The URL can be used to link to this page

07-23-79 JULY 23, 1979 A regular meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 7:00 P.M., Monday, July 23, 1979, with Mayor Leon M. Weekes, presiding and City Manager J. Eldon Mariott, City Attorney Roger Saberson, and-Council members Malcolm T. Bird, Charlotte G. Durante, James H. Scheifley, and Willard V. Young, present. 1. The opening prayer was delivered by Mayor Weekes. 2. The Pledge of Allegiance to the flag of the United States of America was given. 3. Mr. Bird moved for approval of the minutes of the regular meeting of July 9, 1979 and the special meeting of July 16, 1979, seconded by Mr. Young. Said motion passed unanimously. 4. There were no items presented by Council members. 5.a. Mr. Portnay, a resident of High Point, stated that he is speaking on behalf of Section 6 of High Point. He has two items to discuss; one is flooding and the other is drainage. He thanked the Mayor, the County Commission and all people connected with the work that has been done on the bridge on Davis Road. They hope that the differences will be patched up between the City and the County so they can get the bridge as soon as possible. They are in great trouble in regard to drainage. The City was at fault in issuing permits for the building of Section 6 because it is the low point there. It's im- possible for two catch basins, which are connected with Section 5, to take care of the water that comes off their streets. He asked the City to assist them and to find out who is responsible for this._ Two weeks ago their streets were completely flooded from rains which only lasted one-half hour. He had a letter from the Palm Beach County Health Department, dated May 16th, telling them that the water will never go off unless the proper drainage is put there. They were told by an engineer who works for the County that based on the present setup, they need three water catch basins and they must be connected to the regular catch basin that is existing now. Mr. Stanley Tate, developer, stated that it is pretty obvious in the discussions he has had with their engineers, as well as with the County and the State, that when Sections 6 and 5 become separated that the major portion of the problem will be cured. The problem they have now is that Section 6 will not drain until Section 5 drains and it backs up. He has advised Council that they will split the two systems so that each one will have its own independent storm drainage system. They feel that the majority of the problems will be cured. Mayor Weekes advised that he wrote to the Chairman of the Palm Beach County Commission, Mr. Bailey, and asked if he would direct the County Attorney, Mr. Ellington, to proceed with the condemnation of a strip of land; the landowner has been unwilling to grant an easement across there for an additional outfall to be built. He talked to Mr. Bailey this afternoon and the County Commission is 100% behind their effort. They are now in the process of preparing the legal description of the property that has to be condemned ~but there are certain legal procedures that have to be taken in an orderly process and it's going to take some time to get the condemnation proceeding through. The City Manager reported that Council was given a copy of a memorandum from the Engineering Department, which he approved last Friday, dealing with the bridge. Both the City and County Engineering Departments determined that it would be cheaper if the County would do the job with its own forces as compared to the City having the job done by contractual basis; the tim~--requirements would be about the same. The County has informed them 'that they would not be able to begin construction immediately because their bridge crews are engaged elsewhere. The two engineering departments have figured that they would be able to start actual construction of the bridge on October 10, 1979, and be completed in about a month. It's estimated that the cost will be $60,000 if the City assumes the obligation and does it by contract. It's estimated that it would cost a little more than half that amount if the County does it with its own forces. Since the time frame is about the same and they could do it for a lot less money by having the County do it, it is recommended that Council consider passing a motion requesting the County to proceed with the construc- tion in accordance with this plan. He spoke with County Commissioner Gregory this afternoon and they discussed this plan and Mr. Gregory said that he would support the plan and the County doing it. Mr. Scheifley moved that Council request the County to build the bridge in line with the guidelines as stated by the City Manager and also it be understood that the City will pay 1/3 of the cost and the same with Mr. Tate, the developer, and also the County, seconded Mrs. Durante. Said motion passed unanimously. Mayor Weekes stated that he has an appointment to meet with Mr. Bailey next week and he will impress upon him the emergency nature of this and see if there is any possible way that they can speed up the time frame. 5.b. Mrs. Alice Finst, 707 Place Tavant, representing the Homeowners Association of Chatelaine, asked for a status report on the Barwick Road Fire Station; they would like to know what has happened with the deed and the engineering plans. The City Attorney replied that the deed from Mr. Mayer's office was sent to Miami to Mr. Bell who is the administrator of the estate of George Corey. The deed has been returned signed by Amelia Corey as successor/trustee. There are two other signatures required; one by Thomas Fleming III and the other by Ann W. Fleming. Thomas Fleming III has signed it and Mr. Mayer's office is trying to locate Ann Fleming to have her sign the deed, which they hope to do later on in the week. The Engineering Department is working with American Title in regard to certain leases that are contained in the chain of the title and going through the legal description to determine whether or not an additional release is needed in regard to a mortgage. The City Attorney stated that he has been negotiating this afternoon with the people from High Point in regard to the water and sewer service agreement between the City and High Point (item 6.f.). There are several points that still need to be resolved. He asked Council's permission to leave the Chambers in order to continue the discussion with them and bring back to Council the items that need to be decided by Council later in the meeting. The City Attorney left the Council Chambers at this time. 6.a.1. The City Manager reported that the Planning & Zoning Board has unanimously recommended an amendment to the Zoning Ordinance; the recommendation was that the Zoning Ordinance be amended to allow alternative residential support facilities as a conditional use in the R-IA (Single Family Dwelling) District. Mrs. Durante left the Council Chambers at 7:25 P.M. due to a conflict of interest. The City Manager reported further that the Planning & Zoning Board made its recomendation affirmatively conditional upon the review and comments of the Building Inspection Department. The Chief Building Official informed him today that his department has reviewed the recommendation of the Planning & Zoning Board and finds no con- flict. Council has three choices open; they can reject it, refer it to workshop or direct the City Attorney to prepare the ordinance for future consideration by Council. Mr. Scheifley moved that Council instruct the City Attor- ney to prepare an ordinance for First Reading accepting the recommend- ation of the Planning & Zoning Board, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 4 to 0 vote. - 2 - 7/23/79 Before roll call the following discussion was had: Mr. Bird stated that if they are addressing themselves only to the two properties currently under the control of the South County Mental Health Center, can they make an amendment which is restrictive as to those properties as opposed to making it unilateral in covering all R-lA. The City Manager replied that that is not what is intended here; what is intended by the Planning & Zoning Board is that a cer- tain section of the Zoning Ordinance be amended to permit these particular type uses as conditional uses. Mr. Carey, Chairman of the Planning & Zoning Board, stated that he explained to Mr. Toole that there would be several problems; (1) getting the ordinance changed and (2) it has to go to a public hearing as a conditional use and there might be opposition from that standpoint. So, it really isn't that easy. What they have in mind is a building which in currently in R-lA; they've already singled out a building that they want to purchase. Mr. Bird asked if making that building an SAD would solve their problem. Mr. Carey replied that it would solve the problem but it would also require them to go through site and development plan and conditional use approval. Mayor Weekes suggested that they go ahead and authorize the preparation of an ordinance for First Reading and in the meantime they can workshop it. Then if Council does decide to go along with it, Mr. Toole hasn't been unduly delayed. At this point the roll was called to the motion. Mrs. Durante returned to the Council Chambers, the time being 7:32 P.M. 6.a.2. The City Manager reported that last year Council adopted a resolution supporting the Roots Cultural Festival and a similar reso- lution, Resolution No. 58-79, is before Council for consideration tonight. The City Manager presented Resolution No. 58-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, SUPPORTING THE ROOTS CULTURAL FESTIVAL, INC., IN THEIR EFFORTS TO SPONSOR THE SECOND "ROOTS CULTURAL FESTIVAL" IN THE CITY OF DELRAY BEACH, FLORIDA. (Copy of Resolution No. 58-79 is on file in the official Resolution Book) Mrs. Durante moved for the adoption of Resolution No. 58-79, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Ueekes - Yes. Said motion passed with a 5 to 0 vote. Mr. Newboldt came forward and accepted the resolution. 6.b. Mayor Weekes reported that City Service Awards are pre- sented to citizens who donate freely of their time and talents to the benefit of the City. He presented City Service Awards to John Ross Adams, J. Leroy Croft, Matt Gracey and Ron Oprzadek. Mr. Adams and Mr. Croft came forward to accept their awards and the City Manager agreed to see to it that Mr. Gracey and Mr. Oprzadek get their awards. 6.c. The City Manager presented the proposed budget for the 1979-80 fiscal year to Council. At the suggestion of the Mayor, they are going to do something a little different on the budget this year; they're going to have two copies of the budget in the City Clerk's office for private citizens to check out for a short period of time in the same manner they would check out books from a library. They will do this with both the proposed budget and the adopted budget. - 3 - 7/23/79 The City Manager outlined the reasons why it was so hard to make this budget balance; the big thing was two digit inflation; they had $518,675 less cash carry-over to use in balancing this budget than they were able to use in balancing the budget for the current year; they do not have the benefit of anti-recession employees to help the City's work force do the job during the coming year because that program has been abandoned by the federal government, in the present budget they valued that service at over $230,000; unionism and other instutions; laws, regulations and restrictions affecting personnel matters; the amount of the assessed valuation increase is 10 million dollars less for the coming year than for the current year; the tax rate reduction of one mill last year coupled with this year's State legislature passing an act limiting new property tax revenue to a 5% increase not counting new construction; the City paying time and a half for overtime work by City employees; the cost of the operation of Pompey Park has almost tripled within the last two-year period due to the addition of the Community Center; they're going to experience about a 55% increase during the coming year in the number of garbage and trash pickups in the City that will be brought about by the expir- ation of the franchise that is now in existence; they're experiencing a 12% reduction in federal revenue sharing