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HomeMy WebLinkAbout1991-10-24 - City Commission Special Meeting Minutes7525 Northwest 88 Avenue Tamarac, YL 33321-2401 RECORD OF COUNCIL ACTIONS/DISCUSSIONS NOTICE OF SPECIAL MEETING CITY COUNCIL OF TAMARAC, FLORIDA There will be a Special Meeting of the City Council on Thursday, October 24, 1991, at 9:00 a.m. in Conference Room #1 of City Hall, 7525 NW 88 Avenue, Tamarac, Florida. The City Council will consider the following items: 1.COUNCIT, REyiEW of the status of the request for payment of legal bill by Attorney Andrew L. Siegel regarding Bernie Hart. FINAL ACTION Discussion was held with no formal action taken. 2. approving a waiver to the sign ordinance for 10,001 Monster Video and Music located at 8197 N. University Drive in WALGREENS WOODMONT SHOPS to increase the total letter height from 20-inches to 30-inches. FINAL ACTION* APPROVED RESOLUTION R-91--190-PASSED 3 a MOTION io azPR0VZ the transfer of $13,191.00 from Contingency Account #001-872-588-975 to Streets and Roads Other Contractual Services Account #001-411-541-340 to provide funding for curbing on Woodlands Boulevard (Bid #91-12). b. awarding Bid #91-12 in the amount of $13,191.00 to Continuous Curbing, Inc., for construction of concrete curbing around all medians in the center of Woodlands Boulevard from Commercial Boulevard to Banyan Lane. RESOLUTION R--91-191-PASSED 3.a. APPROVED 3.b. APPROVED 4. C'OUNCIL REVIEW of the proposal by Municipal Administrative Services (MAS) Consultants for all franchise agreements in Tamarac. FINAL ACTLOIrL:_. Discussion was held. City Manager authorized to prepare bid documents to go to bid for auditing of franchise agreements. 5. a, approving transfer of a special exception permitting the operation of a restaurant from Theodore Jaffe d/b/a Rascals III to Hillsboro Property Management, Inc., d/b/a Terry's Famous Deli in Building #1 of the GARDEN MALL at 7111 W. Commercial Boulevard. Petition #62-Z-91 b'#6164 approving transfer of a special exception permitting on -premises consumption of alcoholic beverages from Theodore Jaffe d/b/a Rascals III to Hillsboro Property Management, Inc., d/b/a Terry's Famous Deli in Building #1 of the GARDEN MALL at 7111 W. Commercial Boulevard. Petition #63-Z-91 RESOLUTION R-91-192-PASSED 5a;+��-4� 5.a. APPROVED RESOLUTION R-91-193-PASSED 5.b. APPROVED 6• MOTION 19 A.PZROYZIthe purchase of one (1) Ford E-350 Superwagon Van under the 1991 State Contract in the amount of $16,659.00 for the Social Services Division. FINAL ACTIONe APPROVED with the condition that due to the emergency, the City Manager is authorized to check locally for the same type of vehicle at a better price. 7'Rego-releasing a cash bond in the amount of $150.00 posted by Ultra Security & Alarms, Inc., for installation of burglar alarms in the City (tabled on 10/9/91). FINAL ACTION- RESOLUTION R-91-194-PASSED APPROVED 8• PUBLIC PARTICIRATTQN - Any member of the public may speak to any issue which is on this meeting notice. Speakers will be limited to three minutes during this item and at public hearings. There will be a thirty (30) minute aggregate time limit for this item, and speakers are encouraged to sign up in advance with the City Clerk prior to their participation. The City Council may consider such other business as may come before it. All meetings are open to the public. In the event this agenda must be revised, such revised copies will be available to the public at the City Council meeting. Carol A. Evans City Clerk City Council Special Meeting 10/24/91/KJ Page 1 REVISED 11/25/91 CITY OF TAMARAC CITY COUNCIL SPECIAL MEETING THURSDAY, OCTOBER 24, 1991 CALL TO (?spy$: Mayor Abramowitz called this meeting to order on Thursday, October 24, 1991 at 9:00 a.m, in Conference Room #1 of Tamarac City Hall, 7525 Northwest $$,Avenue, Tamarac, Florida. Mayor Norman Abramowitz Vice Mayor Dr. Larry Bender Councilwoman Diane Glasser Councilman Henry Schumann Councilman Irving Katz ALSO ZRX ENT John P. Kelly, City Manager Dina McDermott, Assistant City Manager Alan F. Ruf, City Attorney Carol A. Evans, City Clerk Karen Jackson, Secretary ****************************************************************** 1. COUNCILREVIEW of the status of the request for payment of legal bill. by Attorney Andrew L. Siegel regarding Bernie Hart. FINAL ACTION Discussion was held with no formal action taken. City Attorney Ruf introduced Attorney Andrew L. Siegel, representing former Mayor Bernie Hart. V/M Bender said Council is looking for guidance and interpretation of documents received regarding this issue. City Attorney Ruf said Attorney Siegel had requested information in his letter dated October 4, 1991, in which he indicated that former Mayor Hart had forwarded to City Manager Kelly certain bills for payment and there is a suggestion in his