact with the State D.E.R. and Palm Beach County and they have stated they are going to remain the same. Mayor DeLong pointed out that they were left wide open, as it wasn't spec- ified in the letter. ~. Hallman informed him that the plans were guided by their specifications. The specifications stated that it must include a chemical preparation. This was stated in a letter. Mayor DeLong asked if he had this letter ~nd ~. Hallman replied: yes and he had provided copies to the City. Mayor DeLong asked if they could pro- ceed on the basis of this letter and did it mention lime? ~m. Hallman replied that it stated their interpretation of the chemical preparation was the lime softening process. He then read this letter dated April 8, 1974 from M~. Frank J. Gargiu~o. Mm. Reed explained again that the judge had not ruled on an answer. After explaining, he stated that he thinks a real strong point of their case is the fact they want to proceed with one of the only two approved methods. Since they want ko continue with only one of the two approved plans, how can they be above their discretionary powers? However, he has not been able to come before the court and won't be able ~o for ~nother 20 to 30 days. He thinks if the court decides -9- M1/~UTES - S~CI~ CiTY COU}-~C~ MEETING BOYNTON BEACH, FLORIDA JANU~RY 30, 1976 the City should bear some liability on this question, they are not going to accept the fact that they based their opinions on D.E.R. regulations. If they rule for the plaintiff, he be- lieves the~ won,t find they are legally liable because they are relying on this. ~s. Jackson asked if the Department of Health or E.P.A. would give them a guarantee? They won't guarantee the City anythir~, but~Zt/esare supposed to guarantee things. ~. Reed stated that based on what has been discussed today, based on the letter read from the Palm Beach County Health Department, ~nd based on what Mr. HalIman has said, it would appear that the most prudent thing to do in the standpoint of saving time, saving money, and considering the welfare of the inhabitants, the course would be to reject all outstanding bids on the request for bids of December ~6. Secondly, to put a hold on the re-publication of bids until they have taken this to court. He referred to the letter from Mr. Williams where the County is still saying that they need an additional chemical treatment barrier and the interpretation states they are not going to impose mandatory requ~_rements for one year, but if this was delayed ~or one year there would be very serious disadvantages. He would not want anyone to go out of here with the impression .that if this City Council decides to reject all pending bids that it constitutes rejection of the lime softening procesa. ~s. Jackson moved to reject all bids for the expansion of the water treatment plant, seconded by M~. Zack. No discussion. ~s. Padgett took a roll call vote as follows~ Vice Mayor Zack - Aye Councilman Strnad - ~ve Councilwoman Jackson - Aye Mayor DeLong - Aye Motion carried 4-0. Mm. Kohl informed the Council at this time that he had talked to ~. Earmening and he was very sick~with the flu. MsJor DeLong stated ~ha~ they have put up wz~n''~ the water for this period of tim~ and he believes they should await the out- come of this law suit. He doesn't think they should change the plans for $40,000, not knowing what direction they are going in. ~r. strnad moved to adjourn, seconded by ~.~s. Jackson. Motion carried 4-0 and the meeting was properly ~d~ouzned~ ' ~ at 5:30 P.M.~ -10- MINUTES - SPECIAL CITY COUNCIL F~ETING BOYNTON BEACH, FLORIDA JA~fiARY 30, 1976 CITY OF BOYNTON BEACH, FLORIDA BY for Co'aucil membe~ ' ~uncil member Cou~fcil member ATTEST: ~~Cit ' clerk Respectfully submitted, Suzanne Kruse Recording Secretary ( _~A.vo Tapes) -ll-