funds. The City Manager further reported that this budget is up from 14 million plus to 17 million plus; there is an increase of 16.17% in the proposed budget as compared to the present budget; someone might think that if there's that much of an increase, then things are not that tight but inflation eats up a lot of it and they have to consider the fact that next year they're going to have for the first time full year City operation of the Delray Beach Country Club, the Regional Wastewater Treatment Plant and the Pompey Park Community Center. They hope that the Delray Beach Country Club and the Regional Wastewater Treatment Plant will pay their own way. Money was so tight and it was necessary that they purchase considerable equipment costing over half a million dollars for the City to be able to assume the obligation of picking up the presently franchised areas as far as garbage and trash are concerned that it is being recommended that the City purchase almost $600,000 worth of equipment outside of this budget on time and that they pay for it over a period of time. The 5% limitation imposed by the legislature on tax revenue increase was utilized in this budget and that, in this case, amounted to a proposed tax rate increase of .0706 mills which only raises about $37,000. As far as general fund employees are concerned, no new ones are proposed in this budget. They all know that in most departments and most areas of activity of the City, additional employees are needed but the money was so tight, otherwise they would not have failed to include addi- tional employees at several locations in the general fund, and they would not have proposed any tax increase at all. Thirdly, they certainly would not have proposed going outside the budget for the financing of about $600,000 worth of equipment if money were not very tight. As far as employee compensation is concerned, a 5% cost of living increase is budgeted. Increasingly, there has been conver- sation on the part of the public, the Council and the City Administra- tion with regard to the advisability of continuing the presently so-called merit pay plan in this City as well as many other cities. They are thoroughly scrutinizing the pay plan system as well as the merit increase feature contained in that system and they have been for some time. He has a concept in mind to reward more the deserving employee and reward less the less deserving employee, as much as is possible, and with that concept in mind, slightly less money is budgeted for total employee compensation increases than would have been the case had they not had this plan under consideration. The budget calendar called for the workshop sessions to be during the week of August 20 - 27 which will give everyone time to look the budget over. August 20th is a Monday and that would be a regular workshop meeting night and maybe Council would want to talk about a budget workshop on the 21st. Mayor Weekes stated that that would be his preference and asked the Council to reserve the 22nd and the 23rd; if need be they'll have workshop on the 21st, 22nd and 23rd on the budget and on the 20th on regular City business. Council consented with Mayor Weekes' sug- gestion. - 4 - 7/23/79 6.d. The City Manager reported that a five-year lease agreement with Dr. John R. Westine and the 300 Northeast Eighth Street Building Corporation at 300 N.E. 8th Street for their use of City-owned land for parking purposes fronting on N.E. 3rd Avenue expires on November 18, 1979. It is recommended that the lease be renewed and that the annual rental be increased from $100 a year to $150 a year. The lessee is in agreement with the proposed increased rental charge. Mr. Bird suggested charging $200 a year. Mr. Scheifley moved that the parking lease with Dr. Westine be renewed for the next year at the figure of $150 a year, seconded by Mr. Young. Said motion passed unanimously. 6.e. The City Manager reported that Mr. Thomas J. Woolley, Jr. was notified that a nuisance exists on his Lot 341, 3rd Section, Tropic Isle Subdivision due to the condition of his lot without a seawall and that erosion was adversely affecting the adjacent prop- erties. Mr. Woolley has requested a hearing before Council. Under the City's fairly new seawall maintenance ordinance, which has been surprisingly effective, this is the first request for an appeal that has come to the City and it is recommended that Council set the hear- ing on the next regular Council meeting date of August 13, 1979. Mrs. Durante moved that the public hearing be set for the next regularly scheduled Council meeting on August 13, 1979, for the Thomas J. Woolley nuisance abatement hearing, seconded by Mr. Bird. Said motion passed unanimously. 6.f. This item follows item 9.c. 6.g. The City Manager reported that it is recommended that Council approve the execution of a Developers Utility Service Agree- ment with Robert D. Weisman, Trustee for The Hamlet Shops for the providing of water service to the 1.36-acre parcel of land located at 4043-4071 West Atlantic Avenue. Council approved providing water service to this property on June 25, 1979. Mr. Bird moved for appr6val of the execution of a Developers Utility Service Agreement with Robert D. Weisman for The Hamlet Shops, seconded by Mr. Young. Said motion passed unanimously. 6.h. The City Manager reported that it is recommended that Council approve the execution of a Developers Utility Service Agree- ment with Dimentional Builders & Associates, Ltd. for the providing of water and sewer service to the five-acre parcel of land located at the southeast corner of Lake Ida Road and Military Trail. Mr. Bird moved for approval of the Developers Utility Service Agreement with Dimentional Builders & Associates, Ltd. for water and sewer, seconded by Mr. Scheifley. Said motion passed unani- mously. 6.i. The City Manager reported that it is recommended that Council approve the execution of a Developers Utility Service Agree- ment with First Encounter, Ltd. for the providing of water and sewer service to the 3+-acre parcel of land located at 2755 West Atlantic Avenue. Mr. Scheifley moved for approval of the execution of a Developers Utility Service Agreement with First Encounter, Ltd. for the providing of water and sewer service, seconded by Mr. Young. Said motion passed unanimously. 6.j. The City Manager reported that it is recommended that Council approve the execution of a Developers Utility Service Agree- ment with Carman Development, Ltd. for the providing of water and sewer service to the 23.8087-acre parcel of land located on the west side of Congress Avenue, north of L~ke Ida Road. ~ Mr. Bird moved for approval of the execution of a Developers Utility Service Agreement with Carman Development, LtdJ, seconded by Mr. Young. Said motion passed unanimously. - 5 - 7/23/79 6.k. The City Manager recommended that this item be skipped over tonight as they are not ready for it at this time. 7.a. The City Manager reported that a communication has been received from the Amara Temple, A.A.O.N.M.S. requesting permission to solicit funds for support of Crippled Children's Hospitals from October 18th through October 27, 1979, approval of which is recom- mended by the Solicitations Committee. Mr. Bird moved for approval of the solicitation request by the Amara Temple, seconded by Mr. Scheifley. Said motion passed unanimously. 7.b. The City Manager reported that a communication has been received from the Professional Firefighters of Delray Beach requesting permission to solicit funds for Muscular Dystrophy from August 31st through September 3, 1979, approval of which is recommended by the Solicitations Committee. Mr. Bird moved for approval of the solicitation request by the Professional Firefighters of Delray Beach, seconded by Mr. Young. Said motion passed unanimously. 8.a. The City Manager reported that the following quotations have been received to re-cover dining room chairs at the Delray Beach Country Club. Bidder Quotation Price's Custom Auto Trim $500.00 Delray Beach Postier Interior ~920.00 Delray Beach It is recommended that the contract be awarded to the low bidder, Price's Custom Auto Trim in the amount of $500.00 by passage of Reso- lution No. 47-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 47-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT TO RECOVER DINING ROOM CHAIRS AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 47-79 is on file in the official Resolution Book) Mrs. Durante moved for the passage of Resolution No. 47-79, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante'- Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. Before roll call the following discussion was had: Mr. Bird stated that he has reservations about this; he expressed his feelings at the workshop meeting and he requested verification by a professional member of the American Society of Interior Designers which was not provided. He would like to see the items dealing with the interior of the clubhouse sent back to workshop. Mr. Scheifley asked Mr. Bird who he would recommend to do this. Mr. Bird replied any member of the American Society of Interior Designers with professional qualifications; there are several such persons in the City of Delray Beach and one who comes to mind is Mr. Bill Andrews. - 6 - 7/23/79 Mr. Scheifley stated that about five years ago, Mr. Andrews, as a member of the Beautification Committee, took exception to certain policies which the Beautification Committee decided on, and, in disgust, he resigned. Mr. Andrews opposed the formation of the Community Appearance Board and he contested the legality of it in the way it was formed and threatened the City with a lawsuit. Here is a person who has been very controversial, has tried to sue the City, and has not been able to get along in the community as far as the City is concerned. He thinks Mr. Bird's judgment in suggesting Mr. Andrews is not the best. Mayor Weekes stated that he doesn't think Mr. Andrews is the issue here; Mr. Bird said that any member of the A.S.I.D. would be satisfactory. Mr. Young stated that he doesn't know any members of the A.S.I.D., but he does feel that the Council should have taken into consideration what was going to be done, the color combinations that were going to be used, the type of equipment that was going to be installed and a general layout of what it was going to look like. He has seen nothing whatsoever in the way of any of the equipment, the carpeting, the drapes, etc., and while he has confidence that the people who worked on this did so with every good intention in the best interest of everybody in the City of Delray Beach, he feels that this matter should be put aside for further study at least until they can have an opportunity of finding out just what they are going to spend the $166,000 of their taxpayers' money for. Mrs. Durante noted that they completed an $800,000 build- ing and nobody on Council asked about the color of anything; they also spent almost $100,000 in furnishings for that building and nobody said anything about an interior decorator. Mr. Young responded that the two buildings have no connec- tion with one another; one is a gymnasium, in effect, and the other is a country club. He has been a member of several country clubs and he knows that one of the great attractions of a country club is the attractiveness of its decorations. He asked that this item be post- poned. Mayor Weekes stated that Council at its workshop meeting specifically asked that a professional interior decorator look at the specs and the materials, but not to review the design concept and not to make recommendations on colors. The City Manager stated that at the workshop meeting when they discussed the various improvements and purchases at the Country Club and the question of an interior decorator was broached by Mr. Bird, there was considerable discussion with regard to it. After the meeting that afternoon, Mr. Fonseca, Pro Manager, came into his office and wanted to know where to go from there. The City Manager told him to select an interior decorator of his choice in accordance with the minutes of that meeting. He retained a party and the information has been passed out to Council. The decorator made a number of sugges- tions and the fee of $200 was paid. Mr. Bird questioned the accuracy of those