Commissioner Higgs requested to be relieved of her appointment to the Workforce Development Charter Planning Group due to the possibility of appearance of a conflict of interest as it deals with an area of business that she is involved in. She requested Assistant County Manager Joan Madden be appointed in her place.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to accept the resignation of Commissioner Higgs; and appoint Assistant County Manager Joan Madden to the Workforce Development Charter Planning Group. Motion carried and ordered unanimously.

Commissioner Scarborough inquired about a picture of art work provided by Commissioner Ellis. Commissioner Ellis stated he got the picture last night from Barbara Arnoult; he does not know the size of the piece; but it is a nice looking relief. Commissioner Scarborough inquired if it will be ready for the opening; with Commissioner Ellis responding he does not know.

Commissioner O'Brien stated Chuck Maxwell was finally told how to pay his fine; he asked Tallahassee on fourteen separate occasions how to do so; but when he went before the Judge, he was given 60 days to clear it up and the Judge ordered State Attorney Norman Wolfinger to find out how the ticket could be paid. Chairman Cook stated he is glad it is being cleared up. Commissioner O'Brien noted Mr. Wolfinger is alleging Mr. Maxwell used government equipment to solve this by faxing to Tallahassee.

Chairman Cook stated Congressman David Weldon has asked to speak to the Board in February to provide an update on what is being done in Congress and inform of legislation that may affect counties.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to move into executive session. Motion carried and ordered unanimously.

The meeting recessed for Executive Session at 10:10 a.m. and reconvened at 1:20 p.m.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to reconvene the public session. Motion carried and ordered unanimously.

Chairman Cook called for the public hearing to consider ratification of Executive Session actions concerning the Miorelli Engineering, Inc. litigation.

County Manager Tom Jenkins requested authorization for the Chairman to execute standard AIA contracts to retain the firm of James Mehltretter to provide design services, onsite construction inspection services and threshold inspections services for at least a portion of the renovation of Space Coast Stadium, subject to review of the County Attorney and Facilities Construction Director.

Chairman Cook inquired if that is for the first phase; with Mr. Jenkins responding it would be authorizing a designer for the entire phase; however, the initial work would be for the structural modification, minor waterproofing and the other things on the list. Mr. Jenkins stated staff will come back to the Board at subsequent meetings for task orders dealing with waterproofing and other issues. He noted he has a letter proposing a standard AIA contract be executed with Brown & Root for construction management services; and that is the firm which is doing construction management on the Justice Center.

Chairman Cook inquired if there is a need for a bid; with County Attorney Scott Knox advising the Board should declare an emergency because of time. Chairman Cook stated there is a letter from the Marlins requesting the County move immediately.

Commissioner Scarborough inquired what are the requirements for declaring an emergency. Mr. Knox stated he will have to review the Florida Statute on competitive bidding.

Discussion ensued on whether to do the motions jointly or separately. Mr. Jenkins noted the agreement with Brown & Root would be on a cost reimbursement basis.

Chairman Cook inquired if other things would be bid out; with Mr. Jenkins responding it would be shopped and there would be quotes. Chairman Cook inquired if this just relates to the engineering and design; with Mr. Jenkins responding in some instances Brown & Root does some of the work with the labor force it uses. Commissioner Higgs inquired if Brown & Root will be paid on a cost plus basis; with Mr. Jenkins responding it is in the letter the Board received; the nature of the work and how it will need to occur makes it almost impossible to bid it; and the design documents necessary to bid would be far more exhaustive than the approach he suggested. Commissioner O'Brien stated if the Board does not do this, there will be exposure to a higher lawsuit from the Marlins; and it is an emergency in the best financial condition of the County. Mr. Jenkins recommended Mr. Knox consider the cost consideration; and stated the design costs are $54,754 for a $6 million facility, but he is not sure what the total cost of the work will be. Chairman Cook advised the Marlins have given the Board a deadline of today. Mr. Jenkins responded that is correct; and advised he emphasized the high priority the Board has placed on this issue by going into special session to try to resolve it. Commissioner Scarborough stated when Mr. Jenkins communicates to the Marlins the Board?s actions of today, he should indicate the Board is doing this because of its relationship with the Marlins and respect for them.

Commissioner Higgs stated that is the fundamental issue; she does not know the essence of the communication with the Marlins; however, she knows the essence of the Contract, and the County has an obligation. Mr. Jenkins stated the County is exposing itself to serious liability if it does not move expeditiously to fix the problem. Commissioner Scarborough stated the Board wants to make its tenant happy and do the responsible thing. Mr. Jenkins stated the County has tried to be responsible from day one.