letter that to date, there has been no response from City Manager Kelly or from Council as to when payment will be forthcoming. He said the final paragraph in the letter advises the City that if within three weeks of the date of the letter, the City has not rendered a specific decision to reimburse former Mayor Hart for the expenses for which he is claiming reimbursement, there would be no alternative but to seek legal remedies against the City and those specific individuals who have deprived former Mayor Hart of his rights under the color of Law. City Attorney Ruf said Attorney Siegel's letter also states that he will request that the court enter judgement not only for legal fees and costs but for all consequential and punitive damages suffered as a result of the non-payment, together with attorney's fees related to the suit itself. City Attorney Ruf said the City is currently one day away from the three weeks that is suggested in the letter. He said he has provided to the members of Council, some case laws and Attorney General's opinions, the Case Law from the Florida Supreme Court, the Case of Thornberg versus the City of Waldon Beach, Supreme Court of Florida, dated October 11, 1990 and also the case of Chavez versus the City of Tampa, dated March 16, 1990. He said he does not know whether there are any later cases that would distinguish the decisions in those two cases. City Council Special Meeting 10/24/91/KJ Page 2 City Attorney Ruf said legal fees for the Defense of Claims before the Ethics Commission of the State are reimburseable. He said he has found no case where these fees were reimbursed to a person who was found to be guilty by the Ethics Commission nor a case where there has been prepayment of fees before an ultimate decision by the Ethics Commission. He said it seems clear from the Case Law that this is a Common Law claim and is not a claim under the Statutes since it is not a civil action. He said he feels that a cautious Council might wait until the final determination by the Ethics Commission before it acted on this request. C/W Glasser said she understood that a City official working in that capacity would be protected for legal fees as long as that person is working in the capacity of the office. City Attorney Ruf said there is a two -prong test involved. He said the first part of the test is that they are working in the office and he feels that former Mayor Hart passed the first test. He said the second test is that he has to have been performing a public purpose. C/W Glasser said there are currently some cases within the County which are more serious and legal fees have been paid. She said in this case, she understood that there was a cable in the Mayors' office for a long time and the cable company had noticed that former Mayor Hart did not have the television on and was asked how he was monitoring the reception. She said the purpose of having the cable was to insure the proper signals. She said she understood that former Mayor Hart had stated that the television bothered him when it was on because he had a lot of work to be done and then it was suggested to him that perhaps the same cable would be installed into his home so that when he had some free time, he could watch and monitor that signal. She said she feels that this would then be considered as him working within the pervue of his office. C/M Katz said whatever the Ethics Commission decided had gone to an Appellate Court for the determination of Law. He said regardless of what the Ethics Commission decides, the Appellate Court decision would prevail as against what the Ethics Commission decided. He asked if the City can recover whatever payment is made towards his legal fees if the Council decided that they were going to pay former Mayor Hart's legal fees until such time that it went to Appellate Court and the Court decided that he was in violation. City Attorney Ruf said he feels that the City may be able to bring an action but whether it is recoverable is something that cannot be answered at the present time. He said he would need to do more research regarding this. V/M Bender said he understood that during the Hearings documentation was given and the Hearing Officers from the Ethics Commission were recording all of the data that was just presented by C/W Glasser. He said he feels that all of the facts have been reviewed and investigated by the Ethics Commission and it is up to them to render a decision based upon their findings. He said he is looking for some information from the Ethics Commission to conclude this at the present time. C/M Schumann asked if there is anything in Case Law which reflects a payment being made as a result of a guilty verdict and City Attorney Ruf said he has not found any, but that does not mean that there are none. C/M Schumann asked if there is any Case