minutes. He stated that he was the one who made the suggestion that eventually became the consensus of Council and he was very specific. The reason for requiring a professional member was specifically stated at that time and he feels that the intent of Council was not carried out. Mr. Young stated that he is not critical of any of the work that has been done by the committee or Mr. Fonseca or of City Management but he does feel that Council should have been taken into consideration as to what they were going to spend the money for and what was going to be done. - 7 - 7/23/79 Mr. Scheifley stated that there is an unexplained in- consistency here. They passed a resolution to buy seventy golf carts and the two Council members who are opposing the procedure accepted the Administration's recommendation in that instance. They bought $156,000 worth of equipment for the course and they also accepted the Administration's recommendation in that case; they didn't go out to see what color it was and question it. They also accepted the Administration's recommendation on the kind of grass to get. But when it comes to this, he doesn't know why they should question this parti- cular project when they didn't on-all the others. Mr. Young stated that he spent over 700 hours of his time going over the items that Mr. Scheifley has mentioned and he brought in experts. They made a complete list of all the equipment that was to be bought and it met entirely with the opinion of all of the ex- perts that he had brought down. Mrs. Durante stated that they have nothing to gain except spending some more money on how to spend $15,000. If it is a bad choice on $15,000, that's a very small amount to lose. Mr. Scheifley stated that if they start all over again, which will delay people from coming into the club, he thinks that it should be understood by everyone at the club as to what the delay is and who caused the delay. Mayor Weekes stated that he is not entirely satisfied with the response to the workshop, but on the other hand he thinks that the people who have done this work have been sincere, there's been a lot of time 'and effort gone into it and while he doesn't agree with every- thing that's in it, he is going to support it. At this point the roll was called to the motion. 8.b. The City Manager reported that the following quotations have been received for the installation of a mirrored wall at the Delray Beach Country Club: Bidder Quotation The "Glass Man" $ 950.00 Delray Beach Liberty Glass & Mirrors 1,032.00 Boca Raton It is recommended that Resolution No. 48-79 be adopted which awards the contract to the low bidder, The "Glass Man" in the amount of $950.00 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 48-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR THE INSTALLATION OF MIRRORED WALL AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 48-79 is on file in the official Resolution Book) Mr. Scheifley moved for the adoption of Resolution No. 48-79, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. - 8 - 7/23/79 8.c. The City Manager reported th'at the following quotations have been received for an addition to the cart building for storage of maintenance equipment at the Delray Beach Country Club: Bidder Quotation Campbell Construction Company $15,450.00 Delray Beach Hawkins & M0uw 20,712.00 Delray Beach Trieste Construction Company 24,673.00 Delray Beach It is recommended that the contract be awarded to the low bidder, Campbell Construction Company in the amount of $15,450.00 by passage of Resolution No. 49-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 49-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR AN ADDITION TO THE CART BUILDING FOR THE STORAGE OF MAINTENANCE EQUIP- MENT AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 49-79 is on file in the official Resolution Book) Mrs. Durante moved for the passage of Resolution No. 49-79, seconded by Mr. Young. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.d. The City Manager reported that the following quotation has been received for the purchase of trophy room furniture for the Delray Beach Country Club: Bidder Quotation Baer Furniture Store $1,280.00 Boca Raton It is recommended that the contract be awarded to Baer Furniture Store in the amount of $1,280.00 by passage of Resolution No. 51-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. No other furniture store in the area has furni- ture that is suitable. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 51-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR THE PURCHASE OF TROPHY ROOM FURNITURE FOR THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 51-79 is on file in the official Resolution Book) Mr. Scheifley moved fo~-the passage of Resolution No. 51-79, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to ~ vote. - 9 - 7/23/79 8.e. The City Manager reported that the following quotations have been received for the purchase of locker room furniture for the Delray Beach Country Club: Bidder Quotation Kline's Patio Shop $1,356.00 Delray Beach Sun Furniture 1,400.00 Boca Raton It is recommended that the contract be awarded to the low bidder, Kline's Patio Shop in the amount of $1,356.00 by passage of Resolution No. 52-79, with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items in- cluded in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 52-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO A~RD A CONTRACT FOR THE PURCHASE OF LOCKER ROOM FURNITURE FOR THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 52-79 is on file in the official Resolution Book) Mrs. Durante moved for the passage of Resolution No. 52-79, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 4 to 1 vote. 8.f. The City Manager reported tht the following quotations have been received for the installation of draperies at the Delray Beach Country Club: Bidder Quotation Keeler, Inc. $1,570.00 Delray Beach Michael Fabrics 1,752.00 Delray Beach It is recommended that the contract be awarded to the low bidder, Keeler, Inc. in the amount of $1,570.00 by passage of Resolution No. 53-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in _ the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 53-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR THE INSTALLATION OF DRAPERIES AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 53-79 is on file in the official Resolution Book) Mr. Scheifley moved for the adoption of Resolution No. 53-79, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. - 10 - 7/23/79 8.g. The City Manager reported that the following quotations have been received for the installation of carpet at the Delray Beach Country Club: Bidder Quotation Professional Carpets $6,636.00' Delray Beach Atlantic Carpets, Inc. 7,979.00 Delray Beach It is recommended that the contract be awarded to the low bidder, Professional Carpets in the amount of $6,636.00 by passage of Resolution No. 54-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The city Manager presented Resolution No. 54-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR THE INSTALLATION OF CARPET AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 54-79 is on file in the official Resolution Book) Mrs. Durante moved for the passage of Resolution No. 54-79, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes;. Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. 8.h. The City Manager reported that the following quotations have been received for the installation of kitchen equipment at the Delray Beach Country Club: Bidder Quotation Lee Equipment Company $24,403.00 Hollywood Best Restaurant & Bar Equipment, Inc. 24,405.00 West Palm Beach Boynton Restaurant Supply 25,593.00 Boynton Beach It is recommended that the contract be awarded to the low bidder, Lee Equipment Company in the amount of $24,403.00 by passage of Resolution No. 55-79 with funds to come from the Country Club portion of the 1978 Utility Tax Revenue Bond Issue. This was one of the items included in the $166,000 worth of Country Club improvements discussed at workshop on July 3rd. The City Manager presented Resolution No. 55-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO AWARD A CONTRACT FOR THE INSTALLATION OF KITCHEN EQUIPMENT FOR THE RESTAURANT AT THE DELRAY BEACH COUNTRY CLUB. (Copy of Resolution No. 55-79 is on file in the official Resolution Book) -- z Mr. Young moved for the adoption of Resolution No. 55-79, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Sheifley - Yes; Mr. Young - Yes; Mayor Weekes -Yes. Said motion passed with a 5 to 0 vote. - 11 - 7/23/79 8.i. The City Manager reported that Resolution No. 56-79 re- questing permission from the Palm Beach County Board of Commissioners to rezone land to be annexed from AG (Agricultural) (County) to R-iAAA (Single Family Dwelling) District (City) on the west side of the E-4 Canal, between Germantown Road and the L-37 Canal is before Council for consideration. The Planning & Zoning Board at a meeting held on June 26th, recommended by unanimous vote that the property be annexed as R-1AAA and not as R-1AA as requested by the applicant. Council, at its July 2nd workshop meeting, authorized the City Attorney to prepare the resolution. -' The City Manager presented Resolution No. 56-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REQUESTING PERMISSION FROM THE BOARD OF COUNTY COMMISSIONERS, PURSUANT TO FLORIDA STATUTES 171.062, TO REZONE LAND TO BE ANNEXED TO THE CITY OF DELRAY BEACH FROM THE COUNTY ZONING CLASSIFICATION AG (AGRICULTURAL) TO THE CITY'S ZONING CLASSIFICATION R-1AAA (SINGLE FAMILY DWELLING) DISTRICT. (Copy of Resolution No. 56-79 is on file in the official Resolution Book) Mr. Bird moved for the adoption of Resolution No. 56-79, seconded by Mr. Young. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.j. The City Manager reported that it is recommended that Council adopt Resolution No. 57-79 providing for the issuance of Water and Sewer Revenue Bonds in the amount of $4,000,000 per prior Council action. The City Manager presented Resolution No. 57-79: A RESOLUTION AUTHORIZING THE ISSUANCE OF $4,000,000 WATER AND SEWER REVENUE BONDS, SERIES 1979, OF THE CITY OF DELRAY BEACH, FLORIDA, FOR THE PURPOSE OF CONSTRUCTING ADDITIONS, EXTENSIONS AND IMPROVEMENTS TO THE CITY'S COMBINED PUBLIC UTILITY, AND PROVIDING FOR THE RIGHTS, REMEDIES AND SECURITY OF THE HOLDERS OF SAID WATER AND S~ER REVENUE BONDS, SERIES 1979. (Copy of Resolution No. 57-79 is on file in the official Resolution Book) Mr. Bird moved for the adoption of Resolution No. 57-79, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.k. The City Manager reported that Ordinance No. 47-79, amend- ing Chapter 27 "Water and Sanitary Sewerage" of the Code of Ordinances relative to charges for water and sewer service outside the City is before Council for consideration on Second and FINAL Reading. This ordinance was passed on First Reading at the July 9th meeting. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The City Manager presented Ordinance No. 47-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 27 OF THE CODE OF ORDINANCES BY REPEALING SECTIONS 27-1 AND 27-2(c) AND ENACTING A NEW SECTION 27-1 TO PROVIDE THAT ANY RECIPIENT OF WATER AND SEWER SERVICE FROM THE CITY SHALL PAY THE RATES APPLICABLE IN CHAPTER 27 UNLESS A WRITTEN AGREEMENT IS ENTERED INTO WITH THE CITY SPECIFYING OTHER TERMS AND CONDITIONS FOR SUCH SERVICE AND ENACTING A NEW SECTION 27-2(c) TO PROVIDE THAT ALL CHARGES TO USERS OUTSIDE THE CORPORATE LIMITS SHALL BE SET AT TWENTY-FIVE PERCENT ABOVE THE APPLICABLE CHARGES FOR USERS WITHIN THE CITY; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. - 12 - 7/23/79 (Copy of Ordinance N°~ ~47LT~is. on file in the official Ordinance Book) The City Manager read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The public hearing was closed. The City Clerk pointed out the changes in Ordinance No. 47-79 between First and Second Reading. Mr. Bird moved for the adoption of Ordinance No. 47-79 on Second and FINAL Reading, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.1. The City Manager reported that Ordinance No. 49-79 rela- tive to annexing Lots 45, 46 and 47, Block 35, Del Raton Park, located on the west side of Florida Boulevard between Avenue "F" if extended east and Avenue "G" if extended east, subject to RM-10 (Multiple Family Dwelling) District is before Council for consideration on First Reading. This property is presently zoned in the County as RS (Residential Single Family). The property at present is vacant and a duplex is proposed. Second and FINAL Reading and public hearing will be held at the meeting on August 27th. Council, at the April 23, 1979 meeting, requested permission from the Palm Beach County Board of Commissioners to rezone the land to be annexed. The City Manager presented Ordinance No. 49-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ANNEXING TO THE CITY OF DELRAY BEACH LOTS 45, 46 AND 47, BLOCK 35, DEL RATON PARK, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 14, PAGES 9 AND 10, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LOCATED IN SECTION 28, TOWNSHIP 46 SOUTH, RANGE 43 EAST, LYING ON THE WEST SIDE OF FLORIDA BOULEVARD, BETWEEN AVENUE "F", IF EXTENDED EAST AND AVENUE "G", IF EXTENDED EAST, WHICH LAND IS CONTIGUOUS TO EXISTING MUNICIPAL LIMITS OF SAID CITY; REDEFINING THE BOUNDARIES OF SAID CITY TO INCLUDE SAID LAND; PROVIDING FOR THE RIGHTS AND OBLIGATIONS OF SAID LAND; AND PROVIDING FOR THE ZONING THEREOF. The City Manager read the caption of the ordinance. Mr. Scheifley moved for the passage of Ordinance No. 49-79 on First Reading, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.m. The City Manager reported that Ordinance No. 50-79 rela- tive to annexing portions of Linton Boulevard is before Council for consideration on First Reading. This annexation will provide better traffic control on public streets. Second and FINAL Reading and public hearing will be held at the meeting on August 27th. Per prior Council action, the administration requested permission from the County to annex these two portions of Linton Boulevard. The City Manager presented Ordinance No. 50-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ANNEXING TO THE CITY OF DELRAY BEACH, FLORIDA, PORTIONS OF LINTON BOULEVARD, LOCATED IN SEC- TIONS 19, 20, 29 AND 30, TO~SHIP 46 SOUTH, RANGE 43 EAST, AND SECTION 24, TOWNSHIP 46 SOUTH, RANGE 42 EAST, WHICH LAND IS CONTIGUOUS TO-EXISTING MUNICIPAL LIMITS OF SAID CITY; REDEFINING THE BOUNDARIES OF SAID CITY TO INCLUDE SAID LAND. - 13 - 7/23/79 The City Manager read the caption of the ordinance. Mrs. Durante moved for the passage of Ordinance No. 50-79 on First Reading, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird- Yes; Mrs. Durante- Yes; Mr. Scheifley- Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.n. The City Manager reported that Ordinance No. 51-79, amend- ing Chapter 7 "Beaches" of the Code of Ordinances relative to storage of boats on the municipal beach and changing effective dates of said ordinance is before Council for consideration on First Reading. The City Manager presented Ordinance No. 51-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 7, SECTION 7-2(9) OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH TO PROVIDE FOR NEW EFFECTIVE DATES; PROVIDING A SAVINGS CLAUSE; PRO- VIDING AN EFFECTIVE DATE. The City Manager read the caption of the ordinance. Mr. Bird moved for adoption of Ordinance No. 51-79 on First Reading, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 9.a. The City Manager reported that the Planning & Zoning Board at a meeting held on June 19th, recommended by unanimous vote that the conditional use and site and development plan approval for Laver's Delray Racquet Club Addition, located on the south side of Quail Road, between Lindell Boulevard and S.W. 4th Avenue, if extended, be approved, subject to the following: 1) Comments of the City Engineer as stated in his memo- randum of June 15th. 2) Comments of the Director of Public Utilities as stated in his memorandum of June 15th. 3) That the sidewalk requirement be waived, and an internal circulation path consisting of a walkway and jogging path be provided instead. 4) That a unity of title be submitted tying this prop- erty to the Lake Ray Tennis Club development which abuts the subject property on the west. 5) Availability of water. 6) A time limitation of 18 months be set for development of the project. This was discussed at the workshop meeting on July 16th. This is for a development consisting of 136 dwelling units in two five story buildings and twelve tennis courts. Mr. Charlie Putnam, representative of Laver's Delray Racquet Club, presented a drawing of the development at the request of Council. Mr. Frank Carey, Planning & Zoning Board, stated that he checked the minutes of their meeting and there's been a mistake along the line; they did not waiver all sidewalk requirements in this pro- ject as it states in the preface. According to the minutes, they are requiring that the developer provide a sidewalk on the south side of Quail Road and Egret Circle; the reason for that is the fact that that road will be the direct access into the City park from the whole area. - 14 - 7/23/79 The City Manager stated that the preface is incorrect and what Mr. Carey said is correct and that is what should be acted on. Mr. Bird moved that Council sustain the recommendation of the Planning & Zoning Board with regard to Laver's Delray Racquet Club subject to the conditions laid out by the Engineering Department in their amendment to that recommendation, seconded by Mr. You'ng. Said motion passed unanimously. 9.b. The City Manager reported that the Planning & Zoning Board at a meeting held on July 17th, recommended by unanimous vote that the final plat approval for The Estates Subdivision (Hamlet-Phase XIV), located at the southeast corner of Military Trail and the L-34 Canal, be approved, subject to the following: 1) City Engineer's memorandum of July 9th. 2) Director of Public Utilities' memorandum of June 20th. 3) That the sidewalk requirement be waived on both sides of the street. 4)That the dead-end street be approved at a length greater than 1,000 feet. 5) Availability of water. Mrs. Durante moved that Council sustain the recommendation of the Planning & Zoning Board, seconded by Mr. Bird. Said motion passed unanimously. 9.c. The City Manager reported that the Planning & Zoning Board at a meeting held on July 17th, recommended by unanimous vote that the zoning ordinance be amended to allow auto brokerage and vehicle dis- play in the CC (Community Commercial) district. It is recommended that Council direct the City Attorney to draft the zoning ordinance amendment or refer to workshop. Mr. Carey advised that they changed the wording and their wording now says "exterior display and services prohibited". Mrs. Durante moved that Council sustain the recommendation of the Planning & Zoning Board, seconded by Mr. Bird. Said motion passed unanimouly. Mayor Weekes declared a recess at 8:45 P.M. The meeting reconvened at 8:52 P.M. - The City Attorney returned to the Chambers at this time. 6.f. The City Manager reported that as discussed at the July 18th workshop meeting, Council is to consider authorizing execution of an agreement between the City and High Point of Delray Builders No. 1, Inc. relative to water and sewer service. The City Attorney reported that there are several points that need to be discussed by Council that he has discussed with High Point and which need clarification. The first of those and the one he regards as the most important is that he has requested from High Point a clause by which they would agree that the provisions, rates and charges contained in the City's ordinances regarding water and sewer service are valid and legal and they would waive any right to contest those provisions, and that in the event someone else were to contest them that they would not participate in any refund. One of the major considerations to the City in this agreement is the question of water and sewer connection fees and in thee event that on one hand they get a dismissal with prejudice of the pending litigation and then On the other someone brings a class action and they participate in the re- lief, they've received it in one instance and paid it back in the other. - - 15 - 7/23/79 Mr. Glenn Smith, an attorney representing High Point, stated that he is the litigation attorney representing the corporation in the suit challenging the water and sewer connection fees. He thinks it's very important not to lose sight of the goal that they are trying to accomplish and get hung up on minor matters. They have agreed to drop this lawsuit and they have agreed not to press any lawsuit challenging the validity of the fees; however, they feel that it is not appropriate for them to agree that all the City's rates are valid. They agree that they will not institute any additional law- suits or participate in any lawsuit in the sense that they will not give money to somebody else to sue the City. They feel, however, that it is appropriate that if someone else institutes a lawsuit and wins so that the City is refunding the fees after it has been determined that they were improperly charged in the first place, they ask that they be in the same position as everyone else. These are sewer and connection fees applying to the areas within the City limits so it really has nothing to do with the area in which they're talking about. He suggests that this is not a major issue and suggested that they go to the other thing concerning the water and service to the west area. The City Attorney stated that he considers this to be a major point. Mr. Smith stated that he doesn't want to argue over it but when they're discussing the payment of $545,000, he feels that there are some other things that are more crucial to the agreement. Mayor Weekes suggested that they take the issues one by one and this being the first one raised, they should try and resolve it now if they can. Mr. Stanley Tate, developer, stated that it seems that this is a bigger issue to Council than it is to them. They don't want to be a part of the suit, they will not enter into the suit, they don't want to be part of a class action suit and they will not finance anyone else suing the City. However, if a third party, who they have no involvement with, files a suit, which is not now contemplated, that invalidates one of the City's ordinances, they don't want to give up any.of their rights to monies they may have paid in. If the City is going to have to give refunds to someone else, they shouldn't be treated any differently because of this agreement. They're willing to drop all of the litigation with prejudice so that they can never bring it back again but with the understanding that if the ordinance is declared invalid and a court directs the City to refund the money because of the invalidity of the ordinance that they be treated no differently than anyone else who wouldn't be participating in giving the City some amounts of money for other properties which have nothing to do with the validity or invalidity of an ordinance. He stated that he thinks it's right to take this point by point and he understands the City Attorney's position and he understands the Council that maybe each point should be resolved. All of the other points have to do with the specific agreement and it would be his suggestion to see if they cannot resolve those points. If they can resolve those points, _ he'll talk to his litigating attorney in the meantime. The City Attorney stated that he considers that to be the most important requirement and he has been informed by them that they will not agree to that. The City Manager stated that on several of the points that have separated the City and High Point with regard to trying to work out this agreement, he has joined High Point in some of those in- stances, sometimes outright and sometimes to modify the City's posi- tion to try to get equity. However, on this point, he thoroughly agrees with the City Attorney. He agrees with the City Attorney in that unless they can reach agreement on this point, he doesn't see how the City has any business entering into the agreement. Mr. Tate stated that he thinks that this point is resolv- able; he-would like to sit down with his litigating attorney. How- ever, he suggests getting all the other points done in order to save time and then come back to this point. - 16 - 7/23/79 Council and the City Attorney agreed to go ahead and discuss the other issues. The City Attorney reported that the next point is the