Chairman Cook requested Mr. Jenkins go over what he is proposing. Mr. Jenkins stated he is suggesting two standard AIA contracts; one is for engineering and architectural design; and the second is for construction management with Brown & Root in the amount indicated. He advised authorization is needed for the Chairman to execute both documents as soon as they are finalized and approved by Mr. Knox and Mr. Vislay. Chairman Cook inquired why these particular firms or individuals were selected; with Mr. Jenkins advising the Board may not wish to discuss it on the record as it is part of the litigation. Attorney Seth Mills stated it would be necessary to have a firm of substantial ability to meet the schedule requirements the Board is placed under; a tightly structured time and materials contract typically costs more than a bid contract; however, given the amount of time required to prepare design documents, put them out to bid, receive bids, etc., it would be impossible to accomplish. Mr. Jenkins stated Mr. Vislay has endorsed Brown & Root as being very reasonable; it is direct cost plus a modest markup; and Mr. Vislay feels it is the only way to realistically get the work done. Mr. Mills stated he concurs; the issue will be how costs are defined; and that is the part that needs to be negotiated carefully. Chairman Cook inquired if it is possible to nail down the cost; with Mr. Jenkins responding as it is public session, Mr. Vislay can address the Board. Commissioner Ellis stated the work has to be done. Mr. Jenkins stated given the nature of the work, this is the only way to do it.

Commissioner Higgs inquired who will negotiate the contract with Brown & Root; with Mr. Jenkins responding Mr. Knox and Mr. Vislay; and he will be happy to participate although he is not an expert in construction.

Chairman Cook inquired if the contract would come back to the Board or is he authorized to sign as Chairman. Mr. Jenkins responded it is a standard contract; Mr. Vislay has the rate schedule; and Mr. Knox and Mr. Vislay will adapt the standard contract. Chairman Cook stated the motion would be for the Chairman to execute the negotiated contract; with Mr. Jenkins responding affirmatively.

Commissioner Scarborough stated there is no doubt that an emergency exists.

Mr. Knox advised there is nothing in the Competitive Negotiations Act other than the fact that it can be an emergency; and it goes back to Chapter 125 which calls for a four-fifths vote. Mr. Jenkins noted it is an emergency from a safety standpoint as well as timing.

There being no further comment or objection, motion was made by Commissioner Scarborough, seconded by Commissioner Ellis, to declare an emergency due to safety and timing constraints of the tenant for utilization of the facility; and authorize the Chairman to execute agreements with James Mehltretter for architectural and engineering services and with Brown & Root Building Company for construction management services for renovations at the Space Coast Stadium. Motion carried and ordered unanimously.

Mr. Knox stated there is a requirement for a public hearing if the Board is going to pay money to settle a lawsuit; this was advertised as a public hearing; and suggested announcing the settlement offer, and asking for public comment.

Chairman Cook advised the term was $150,000 to settle all of Miorelli?s claims against the County and for the County to preserve its claims against Miorelli and Hartford.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve settlement offer of $150,000 to settle all of the claims of Miorelli Engineering Inc. against the County, with the County preserving all claims against Miorelli and Hartford. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to go back into Executive Session. Motion carried and ordered unanimously.

The meeting recessed at 1:32 p.m. and reconvened at 1:40 p.m.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to go back into public session. Motion carried and ordered unanimously.

Mr. Knox advised it would be appropriate to continue the public hearing to the next regular meeting to deal with the potential for counteroffers.

Motion by Commissioner Higgs, to continue the public hearing to January 23, 1996.

Mr. Mills advised he cannot be present on January 23, 1996. Discussion ensued on a possible date to continue the public hearing.

Commissioner Cook seconded the motion to continue to January 23, 1996.

Mr. Mills stated he will send someone in his place, if necessary.

Chairman Cook called for a vote on the motion. Motion carried and ordered unanimously.

Chairman Cook inquired if action is needed on representation. Mr. Knox advised the Florida Statutes require that when an individual Commissioner or County employee is sued, the County has the right to provide counsel for those individuals, or the individuals can provide their own counsel with the County paying for it; he contacted Mr. Mills? firm; it has people who do First Amendment work; and the firm has indicated willingness to handle the case for the individuals involved, if the Board chooses. He stated the firm does not see potential conflict between all the individuals and the County.

Commissioner Scarborough stated it is easier to have one attorney handle everything and will cost less. Commissioner Ellis inquired if it is necessary to have an outside attorney. Mr. Knox responded the Board does not have to, but there is potential for conflict. Commissioner Scarborough inquired if Mr. Knox has been served; with Mr. Knox responding yes. Commissioner Scarborough stated the County Attorney would be both defendant and attorney; and he would be more comfortable having someone other than the County Attorney?s Office. Commissioner O'Brien inquired why a firm from Tampa instead of one from Brevard County; with Mr. Knox responding it can be done with a Brevard County firm, but he is not sure there is one that specializes in First Amendment work. Commissioner Scarborough suggested going with the firm that has been there before. Chairman Cook stated the firm has the expertise.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to authorize the County Attorney to contract with the firm of Fowler, White, Gillen, Boggs, Villareal, and Banker for legal services associated with the lawsuit. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 1:45 p.m.

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ATTEST: MARK COOK, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

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SANDY CRAWFORD, CLERK

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