Regular City Commission Meeting

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MINUTES OF THE REGULAR SARASOTA CITY COMMISSION MEETING OF DECEMBER 16, 2002, AT 2:30 P.M.

PRESENT: Mayor Carolyn J. Mason, Vice Mayor Lou Ann R. Palmer, Commissioners Richard F. Martin, Mary J. Quillin, and Mary Anne Servian, City Manager Michael A. McNees, City Auditor and Clerk Billy E. Robinson, and City Attorney Richard J. Taylor

ABSENT: None

PRESIDING: Mayor Mason

The meeting was called to order in accordance with Article III, Section 9(a) of the City of Sarasota Charter at 2:30 p.m.

City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance.

1. CHANGES TO THE ORDERS OF THE DAY - APPROVED CD 2:31 through 2:33

City Auditor and Clerk Robinson presented the following Changes to the Orders of the Day:

A. Add under Commission Presentations, Item No. VIII-3, Proclamation Re: Sarasota Mothers and Infants Day, per the request of Commissioner Servian.

B. Remove under Scheduled Presentations, Item IX-2, Presentation Re: Status of Island Park Mooring, per the request of Commissioner Servian.

C. Add under Commission Presentations, Item No. VIII-4, Mayor's Citation recognizing James DeNiro, Police Officer, Sarasota Police Department, and Ron Locke, Sergeant, Sarasota County Sheriff's Department, for service above and beyond the call of duty in apprehending a suspect wanted in connection with three bank robberies in the past month.

MOTION: Approve the Changes to the Orders of the Day OUTCOME: passed VOTE: unanimous AYES: Martin, Palmer, Quillin, Servian, Mason

2. CITIZENS' INPUT CONCERNING CITY TOPICS (AGENDA ITEM I) CD 2:33 through 3:04

The following people came before the Commission:

Ken Smith, 2221 Shadow Wood Lane (34240), President of Dooley & Mack Constructors, Inc. (Dooley & Mack), stated that Dooley & Mack is the contractor responsible for the renovation of the Van Wezel Performing Arts Hall (VWPAH); that the renovation of the VWPAH was completed under the most difficult circumstances; that at the time, the City was facing $2.7 million in lost revenues and penalties if long-contracted performances were delayed; that in June 2001, the City and Dooley & Mack entered into a settlement agreement for Dooley & Mack and an electrical subcontractor to wait for payment until the City reached a settlement with the architect through mediation; that the settlement agreement was in the spirit of cooperation between the parties; that everyone anticipated a settlement of the issues in the mediation.

Mr. Smith continued that in October 2001, the settlement agreement was undermined by an Orlando law firm sabotaging the spirit of the settlement agreement to further its own goals; that the action has forced Dooley & Mack into a position where the only means to now seek resolution is to file an action for binding arbitration with the City against the architect; that a sum of $300,000, which the Commission had allocated to the Orlando law firm to conduct the litigation, has been depleted; that the settlement agreement is gone; that any opportunity for a global settlement of the issues has been lost; that a second litigation concerning the same issues, which is estimated to cost $450,000 and will more likely cost $675,000 of taxpayer funds, is ludicrous.

Mr. Smith further stated that the diligence and time spent in resolving these matters has been wasted; that at the time the agreement was made between the City and Dooley & Mack, Mayor Mason and Commissioner Quillin publicly thanked Dooley & Mack for doing the right thing in the summer before the VWPAH reopened.

Mr. Smith stated further that the Commission should appoint an individual responsible for resolving the issues of the VWPAH; that he is a 30-year involved, supportive member of the community, worships on Main Street, and all of his children graduated from Sarasota High School.

Mr. Smith continued that significant funds should not be spent with an Orlando law firm to resolve issues which could be resolved if honorable people met in good faith in an expedient and fair manner; that providing the City taxpayers an opportunity to resolve the issues without spending millions of dollars would be in the best interests of all concerned parties.

