MINUTES OF THE SPECIAL SARASOTA CITY COMMISSION MEETING OF SEPTEMBER 30, 2003, IMMEDIATELY FOLLOWING THE WORKSHOP AT 2:00 P.M. PRESENT: Mayor Lou Ann R. Palmer, Vice Mayor Richard F. Martin, Commissioners Fredd "Glossie" Atkins, Danny Bilyeu, 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 Palmer The meeting was called to order in accordance with Article III, Section 9(b) of the City of Sarasota Charter at 4:25 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. 1. APPROVAL RE: PROPOSED SETTLEMENT OF CLAIM OF DOOLEY AND MACK/FORRISTALL ARISING FROM THE RENOVATION OF THE VAN WEZEL PERFORMING ARTS HALL (AGENDA ITEM I) CD 4:22 through 4:40 Douglas Lawless, Attorney, City Attorney's Office, came before the Commission and stated that the Commission accepted the tender of $2.2 million from Dooley and Mack/Forristall and Taliesin Architects, Ltd. Corp. (Taliesin), and others at the June 16, 2003, Regular Commission meeting to resolve the claim arising from the claim in the renovation of the Van Wezel Performing Arts Hall (VWPAH) ; that the City has been engaged in negotiations with Dooley and Mack/Forristall to resolve the dispute; that Dooley and Mack/Forristall has also been engaged in negotiations with Electric Machinery Enterprises, Inc. (EME), the electrical subcontractor, to settle the claims of EME regarding the VWPAH renovation; that a dispute existed between the amount the City believed Dooley and Mack/Forristall was owned and the amount Dooley and Mack/Forristall believed was due; that after many weeks and hours of negotiations, a resolution of a payment to Dooley and Mack/Forristall of $850,000, with which the City Attorney's Office, outside trial counsel, and the VWPAH Executive Director feel comfortable, was reached; that Dooley and Mack/Forristall will be responsible for satisfying any claims with EME; that both Dooley and Mack/Forristall and EME will join a general release with Taliesin and other members of the design team; that the BOOK 55 Page 26192 09/30/03 2:00 P.M. BOOK 55 Page 26193 09/30/03 2:00 P.M. recommendation is to honor the demand and settle the claim for $850,000. Mayor Palmer asked if the settlement offer is in writing? Attorney Lawless stated that the final confirmation telephone call was received from legal counsel for Dooley and Mack/Forristall on September 26, 2003, indicating the final offer for settlement was $850,000; that the amount of $850,000 had previously been discussed with the City Manager, outside trial counsel, and the City Attorney, all of whom agreed the amount could be recommended to the Commission to settle the claim; that the offer was confirmed in writing to legal counsel for Dooley and Mack/Forristall at 5:04 p.m., September 26, 2003; that written confirmation was received from legal counsel for Dooley and Mack/Forristall on September 29, 2003. Mayor Palmer asked if the settlement includes all the subcontractors? Attorney Lawless stated yes; that the only pending matter is a City claim with Tilden, Lobnitz, Cooper, Inc. (TLC), the heating, ventilation, and air conditioning (HVAC) engineers. Michael Connolly, Attorney, City Attorney's Office, came before the Commission and stated that TLC is a subcontractor of Dooley and Mack/Forristall. Attorney Lawless stated that the problems resulting from TLC's work was nominal; that at the mediation in April 2003, TLC elected to work with the City to resolve the problems, is making an effort to correct the problems, and is developing documents to assure the problems are corrected. Mayor Palmer stated that Taliesin will not sign off on the settlement until all subcontractors have agreed and asked if the City Manager and the VWPAH Executive Director are comfortable the issue concerning TLC will be resolved. City Manager McNees stated that the issue concerning TLC remains outstanding; that if the settlement is accepted and TLC does not produce, the funds from Taliesin will have been released and adequate funds will be available to pursue the concern in another venue. John Wilkes, VWPAH Executive Director, came before the Commission and stated that TLC has been on site; that some but not all the work has been accomplished; that a list of items for which TLC is responsible has been developed and has been communicated to all involved attorneys; that the work is ongoing; that agreement has been reached to perform any repairs or adjustments required without cost or any additional items with cost. Mayor Palmer asked if a comfort level exists regarding the resolution of the issue with TLC? Mr. Wilkes stated yes. Attorney Lawless stated that completing the releases will require approximately two to three weeks due to the number of attorneys involved; that the hope is in the interim Taliesin will be assembling the funds to satisfy the settlement and forwarding the funds to the City with the understanding the funds cannot be