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12-14-59 291 DECEMBF2 14TH, 1959. A Regular Meeting of the City Council was held in the Council Chambers at l:O0 P.M., with Nayor George Talbot Jr., in the Chair, City Manager W. E. Lawson Jr., City Attorney Harry T. Newett and Com- mis~ioner~ J. LeRoy Croft, Charles H. Harbison, Fred B. McNeece and George V. Warren being present. An opening prayer was delivered by Reverand Paul Smith. The Council, by general consent, approved the Minutes for the Council Meetings of December 7th and 9th. City Nanager Lawson presented a Bill.from Smith & Gillespie! dated October 22, 1959, in the amount of $9,178.00, accompanied oy a letter from S.mith & Gillespie of same date, wherein they e~pressed their contention that the Water and Sewer facilities were ~nseparable and they should, therefore, be reimbursed for the above amount for preparation and presentation of their Engineering Report on Sanitary Sewerage Improvements, alleged to have been contracted for by their proposal contract of March 12th, 1958. SMITH & GILLESPIE Letter of October 22, 1989. RE: Water & Sewer Facilities - File No, 283: "Under date of Janu?y 16th, 1959, we submitted a letter propo- sal for engineering services in connection with water and sanitary sewerage facilities. This proposal was accepted by City Commission action on N arch 12, 1956. This proposal was to perform co~?lete en- gineering services on both water and sanitary sewerage facilities in accordance with the Schedule of Basic Minimum Engineering Fees rec- ommended by the Florida Engineering Society, 1955. The initial au- thorization for services under this accepted ?r?posal was for a ~re- . liminary report on both water and sewer facilities. The proposal pro vided, 'In the event this firm is not authorized by the City prior to December l, 1958, to prepare plans and specifications for a reasonably comprehensiv? scope of the work recommended in the report, the City shall pay this firm the sum of Two Thousand Dollars to partially imburse us for the cost of developing the preli.m~.nary report. In.the event that subsequent to December 1, 1956, the City authorizes th~s firm to prepare plans ~nd specifications for work as recommended in the report, we shall gxve the C~ty credit for the amount paid to us for the report by absorbing that amount in the fee for plans and spec- ifications at the rate of one-half of one percent of the estimated construction cost of the work for which plans and specifications are authorized'. The referenced report was submitted under date of Decem- ber 12, 1956, and Invoice No. 1 in the amount of $2,000.00 was sub- mitted under date of December 14th, 1956, Payment for this amount was received by us from the City on December 31, 1956. After the City had determined a scope of water works improvements to be carried out and had arranged for the financing thereof, the let- ter proposal was implemented by an engineering contract mad$on Sep- tember 24, 1957, for the specific engineering services required in connection with the water works program. In this contract we acknow- ledged receipt of the $2,000. pay~.ent on account of the preliminary report and agreed to credit thls $2,000. on accqunt of t~e fee for preparation of plans and specifications. This $2,000. was absorbed by credits on our invoices t~rough Invoice No. 4, dated November 29, '5?. Subseque?tly, follow~ngdiscussions with the City, we prepared without additmonal cost to the City, a report to supplement the orig- inal preliminary report of. Deceg~er, 1956, with.r~gard to the sewerage phase of the work, and re-~nvest~gated the possibility of the use of an ocean outfall as a means of d~sposal. 292 DECEMBER 14th, Z959. At a later date, in accordance with authorization by the City, we supervised the making of hydrographic surveys to further determine the feasibility of this means of disposal. We were reimbursed by the City for the direct out-of-pocket cost involved in this hydrographic survey. ~'~e then prepared an additional report for the information of the City on the results of this survey, which report was provided with- out additional cost to the City. According to our records, the actual book cost incurred by us in producing the original report, without profit, was $9,197.99. For the purpose of this communication, we are using the figure of $9,200.00. As a part of our professional service to the City~ and under th~ guarantees of the letter proposal contract of March 12, 1986~ we per formed these services for which we have not been paid by the City as a part of the complete engineering services, which under t~e terms of %hat contract, we agreed to furnish, and for which the