William Dooley, Attorney, 1432 First Street (34236), representing Dooley & Mack, stated that on June 21, 2001, Dooley & Mack and the City entered into a settlement agreement, agreeing to move forward jointly to pursue claims against the design team responsible for the problems at the VWPAH; that on October 12, 2001, Dooley & Mack's bonding company was notified by letter of alleged defaults despite the settlement agreement and despite the continuation of work at the time; that the letter of October 12, 2001, destroyed the intended spirit of the settlement agreement; that Dooley & Mack continued to attempt to resurrect the settlement agreement but efforts to do so were in vain.

Mr. Dooley continued that all the involved parties agreed to mediation; that the first mediation session was held on August 9, 2002, at which time all contractors and subcontractors were present and all but one attorney were present; that an agreement was reached to set aside three days in December 2002 at which time all parties would meet in Tampa to achieve a resolution of the issues; that the effort to a resolution was initiated by Dooley & Mack.

Mr. Dooley further stated that in early December 2002, the Tampa mediation session was cancelled without consultation with any of the parties involved; that the attorney for Taliesin Architects had assured Dooley & Mack on several occasions all the parties would be present at the meeting and best efforts would be used to bring about a resolution to the issues; that the unilateral termination of the scheduled mediation session has resulted in a lost opportunity to resolve the issues forever.

Conrad Lazo, 535 South Palm Avenue (34236), Attorney, representing Dooley & Mack, stated that he is a construction attorney, a graduate architect, and a partner in the law firm of Gurley Dramis; that because of his unique background in architecture as well as construction law, he was asked to review the documents relating to the VWPAH project, including the Complaint filed by the City against its architect and to appear before the Commission to emphasize the importance of achieving resolution of the issues; that Dooley & Mack is owed a substantial amount for charges resulting from errors and omissions in construction documents; that the issue of errors and omissions is not disputed but supported by the City's lawsuit against the architect; that the allegations in the lawsuit refer to the architect's breach of duty by negligently preparing incomplete, incorrect architectural drawings causing over 600 construction bulletins and numerous virtually incomprehensible drawing revisions which caused serious delays during the project.

Mr. Lazo continued that Florida law follows the Spearin Doctrine which indicates the owner who procures construction documents is responsible for the damages associated with errors and omissions in construction documents; that applying the theory in this particular case would indicate the City procured the drawings and the City admits the errors and omissions, which imputes to the City a certain amount of liability; that to say anything to the contrary would be to argue inconsistently with the lawsuit already filed on the City's behalf.

Mr. Lazo further stated that another troubling issue is the inconsistent dispute resolution provisions; that disputes are litigated with the architect but arbitrated with the construction manager; that if resolution of the issues is not amicable, the City will be forced to fight in two separate forums, thereby duplicating attorneys' fees.

Mr. Lazo stated further that the City has spent $300,000 without taking one deposition, the most expensive part of any litigation; that an appeal is made to each Commissioner to bring the matter to a resolution rather than expend significant funds to defend the litigation inconsistently within the various forums.

William R. Dooley, 550 Norton Street, Longboat Key (34228), Chairman and Chief Executive Officer of Dooley & Mack, stated that two years ago on October 13, 2000, the renovated VWPAH was reopened for the first performance; that upon reflection, the reopening of the VWPAH was an enormous feat considering the impediments during the project; that beginning at the onset of construction, a lawsuit against the City was filed concerning the use of the Local Option Sales Tax (L.O.S.T.), also called the penny sales tax, thereby shortening the planned construction time by two months; that within the first three months of construction, the architect completely revised and reissued the drawings which caused a delay of five weeks due to the many errors discovered in structural drawings; that after the revised drawings were being implemented, changes were still being made to the existing drawings.

Mr. Dooley continued that the then-Executive Director of the VWPAH indicated doing whatever necessary to get the job done to open on time was required; that if the VWPAH did not open on time, the cancellation fees would have been astronomical; that for weeks before the reopening, Dooley & Mack and several subcontractors worked 24 hours a day, seven days a week to complete the project on time; that Dooley & Mack has lived up to its commitment; that the VWPAH opened on time.