question of reservation of surplus supply of the City and the issue of the City providing certifications; whether they will use that approach or that approach combined with some others. The concept of' the agree- ment, the way he and the City Manager had originally conceived it, was that the City would have the discretion to decide, in the event a surplus exists, at the time a company makes a request for certifi- cation. In the event the City declined to issue the certification, there would be no liability on behalf of the City; the Utilities Director would review his capacity and his projections in terms of expected development and demands on the system and make a decision as to whether or not he could issue the certification. That was then changed somewhat to include a concept as to the initial certification that would be so then as to subsequent certifications which is the time that the corporation becomes obligated to make the conveyances of the water tower site and the payment of the $545,000. At that point in time, if the City was confronted with a request for a certifica- tion, the City would be legally obligated to issue it if a surplus existed. City Council decided at the last workshop meeting that a certification should be for a period of three years. In addition to that, the corporation, instead of having the payment for the water tower site being due one year from the date of the agreement, the water tower payment contribution of $545,000 would be due at such time as the City is in the position to certify. Mr. Mark Grant, representing High Point, stated that he thinks that the City Attorney combined about four or five issues and he requested that they be broken down to one at a time. In regard to surplus as he understands it is if there is a surplus that they are the first ones requesting it and they would have the rights to that surplus, if in fact it existed and they would be told if it existed by a certification being issued. The first subject to cross over is whether or not they are entitled to water service out of a surplus if it exists. The City Attorney stated-, in response to the City Manager, that the Utilities Director is the one who determines a surplus but it is reviewable by a court. Mr. Grant gave an example as follows: If they requested certification and the Utilities Director told them there was no sur- plus available and then the next week he turns around and issues 150 building permits, which implies that there was some water available, then that is some determination as to whether or not there was a surplus; if that happened, they might litigate something like that. The City Attorney added that in the event the Utilities Director issued no permits, there would still be the question to be resolved in court as to whether or not there was a surplus. In response to Mr. Bird, Mr. Grant stated that they would have the rights to surplus but not ahead of any City resident and they are willing to' sign that. Whatever the perimeters of the City are today, those people have rights to that surplus before they do. That would include people who have filed for annexation. The City Attorney stated that in regard to the priority over City, High Point is willing to agree that as of the date of this agreement, any property that is now located in the City will take a priority over their request for service except to the extent that the City has issued a certification. So, if the Utilities Director has certified that the City has capacity to serve a certain number of units for High Point and someone who is now in the City requests service and there's not sufficient capacity in addition to what's been certified to High Point, the City would have to deny that request. Mayor Weekes stated that-'-it seems to him that the agree- ment should contain language so that the City will not be left subject to a lawsuit over whether there is or is not a surplus. The City should have the sole discretion to determine whether or not there is a surplus to certify the next section. - 17 - 7/23/79 The City Attorney noted that what the Mayor stated brings up the next point which is the priority in terms of people who are now outside the City limits. Instead of priority being established at such time as the City would issue a certification, they want priority to be established now as the date that they sign the agreement, so that any surplus that exists in that area, or that is created in the future, will be reserved for High Point to the extent of their 1,100 units. What that may do is cause a major problem in terms of the Council policy of encouraging annexation. They don't know how much surplus will exist in the area outside the City; they probably don't have much at this time; if they don't have much and that has got to be reserved to High Point, then the City cannot annex and provide water service to any other property probably until 1981 when the water treatment plant expansion is completed. Mr. Grant stated that they asked Mr. Martin, Utilities Director, if he would be in a position to certify as to their first phase, which was 375 units. He said yes, he is in a position to certify for that right now. That being the case, they have requested the City Attorney to put in the agreement that they are certifying 375 units that obligates them to make a water tower payment right now. The City Attorney stated that one of the things that bothers him about the priority system is, other than the ones they have already committed to High Point, where is the leeway for any other properties to be annexed into the City. He cannot foresee how much capacity there is going to be or when it is going to be available precisely. %fnen they sign this agreement, they are committed that any surplus that arises over and above that to which they have already committed will belong to High Point. Mr. Tate added that that commitment is for up to 1100 units and that's why they are giving the consideration of a payment of a million dollars. If they're not going to have any guarantee of getting any water, what's the incentive to go this route. They need to be assured that if the City has surplus at the City's sole deter- mination subject to those that have already filed for annexation and subject to any request within the City at this time who would have first priority that no additional properties would come in to take away from that surplus that they are paying to have reserved for them and paying one million dollars to get. The City Manager stated that the City has no problem at all with reserving for the first phase construction, 375 units. But this second feature that has just been brought up with regard to future reserves, that is a new subject to him. The City Attorney stated that the way it is prepared in the draft that was transmitted to Council and the way it was agreed to last week was that as to the area outside the area as well, it would be done on a certification basis. They would come in, they'd make a request to certify; the commitment to reserve capacity would arise when the City issued the certification, not now. Mr. Grant stated that there are quite a few things that have been changed slightly and this is something that was negotiated back and forth over a number of different points and he was not party to any prior Council meeting, but he understands that this was part of the initial conversations regarding this subject matter; that this was the original concept and it only got lost because Mr. Smith and him- self had to change roles in the middle of this and he didn't under- stand that when Mr. Smith handed it over to him. The City Attorney stated that Mr. Smith and himself never had any direct substantive negotiations. They were involved in liti- gation and then they both turned it over to their clients to go ahead and negotiate if they could reach an agreement but, that particular part of it, as far as he knows, was never conceptually agreed to at any time. They signed the agreement with High Point today; the commitment arises today that any surplus that now exists, or that may exist in the future, as to the area outside the City, High Point has a priority on up to the total of 1,100 units. The whole point of the concept of the agreement was that the City cannot now commit to give High Point water service because it does not have the capacity. - 18 - 7/23/79 Mr. Tate stated that he didn't ask for a commitment; the City could reserve as a priority before it gives to him any surplus it may have at its sole discretion to any citizen within the existing boundaries of the City, to any property that has now requested annex- ation, and then to him; that's what he is paying for. If the City is saying that it reserves the right to give away any surplus to someone else before he gets his, then what is the purpose in him giving the City a water tower and paying the City a million dollars. The City Attorney stated that Mr. Tate is not giving the City the water tower or the $545,000 until the City issues a certifi- cation that it's available. Mr. Tate added that he is legally binding their corporation to pay the City at such time as when the second certification has been issued. The City Attorney asked Mr. Tate why he is asking for the advance commitment instead of at the time that they're going to be paying the $545,000. Mr. Tate replied that it's because they may be dealing with a new City Council in two years that annexes a 200 acre piece of property that gets water out of surplus and they may not have any water. Mayor Weekes stated that both the City Attorney and Mr. Tate have made their points clear and he asked Council for their opinions. Mrs. Durante noted that the agreement that she is reading states that in the first certification there would be 375 units and they're talking about getting the surplus for those 375 units in the first certification; they're not talking about committing anything more than what is certified. Each time there's a certification of the surplus, High Point wants that amount committed, not the whole 1,100 because they're not going to get those certified all at one time.~ The City Attorney clarified that High Point wants a com- mitment that any surplus that comes up, the City will reserve and give them a priority as to that surplus beginning with the date they sign the agreement. Mr. Tate added that the City will issue to them the certification at such time when the-surplus is available for phase 2, at which time they would give the City the $545,000. The City Attorney stated that that is not what Mr. Tate has been asking for; he has been asking for a commitment. Mayor Weekes asked the City Attorney if he would go along with it on that basis. The City Attorney replied that if they're back to the certifi- cation concept that's included in the current agreement that was submitted Friday, then, yes, he would go along with it. Mrs. Durante stated that she is reading in the agreement that the payment would be one year after this agreement is signed; it doesn't say after the second certification. The City Attorney added that the other change is that the certification is now coupled with no latitude on behalf of the City to refuse the certification. Mr. Tate stated that he'll legally bind the corporation to make the payment at such time as the City has enough surplus for the second certification; when he gets that second certification and the surplus is available, the City may make a demand on them and get the check that day. Mrs. Durante stated that what they discussed last week sounded a lot better. They were talking about committing the first certification for 375 units, then the payment would be made within a year after signing the agreement and the tower could be built within six months. Hopefully, High Point would not be ready to pull any permits before then. That would give the City a lot more water. Mr. Tate responded that they will not pull the permits and they will so state, but they want t-o be sure that water is available when they need the permits; that's the problem. If they pay the money at the end of phase 1 and the surplus that the City had is used for someone else, they may never get their certification for phase 2 and - 19 - 7/23/79 they'll have spent all the money. Mr. Tate added that he will put in the agreement that they don't