The portion ofthe March 12, 2020, Closed Session Minutes addressing a Contractual Agreement were released by the Town  Council in full written form on February 10,  2022.    AINCHOL 1989  Closed Session Minutes 3/12/2020 pursuant to NCG5S1A3IB1IAUDR Regardngacontractual This closed session meeting is regarding the Beaver Outdoor Solutions contract. Mayor Flynt turned the meeting over to Attorney Tom Medlin to get an update on where we stand with the contract. Tom said he has already sent out some prior emails, het thinks everyone has seen them by now. The emails kind of gave what the facts are. There was an estimate March 11, 2019 and it stated that this would be ac one (2) year contract in length. The actual agreement typed up by our prior attorney did not define or reference at term. But on three separate occasions int the contract it references Attachment Exhibit A. Tom is assuming that the estimate attached to the contract is Exhibit A, even though iti is not listed as such. This attached estimate spelis out the work to be performed and the costi for that work. Tom then said he understands that there have been some concerns over how expensive Beaver has been. He said we talked about iti ini the prior months closed session and discussed moving forward taking this contract as a one-year contract because oft the word "one" overruling the number "2". He said like when youy write a check the written-out amount of the check supersedes the numbers. Tom then reminded everyone that he had sent a copy oft the first letter he sent to Beaver after the last meeting, because of the emails between Beaver and Alisa where Beaver asked Alisa if his contract was a one- or two-year contract. Tom explained to Beaver what the facts were and that council was taking! his contract to be a one-year contract and offered Beaver to submit a proposal for this year. Beaver wrote Tom back and said that Tom didn't have all facts and that he needed tot talk to the councilmen that were seated at the time the contract was accepted. Tom said in the next day or sO Alisa contacted him, told him she had relistened to the recording and she heard additional information on the recording he needed to hear. So, Alisa sent him the recording and he listened to it today (March 12, 2020). After listening toi it, at the 1 hour 4- minute mark Frank Bruno presented the Beaver Proposal, it was priced weekly to be billed monthly, subject to the attorney drafting a contract based on this proposal. Frank Bruno then motioned to approve the Beaver Outdoor Solutions proposal pending a contract drafted by the attorney to be signed by Beaver andi the Mayor. Work was to begin on April 1, 2019. Frank's motion did not mention the term oft the contract. At: 1 hour 14 minutes mark a question was directed to Frank Bruno, the question was sO you are asking us to approve a two-year contract? The concern between: some of council was that this was an election year and this could tie the hands ofi future council persons. Frank Bruno's answer was that at two-year contract is kind of a standard. In his negotiations with Beaver the owner had asked for a two-year contract because of equipment he would have to purchase. Frank further stated thati ify you don't want a written contract you canl let them do the work without a contract. He just felt it was better tol have a contract. That way you can make them live up to the contract standards. Tom said if we stay with the position that thisi is a one-year contract what could happen is nothing or Beaver could. sue the  agreement.  3513  Book1 14    Town. Ifthey sue it could be ai little over $42,000. Plus, attorney and court cost at risk. Tom said whata a court will do is look at the four corners of the document and determine what the term of the contracti is based ont the information in that document. The court could sayi it's a one-year contract, but they could come back and say iti is at two-year contract. Tom said the estimate and contract are vague, there is confusing information. Ift the court can't determine thei term, they can offer the Town outside evidence. At that point if the other side subpoena copies ofi the minutes and recordings they willl hear what Tom is telling us he heard today. That is going to strengthen the other side's case. Tom told council he will do what ever they ask him to do, but he thinks the right thing to do is to accept this as a two-year contract and allow Beaver to continue their services within the confines of what is listed in the contract. Jim Rigsbee said he has been confused with billing and asked if we can ask them to define their bills better. Alisa explained that they are not consistent with billing andi they tended to bill extra jobs along with their weekly contract services and many times she has hadi to send an invoice back for them to breaki it down better. Derek said here that he has felt like Beaver is deliberately structuring invoices to fit under the property committee's spending authority. Tom said we will address that in a minute.. Jim Rigsbee said he would like to start with the April 1, 2020 invoice to see Beaver billing us $3661.66 per month whichi is the contract agreement and nothing more. Tom agreed withi that. Tom said he looked over the $ 10,000. Invoice documents and once again he is looking at a point of view ofare youl keeping the contract or are you trying to: find a way out. Ist there anything here that) you think might help you? According to an email there was an estimate for $10,000. For lawn care services that was sent to the town andi it appears to have been done in March 2019.lassume it was done before March 14,2019 because according to the Town Clerk's email she sent a check for $ 10,000. On March 12, 2019. Thinking that the estimate was actually an invoice for work done. March 12, 2019 was two days before the Beaver's contract was approved and signed. So, it appeared that we were asking for work outside the contract. Then according to emails Frank Bruno requested separate invoices for different areas that had been quoted in the $ 10,000. Estimate. And specifically, according to the owner (Vicl Beaver) he wrote back and: said the breakdown was so1 the invoices would not be over Frank'ss spending limits. Tom had been made aware that there is a $5,000. Spending limit fort the property committee. Then Tom said at that point when a $1 10,000. Estimate comes in rather than breaking it down into smaller invoices to fit under the: spending limit that should have gone to Council for a vote. Breaking unified work, you have asked them to do into smaller invoices because its this area, this area