Mr. Dooley further stated that the Commissioners are beseeched to appoint someone on the Staff, other than attorneys, to sit down with Dooley & Mack and bring closure to the issues of the VWPAH.

Jerry McFadden, 5166 Kestral Park Terrace (34231), stated that the problems with the City of Sarasota Downtown Master Plan 2020 (Downtown Master Plan 2020) are two-sided; that litigation will be costly; that not too many years ago on Longboat Key, the Commissioners decided to shut down a developer as a result of a missed deadline; that the developer instituted a lawsuit and won; that as a result, the taxpayers of Longboat Key were adversely affected.

Mr. McFadden continued that his hope is a similar situation does not happen in Sarasota; that discussion between the parties is the method to bring about a solution; that as a resident of 33 years, the suggestion is to enter negotiations instead of litigating the issues.

Kerry Kirshner, Argus Foundation, 1515 Second Street (34236), John Harshman, Downtown Commercial Property Owners, 1575 Main Street (34236), Jay Brady, Director, Gulf Coast Builders' Exchange, 1575 Main Street (34236).

Mr. Kirshner stated that the representatives of the three associations are appearing before the Commission in the interest of saving time; that the request is for the parties involved in the challenge to the Downtown Master Plan 2020 and the City to come together to discuss the issues rather than engage in protracted litigation; that the hope is the issues can be amicably resolved; that two sides can disagree but through discussion and compromise can achieve a positive result.

Mr. Harshman stated that the Downtown Commercial Property Owners is one of the Challengers to the Amendment to the City's Comprehensive Plan, also called the Sarasota City Plan (City's Comprehensive Plan) resulting from the Downtown Master Plan 2020; that the Downtown property owners have joined the challenge due to legitimate concerns regarding the Downtown Master Plan 2020; that the Commission indicated an interest in negotiating the 28 items of initial concern raised regarding the Downtown Master Plan 2020; that as the representative of the Downtown Commercial Property Owners for the negotiations, approximately six or seven weeks of strenuous negotiations were spent; that as a result, eight points were identified on which City Staff, the Planning Board Local Planning Agency (PBLP), the Coalition of City Neighborhoods Association (CCNA), Duany Plater-Zyberk and Company (DPZ), the Challengers, and many members of the community could agree; that the eight points of agreement were presented to the Commission, at which time agreement on all but three points was negotiated; that a considerable amount of time has been spent in attempting to resolve the concerns; that an opportunity to move forward is requested.

Mr. Brady stated that communication is key; that a dialog is being sought to achieve resolution of the issues in the near future; that clarification of positions should be addressed; that a positive outcome is at hand as long as communications remain open.

Mike Hartenstine, 200 South Orange Avenue (34236), Attorney, appearing on behalf of Charles Bailey, Attorney, law firm of William, Parker, Harrison, Dietz & Getzen, who was unable to attend, stated that Attorney Bailey appeared before the Commission at the November 4, 2002, public hearing concerning the proposed settlement of the challenge to the amendment to the City's Comprehensive Plan concerning the Downtown Master Plan 2020; that Attorney Bailey spoke on behalf of his law firm as well as a Downtown property owner and informed the Commission his law firm and his client are supportive of the settlement agreement as originally proposed and requested that the Commission reconsider the settlement agreement.

Mr. Hartenstine continued that reconsideration of the settlement agreement would be beneficial for two reasons; that first, the settlement agreement would accelerate the time frame for final adoption of the amendment to the City's Comprehensive Plan while continuing the litigation would only delay the effective date of the amendment and consequently delay adoption of a new zoning code for the Downtown area; that delay in the rezoning of property in the Downtown area to the new zone districts will further delay redevelopment of properties under the new standards; that second, the settlement agreement would ensure the validity of the amendment to the City's Comprehensive Plan would be upheld and would be adopted generally intact.

Mr. Hartenstine further stated that a consensus regarding the major issues appears very close to resolution; that the settlement process can succeed; that the Commissioners are urged to reconsider the matter.

Mr. Hartenstine quoted Abraham Lincoln, 16th President of the United States, to lawyers as follows: