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HomeMy WebLinkAboutPacket 12-18-2007 Regular,OFcirc of CAPE CANAVERAL or City of Cape Canaveral CITY COUNCIL REGULAR MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY December 18, 2007 7:00 PM AGENDA CALL TO ORDER: PLEDGE OF ALLEGIANCE: ROLL CALL: REPORTS: City Council Members AUDIENCE TO BE HEARD: Comments to be heard on items that do not appear on the agenda of this meeting. Citizens will limit their comments to five (5) minutes. The City Council will not take any action under the "Audience To Be Heard" section of the agenda. The Council may schedule such items as regular agenda items and act upon them in the future. CONSENT AGENDA: 1. City Council Regular Meeting Minutes of December 4, 2007. 2. City Council Special Meeting Minutes of November 8, 2007. 3. Amendment to the Collective Bargaining Agreement with the International Union of Operating Engineers Local 673 (AFL-CIO). 105 Polk Avenue • Post Office Box 326 • Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1220 • SUNCOM: 982-1220 • FAX: (321) 868-1248 www.myflorida.com/cape • e-mail: ccapecanaveral@cfl.rr.com Styr of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 2 of 3 CONSIDERATIONS: 4. Motion to Approve: Canceling or Rescheduling of the City Council Regular Meeting on January 1, 2008. 5. Motion to Approve: Annual Evaluation of Waste Management. 6. Motion to Approve: Mermaid Key Site Plan Compliance Period Extension Request. 7. Motion to Approve: Sewer Line Relocation Agreement with Mermaid Key, LLC. 8. Motion to Approve: Dedication of a 10 -Foot Wide Sanitary Sewer Easement Within the Mermaid Key Revised North Parcel. 9. Motion to Approve: The Proposal to Provide Engineering Services for the Relocation of the 12 -Inch Force Main Due to the Mermaid Key Development. 10. Motion to Approve: Change Order Proposal to Relocate the 12 -Inch Sewer Force Main Due to the Mermaid Key Development. RESOLUTION: 11. Motion to Approve: Resolution No. 2007-40; Adopting the Evaluation and Appraisal Report for the Comprehensive Plan and Providing for the Transmittal to the Florida Department of Community Affairs. ORDINANCES: Second Public Hearing: 12. Motion to Adopt: Ordinance No. 11-2007; Adopting Amendments to the Annual General Fund, Sewer Enterprise Fund, Stormwater Utility Fund, Special Revenue Funds and Expendable Trust Fund Budgets for the Fiscal Year Ending 09/30/07, at Second Reading. DISCUSSION: 13. Revenue Sources Eligible for Debt Pledge. REPORTS: 1. City Manager 2. Staff of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 3 of 3 ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. CITY COUNCIL REGULAR MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY December 4, 2007 7:00 PM MINUTES CALL TO ORDER: The Chair called the meeting to order at 7:00 P.M. PLEDGE OF ALLEGIANCE: ROLL CALL: Mayor Pro Tem Council Member Council Member Mayor Council Member City Manager City Attorney City Clerk City Treasurer Public Works Director Recreation Director Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels Shannon Roberts Bennett Boucher Anthony Garganese Susan Stills Andrea Bowers Walter Bandish Robert Lefever Mayor Randels explained that the upcoming presentations were for informational purposes only. This venue would give the Council and the public an opportunity to view the proposed concepts and ask some general questions. PRESENTATIONS: Cape Caribe II Project Concept Mr. Kohn Bennett of 1000 Shorewood Drive, Cape Canaveral, introduced the Cape Caribe II Project. He stated for the record that the multi -phased Site Plan was vested and approved. Mr. Bennett pointed out the existing main building and the ocean view building and then Buildings III, IV, V and VI, which were proposed construction. Mr. Bennett referred to the 5 -acres to the west of the pending Site Plan that would add another three buildings to the project. Mr. Bennett referred to the two properties with R-3 and C-1 zoning on each side of the proposed project. Mr. Bennett introduced Mr. John Grandlich, Mr. Jim Borris and Mr. Maath Bennett also related to the project. Mr. Bennett pointed out that due to concerns with the properties on City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 2 of 14 the proposed 5 -acres in the C-1 zoning and concerns from the neighboring Solana Shores community, their expressed intent on the proposed Site Plan would alleviate those concerns. Mr. Bennett informed of the plan to eliminate one of the buildings on the 5 -acre site and create a passive park. He also noted a 45 -foot parking structure that would create a buffer to the community to the west. Mr. Bennett also informed of the plan to eliminate one of the buildings in the R-3 zoning and create more landscaping. This plan would reduce C-1 zoning room count to 407 and R-3 zoning, 180 rooms; this results in a 54 -unit reduction in density from the original proposal. Mr. Bennett clarified that there were 128 less units in density than what the Code allowed. On behalf of Cape Caribe, Mr. Bennett stated the need to request a zoning change from R-3 to C-1 for the planned pool deck expansion and the parking area to the north. Cape Caribe would agree that the area become development restricted in order to not become units and that the acreage would not be used in any density count. Mr. Nicholas asked the City Attorney if a change from R-3 to C-1 would require a Comprehensive Plan amendment. Attorney Garganese affirmed that this zoning change would require a small-scale Comprehensive Plan amendment since the property was less than 10 -acre. Mr. Grandlich replied to Ms. Roberts that he had a meeting planned with Solana Lake for Monday, December 10th at 6:00 P.M. Ms. Roberts