have the right to pull down the certifi- cation or Permit until one year or eighteen months from the date of the agreement. As soon as the City has the surplus, it can force them to pay the $545,000, demand to issue the certification and state in the agreement that it will not issue them the permit for a year. All he wants is to be sure that when the City has the water, and they're paying one million dollars, that at least he gets two phases of water. In response to Mr. Bird, the City Attorney stated that $545,000 is not the full cost of the tower; it's approximately $900,000. He further stated that he has no problem with the idea that after the City issues a certification for phase 2, both parties are obligated; the City as to the surplus and Mr. Tate as to the $545,000, but not a commitment now that to the extent there's a surplus between the 375 and the units for phase 2, that the City will reserve in any event on a priority basis until such time as High Point comes in and requests a certification. They could grant permits to other people in the unincorporated area now to hook up and still at some point down the road tell High Point that things are looking better with the water treatment plant expansion and the City is now sure it's going to have the capacity to serve them; the City will now commit to give High Point phase 2 and they will now pay the City $545,000. Mr. Tate replied that he is more than willing to agree to that and feels that it is a bad deal for the City. He further stated that since the City wants to get that water tower done as fast as it can and the City should make him give it the money when the water is available. The City Attorney asked Mr. Tate if he is agreeable that as of the date of this agreement, there's no priority to him as to the surplus that may exist or may hereafter exist in the unincorporated area. Mr. Tate replied that so long as they don't have to make any payment to the City until such time as the City issues them the certi- fication on phase 2 and reserve the water for phase 2; if that's what the City wants, it's fine with him, they just don't make any payment to the City. The City Attorney asked Mr. Tate if he would agree to it so that in the event that the City has a surplus and is willing to so certify it that then he would be obligated to make the payment on the second phase and not that he will have the option to tell the City, no, he doesn't want the water. Mr. Tate stated that he will agree to that but the City will not have the option to tell him to make the payment and not supply him the water. Mr. Tate, the attorneys and the Council agreed on this point. In response to Mrs. Durante, Mr. Tate stated that phase 1 is contemplated since the water is available and it will be issued upon the signing of the document if Mr. Martin so confirms what he has told his people. He expects that they will be Pulling permits and actually hooking up on phase 1 in a year from now. Mrs. Durante asked if Mr. Martin said that he could issue certification for phase two in two weeks from now, would the City then be able to draw down the money. Mr. Tate stated that the City-could draw down the money but · they don't want the time to start to run because they don't want to have to pull permits within the time frames; that water is reserved for them and then whenever they come in for certification, at that time the time starts to run for the pulling of permits. Mrs. Durante stated that what she is trying to get at is whether or not the City can have the money for the tower and have the tower constructed before Mr. Tate pulls all his permits for phase 1. Mr. Grant replied that that is up to the City. If they wanted to pull permits, they would have the right to in phase 1. Just because the City does not ask for the payment for phase 2 does not mean that they can't pull building permits for phase 1. When High Point makes the payment of $545,000 upon the City's request and they have the.water reserved for phase 2, what will be the situation with respect to phase 3? The City Attorney replied that the concept of the certification would carry over to phase 3. - 20 - 7/23/79 Mr Tate stated that as 1°ng · as it's reserved at such time as when the new plant is in, they can stipulate that at such time as when the new plant is in that the City reserve enough capacity out of the new plant for phase 3 because that plant will be done long before they need phase 3; three years at a minimum. Mr. Tate added that as assistance to Mr. Saberson, he offered and Mr. Saberson accepted, in order to save time, that the staff of Rude and Barnett, which is about 30 attorneys, would be willing to draft the agreement and submit it to Mr. Saberson rather than him having to be burdened with the drafting of the agreement himself which has taken a large amount of his time. Mr. Grant went over what they just agreed to; they are agreeing that they're getting certification with respect to phase 1 which is the equivalent of 375 units at this time, in the event that it is confirmed by the Utilities Director; that when the City requests the $545,000 payment, they are then assured the surplus is set aside for them with respect to phase 2 as is contemplated by the agreement now; and with respect to phase 3, the certification process, they would have to go in and merely request certification at such time as they believe it's necessary. The City Attorney added that the prior- ity of availability will date from the time of certification. Mr. Bird stated that, as he understands it, there would be no requirement for any delay between phases 2 and 3; should there be at least a sufficient delay to enable the City to get the tower in operation before phase 3 is approved. Mr. Tate stated that he will stipulate, at such time as when they fund the money, that they will not request a permit on phase 2 for six months from the time they make the request and from the time the money is funded to the City. In other words, they won't make a request for service for six months from the time they issue the checks so that the City will have enough time to build its tower. The City Attorney added that that is subject to a pro- vision in the agreement that if, because of circumstances, the City is unable to complete the construction of the water tower. He rephrased that to say that the City has an obligation to complete the construc- tion of the water tower and will use due diligence in doing so but, in any event, High Point will not get service to phase 2 or 3 until the tower is completed. Mr. Tate did not agree to the rephrasing as stated by the City Attorney. The City Attorney stated that he prefers the language of using due diligence rather than having a specific time period; in other words, the City is committing to building the tower and to using due diligence in doing so but High Point has to acknow- ledge that the City can't serve them until Such time as it is built. Mr. Tate suggested setting a time and asked if the City wants nine months. It was the consensus of Council to accept nine months and acts of God. Mr. Grant suggested that they now discuss the duration of the agreement. The City Attorney suggested discussing the duration of the certification; that comes first. They had agreed to three years but now High Point wants 5 years as to certifications. Mr. Grant stated that if they requested any of the service covered by that certification, for example, if the City gave a certification for 100 units and they took down the service for ten units, would they lose the other ninety at the end of the three years. If they are going to lose the service for the balance of the units that they haven't drawn down at that time, they need more of a cushion than three years and they're requesting five. Mr. Bird stated that it seems to him that when they got involved in that, it was in part because High Point wanted the water reserved specifically to them and he thinks that after the three years, the City would have to let some other people get in line. At that point in time, they are looking at a completed, 24 million gallon water plant and he doesn't see a problem. - - 21 - 7/23/79 Mrs. Durante noted that High Point also made the point that the further down the road they get, the less of a problem there's going to be and they really won't need all that certification. Mr. Tate stated that the problem they have is one of economics. Last year they sold 500 units by opening up a model. The market is changing very rapidly. They don't want to be put in a posi- tion where they are going to lose the availability of the water. If everything comes on line like the Council says, then the extra two years shouldn't mean a thing to the City. Mr. Bird stated that the point that Mr. Tate has asked for is that the City should reserve to him on a priority basis and he (Mr. Bird) thinks that at some point in time that that priority should run out and that High Point should stand in line along with everyone else. Mr. Tate replied that they need five years; they have a major problem with three years. The City Attorney stated that Mr. Bird was exactly right on why the time period for a certification was put in in the first place and that's that the City reserves capacity for a certain period of time and then if High Point hasn't used that capacity then someone else has the right to make a claim on it. That is related to another question which is not only once the City has committed through a certification how long will that last but then also how long will the corporation have a right to request a certification from the City that then may be reviewable in court in terms of whether or not there is a surplus supply. He has asked them for the agreement to provide an outside time cutoff after which the City would no longer be obligated to entertain requests for certification and when they discussed that Friday, he was talking about six years, the City Manager was talking about eight years and Mr. Tate was talking about ten years. This agreement is an encumbrance on the City's capacity to provide water service; whether or not it is in terms of the certification, which is where the City makes a commitment that is valid for three years or five years. In other words, if they don't request a certification at some point in time past a six year period or an eight year period, then the City's obligation to provide service to them would terminate. It would be an outside date after which the City entertains requests for certification, otherwise this agreement will go on indefinitely. Mr. Grant stated that they were looking at a ten year termination not for the requesting of certification but as the time that all certifications would expire and they would also have no right to request further certifications. Mayor Weekes stated that the City is under a time con- straint and a stipulation to construct a water treatment plant. Tonight they passed a bond resolution; they're moving as rapidly as they can in that direction. It seems to him beyond any reasonable doubt that they are going to have a water plant within the next two years. Whether the certification is good for three years or five years doesn't make a bit of difference. _ The City Attorney stated that the difference, from his point of view, is that the corporation will be able to come in and make a request to the City by virtue of this contract which the City will be legally obligated to honor in the event that there is a sur- plus. Mayor Weekes stated that they're talking about two diff- erent dates, one is the certification where the City gave them three years and they're requesting five years; that was agreed upon the other night. The City Attorney stated that the agreement is written in this way because the City doesn't have the capacity and they are asking for certifications that are going to go on for five years. Mr. Tate stated that he can't get the certification until the City has the surp 1 us. Council's consensus was five years for certification. - 22 - 7/23/79 Mayor Weekes stated that they should now discuss the out- side date. Mr. Tate stated that they would compromise at eight years. The City Manager stated that he thinks, for the size of the investment involved, for the number of units and the uncertainty of the economic situation and the fact that it