Law regarding prepayment prior to a verdict and City Attorney Ruf said he is aware of the fact that people have had their legal fees prepaid, even in Ethics situations. He said the newspapers indicated that there was a prepayment of an Ethics investigation regarding a Mayor in an adjoining City. He said he is familiar only from the press with what has been indicated of hundreds of thousands of dollars paid J City Council Special Meeting 10/24/91/KJ Page 3 prior to the criminal investigation; however, he does not know of any Case Law of an Ethics Commission investigation where a municipality prepaid the legal fees. C/M Schumann asked what liability would a Council person place upon themselves for a positive vote prior to a verdict in the event that the verdict goes against the respondent. City Attorney Ruf said some taxpayer could bring an action against the City and against a Council person for inappropriate expenditures of public funds, which is the only cause of action he is aware of that might be available. He said this would be to recover the public funds since there is no damage aspect to this type of lawsuit. C/W Glasser asked if it is an appropriate expenditure. She said she would not like to know that she would not be protected by the City if a lawsuit was brought against her while she was on Council and she made some decision that, in her view, seemed to be right and others thought was not. City Attorney Ruf said she would absolutely be provided with a defense if a lawsuit was brought against her and there is a presumption of correctness of any action that she might take for the expenditure of public funds.. He said he feels that the expenditure of public funds in this case requires a two -prong test, the finding that former Mayor Hart was acting in his official capacity and that some public purpose was served. Mayor Abramowitz said Council had been told in a previous meeting and City Attorney Ruf has reiterated his opinion that Council do nothing until the case is judicated. He said he feels that every City official has the right for protection. He said he received a phone call from the Acting City Attorney that the case will be heard on Friday, October 25, 1991, and the indication that Council has received from City Attorney Ruf is to wait for the case to be judicated. He said if the ruling is overturned, then the problem has dissipated. He said he is not making any judgement other than the City Attorney giving his opinion. C/W Glasser said at the last meeting, the City Attorney had also said that it was in the perview of this Council to pay the bill or not. She asked if she is protected as a City official making any type of decision that, in her mind is correct, and in the minds of others, is incorrect. City Attorney Ruf said in the past, City officials were protected beyond reproach; however, it is getting more difficult for public officials to make decisions which are not questioned by one side or the other. He said he feels that if the City official is following the recommendation or advice of the City Attorney, the City official is automatically exhonorated from any personal responsibility. C/W Glasser said sometimes the Ethics Commissions have reversed that even when the City Attorney issued his opinion. City Attorney Ruf said this is an evolving area of the Law. He said where the municipalities had absolute insulation from liability fifteen years ago, it is an evolving area. He said when the five members of Council make a Legislative decision, that decision goes to court with a presumption of correctness, which is what the separation of powers is all about. He said the courts normally will not overturn any decision that the Council makes unless it is absolutely baseless, arbitrary and capricious. Andrew Siegel, Attorney representing former Mayor Hart, said this is an attempt to make sure that former Mayor Hart receives competent legal representation and, in order to be able to do that, attorney's fees must be paid. He said this is an attempt to get these bills paid on an ongoing basis because former Mayor Hart is entitled to have his fees paid as would any other member of the Council should anything like this happen to them. City Council Special Meeting 10/24/91/KJ Page 4 Mr. Siegel said there is precedence with another City and the School Board about the amount of money paid out in attorney's fees. He said he does not feel that $100 per hour, which the law firm of Boreth and Glasser are charging, is unreasonable. He said the fact that the County Commission has paid fees on behalf of the County Commissioner, who is tied up in the Board investigation, has not yet come before the Ethics Commission. Mr. Siegel said the Port Everglades individual Commissioners have had their legal fees on an ongoing basis. He said the City of Lauderhill has had its Council