related that Solana Shores responded favorably to the project due to the decrease in the number of buildings, the increased green space and the distance between the buildings. Ms. Roberts also noted the contribution of a passive park area, but Mr. Bennett clarified that the park space would not be dedicated to the City. Mr. Petsos stated that he had met with Cape Caribe and because of the buffers and increased green space he saw the project as a benefit to the City. Mr. Nicholas also stated that the project was an overall benefit to the City due to reduced sewage and reduced traffic. Mr. Nicholas questioned the area that the firm desired to re -zone to C-1 and he requested a Development Agreement. Attorney Garganese stated that the City could use one of two mechanisms, either a Development Agreement or a Restrictive Re -zoning, which was a list of development restrictions to accompany the re -zoning. Mr. Bennett agreed that the Re -zoning would be restrictive and contingent, if the Council desired, and added to the Site Plan approval. Mr. Nicholas recounted some of the project's benefits and expressed his favor with the proposal. Mayor Pro Tem Hoog questioned the pool deck and potential nighttime activity. Mr. Bennett replied that the pool deck had established hours. Ms. Roberts commended Towne Realty on their outreach to the community in presenting their project and listening to the community and meeting the City's goals. Attorney Garganese replied that there were points to address during the Site Plan process such as the Development Agreement City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 3 of 14 and the Re -zoning document. Mayor Randels asked Mr. Bennett to display the presentation for the audience's viewing. Mr. Nicholas acknowledged the Planning and Zoning Board members in the audience and asked if there were any major objections that they would like to address. Mr. Bennett responded to an audience question that the drainage systems were already in place. Mr. Maath Bennett stated that a portion of the 5 -acres was used for a retention pond. A resident stated that there was no established engineering map and he saw this as an opportunity to address any imminent drainage problems for Solana Lake. Mr. Bennett clarified that a map of the overall system was presented to the St. Johns River Water Management District. Ms. Bea McNeely, Planning and Zoning Board Chairperson, questioned the traffic flow. Mr. Bennett explained how the traffic pattern flowed around the perimeter of the property. Mr. Grandlich stated that 90 percent of traffic used the George King Blvd. entrance. Mr. Bennett replied to Ms. McNeely that the traffic would not impact Solana Lakes. Mayor Randels concluded that the project would come before the Planning and Zoning Board and if a small-scale Comprehensive Plan were needed, it would proceed to the Florida Department of Community Affairs. Mr. Bennett thanked the Council for the opportunity to present the project. Sheldon Cove Plaza Project Concept Ms. Sandra Barklalow presented the Sheldon Cove LLP, Plaza Project and introduced Mr. Bill Mays, Owner/ Developer. Mr. Mays introduced his wife and partner Dottie both of 224 Lansing Island Drive, Indian Harbour Beach. Mr. Mays explained how he refurbished an older Cape Canaveral building, Call One, which received several Beautification awards. Mr. Mays also noted his buildings on Imperial Street giving a sum total of 14 -acres and 140,000 square feet of commercial property. Mr. Mays stated that in 10 years his properties have brought over $60 million in wage impact to the area through 300 new jobs. Mr. Mays asked the Chair if some Call One employees could express their opinions on the project. Ms. Barklalow introduced Mr. Arthur Berger, Builder, who presented the architectural renderings. Mr. Berger related Mr. Mays' desire was for an updated modern architectural approach. He explained that the first floor would include retail shops and on the upper levels, office space. Mr. Berger noted a parking structure and landscaping. He also noted underground power lines. Mr. Berger pointed out the land use intent using an aerial view. He stated that there was no residential near the planned construction. Ms. Barklalow referred to a University of Central Florida study performed in June 2006 that related to what residents desired to see in the community. A wide variety of middle to up- scale restaurants, retail shops, entertainment venues and personal services were listed from the survey. Ms. Barklalow introduced Ms. Donna Stromer Chief Financial Officer for Sheldon Cove. Mayor Randels interjected that the University of Central Florida study was City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 4 of 14 performed at the request of the City's Business and Cultural Development Board and brochures of the study results were available to the public in the meeting room. Ms. Stromer stated that the project would create an additional 2,879 jobs directly and indirectly and an increased net wage of $1.5 million. Mr. Preston Bauman stated that he recently moved to the community from Melbourne and he related how revitalization drew him to the City. He was a 5 -year employee with Call One and found the owner a solid businessperson. Ms. Jackie Fredrickson stated that she was a Canaveral resident and Call One employee and she saw the project as a benefit with the anticipation of potential new jobs. Mr. Stefan Mays, son of Bill Mays, related that he grew up in the County and he planned to occupy an office suite in the new structure. He anticipated the development concept that was currently non-existent in the community. Mr. Berger stated the intent of a 5 -story office structure