doesn't hurt the City one way or another, that five or six years is too short and ten years is too long. He suggested eight years the other day and he feels that eight is a good figure. It was the consensus of Council that the agreement and all certifications would terminate in eight years. The City Attorney stated that there is a clause in the agreement that reserves the right to the City to have t~e option to annex but not the obligation to annex the premises and Mr. Tate does not want that in there; he says either annex now or no right to annex. Mr. Tate stated that he will not give up the rights of residents of High Point. He will not commit to them that they have to be annexed into the City if the City, at its option, makes that deci- sion. He thinks that the annexation issue shouldn't be a part of this agreement at all. Mayor Weekes advised that if they take that out of there and just leave the issue aside in the contract, then he thinks that the Council has spoken for future Councils. He thinks their failure to include any wording in this contract regarding annexation binds the next Council because they'd never be able to annex it at that point. It was the Council's consensus to delete any reference to annexation in the agreement. The City Attorney reported that he put a clause in the agreement that the parties agree to reasonable interpretation and application of the agreement; howeve_r, in the event that in regard to any matter that may be in dispute between the parties, if there are two or more reasonable positions, which there's likely to be, with respect to such matter, then the position taken by the City shall pre- vail. Mr. Tate stated that what that clause says is that the City's decision is binding and he's saying he's willing to go to arbi- tration. The City Attorney added that the City's decision is not unreviewable. Mr. Tate stated that reasonableness in a contract determination is not something that's measurable and that's what they're at issue with. If there's a litigation, either on the part of the City or on the part of the corporation, and they can't bring about a resolution, it shouldn't be decided if the City says that that's the way it's got to be; it should be arbitrary. They're willing to use the standard arbitration clause that the City elects an arbitrator, they elect one, those two elect a third and it's binding on either one, whatever their answer is. The City Attorney stated that there are all sorts of things in this agreement about easements that are as yet undefined, the size, the width, location and that sort of thing and he doesn't want to get in an argument about it. Mr. Tate stated that all those items have to be accomp- lished before they get the first stick of water. They work very well with the department heads in their needs. In regard to contract determination, there isn't a gentleman sitting on this Council that would sign a contract saying that the party who's signing the contract has the right to decide whether or not his interpretation of the contract is binding on You; it just doesn't make good business sense. A fair compromise is to let independent third parties make the decision. - 23 - 7/23/79 The City Attorney stated that the other item and probably the more important item that they talked about before was determining whether there is a surplus. That again goes back to whether that's a matter of discretion or whether or not that is subject to a standard of review. Mr. Tate stated that he said at the meeting upstairs and he said downstairs and his attorney also said "in the sole discretion of the City"; that doesn't seem to him to be an unreasonable attitude with reference to surplus. If the City says there isn't any surplus, they wouldn't say it unless they can justify that position. They're not talking about surplus; they're talking about interpretations under the contract. The City Attorney added that one of which is whether there is a surplus or not and asked Mr. Tate if he is willing to leave that totally within the discretion of the City. Mr. Tate replied that he is willing to leave that totally within the discretion as to the determination of surplus before the City gets money from them and before he gets service from the City. Mr. Grant stated that just because it's in the City's sole discretion doesn't mean it's not reviewable. Mr. Tate stated that they can't take away his rights of review. Mr. Bird asked the City Attorney why a three member board of arbitration would not be acceptable. The City Attorney replied that all that does is change the form; it doesn't change the standard. What he did with this particular clause was just trying to tip the scale in favor of the City in terms of if the City is in a reasonable position then he thinks the City ought to prevail. Mayor Weekes stated that there may be more than one reasonable position and the City Attorney replied that that is the very reason that that's in there because there is very likely to be five or six reasonable posi- tions. Mayor Weekes stated that, in that case, he thinks they should agree to arbitration. It was Council's consensus to go with arbitration. The City Attorney asked Mr. Grant if on Paragraph 19, when he prepares the agreement if he will put a period after agreement in the second line and then put in the arbitration provisions. Mr. Grant replied that he would. Mr. Tate stated that there were two other items which involved reasonableness on the part of the City; one was the assign- ability, which he thinks the City Attorney has agreed to, that the City had the right to deny assignment but not unreasonably; the other is that in the contract the City Attorney says win or lose High Point pays the City's attorneys' fees in litigation. His reply to that was that if the City prevails in litigation, they will pay their fees but if they win, he doesn't want to pay the City's attorneys' fees; he thinks that is unfair. In response to Mr. Tate, the City Attorney stated that they have already ironed that one out and he is satisfied~with that; the prevailing party. Mr. Grant suggested that they now talk about the paragraph regarding the City's liability or non-liability for items beyond its control regarding water shortages and such and their request to be treated in the same manner as other users of the City's system. The City Attorney stated that rather than go through this clause tonight, he would like the opportunity of trying to work that out and bring that back to Council. His concern about that is that putting in the words "beyond your control" to him in restrospect over the past water moratoriums that they have had, he can see very well ho%; arguments could be made that it was not beyond their control or that their actions in the matter were a contributing cause. There just has to be some middle ground between the two extremes. - 24 - 7/23/79 Mr. Tate stated that what they are really trying to get, with reference to this liability, is that they are not treated any differently than anyone else. That's all they ask for; that if there is a moratorium, or if the Health Department shuts you down, that the City doesn't say they only shut down for 50,000 gallons so they will shut down only High Point because they use 50,000 gallons. The City Attorney stated that if they wanted to have a separate clause in there about a shortage and an allocation of ration- ing, he is perfectly agreeable to that. Mr. Grant stated that what they are requesting is merely a statement that the City would not be liable for these interruptions if it was beyond the City's control. That does open up the question as to what is beyond the City's control. What they are really searching for is being treated in the same manner as other citizens. Mayor Weekes stated that they should be able to put some- thing in the agreement that they be treated no differently than any- body else. The City Attorney stated that he will work on it with Mr. Grant and suggested going back to the point on litigation. Mr. Grant stated that the City Attorney has put in a paragraph requesting on the reimbursement of the expenditures for the installations on Military Trail, that High Point is entitled, accord- ing to the agreement, to a pro rata refund for other people that hook up to the system. Mr. Tate stated that this has nothing to do with the water tower, they are talking about the main lines. Mr. Grant further stated that that obligation of refund, the City Attorney has said, expires after five years. It's an arbitrary decision but they will live with that. But what the City Attorney has requested is that the obligation of refund would be subordinated to the revenue bonds. The point that they are making is that they don't know that the source of the funds to give them the reimbursement is that of revenues; it's out of the connection charges for people that connect into that system. The City Attorney stated that that is a question that will have to be answered by the bond lawyer because the bond resolutions require that as to any revenue the City receives as part of the water and sewer system that it be placed into certain funds in a priority ranking, and that it's not until those payments are made into those funds that there is money lawfully available for other payments of which this refund would be that type of payment. It's a question of whether or not the funds the City receives would be considered revenue of the system. If the bond lawyer answers that in the negative, okay; if he doesn't then it's got to stay in. Mr. Tate advised that they are willing to go along with the letter from the bond attorney stating that those revenues are, in fact, pledged as part of the bond revenue. He further stated that if they can get the agreement drafted this way, they'll drop their liti- gation with prejudice and will agree that if there's a contribution that's given by an award that they will not make a request for their pro rata share or any portion of that contribution. In response to questions from the City Attorney, Mr. Tate replied that he would not agree to Paragraph 17 which the City Attor- ney drafted and he will not accept the City's ordinances as valid and legal ordinances. Isn't it really the intent of the Council that this thing be put to bed as far as the fact as to whether or not the ordi- nance is a valid ordinance by reference of this suit and isn't it a fact that the City really doesn't want to have any exposure if someone else sues to refund them any amounts of money; he's willing to give the City both of those things. He's willing to drop the suit and he's willing to say now that he will not make a request at any time for a refund if someone else Wins the suit. However, he will not declare in a document that the City's ordinance is valid and legal. ~ - 25 - 7/23/79 The City Attorney stated that as he understands it, Mr. Tate's sole objection is to say that the City's ordinances are legal and valid. Mr. Tate agrees that he would not bring an action con- testing the provisions of the water and sewer ordinances whether in regard to connection fees or other fees and that in regard to connec- tion fees or other fees, Mr. Tate will not request nor participate in a refund from the City pursuant to any kind of action in the event that a court determines that a refund is due. The City Attorney further stated that all he is trying to do here is to determine that they have at this time decided what the consideration to the City is for this agreement and in order for that to be a real commitment on behalf of the corporation, they don't want to have to pay the corpor- ation back at any time for any challenge to any part of the City's rates or connection fees. Mr. Tate stated that there may be some other items that they are not now aware of that could come about 6 months from now, or 3 years from now, that have nothing to do with the suit that they brought. He has eliminated the exposure to the City by saying that under no circumstances will he sue and under no circumstances will he be a part of a class action suit unless it's involuntary; he could be named in a class action suit on an involuntary basis, on a class basis, but he would not take the money. He will not validate or make any representations as to the water and sewer ordinances; he will state that as far as their suit