members' legal fees paid on an ongoing basis. He said this is an involving issue and there are no cases that say that he is not entitled to reimbursement. He said he is requesting that former Mayor Hart be reimbursed at the present time for his legal fees so that he can continue to have attorneys represent him in this ongoing matter. Mayor Abramowitz said there are three courses of action that can be taken. He said he has requested a Special or Workshop Council meeting for October 28, 1991, depending on the situation. He said the Council has the opportunity to wait for the case to be heard, as per the City Attorney's instructions, to take action to pay the bill or to deny paying the bill. C/W Glasser said this is based upon whether Council feels whether former Mayor Hart should have legal coverage or not. C/M Katz read into the record an exerpt regarding Patricia Thornberg versus the City of Fort Waldon Beach, Items 1 and 2. (Attachment 1) He said the Hearing Officer had not afforded former Mayor Hart's attorneys an opportunity to access certain information that could have been made available to them. He said he does not know if any other City officials had received cable service from Continental Cablevision. C/M Katz continued to read into the record. He said at the Public Hearing of the Ethics Commission, the charge was never proven that he was not doing this in the performance of his office. He said he feels that based on the Appellate Court decisions, if the City expended the money for his attorney's fees at the present time and the Ethics Commission upholds the decision that they have preliminarily made and the Appellate Court stays with the decision, a Motion for recovery would be available to the City. City Attorney Ruf said he feels that is an option available to the City. C/M Katz said he cannot see how he could personally serve and not be afforded the same opportunity for legal defense that former Mayor Hart should have been afforded. C/M Schumann said he can understand what C/M Katz stated and also that it says that it must be done in the performance of official duties and serve a public purpose. He said he can see the official duties but has not yet been convinced that it served a public purpose. Mayor Abramowitz said he is uncomfortable with this and he has not judged one way or the other. He said he -feels that every public official should be afforded a legal defense. He said he would like to see this overturned, then it would be an easy decision for Council to make. Former Mayor Bernie Hart said this is not a matter of waiting for Friday because he will be there with his attorneys to press this case towards the way they believe is correct. He said he will be fighting a hiarchy in Tallahassee and if he does not succeed, it will go to the Appellate Court. He said if necessary, it will go to the State Supreme Court; therefore, this may linger on for several years and he does not have the money to pay for a legal defense for that length of time. City Council Special Meeting 10/24/91/KJ Page 5 Mayor Abramowitz said he understands but a legal interpretation has been made for Council as to what they should do, which is to wait for the determination of the Ethics Commission. C/M Katz said the question that comes'up is if the Council is denying former Mayor Hart the right to due process, he cannot afford to pay the bills. The following is a partial verbatim as requested by C/W Glasser 10/24/91 City Council Special Meeting V/M Bender: I'll make a Motion that we Table this. Mayor Abramowitz: OK. I need a Second on the Motion. Hank? Nothing? Alright, I'm going to Second that Motion. OK. Let me turn the gavel over to Larry. C/M Katz: He is the maker of the Motion. You can't turn it over to him. Mayor Abramowitz: Well, I'm not going to be denied my vote"by you or anybody else. C/M Katz: I'm just stating protocol that how can you turn it over to the maker of the Motion. Mayor Abramowitz: OK. As Chairman of this Committee, I'll exercise my perrogative, Mr. Attorney? City Attorney Ruf: All I'm saying is that any member of this Council is entitled to preside, if the Mayor or Vice Mayor cannot preside, then any other member can preside and I would guess that the senior member would preside, so let Hank preside. Mayor Abramowitz: OK, win, lose or draw, we have a Motion and Larry, let me ask, there is no discussion on a Motion, but this is a very sensitive issue, I understand this. I personally feel that we should take this up in the fastest possible order, as soon as a determination is made. Would that be your feeling? V/M Bender: Yea, you can put it back on as soon as it is determined. Mayor Abramowitz: Immediately, once we get a determination. Based on that, I'm going to Second the Motion and I am going to call for a vote on the Motion to Table. City Clerk Evans: V/M