utilized until all releases are signed; that the hope is to have the funds in the bank within ten days. Commissioner Servian stated that the amount of the settlement and the expenses as well as the amount remaining to make necessary repairs should be reviewed; that the understanding is the settlement is $2.2 million including $1.8 million from Taliesin and $400,000 from subcontractors. Attorney Lawless stated that the settlement is $1.6 million from Taliesin, the architect, $400,000 from the Talaski Group, Inc., the sound consultants, and $200,000 from Schuler and Shook, Inc., the theatrical consultants Commissioner Servian stated that the total is $2.2 million; that the settlement amount of $850,000, if approved, would be deducted from the $2.2 million and asked the amount of legal fees involved including legal fees from the City Attorney's Office. Attorney Lawless stated that the legal fees will be approximately $1 million; that currently, the balance with outside legal counsel is approximately $670,000 with at least one additional bill forthcoming for September 2003; that a bill for some amount which will likely not be significant will be received for October 2003; that the fees for the City Attorney's Office were calculated at one time at approximately $250,000 to $300,000. Commissioner Servian stated that the latest figure received for the City Attorney's fees was $287,000; that the City will receive BOOK 55 Page 26194 09/30/03 2:00 P.M. BOOK 55 Page 26195 09/30/03 2:00 P.M. approximately $350,000 after all legal fees are paid. Attorney Lawless stated that is correct. Commissioner Servian stated that $1 million was spent in legal fees to receive $350,000. City Manager McNees stated that the City will also receive $850,000 to pay Dooley and Mack/Forristall and the other subcontractors. Commissioner Servian stated that the final amount the City will receive is being considered. Attorney Lawless stated that the total amount of legal fees including expert witnesses is approximately $670,000; that the actual fees for outside trial counsel is approximately $500,000; that the expert witness fees are approximately $165,000. Mayor Palmer stated that the City will receive approximately $350,000 after all costs are paid; however, the amount personally discussed with the City Attorney's Office on September 29, 2003, was different; and asked for clarification. Attorney Lawless stated that the fees of the City Attorney's Office were not included in the amount discussed; that the City Attorney did not include the fees of the City Attorney's Office in projecting budgets as the fees of the City Attorney's Office were not included in a Special Appropriation as were the fees of outside trial counsel. On motion of Commissioner Servian and second of Commissioner Atkins, it was moved to accept the settlement offer in the amount of $850,000 and to authorize the City Manager to sign the necessary releases to conclude the litigation and the arbitration involving the renovation to the Van Wezel Performing Arts Hall. Commissioner Servian stated that having the litigation concluded is excellent; that the amount being received by the City to make necessary changes at the VWPAH is disappointing; that the issue involving the VWPAH renovation has been very contentious in the community; that the remaining funds should be used wisely to make any possible repairs to the VWPAH; that the City should move forward. Commissioner Atkins stated that having the litigation concluded is excellent; that the City should move forward; that the hope is the City has learned many lessons from the process sO the City will never be in the same situation in the future. Mayor Palmer stated that the lessons were learned prior to the issuance of contracts for the renovation of the Federal Building which was completed under budget and under schedule; that everyone has learned a lesson from the mistakes made in the VWPAH renovation; that the City must now assure the VWPAH is made whole; that $350,000 will not be enough to accomplish all the required repairs; that the Commission must assure the necessary repairs are made sO the VWPAH is functioning at an optimal level; that the VWPAH is not in a terrible state of disrepair and is now making an excellent profit; that many positive things are happening at the VWPAH. Mayor Palmer called for a vote on the motion. Motion carried unanimously (5 to 0): Atkins, yes; Bilyeu, yesi Martin, yes; Servian, yes; Palmer, yes. 2. CITIZENS' INPUT CONCERNING CITY TOPICS (AGENDA ITEM II) CD 4:40 There was no one signed up to speak. 3. ADJOURN (AGENDA ITEM IV) CD 4:40 p.m. There being no further business, Mayor Palmer adjourned the Special meeting of the City Commission of September 30, 2003, at 4:40 p.m. 3 LOU ANN R. PALMER, MAYOR ATTEST: 3. GE Ralunoon BILLY Eg ROBINSON, CITY AUDITOR AND CLERK BOOK 55 Page 26196 09/30/03 2:00 P.M.