is concerned, for those specific issues, they will not be involved in any refund at all, ever. The City Attorney stated that Mr. Tate wants to reserve the right to challenge any other aspect of the water and sewer ordi- nance whether it's in effect now or whether or not it's an amendment in the future. Mr. Tate asked the City Attorney if he wants him to give away a right to challenge an ordinance of the City two years from now. The City Attorney replied that he is talking about the ordi- nances that are in effect on this date, not ordinances that may be passed by the City in two years. Mr. Tate stated that he will not give up his rights to sue a city for any matters other than what they have under discussion now; he's willing to drop the lawsuit they have pending against the City and indemnify the City that he'll never make a claim for any monies from that suit. The City Attorney stated that as far as he is concerned, it is a City Council decision. Mayor Weekes stated that in this instance, he is going to go along with the City Attorney; he thinks that the City has made a number of concessions and if they can't accept it, he is not going to agree to it. The City Attorney added that that applies to High Point Sections 1 through 7, as well as this. Mr. Tate stated that this has nothing to do with High Point 1 through 7. The City Attorney replied that he's binding the corporations that have developed those. Sections 1 through 7 only have something to do with it in the context that they've made payments in the development of those sections and that is what he's referring to. He doesn't expect them to bind any condominium associations. Mr. Tate stated that if he waives his rights and drops a suit with prejudice, does the City think he could, in good conscience, or legally, bring a suit under the same issue in a court in the State of Florida. Mayor Weekes stated that the City Attorney is talking about other charges under the ordinance. The City Attorney asked the gentlemen from High Point to read Paragraph 17 which he prepared; that is trying to foreclose any more litigation on the water and sewer ordinances. Mr. Tate stated that this paragraph does specifically say that they are binding any assigns which he will not agree to. The City Attorney clarified by saying any assigns other than the condominium association. In regard to Sections 1 through 7, Mr. Tate stated that he has nothing to do with them; they have condominium associations and if they want to bring about a case of litigation, it has nothing to do with him. - 26 - 7/23/79 Mr. Tate stated that it was explained to him at their meeting upstairs, and maybe that's what has tempered his backing down from a position he took, that the concern was that part of the con- sideration for this water was the tower, the lift station, the land and the potential liability of the money. If another developer came into the City, would the City make him sign an agreement saying that he gives up any of his rights to sue the City? The City Attorney replied that if the City was going to sign another agreement like this with another developer with litigation pending against the water and sewer connection fees, then, yes, they would ask for the same kind of clause. Mr. Tate asked about a builder that might walk in tomorrow and take a permit out in the City; would they ask him to give up any of his rights to sue the City. The City Attorney replied that there is a big difference between those two examples, one of which is that they are under an obligation to provide water service to people in the City; they're under no obligation whatsoever to provide him with water service; this is a voluntary, negotiated agreement and one of the important provisions of that agreement, in his opinion, is that Para- graph 17. Mr. Tate stated that he's willing to give up any right he might have to refunds, he's willing to drop the suit, he's willing to state that he will not voluntarily enter into a class action suit, and he's willing to state that he will not financially back anyone else involved in the suit in the City. If that's the end, they will go to the County and get their own water system and the City can build its own water tower. He doesn't think it's fair to ask anyone to give up an unalienable right for litigation on an item. He gives the City his assurance that under no circumstances will this corporation bring about a cause of action with reference to what they're involved in now nor will theY ever be involved even if the court awarded them the fee; he would refund it back to the City. That's the basic concern of the City. They've been in the City for 13 years and they've never brought about a litigation. Mayor Weekes asked the City Attorney if he has reservations beyond what has been brought foward tonight. The City Attorney replied that they've discussed all of the concerns. Mayor Weekes asked if there in nothing in the ordinance that they object to, why do they object to that clause. Mr. Smith replied that they have not studied the entire ordinance with this regard; they just felt that the major problem was this particular law- suit and they felt that they were like anybody else in the City in that if a problem arose in the future and they felt something was invalid, they might challenge it. They just don't want to unwittingly foreclose another right that they have and it's most likely nothing will ever arise. He doesn't see what the concern is. The City Attorney stated that he has no objection as to them reserving a right as to future amendments that the City may make to the ordinance; he's talking about the ordinance as it is today. In response to Mr. Scheifley, Mr. Smith said that they are presently challenging the water and sewer connection fee which is one part of the ordinance; they dropped that but to go further than that they don't know what they're giving up. They have no plans to sue but they don't want to give up those rights. Mayor Weekes stated that it is now up to the Council to decide. The issue is very clear; the City Attorney has stated his concerns and Mr. Tate has given his position. Mr. Young stated that he thinks that Mr. Tate has been very fair in making his recommendations and concessions and he is agreeable to accepting Mr. Tate's position. Mr. Scheifley stated that Mayor Weekes has shown such good judgment in the other decisions of Council and he has great ~espect for his opinion; therefore, he will support whatever position Mayor Weekes takes. - 27 - 7/23/79 Mr. Bird stated that he does appreciate the City Attorney's concerns and the fact that he's attempted throughout this document to protect the City but, he's willing to concede the possi- bility of future litigation with regard to fees other than those specifically enumerated as being willing to be dismissed with preju- dice and such other stipulations that Mr. Tate has made. He thinks that the City Attorney's Paragraph 17 would be the ultimate in pro- tection for the City but he thinks that they can accept something slightly less. Mrs. Durante asked what kind of fees under the present ordinance are they obligated to pay now on those projects that are already completed? Mr. Tate replied that they are all paid. Mr. Smith stated that the water connection fees in Sections 7 was the subject of the lawsuit but as far as water and sewer connection fees, if they dismiss this lawsuit with prejudice, they will not be able to challenge water and connection fees on the other sections. The City Attorney stated that he thinks it should be clarified in the agreement that it does apply to Sections 1 through 7; Mr. Smith agreed to that. The City Attorney stated that there are some other fees that High Point has paid in Sections 1 through 7, which refer to a developers utility fund agreement fees, and it's his understanding that they will also not seek any refund as to those. Mr. Tate replied that whatever they have paid and contracted for and executed agree- ments on, the City can be assured that they will not assume or request any refund for them. He cannot make a commitment on something he didn't agree to that he may have paid for. He is not going to waive any of his rights for anything other than what he has contractually agreed to. The City Attorney added that there is a possible liability there too. Mr. Tate stated that on those payments that they've made under contract and the issue that is in litigation now with reference to the payments which were made for water and sewer, they will drop with prejudice which would prevent them from ever being involved in any type of lawsuit on those issues again. In addition to dropping the suit with prejudice, under no conditions, would they be a party to a refund for any awards made by a court for those items under which they have filed their suit. Mrs. Durante stated that the City is asking them to agree to say that they will not contest the water and sewer ordinance as it stands now. Mr. Tate replied that they have already stated that they will not accept that. The fact is that the City's vulnerability is in this ordinance and in that portion of the ordinance under which they filed their suit. There's a very strong probability that if they drop the suit, that vulnerability will cease to be involved in this City. If they proceed with the suit, he thinks the City is going to have major exposure. Mrs. Durante stated that in view of the fact that the Administration feels that the City has got a lot at stake in this one part of the agreement, she will support the Administration. The City Manager stated t. hat his reservation and concern was the part that High Point later conceded on. He had not gone a step further to give any consideration to the question that now di- vides the two sides as to whether or not they would be required to state that the present water and sewer ordinances are valid in all respects and whether or not they should give up any rights to sue the City with regard to items not now in litigation arising from the water and sewer ordinance. For the benefit of Council members, he is neutral on that point and they should look to the City Attorney if they want to consider that. - 28 - 7/23/79 Mayor Weekes stated that he is prepared to go along with Mr. Tate's last statement which was that he would give up the liti- gation and all of that and the monies arising therefrom in future class action suits and so forth and that he would waive any right for a suit against any funds that he had already paid to the City and there was no qualification on that. The City Manager stated that Mr. Tate qualified that by saying "if he had contracted". Mayo~ Weekes replied that Mr. Tate came back later and changed that; Mr. Tate verified this. Mayor Weekes further stated that with those changes, he would accept the changes. He believes that that makes a majority of the Council. Mr. Scheifley stated that he will go along with Mayor Weekes and Mrs. Durante stated that she will go along with the major- ity. The consensus of Council was to accept the agreement and Mr. Tate's position. Mr. Tate stated that they are under major time constraints and one of the reasons he offered the City Attorney the services of the Rude Barnett offices is so that they can process this agreement. Once the City Attorney and his people wrap up the document, they would request that this matter be ratified by Council at a special meeting one day next week; they'll get the agreement to Council this week. Mayor Weekes stated that he is agreeable to that assuming that the balance of the Council is. Mr. Tate thanked Council and stated then that he would advise them when the agreement was sent to the City Attorney. Mayor Weekes declared the meeting adjourned at 10:40 P.M. City Clerk ATTEST: ~ MAYOR The undersigned is the City Clerk of the City of Delray Beach and that the information provided herein is the minutes of the meeting of said City Council of July 23, 1979 which minutes were formally approved and adopted by the City Council one, /~ /~ . -~ity Clerk NOTE TO READER: If the minutes that you have received are not com- pleted as indicated above, then this means that these are not the official minutes of City Council. They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions, or deletions to the minutes as set forth above. - 29 - 7/23/79 '$2b