Czty employed us. These costs were incurred in anticipation of our being reimbursed for them out of the appropriate fee to be paid us when the sewer work was carried out. We have previously informed you that, in our opinion, the con- tract of March 12,~1986, is a legal and binding document on both the City o~ Delray. Beach and this firm, and we are of that opinion at this tzme. However, as a matter of professional pohcy, we do not feel it necessary or do not intend to resort to legal means to enforce our rights under this contract of professional employment, recognizing that it is to the best interest of the City for the City to employ such engineering firm as the City Commission in its wisdom may see fit to do. In this instance, we feel and believe that your legal counsel will so advise you that we are properly entitled to be reimbursed for the expense which we have incurred in anticipation of the City carry- ing out its contractual obligation and continuing the retention of this firm for services in connection with your sanitary sewerage pro- gram. .Having been advised that the City has employed.another.engineerl ing firm for these services, we are herewith encloszng invoice cover lng amounts due us by the City of Delray. Beach, in order to properly terminate our contract of employment, whzch has been in effect fo~ more than three years. If there is any further information desired .in these matters, we will be glad to furnish it upon request. We sincerely wish the City ever~ success in carrying out the con- templated sewer improvement program." /S/ %~LIE ~. GILLES?IE Partn~ The City.Manager then info.rmed the Council that he and the City Attorney had 2ointly studied thzs matter and concluded t~a~, as a re- sult of suc~ thorough study, felt that no sewerage facilztzes had ever been authorzzed, and read a letter from the City Attorney to Smith & Gillespie, in reply to the Engineering Firm's letter, quoted above, copy of which follows: TO SMITH & GILLESPIE Nov. lath, 1~$~, "Your letter of. October 22nd to the City Commission in the above matter has ~een studxed very carefully by mys$1f and others, and our- interpretation of the legal effect of you? proposal dated January ~6, 1B$8 (accepted by the City March lB, 1986), as applied to your addi- tional charges for cost of developing the preliminary reports on water and sewerageor either evidenced by your invoice No. SS, is opposite to your contentions. In our study, we considered your letter proposal of January 16, 19§8; the Engineering Con}tact dated Septem~e~ ~, 1957; your letter . of July ll, 19§8 (re; Sanitary ~ewerage Facxl~txes-File No. 288 - Engx- neering Report-Supplement No, 1); your letter dated August 19, 1~$8 to DECEMBER l~th, 1959. 293 Nr. Nark C. Fleming; and your invoice No. 27 datedNarch 19, 1959 which was paid. I persona~ly regret that differences have arisen between your fi~m and our City as a result of another film having been employed to make new preliminary engineering reports and surveys as to the feasibility of a sewerage system. However, at the time such policy decision was .made by our Council, I did not believe there was legal contractual liability for something that had not been authorized, and which if authorized.would have required a new contract; nor have I changed my legal opinion. That if the City wished to wholly discard the work performed by you, it could do so. I believe I discussed this interpretation with N~. Borden of your fi~m in the late spring of this year, and while he was opposed to the result, I do not believe he seriously contended there was more than a "moral obligation" for your firm to be authorized the work. The work has not been authorized. It may not be authorized even after the new fi~m submits its preliminary reports and surveys; and in that event, if their work is similary discarded and a third fi~m is subsequently employed for more new preliminamy reports and feasi- bility surveys, the second fi~mwill similarly have no legal claim based on estimated costs. For the foregoing reasons, among others that may exist, on be- half of the .City of Del~ay Beach I deny liability upon your Invoice No. $3 dated October 22, ~959." /S/ HARRY r. NDVETT City Atty. City Nanager Lawson then read a reply to the foregoing letter received from Smith & Gillespie Under date of December l, 1959: "Please pardon the delay in replying to youm letter of November 14th. In this letter you officially deny on behalf of the City of Del- ray Beach. liability upon our Invoice No. 85, dated October 22, 1959. Although we have legal advice which indicates that it ma~ be success- fully contended that the City does have legal liability ~n this matter I refer