in C-1 commercial zoning. The 64 -feet, 8 -inch roofline would however exceed the City's height limitation. Mr. Berger stated that the AJT building became a three-story office building due to a previous Council's decision. Mr. Berger presented comparable sizes of the City's existing cell towers, the new proposed Port Hotel and the Port's silos with the intended building. Mr. Mays then related on his concept of a lifelong dream for a community landmark. Mayor Randels clarified that they were seeking 9.5 -feet high ceilings. Mr. Berger related Mr. Mays' purpose to provide Class A office space and not the standard office space with 8 -feet high concrete ceilings. Mayor Randels referred to a past recommendation from Mr. Lamar Russell, which resulted in a room number requirement for building hotels, which was a success. Ms. Roberts thanked Mr. Mays' for a design which showed that he had listened to the residents' responses to the Community Survey and their desire for more restaurants and services. Mayor Randels explained that in 1973, a previous Council decided on a referendum on height limitation. Attorney Garganese stated that as of 1983 the Supreme Court amended their decision related to a City not being allowed use a referendum to establish a height limitation. Mr. Nicholas asked to consider the concept in more detail and suggested a referendum related to a final decision on height limitation. Mr. Petsos stated that the City's residents would need to respond to whether or not they desired to exceed the existing 45 - foot height limitation. Mayor Pro Tem Hoog expressed his favor with the concept and stated the building as something the City needs; however, a referendum was the echoed sentiment of the Council. He too stated that the people should vote to exceed the height limitation. Mr. Berger questioned how soon the project could proceed to the next Agenda. Attorney Garganese replied that the issue required study; however, an overlay zoning provision authorized by referendum for a site-specific change with a mailed out ballot paid for by the owner of the property. Mr. Petsos replied that the City Attorney's recommendation would incur a spot zoning issue. Mr. Nicholas stated that the Council should proceed through the proper channels of the Planning and Zoning Board then to the Council and not take City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 5 of 14 precipitous action. Mayor Pro Tem Hoog stated that he desired for the company to market the project to the community and then hear from the City Boards. Mr. Nicholas stated that any changes to the City zoning code, by its own laws, had to proceed to the Planning and Zoning Board. Attorney Garganese responded to Ms. Roberts that his suggestion was to gain citizen approval through a site-specific overlay zoning provision with the Planning and Zoning Board's recommendation of the proposal set before the citizens. Discussion followed on how to proceed with the concept. Ms. Roberts stated the need for the citizens' understanding of the developer's approach. Mayor Randels related the consensus that the Council could agree with the concept if the citizens were in favor of it. Attorney Garganese advised that this project could become one of many and he therefore recommended review from the Planning and Zoning Board. Mayor Randels concluded with the Council's desire for the presentation to proceed to the Planning and Zoning Board for further review. Ms. Joyce Hamilton stated that the concept of higher floor space was how the concept should be presented, not a request to exceed the height limitation. Mr. Mark Morrison of 8931 Lake Drive stated that the first request was to exceed the height at 65 -feet and then various other stated heights. He stated that this was not the way to plan a City. Mr. Morrison also expressed his view on potential traffic congestion related to the project due to the parking structure of this building and that of the Ron Jon Cape Caribe project. He stated that the building should be viewed in its broader context which was more beneficial to the cruise industry. Mr. Berger affirmed the validity of Mr. Morrison's issues and said that these were presented to the Florida Department of Transportation. Mr. Berger clarified that the concept was favorable to the City Council and Sheldon Cove would proceed to the Planning and Zoning Board for further review and then to the public. Ms. Roberts concluded that the City should proceed at a deliberate pace. A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Nicholas to forward the Sheldon Cove Concept Project to the Planning and Zoning Board for discussion. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, Mr. Petsos, For, Mayor Randels, For and Ms. Roberts, For. The Chair called for a three-minute recess. REPORTS: City Council Members Council Member Roberts Ms. Roberts stated three environmental concerns in the community: 1) red tide, 2) soot from the ships in the Port Canaveral area, and 3) the Coastal Fuels emissions. She stated the need to consider a strengthened environmental City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 6 of 14 assessment capability and to introduce environmental quality standards to protect the City's health and safety, and some environmental staff monitoring. • Ms. Roberts referred to action tracking capability originating from the City's minutes establishing who is responsible for issues and the reporting at subsequent meetings. • Ms. Roberts requested to consider additional Lifeguards in the City. • Ms. Roberts referred to establishing Cape Canaveral as a nationally recognized "Green" City as well as a "Tree" City. • Ms. Roberts requested to establish strategic actions and dates