Bender? V/M Bender: AYE City Clerk Evans: C/W Glasser? C/W Glasser: I am going to ask the Attorney if I have a conflict in voting on this. City Attorney Ruf: I don't believe that you have a conflict unless you have a direct financial interest in any of the parties who might benefit from this. C/W Glasser: Not directly to me, no, but you know where it goes. City Attorney Ruf: I understand, but you don't. Are you, do you work for the law firm? C/W Glasser: No, I don't. City Attorney Ruf: Do you get any benefit or any income from the law firm? C/W Glasser: No. City Council Special Meeting 10/24/91/KJ Page 6 City Attorney Ruf: Then I think that you are entitled to vote. C/W Glasser: OK, No. City Clerk Evans: C/M Schumann? C/M Schumann: No. City Clerk Evans: C/M Katz? C/M Katz: No. City Clerk Evans: Mayor Abramowitz? Mayor Abramowitz: AYE. The Motion to Table fails by a three to two vote. Now we need another Motion. We need to do something. C/M Katz: I'm going to make a Motion that we authorize payment for the legal bills that were submitted as of today. Mayor Abramowitz: OK. Is there a Second? V/M Bender: I'll second it, no, I don't want to do that. Mayor Abramowitz: OK. Is there a Second? It dies for lack of a... C/W Glasser: I'll second it. Mayor Abramowitz: OK. Motion made and,Seconded, OK. Any discussion on the Motion? None? Madam Clerk, call the roll. V/M Bender: I just want to clarify the -Motion. That is for a payment? Mayor Abramowitz: Yes. Mr. Katz made a Motion to pay the legal bills as presented by Mr. Hart. Is that your Motion, Mr. Katz? C/M Katz: That's the Motion. City Clerk Evans: C/M Katz? C/M Katz: AYE City Clerk Evans: C/M Schumann? C/M Schumann: No. City Clerk Evans: C/W Glasser? C/W Glasser: AYE City Clerk Evans: V/M Bender? V/M Bender: No. City Clerk Evans: Mayor Abramowitz? Mayor Abramowitz: No. Motion fails. (End of partial verbatim.) Mayor Abramowitz requested that the Council be informed immediately of the disposition of the Ethics Commission and requested further research regarding the pros and cons of payment. City Manager Kelly said he received a clarification from Susan Tillman, Risk Manager, to the question regarding the letter that Attorney Siegel sent to the City. Mayor Abramowitz asked if the Insurance Company feels that they are not responsible for the bill and City Manager Kelly said that is correct. TAPE 2 City Council Special Meeting 10/24/91/KJ Page 7 2. MOTION_ IQ ADOPT Temn. Reso_ #6165 approving a waiver to the sign ordinance for 10,001 Monster Video and Music located at 8197 N. University Drive in WALGREENS WOODMONT SHOPS to increase the total letter height from 20-inches to 30-inches. FINAL ACTION* RESOLUTION R-91-190-PASSED APPROVED City Attorney Ruf read Temp. Reso. #6165 by title. V/M Bender MOVED -to APPROVE Temp. Reso. #6165, SECONDED by C/M Schumann. Assistant City Manager McDermott said this portion of the building is higher. C/M Katz said after Council had acknowledged that there was a need and approved a sign waiver, the owner of the property denied them having a sign because it would differ from what was approved. Assistant City Manager McDermott said the shopping center owner has approved the sign waiver. VOTE: ALL VOTED AYE 3. a. MOTION 10 APPROVE the transfer of $13,191.00 from Contingency Account #001-872-588-975 to Streets and Roads Other Contractual Services Account #001-411-541- 340 to provide funding for curbing on Woodlands Boulevard (Bid #91--12) . b. awarding Bid #91-12 in the amount of $13,191.00 to Continuous Curbing, Inc., for construction of concrete curbing around all medians in the center of Woodlands Boulevard from Commercial Boulevard to Banyan Lane. FI 3.a. APPROVED 3.b. APPROVED RESOLUTION R-91--191-PASSED 3.a. C/W Glasser MOVED to APPROVE Item 3.a., SECONDED by V/M Bender. C/M Schumann expressed his concerns regarding bid rigging. He said the bids range from $37,000 down to $13,000. Mr. Couzzo said it is fairly common in the competitive bid practice to see bids range in this manner and he does not know what bid rigging is. C/M Schumann said it is when 5 or 6 people get together and take turns submitting the lowest bid. City Attorney Ruf suggested that Council remain on the subject at hand. Mayor Abramowitz said there is a full report on the past work experience of Continuous Curbing, Inc. C/W Glasser asked if the quali4ications and specifications are the same and Mr. Couzzo said everything is exactly the same. Mr. Couzzo said this firm did the curbing for the Public Services Complex. He said this individual has a smaller firm than the others and does not have the large overhead that some of the other firms have; therefore, he is able to do it at a lower price. He said this firm has done satisfactory and above satisfactory work for the other agencies. City Council Special Meeting 10/24/91/KJ Page 8 City