you to the first paragraph on page S of my letter of October 22, 1959, on this subject. In this paragraph we stated, "However, as a matter of professional policy, we do not feel it necessary or do not intend to resort to legal means to enforce our rights." In the nearly 20 years during which this firm has practiced as a partnership~ we have never been in litigation with any client or other person, and certainly do not intend to be involved in such litigation at this time Over a period of a great many years we have always found the of- ficials and citizens of Delray Beach to be high type individuals who follow and'practice a strict adherence to the highest moral and ethi- cal principles in both their private and ?ubtio affairs. It seems pointless to again state the infommation ~n our letter of October 22 that we then felt and now feel that a valid contract existed between the City of Delray Beach and this firm for engineering services for water and sewer facilities; that in view of this contract we were w~lling to prepare a preliminary report for which we were only par- tlally reimbursed for the actual cost of providing the report; that we subsequently ~erfo.rmed further services at the request and autho- rization of the City ~n an effor~ to assist the City in getting the needed improvements accomplished, and with the ~understanding on our part that these services were being performed under the mantle or um- brella of protection of a contract with the City, which would assure us of adequate compensation when the sewer improvements were actually carried out. We again 9uote from'our letter of October ~ in which we stated that we recognized, "that it is to the best interest of the City for 294 DECEMBER 14th, 1959. the City to employ such engineering firm as the City Commission in its wisdommay see fit to .do." We feel that it should be very obvious that as a matter of good business we would not have made these expen- ditures without the understanding on our part that adequate contrac- tual protection existed for ourselves. Since it has developed that such adequate contractual protestion does not now exist, we can only leave the matter in the hands of the City Commissioners for such action as they deem proper." /S/ ~YLIE W. GILLESPIE Partner There follows a 'Copy' of the Bill submitted October 22, 1959: · ~ITH & GILL~SPIE Sanitary Sewerage Improvements - Delray Beach, Fla. In preparation and presentation of Engineering Report on Sanitary Sewerage Improvements, authorized by our Proposal'Contract executedMarch 12, 1988: Actual Costs $ ~,200.00 Report's construction costs estimates: Water Works Improvements $ ?gA~o00. or 27% of total Sanitary Sewerage ".. $~ or ?8% of total Total Estimated Costs Portion of Smith and Gillespie's actual Report costs attributed to Sanitary Sewerage Studies: ?$% of $9,200.00 or - - - - ..... $ 6,716.00 (Contract fee paid by City as partial reimburse- ment for the Report, in the amount of $2,000.00, credited back to the City in full by deductions from subsequent fees earned on Water Works Im- provements,) ?B% of $2,000.00, refund to City - - - 1,A60.00 Supervision 9f Ocean Outfall Hydrographic Survey and preparation of two.supplemental repgrts on Ocean Outfall Feasibility (costs not reimbursable by City) 1,000.00 Total Costs now due and payable by City* $9,176.00 · Under Commitments of Letter Proposal Contract executed March 12, '$6~ CommissionerWarren moved that the request of Smith & Gillespie for payment of their Bill, dated October 22, 1989, in the amount of $9,176.00, be denied in view of the findings of the City Attorney and' City Manager, following a careful study of the facts relating thereto. The motion was not seconded. Following genera~ d~scusslon of Smith and on ~otion of Comm~ss~onerMcNeece, seconded by Commissioner Croft, that th~s matter be tabled for further study - Call of Roll resulted in Co~missioners NcNeece, Croft and Harbison, together withMayor~ Talbot voting in favor thereof, Commissioner¥~arren being opposed. On motion of CommissionerMoNeece and seconded by Commissioner Harbison, the Council unanimously agreed that the request received from Dr. K. M. Davis, for Permissive Use for Church purposes, and per- taining to the S.W.~ of Lot 12, in Sec. 6-46-45, be referred to the Planning Board for a public hearing to be conducted thereon. City Manager Lawson then read - - - ORDINANCE NO. G-$40: Caption follows: 4 DECEMBER l~th, 1959. 