related to the North Atlantic Avenue corridor for: the stop sign at Shorewood, underground utilities, preference of a two -or three -lane highway, and the left-hand turn lane. Council Member Nicholas Mr. Nicholas questioned the amount of space in the new building comparative to the existing office space for the Building Department. Mr. Morley replied that the square footage would double the area to 1,300 -to 1,400 square feet. Mr. Nicholas suggested not moving the entire Department to the new building. Mr. Nicholas requested for staff to research what revenue sources the City had in order to pledge against bond issues. Council Member Petsos • Mr. Petsos asked the City Manager or City Treasurer to address what City assets were frozen in light of the State Board of Administrators financial situation. Mr. Boucher responded that the State Board of Administrators froze assets and hired Blackstone financial to address the State's investment status. • Mr. Petsos questioned the beach walkway access from Ocean Woods in order not to block the residents from Central Blvd. The Building Official would monitor the situation. Mayor Pro Tem Hoog • No report. Mayor Randels • Mayor Randels stated that he met Stan Wielga of Vitol Terminals a tank -farm firm and asked if there were any interest from the Council to meet with them. • Mayor Randels announced that the City was now performing single -source recycling. Mr. Boucher announced that Waste Management would meet with the Council at their next meeting. • Mayor Randels asked if there were any further answer for the Ocean Wood's residents' request. Ms. Roberts reminded that the question was raised that they would become a public road if public funds were expended on their issue. Mr. Petsos stated that Ocean Woods was to return to the City Manager with what they were willing to pay for any subsequent expenses. City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 7 of 14 AUDIENCE TO BE HEARD: Mr. Tom Garboski questioned the Tripple J Investments litigation status. Attorney Garganese informed that the Circuit Court overturned the Board of Adjustment's decision and remanded the Board's decision back to them for further consideration. Mr. Boucher stated that the Applicant had discussed with the City that they were reviewing their options with the project. Attorney Garganese concluded that this was a quasi-judicial decision that the Board made based on findings out whether the development was compatible with the surrounding area. On behalf of the Sheriff's Department, Mayor Randels read from an article in which the Brevard County Sheriffs Office was recognized by the Florida Public Service Commission for their 9-1-1 Communication Service staffs' response time. CONSENT AGENDA: City Council Regular Meeting Minutes of November 20, 2007. 2. Approval of Employee Christmas Bonus. 3. Resolution No. 2007-38; Reappointing Members to the Construction Board of Adjustment and Appeals. Mayor Randels asked if any Council member, staff, or interested parties desired to remove the Consent Agenda item for discussion. Ms. Roberts requested to remove items No. 2 and 3. A motion was made by Mr. Nicholas and seconded by Ms. Roberts to Approve Consent Item No. 1. The vote on the motion carried 5-0 with voting as follows: The vote on the motion carried with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 2. Approval of Employee Christmas Bonus. Ms. Roberts suggested this as an opportunity to introduce team awards related to safety or improvement that result in cost -savings to the City. 3. Resolution No. 2007-38; Reappointing Members to the Construction Board of Adjustment and Appeals. Ms. Roberts requested more information on incumbent Board member's background in order to review those who desired to continue to serve on the City's Boards. Mr. Nicholas City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 8 of 14 stated that their resumes were on file. Council members declined to request any further information. A motion was made by Mr. Nicholas and seconded by Mr. Petsos to Approve Consent Items No. 2 and 3. The vote on the motion carried 5-0 with voting as follows: The vote on the motion carried with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. CONSIDERATIONS: 4. Motion to Approve: An Appointment of a Voting Delegate and an Alternate Voting Delegate to the Space Coast League of Cities. There was no further comment. A motion was made by Mr. Petsos and seconded by Mr. Nicholas to Appoint Bob Hoog as a Voting Delegate and Shannon Roberts as an Alternate Voting Delegate to the Space Coast League of Cities. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 5. Motion to Approve: A Life Trail for Manatee Park. Mr. Boucher affirmed for Mr. Nicholas that $147,000 in Impact Fees was available. Ms. Roberts stated that she understood that the City planned to approach one of the hotels for assistance. Mayor Randels informed that Residence Inn had adopted the Park area for clean-up purposes. Ms. Roberts re -stated that she understood from the Beautification and Recreation Board discussions that the City would explore potential corporate contributors. Mr. Nicholas stated that he understood that advertising was the consideration on the corporate side. Robert Lefever, Recreation Director, replied that the walking trail, not the cluster, would benefit the Manatee Sanctuary Park site and the City had the choice of a 7 -station or 10 - station set-up. Mr. Petsos questioned vandal -proofing the equipment. Mr. Lefever stated that the major concern was the equipment's moving parts and their maintenance that were under warranty; however, vandalism was an unavoidable risk. Mr. Lefever replied to Mr. Nicholas's question on surveillance cameras that they were still under consideration. Ms. Roberts expressed the return to the discussion of corporate contributor support. Mayor Randels suggested that Ms. Roberts and Mr. Lefever approach the hotels for their support. Mr. Boucher suggested selling a plaque for each of the ten life trail stations to which Mr. Lefever agreed. A motion was made by Mr. Nicholas and seconded by Mr. Petsos to Approve the 10 -Station Life Trail from Impact Fees for Manatee Sanctuary Park in the Amount of City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 9 of 14 $50,345 to include Installation. The vote on the motion carried 4-1 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, Against. 