and this area you are putting form over substance. The substance they are still doing all this work and its over the property committees limit so he doesn't have the authority to authorize it. It's what attorneys call Ultra' Vires (beyond the powers), outside the corporate authority. That's one thing that it was a council member here doing it, but Beaver participated. They were asked to break it down; they already had a $: 10,000. Check, they weren'tg going to give the check back. So, Beaver writes Frank back and: says what l'Il do is send 5 smaller invoices and then he says Mll void the $10,000 invoice and apply the $10,000. To the 5 smalleri invoices. Tom said apparently the work had been done by this time because this was in. July. Beaver said it actually went over an extra $: 1400. Youwill still owei to pay. Tom said his notes show that this deprived other council members from debating and approving the services, deprived the citizens from knowing about it. Beaver participated in that. Tom said could that be grounds for a claim that they have committed fraud? Or participated int fraud? Tom then said they may turn around and point the finger back at the council member and say they asked us to do it. Tom said het thinks from the invoices that they knewi it exceeded the limit and they participated in it. Derek interjected here that he felt like it put Alisa in a very compromising position, everyone ini this meeting spoke at once and did agree with Derek.  3514  Book 14    Derek added he was not at all comfortable withi that. He said it reeks of wrong. Tom agreed and told Alisa it was not her fault. Everyone started talking at once again. Then Derek: said he feels we were intentionally deceived by a vendor. Mayor Flynt spoke up and: said if Frank approved the invoicing then its on Frank. Derek: said that's not lost on him, but Beaver participated. Tom said on the attorney side of this an argument could be made once to say okay we are not going to extend this contract. Number1 we are going to stick with our position thati it'sa a one-year contract not two. However, we have aiso learned and wel believe that you participated in at fraudulent activity against the council on these matters and that'sg grounds for terminating the contract. There was more all at once conversation. Tom spoke upi and: said having said that once again you have al legal argument that can be made ify you get into a legal fight you never know if you are going to win or lose those arguments in front of aj judge and jury. We probably would have to go to mediation regarding a possible settlement and or buying our way out oft the contract. Tom said the bottom line is you have a contract for $42,000. To put at risk, in addition to legal fees that will costy youi if you decide to cancel. Tom said that's the council's decision. Your other alternative is you don't want to pay legal fees, you don't want the run the risk ofl losing $42,000. Or you can stick with what wej just said, you bill us the $3661,66 each month we are not going to do any extra services? We will contract any other services with another vendor. Then at the end of contract tell him not to ever submit anything to us again. Derek asked Tom, do you think in the invoice restructuring do you think they thought they were committing fraud? Tom repliedI don't know what a person thinks. In my life Ihave always thought people were good, but! I have found out different. Tom thinks Beaver was aware that there was a spending limit and it was under $10,000.. And Beaver was helping Frank get it under that limit. Derek asked Tom, Is that Fraudulent? Jimmy Landreth answered yes, that's fraudulent. Derek said okay its fraudulent. Mayor Flynt said okay then its also fraudulent on Frank's part, right? Tom said welll Frank was outside his spending limit. Mayor Flynt said it could be contributory negligence. Tom said thisi isn't negligence this ist fraud. Frank participated ini it, Whether Beaver were to turn around andi try to sue Frank to contribute, no he was a public figure and Tom doesn'tthink hel has any personal exposure.. Jim Rigsbee said he agrees 100% with Derek on! hating to be defrauded but at the same time he agrees with Tomi that there has been no complaints about thej job Beaver has done, make them structure their invoices like they are: supposed to do, no extras, get through the contract and move on.. Jimmy Landreth asked ifal letter could be sent to cover what we want whichi is the the mowing part of the contract only $ 3661.66 per month and nothing else. After more talking all at once it was decided to let Tom put a letter together. Derek: stated he hears what. Jim Rigsbee says. Hel hears what Tom Medlin is saying but he can't get past this. He can't forgive fraud. Jim Rigsbee said we are making a big assumption that they knew they were defrauding us. They were accommodating from aj payroll stand point. Derek and. Jimmy Landreth disagreed. Tom addedi if someone is going to contract with the Town, they have to know what the rules are. Whether Beaver did or didn't they are required to. Ina answeri to Derek's uneasiness, Tom said we can send them a letter. In the letter tell them that we restate our position that the contract is vague, that our attorney has listened to the meeting tapes, however because iti is vague and wel haven't had any complaints about the services we are going to allow them to continue the contrfact under the basic terms oft the maintenance for the year. However, thenl Ican spell out that wel have lost confidence in them as a vendor, SO therefore we will not be using him forany extra services and when this contract is up, he doesn'tr need to plan to do anymore business with us. Derek: said he would hate to tell a vendor we' 've lost confidence int them and then continue to do business with them.. Jim Rigsbee agreed if Beaver starts doing half his job what is our recourse? Derek asked Tom, Has Beaver participated before in fraudulent activity? Tom  3515  Book 14    said it's not black and white. Itsi in a gray area, but it looks like it and its sure smells like it. Tom then said you can make this decision in this closed: session which way you want me to go.. Jim Rigsbee agreed to have Tom do the letter. Mayor Flynt also agreed to thel letter. Afteraf few more questions revisited Jimmy Landreth was okay with Tom sending a letter. Derek ended this conversation with he was good. The Contractual Agreement portion of this closed session ended; Alisa left the closed session for the  opening of the Staffing Opportunity portion.  Approved. June 11, 2020  Mayor  Attest  Town Clerk  3516  Book 14