295 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING AND PLACING CERTAIN LANDS IN PORTION OF SOUTHWEST QUARTER OF SECTION 4, TO~'~NSHIP 46 SOUTH, RANGE 43 EAST, IN "C-i" DISTRICT, AND A~ENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, 1956." On motion of Commissioner Harbison and seconded by Commissioner McNeece, the Council unanimously approved PLACING Ordinance No. G-$40 of FIRST READING. The City ~,nager then read - - - RESOLUTION NO. 1213: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING EXECUTION OF AGREEMENT WITH STATE ROAD DEPANTNENT OF FLA. PROVIDING FOR JOINT STOP~ SE~ER PROJECT, STATE ROAD NO. 5. V~EREAS, the State Road Department of Florida is in the proeess of preparing construction work on State Road No. 5, in the City of Delray Beach, and ~n conjunction therewith will provide storm sewer outfall to serve such improvement; and WHEREAS, it would be economical and feasible for the City of Delray Beach to join with the State Road De?artment to make provision to drain certain areas of the City not attributable to said State Rd. No. §, but servicing drain areas of the City: N0~, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH: 1. That the City Council does hereby find and determine that a joint storm serer project by the State Road Department and the City is the most economical and feasible way to provide for the City's needs. 2. That the Mayor and City Clerk of Detray Beach are hereby authorized and directed to execute an agreement with the State Road Department of Florida to provide for such joint project, designated "Joint Storm Sewer Project, State'Road No. $, City of Delray Beach". On motion of Commissioner Croft and seconded by Commissioner McNeece, the Council unanimously agreed that Resolution No. 121S be PASSED and ADOPTED on this first and final reading. Mr. Paul S. Know,es, Chairman of the Planning & Zoning Beard in- formed the Council that circumstances beyond his control make it necessary to defer his intended Report and Recommendation concerning the Board's proposed location for the future right-of-way of Atlantic Avenue westward from Swinton Avenue to the Turnpike until the next regular meeting of the Council. Ctty Nanager Lawson informed the Council that he and the Director of Re?reation had thoroughly studied the possible need fOr the S~ of the S~ of Block ll less the West $0 ft of the South 155 ft thereof, as offered for purchase to the City b~ the present land owner Mr. E. A. Brabm~, and recommended that the C~ty decline to purchase same as there appeared no feasible recreational purpose that could be served by such parcel of land. On motion of Comm{ssioner Harbison and seconded by Commissioner McNeece, the Council unanimously determined no need for the parcel of land described in sustaining the City Nanager's recommendation and declined the offer submitted by Mr. E. A. Brahms. 296 DECEMBER 14th, 1959. City Manager Lawson submitted a Bill from E. Elliott Gross and Associates, Inc., in the amount of $927.00, covering services render- ed for - Survey of Atlantic Avenue and vicinity from Swinton Avenue to Seaboard Railroad Field Crew 48 Hfs @ $12.00 $552.00 Office ?5 " 5.00 $75.00 TOTAL- $927.00 said Survey having been authorized by Council action of August 10th, 19§9 on City Manager's estimated cost of $1,000.00. On motion of Commissioner McNeece and seconded by Commlssie.ner Croft, the Council unanimously approved payment of BILL, as submitted by the City Manager, in the amount of $927.00, for services rendered by E. Elliott Gross & Associates, Inc. On motion of Commissioner McNeece and seconded by Commissioner Croft, the Council unanimously approved payment, subject to the ap- proval of the Finance Committee, the following BILLS submitted by the City Manager: General Fund $ 12,§$1.?~ Water Fund (Oper. Fund) 346.05 Payroll Accounts 3,668.78 The Council, on motion of Commissioner Warren and seconded b.y Commissioner Harbison, unanimously authorized a Christmas Bonus, ~n the amount of one day's pay, to each of the City's employees. On motion of Commissioner McNeece and seconded by Commissioner Warren, the Council unanimously approved disposal of the USED KILN and assorted USED }{OLDS, previously used in the Youth Center, by Pub- lic Auction. lit. Paul S. Knowles, Chairman of the Plannin.g & Zoning Board in- formed the Council that a full Report of the Over all Zoning and Plan- ning, as well as Land Use, study by the Board in conjunction with George W. Simons, Jr., would be submitted to the Council in January. The Counci.1, acting on the suggestion of Commissioner Harbison requested the C~ty Manager to check the apparent need and proper ac- tion to pursue for providing a much needed Sidewalk on N. E. 8th Street from Fe. deral Hi§hway to Palm Trail, due to heavy pedestrian and SchOol Children traffic along the route. MEETING ADJOURNED @ 2:00 P.M.~ on motion of Commissioner Croft and seconded by Commissioner McNeece.