6. Motion to Approve: Mermaid Key Site Plan Compliance Period Extension Request. Mayor Randels briefly stated that the Request was for an Extension of the Mermaid Key 90 -day Compliance Period. Attorney Timothy Pickles of 3490 N. US 1, Cocoa addressed the Council and reminded that nine of the ten conditions placed on his client with the previously approved Site Plan were performed. Attorney Pickles informed that the one remaining condition was an $110,000 change order payment to relocate the sewer force main. He was requesting an extension on the applicant's behalf in order to obtain the required permitting from St. Johns River Water Management District. Martin Greene, of Greene International, Inc., stated that he anticipated said permit within two to three weeks. However, he would need until March 31 st in order to close with the bank and to obtain the first fund draw to pay the City the $110,000 for the force main relocation. Mr. Greene stated that the bank would not close without a permit. Mr. Boucher informed that he notified Mr. Greene by E-mail of the $110,000 payment to relocate the sewer line on September 17th. Todd Morley, Building Official, read each Mermaid Key Site Plan condition and its current status. Mr. Greene informed that moving the sewer line to any other location, such as under the parking lot or the dumpster area, would imposition area residents if there were a line break. Mr. Boucher informed that the City was on the last portion of a $700,000 project related to a major City sewer line. Walter Bandish, Public Works Director, replied that the City had a contractor on -hand; however, a 90 -day delay would mean construction crew re -mobilization and any subsequent costs. Mayor Randels expressed the Council's consensus to proceed with the project. Mr. Greene stated that Ed Gardulski, former Public Works Director, told him that the sewer line project was anticipated and budgeted. However, he was not informed of when the sewer line project would begin. Mr. Greene stated that he was agreeable with a lien on his property and he clarified that he was not intentionally holding up the project. A motion was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Extend the Meeting to 10:30 P.M. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. Attorney Garganese advised on the City seeking a Letter of Credit as a more secure way to obtain its money for the change order in lieu of a Lien. Attorney Garganese explained that once the Mermaid Key conditions were met, then the City could submit the Letter of Credit for a payment. City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 10 of 14 Mr. Greene stated that a Letter of Credit could not be obtained within the time constraints. Attorney Garganese stated that Mr. Greene's suggestion would shift the risk to the City and his recommendation to the Council was for Mr. Greene to assume the risk. Mayor Pro Tem Hoog re -stated his concern to complete the sewer line. Mr. Greene re -stated that he was unaware of when the sewer line project would begin. Mr. Boucher recommended returning the item to the next City Council Agenda on December 18tH Mr. Greene asked to address Conditions No. 1 and 5. He stated that, 1) he agreed to move the sewer line in order to save the tree and, 2) the City did not have any specific criteria for a Lighting Plan in its Ordinance. Attorney Pickles clarified that since there was no specific Lighting Plan in the City's Ordinance, the Building Official could approve Mr. Greene's plan. Ms. Janice Greene inquired if the Council were agreeable to her writing a check to the City in order to proceed with the Site Plan extension. No action followed. A motion was made by Mr. Nicholas and seconded by Mayor Pro Tem Hoog to Approve the Mermaid Key Site Plan Compliance Period Extension Request for 90 -days and to Investigate the Possibility of a Letter of Credit in the Amount of $110,000 to Complete the Estimated Change Order. No Action was Taken on the Above -Stated Motion A motion was made by Mr. Nicholas and seconded by Mr. Petsos to Postpone Discussion on Item No. 6 to the Next Scheduled City Council Meeting on December 18th. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Extend the Meeting to 11:00 P.M. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. ORDINANCES: Second Public Hearing: 7. Motion to Adopt: Ordinance No. 07-2007, Amending Chapter 110, Creating an Appellate Review Procedure from Final Decisions of the Board of Adjustment or Community Appearance Board, at Second Reading. Mayor Randels read Ordinance No. 07-2007 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 110, ZONING OF THE CODE OR ORDINANCES CREATING AN APPELLATE REVIEW PROCEDURE FROM FINAL DECISIONS OF THE BOARD OF ADJUSTMENT OR COMMUNITY APPEARANCE BOARD TO THE CITY COUNCIL; MAKING CONFORMING AMENDMENTS TO CHAPTER 110, ZONING, CHAPTER 22, City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 11 of 14 COMMUNITY DEVELOPMENT AND CHAPTER 98, SUBDIVISIONS; CLARIFYING THAT APPLICANTS ARE RESPONSIBLE TO PAY THE COST OF NOTICES; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABILITY; AND AN EFFECTIVE DATE. Lamar Russell, Planning and Zoning Board, Vice -Chairperson, requested the Council's logic in voting on the amendment. Ms. Roberts restated from the previous meeting that this change of procedures would provide another level of review within the City prior to an Appeal proceeding to the Appellate Court. Mr. Russell asked why after 40 plus years the Council was responding in a punitive manner toward the Board. Ms. Roberts expressed that this was not punitive but would enable the elected officials to hear any citizen Appeals. Mr. Russell pointed out how future Council's might not have the same perspective as the present Council and could be influenced. Mr. Mark Morrison of 8931 Lake Drive, Cape Canaveral, expressed his frustration over what has happened and although he commended Mr. Russell, he opposed his view stating that times have changed. Mr. Morrison related on his military service career and stated that the ultimate municipal decision in a democratic system rest with the elected officials. Mr. Morrison stated that he heard Mr. Earl McMillin, a marine pilot, his wife, and his son, also a marine pilot, were all members of the Marine Pilots Association, which was a direct Conflict of Interest with Mr. McMillin's position on the Board of Adjustment. Second, Mr. Morrison stated that Mr. McMillin became proclaimed fire expert after one day of training. Three, Mr. Morrison stated that he did not see the logic of setting the City Attorney against the Building Official who is a trained professional on a construction decision. Fourth, he did not see the letter in which the 1991 Mayor expressed opposition to any further tank farm expansion. Mr. Morrison read quotes from Board and Council Members related to the Coastal Fuels issue. Mr. Morrison stated in concluded that the fact that the people can influence elected officials was the point and a right in a democracy. Mr. Nicholas stated that he was disturbed that a citizen would use this opportunity to castigate Mr. McMillin, a volunteer Board member. Mr. Nicholas expressed his agreement with Mr. Russell and he stated did not agree with the Council assuming the Board of Adjustment's duties. Ms. Roberts responded that since the citizens elected the Council, then the elected official should hear citizens prior to an issue proceeding to Appellate Court, which might deter legal costs. Mr. Petsos also stated that the elected officials should make the final determination prior an issue proceeding to Appellate Court. Mayor Pro Tem Hoog stated that he was not supportive of the Ordinance in the beginning. He expressed his respect of the Boards; however, he stated that the Council should bear any hostility. He also related on disturbing comments that Council members accepted bribes from Coastal Fuels. Mayor Pro Tem Hoog expressed his support of the Ordinance. Mayor Randels expressed that he too gave the Ordinance amendment much deliberation. Mayor Randels stated that he too saw the amended procedure as opportunity to hear public concerns. Mayor Randels also expressed his support of the Ordinance. City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 12 of 14 Mr. Russell expressed that if the Council had a problem with one person on the Board then the person should be removed, but not to penalize the entire Board. Ms. Melanie Evans stated that many community residents lost confidence in the Board of Adjustment due to the manner in which the Appeals Meeting was handled. Mr. Dick Biel of Solana Lake stated that it appeared that the amendment to the Ordinance would apply to any dispute. He expressed his favor with an Appeal coming before the Council prior to proceeding to Court. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Adopt Ordinance No. 07-2007 at Second Reading. The vote on the motion 4-1 carried with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, Against, Mr. Petsos, For, Mayor Randels, For and Ms. Roberts, For. A motion was made by Mayor Pro Tem Hoog and seconded to Extend the Meeting Until 11:30 P.M. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For, and Ms. Roberts, For. 8. Motion to Adopt: Ordinance No. 09-2007, Repealing City Code Section 110- 376, related to Preservation of Trees, at Second Reading. Mayor Randels read Ordinance No. 09-2007 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, REMOVING SECTION 10-376 FROM THE CITY CODE CONSISTENT WITH REPEAL PROVISION CONTAINED IN SECTION 4 OF ORDINANCE 05-2005; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABILITY; AND AN EFFECTIVE DATE. There was no public comment. A motion was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Adopt Ordinance No. 09-2007 at Second Reading. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, Mr. Petsos, For, Mayor Randels, For and Ms. Roberts, For. ORDINANCES: First Public Hearing: 9. Motion to Approve: Ordinance No. 11-2007; Adopting Amendments to the Annual General Fund, Sewer Enterprise Fund, Stormwater Utility Fund, Special Revenue Funds and Expendable Trust Fund Budgets for the Fiscal Year Ending 09/30/07, at First Reading. Mayor Randels read Ordinance No. 11-2007 by title City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 13 of 14 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, ADOPTING THE AMENDMENTS TO THE ANNUAL GENERAL FUND, SEWER ENTERPRISE FUND, STORMWATER UTILITY FUND, SPECIAL REVENUE FUNDS, AND EXPENDABLE TRUST FUNDS BUDGETS FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2006, AND ENDING SEPTEMBER 30, 2007; PROVIDING FOR AN EFFECTIVE DATE. Andrea Bowers, City Treasurer, stated that this Ordinance would complete the City's Budget year. Ms. Bowers explained that under the Government Accounting Standards Board the Ridgewood Avenue road value was included. Ms. Roberts pointed out the need to also include North Atlantic Avenue as well as the need to keep an in-house City Planner in the Budget. There was no public comment. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Approve Ordinance No. 11-2007 at First Reading. The vote on the motion carried with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, Mr. Petsos, For, Mayor Randels, For and Ms. Roberts, For. DISCUSSION: 10. Motion to Approve: Purchase of a Beach Cleaning Machine. Ms. Roberts suggested Tabling the Item until the next scheduled meeting due to the late hour. Mr. Boucher stated that he would need to know if there was consensus from the Council for an Interlocal Agreement to Cost -Share on the purchase. Mr. Petsos requested information from the Beach Improvement Committee. Ms. Roberts related the concerns of residents' on protecting shells on the beach and on Cocoa Beach's dominate need for the machine. Discussion followed on the machine's durability in a coastal environment. Mr. Boucher made note that he presented the equipment use parameters in his packet. Discussed ensued on removing fish from the beach. Mr. Garboski reminded that Cocoa Beach had 10 -miles of beach and Cape Canaveral had 2 -miles of beach and he suggested a percent of cost sharing based on usage. Mr. Boucher replied that Cocoa Beach did not plan to clean their entire beach. Council agreed to have the City Manager seek more information. REPORTS: 1. City Manager Mr. Boucher reported that he spoke with the Walgreen's Corporation related to any tax incentives. Council agreed to have the City Manager and City Attorney seek additional site issues. 2. Staff City of Cape Canaveral, Florida City Council Regular Meeting December 4, 2007 Page 14 of 14 City Clerk • No report. City Treasurer • No report. Building Official • No report. Recreation Director • Mr. Lefever announced the Reindeer Run on Saturday, December 8th at 8 A.M., Cherie Down Park. • Mr. Lefever announced the Holiday Tree Lighting on December 16th at 6:30 P.M. at the Cape Canaveral Library. ADJOURNMENT: There being no further business the Meeting adjourned at 11:30 P.M. Rocky Randels, MAYOR Susan Stills, CMC, CITY CLERK CITY COUNCIL SPECIAL MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida Thursday November 8, 2007 (or Immediately Following the 5:30 P.M. Special Meeting to Certify the General Election Results) CALL TO ORDER: The ROLL CALL: Council Members Present: Mayor Pro Tem Council Member Council Member Mayor Council Member Others Present: City Manager City Attorney City Clerk Building Official Public Works Director Assistant Public Works Director CONSIDERATIONS: MINUTES Bob Hoog Leo Nicholas Buzz Petsos (Arrived 6:15 P.M.) Rocky Randels Shannon Roberts Bennett Boucher Anthony Garganese Susan Stills Todd Morley Walter Bandish Jeff Ratliff 1. Motion to Approve: Public Works Maintenance Building Change Orders. Mr. Boucher introduced Mr. Stuart Oppenheim, P.E., Vice President of Brown and Caldwell, Florida Operations. Mr. Oppenheim explained this project as a design -build and stated that the contractor was actually the engineer of record. He also made note of how there were staffing changes on the firm's part as well as the City's during the project's course. Mr. Oppenheim stated that there were three change order issues: 1) the permit and delay, 2) the base slab, and 3) the electrical work. Mr. Oppenheim informed that Mr. Steve Davies was influential in a 26 percent reduction in the permitting process from $66,910 to $49,382 and the rework was negotiated from $33,572 to $22,289 with a proposed cost-sharing. K'.ACltyClk\Minutes\SPECIALA2007ACity Council Special Meeting following Certification doc City of Cape Canaveral, Florida City Council Special Meeting November 8, 2007 Page 2 of 6 Secondly, a Design/Build Delivery was used to transfer risk from the owner to the contractor. The design of the base slab was the responsibility of the Design/Build contractor. Brown and Caldwell directed the contractor to assume a six-inch thick base slab and they have unit responsibility for the slab and building design. Ms. Roberts asked if the firm assisted the City with the proposals. Mr. Oppenheim stated that one way to approach the contract was to submit the geotechnical work to the contractor; however, the contractor might not desire to assume the risk. Mr. Oppenheim affirmed that Brown and Caldwell did not perform a geo-technical study. Mr. Oppenheim explained how the City assumed some of the risk without a geo-technical study; however, that the City did receive a fair price. Mr. Oppenheim stated that the firm could have performed some of the geo-technical work prior to the project as well as had discussion prior to the project. Ms. Roberts pointed out that the question of the difference between the six-inch and eight -inch slabs could have been asked prior to the commencing the project and the contractors would have then submitted pricing accordingly. Mr. Oppenheim cautioned that contractor pricing would have then varied widely. Mayor Pro Tem Hoog stated that most the change orders were self-imposed. Ms. Roberts questioned why the City misunderstood the need for a geo- technical study. Mr. Davies explained how inclusion of the geo-technical study would have raised the engineering cost. Mayor Randels informed that he would turn the remainder of the meeting over to Mayor Pro Tem Hoog at this time due to a prior commitment. (He left at 5.50 P.M.) Lastly, Mr. Oppenheim stated that the firm's documents did not identify the electrical feed location. Mr. Oppenheim informed