Manager Kelly said due to the economy, some firms will bid low in order to remain in operation. Mayor Abramowitz said this firm came in on the Public Services Complex at a low bid and completed the work satisfactorily. V/M Bender said the original bid came in at $12,950.76 and there is a note of a miscalculation. He asked who did the miscalculating and Mr. Couzzo said the bidder made a miscalculation and the Finance Department and the Purchasing Department worked on the correction based on the unit price versus the footage price. Mae Schreiber, resident, asked if Council had approved a limit of up to $10,000 for the curbing and Mayor Abramowitz said, no. Mayor Abramowitz said it was approved by Council that the City would do Woodlands Boulevard and Sabal Palm for $13,940, which was three or four years ago. He said the prices have gone up in the past few years. Mr. Couzzo said there was an approximate estimate made of $1.00 per lineal foot. He said it is impossible to predict what the prices will be in a competitive sealed bid package. V/M Bender said he was under the assumption that this would not exceed $10,000 when he voted at a previous meeting. Harold Newman, resident, asked what the cost savings will be for the City and Mayor Abramowitz said the estimate was that the City would save $90,000. C/M Katz said there is a differential between costs depending on whether or not the truck remains on the job and Mr. Couzzo agreed VOTE: ALL VOTED AYE 3.b. City Attorney Ruf read Temp. Reso. #6162 by title. V/M Bender MOVED to APPROVE Temp. Reso. #6162, SECONDED by C/M Schumann. VOTE: ALL VOTED AYE 4. COUNCIL REVIEW of the proposal by Municipal Administrative Services (MAS) Consultants for all franchise agreements in Tamarac. FINAL ACTION:. Discussion was held. City Manager authorized to prepare bid documents to go to bid for auditing of franchise agreements. V/M Bender said MAS submitted a proposal which he reviewed in detail and discussed with Dr. Guy Rankin, representative for MAS, as to its contents and the costs. He said there are two alternatives in this proposal; either the funds are paid outright for the audit or by a fee contingency of $25,000 per audit and a 25% contingency on money recovered. V/M Bender said Dr. Rankin has agreed to reduce the contingency to 20% but had indicated that he would like the entire job given to him which includes the audits of FP&L, Southern Bell, Continental Cablevision and the Waste Management garbage collection. V/M Bender said the City received an unsolicited proposal from a new company called the Municipal Public Services, Taxes, and Franchise Fees, which he also reviewed. He said this company was organized in July, 1991, and does not have a work history. He said Assistant City Manager McDermott contacted the company to find out if they had done any franchise auditing and they said, no, but some of their employees had. 11 City Council Special Meeting 10/24/91/KJ Page 9 V/M Bender said he would like to get permission from Council to renegotiate with Guy Rankin down to a point where the City gives him two audits at a time to work on with the funds of $25,000 plus a 20% contingency. Mayor Abramowitz asked if it is mandatory that the City go out to bid on this and City Attorney Ruf said it is not a requirement of the State Statutes but he would research the Charter. C/W Glasser said MAS was looking to utilize Griffith and Associates on this. She asked how the City will know who MAS will employ to do these audits and V/M Bender said Dr. Rankin will be the Project Manager and he will be required to get individuals who are competent and not use Griffith and Associates. C/W Glasser said she would like to know�who will be doing the work and what their work history is. C/M Katz said he feels the City may receive a number of bids, based on the one unsolicited bid. He suggested the City work up a solicitation for bids for the same items prior to approving a single franchise to do this work. Mayor Abramowitz said Dr. Rankin has not done any work for cities in Florida but he does have favorable recommendations. He said whatever is done must be in the best interest of the City. He said he would like to have the City Attorney's opinion regarding bid requirements on this particular item. C/M Katz MOVED to TABLE Item #4, with the condition that the City Attorney and V/M Bender draw up the specifications for an advertisement to bid for this type of procedure. V/M Bender said the average charge is $45,000 to $50,000 for this type of service. He said MAS has been recognized by ICMA, the League of Cities and other such organizations. He said this has been informally advertised by meeting notices which are public information. C/W Glasser SECONDED the Motion. City Manager Kelly requested clarification by Council. Mayor Abramowitz said he would never give a company one job at a time. He said he feels it would be more attractive to a bidder with four or five contracts in the offing. V/M Bender suggested this be bid for the four items in two steps. Discussion was held regarding various ways to go to bid. City Manager Kelly said a proposal will be drafted for final approval. C/M Katz MOVED to APPROVE going out to bid, SECONDED by C/W Glasser. VOTE: ALL VOTED AYE 5. a. MOTION TQADOPT TeMR. Rego. #6163 approving transfer of a special exception permitting the operation of a restaurant from Theodore Jaffe d/b/a Rascals III to Hillsboro Property Management, Inc., d/b/a Terry's Famous Deli in Building #1 of the GARDEN MALL at 7111 Commercial Boulevard. Petition #62-Z-91. City Council Special Meeting 10/24/91/KJ Page 10 5. b. approving transfer of a special exception permitting on - premises consumption of alcoholic beverages from Theodore Jaffe d/b/a Rascals III to Hillsboro Property Management, Inc., d/b/a Terry's Famous Deli in Building #1 of the GARDEN MALL at 7111 W. Commercial Boulevard. Petition #63--Z-91 RESOLUTION R-91-192-PASSED FINAL ACXIONn RESOLUTION R-91-193--PASSED 5.a. APPROVED 5.b. APPROVED 5.a. City Attorney Ruf read Temp. Reso. #6163 by title. C/W Glasser MOVED to APPROVE Temp. Reso. #6163, SECONDED by C/M Schumann. C/M Schumann asked what the hours would be and the applicant said it would be open daytime and evenings. VOTE: ALL VOTED AYE 5.b. City Attorney Ruf read Temp. Reso. #6164 by title. C/W Glasser MOVED to APPROVE Temp. Reso. #6164, SECONDED by C/M Schumann. VOTE: ALL VOTED AYE 6. MOTION TOAPZROVE the purchase of one (1) Ford E-350 Superwagon Van under the 1991 State Contract in the amount of $16,659.00 for the Social Services Division. APPROVED with the condition that due to the emergency, the City Manager is authorized to check locally for the same type of vehicle at a better price. C/M Katz MOVED to APPROVE Item 6, SECONDED by C/M Schumann. Mayor Abramowitz said there is only one van left under State Contract. He said now that the Social Services Department has enough volunteers, there are not enough vehicles. He said he has contacted the auto dealers in the area requesting donations of used vehicles for a tax deduction. He said he received one positive response from an auto dealer. He said a letter has been drafted by Assistant City Manager McDermott to inform him of the use of the vehicle requested. He said he would like to direct Staff to locate and purchase a vehicle with this amount of money without having to wait a long period 'of time. Assistant City Manager McDermott said there is one van available at a dealership in Orlando which is ready for delivery. She said the City can have this van if Council approves it by issuing a purchase order today. She said there will be a new State Contract next month. C/M Katz asked who is paying for delivery of the new van and Assistant City Manager McDermott said she did not know. Mayor Abramowitz asked if someone would contact a couple of local agencies in order to get a better price that the one in Orlando and City Manager Kelly said there would be no problem doing this. Assistant City Manager McDermott said the State Contract requires that a Ford van be purchased; however, the City is looking for a 15 passenger van no matter what make it is, at the lowest possible price. City Council. Special Meeting 10/24/91/KJ Page 11 City Attorney Ruf said the Council can authorize in the Motion, that the City Manager has the right to make the deal if he can get a better price due to the emergency. VOTE: ALL VOTED AYE 7. MOTH X TO ADOPT Tema_ Reno. , if143 releasing a cash bond in the amount of $150.00 posted by Ultra Security & Alarms, Inc., for installation of burglar alarms in the City (tabled on 10/9/91). FINAL ACTION: RESOLUTION R-91-194-PASSED APPROVED City Attorney Ruf read Temp. Reso. #6143 by title. C/M Katz MOVED to APPROVE Temp. Reso. #6143, SECONDED by C/W Glasser. C/M Schumann asked if the City Attorney checked on this and City Attorney Ruf said there is an affidavit indicating that there are no bankruptcies filed. Assistant City Manager McDermott said the Personnel Department checked with Tallahassee and the Broward County Bankruptcy Court and the firm involuntarily dissolved for failure to file a 1989 Annual Report on October 15, 1989. City Attorney Ruf said the petition from Staff is due to putting so much Staff time into it. VOTE: ALL VOTED AYE 8. RUBLIC PAUICIPATION - Any member of the public may speak to any issue which is on this meeting notice. Speakers will be limited to three minutes during this item and at public hearings. There will be a thirty (30) minute aggregate time limit for this item, and speakers are encouraged to sign up in advance with the City Clerk prior to their participation. Mayor Abramowitz OPENED and CLOSED Public Participation with no response. Mayor Abramowitz said there will be a Council meeting on Monday, October 28, 1991 at 9:00 a.m, regarding the Council vacation schedule and the Christmas meeting. C/M Katz said he would like Council to consider medians being dedicated to the City. He said there is a median in the City that was contracted with the developer that the Association would be responsible for maintenance. He said the Association wants to dedicate the median to the City. He requested a legal opinion as to the procedure necessary for this. With no further business, Mayor Abramowitz ADJOURNED this at 10:30 a.m. NORMAN ABRA] � .. ' ... ` MAYOR CAROL A. EVANS CITY CLERK 'ruf•iy•"Cic'Sk� "This public document was promulgated at a cost of $128.78 or $2.86 per copy to inform the general public, public officers and employees of recent opinions and considerations of the City Council of the City of Tamarac." meeting "ATTACHMENT 41, &TOBER 24 , 1991 ra 569 St'A'THERN REPORTER, 2d SERIES NIeDON:' LD, Justice, concurring. 1 concur on guilt and comment on the 1-rialty. In order to sustain a sentence of death when a jury recommends life the facts suggesting a sentence of death should be so clear and convincing that vir tualiv no reasonable Berson could, differ. Tcddcr v. State, 322 So,2d 969 (Fla.1975). This is a stern test. The existence of one or more mitigating factors does not necessarily preclude a jury override. The sentencing judge must look. at the totality of the aggravating and miti- gating circumstances to determine 'whether the jurors' recommendation was reason- able. The existence of discernible mitigat- ing circumstances is strong evidence that it was. There are some cases, however, where the aggravating circumstances are so overwhelming that it is unreasonable to-,, recommend life even when there are one or '. more mitigating factors. The test to be applied by the judge is whether the facts are such that the jury's recommendation is reasonable and not whether the judge would reach the same conclusion. The ben- efit of any doubt on the reasonableness of a recommendation of life must he given the defendant. It cannot be said in this case that the facts suggesting death are so clear and convincing that virtually no reasonable per- son could differ. I therefore agree that the sentence of death must be vacated. w O SKIYNUMBIRVSUM r Patricia THORNBE R, et al., Petitioners. CITY OF FORT WALTON BEACH, Respondent. ' No. 71194. ney's fees incurred while defending them- selves against various lawsuits arising from dismissal of city officials. The Cir- cuit Court, Okaloosa County, Erwin Fleet, J., awarded portion of claimed fees, and appeal was taken. The District Court of Appeal affirmed in part and reversed in part, 544 So.2d 230. On review, the Su- preme Court, McDonald, J., held that: (1) city council members' successful action to enjoin recall petition arose out of perform- ance of their official duties and served pub- lic purpose, entitling members, under com- mon law, to reimbursement of attorney's fees from city; (2) statute governing awards of attorney's fees to public officials is not intended to replace common-law rem- edy completely, and is not exclusive mecha- nism authorizing award of attorney's fees tq public officials defending against litiga- tion arising from performance of their pub- lic duties; and (3) council members were prevailing parties entitled to reimburse- ment for attorney's fees in civil rights ac- tion brought by police chief after members voted to discharge him. Decision approved in part and disap- proved in part. 1. Officers and Public Employees ",a Public officials' entitlement to attorney fees incurred while defending themselves against litigation arising from performance of their official duties while serving public purpose arises independent of statute, ordi- nance, or charter. Z Officers and Public Employees 0*10C For public officials to be entitled to representation at public expense, litigation must arise out of or in connection with performance of their official duties and serve public purpose. Supreme Court of Florida. oi,. 3. Municipal Corporations 4-163 Oct. 11, 1990, City' council members' successful ac- tion, to enjoin recall petition arose out of performance of their official duties and City council members brought action served public purpose, entitling members, against city for reimbursement of attor- under common law, to reimbursement of � t h � k L 1• ,�. �� Y A 1' f N +l NL ( Y 1 N - : 7 fr, y y-, �* !'n �'� • M r y �r �h'�f wx.n ,TpS y ; •+{ �'"^ *'" }t % f+.�'.a. tM � � 9 +P' Y 4 'j_p y 'f d t� y'�r cy t, 1. Sy nA � fT-y"F a %' �I •Mt M1�i lr � '¢ i sw �S .iay�1ati Ll°Ssk"sac k�� 1�hlFa(lba ?..,yt9, M.i �d� yT�r� s 41 ..ry i lrr k *, . ,(�...r r F M 1• 4.i�ya; ai 't.'MY A" tltbw'rAr i.. y °�+ s ,r,.,,a iP^ ,y,�..r:• .pti+hh"ffi�'� _"Zt �