that Brown and Caldwell was willing to offer $500 toward the cost of this work. Ms. Roberts questioned if the City's contract documents lacked specificity. Mr. Oppenheim explained that the contractor assumed to use the nearest electrical feed line. Walter Bandish, Public Works Director, explained that heavy wiring was required and the City was performing the work from location A to B. Ms. Roberts asked if any of the bids included the electrical work. Mr. Davies explained that the bid was all inclusive and was once a bid was accepted then a break -down of cost was submitted. Ms. Roberts clarified that $7,000 was an estimate of the City's cost for the electrical work. Mr. Bandish affirmed. Mr. John Butler, Butler Construction, replied that the question regarding the electrical work was asked in the Request for Information; however, no answer was given. Mayor Pro Tem Hoog stated that he could not see the benefit of a $500 rebate on a $7,000 job. He stated that as an Electrical Contractor, viewing the job was a practical point in the bidding. Mr. Oppenheim stated that the firm was working with the City to resolve these issues. He informed that their consulting fee had expired; however, the firm was willing to continue to support the project. He concluded that Brown and Caldwell valued their relationship with the City. Mayor Pro Tem Hoog stated how even with the cost overruns and change orders the City was still within its budget on the project. Ms. Roberts questioned the City's City of Cape Canaveral, Florida City Council Special Meeting November 8, 2007 Page 3 of 6 lessons learned. Mr. Boucher stated that one lesson learned was to put everything in writing in order to ascertain clear instructions for approval and for review during the project's course. Mr. Boucher stated that he made this clear to Mr. Bandish and to Jeff Ratliff, Assistant Public Works Director. Mayor Pro Tem Hoog stated that due to the size of the job, discussion would have benefited the project. Mr. Butler added that replies to questions would have also benefited the project. Mr. Davies replied to Ms. Roberts that he had no documentation on Mr. Butler's question. Ms. Roberts then agreed with Mr. Boucher's point of placing everything in writing. Mr. Boucher reiterated that going forward Brown and Caldwell would submit a check to the City in the amount of $11,649 for the re -work and there would be no additional billing from the firm on this project. Ms. Roberts asked when the project would be completed. Mr. Butler replied four months from the start time. Mr. Bandish informed that the project was awaiting Council's approval and mobilization was standing -by. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Approve the Change Order in the Amount of $49,381.51. The vote on the motion carried 3-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, and Ms. Roberts, For. 2. Motion to Approve: Renewal of Group Medical, Dental and Life Insurance. Mr. Boucher explained that there was an anticipated increase of $10,000 on the renewal rate for medical insurance. He noted a savings of $18,000 per year for the alternative plan; however, there was an increased out-of-pocket for the alternative plan. An employee could "buy -up" to the existing plan at a rate of $41.19 per month. Mr. Boucher stated that in light of the revenue forecasts, cutting costs would provide a savings. Ms. Roberts stated that she reviewed the comparative research as provided by Ms. Stills. Ms. Roberts expressed her support of the City employees and she also expressed concern that the City did not provide similar coverage for families. Mayor Pro Tem Hoog questioned the cost for family rates. Mr. Boucher referred to the specification sheet for group rates. Mr. Nicholas questioned what the City would then do to compensate those employees who did not need family coverage. Mr. Nicholas stated how if there were a proposed benefits change then the City would need to approach the Union. Kenny Veenstra, Union Steward, was available for response from the Union. Mr. Nicholas pointed out that a person without family coverage could gain an additional $500 per month. Mr. Boucher clarified that a new base plan would still provide 100 percent coverage for all employees; however, if an employee chose to retain the existing plan then it would cost them $41.19 per month. Mr. Boucher clarified that the co -pays were slightly higher with the alternative plan. Ms. Roberts expressed that the City should remain with the existing Health First Health Plan 24 and develop a family plan in the future to enable the City to keep a competitive rate. City of Cape Canaveral, Florida City Council Special Meeting November 8, 2007 Page 4 of 6 Mayor Pro Tem Hoog brought out that further discussion was needed however prior to considering family coverage in light of persons who are single and without a family. Mr. Petsos stated the single person was obtaining the same type of basic coverage. Mr. Nicholas clarified that the City was in essence augmenting the married persons' salary by picking up their coverage. Ms. Roberts recommended retaining Plan 24 and seeking research for the City to obtain family coverage in the future. Mr. Petsos expressed his thought that in the business world employees were participating in a cost -share for their benefits coverage and the City was considered a business. Mr. Boucher responded that while he was not against remaining with Plan 24, cities were experiencing declining revenues due to the Property Tax issue. Mr. Boucher informed that the City experienced a good year in its Worker's Compensation and Property Liability due to the appraisal Mr. Boucher replied to Mr. Petsos that the City Treasurer had set aside 20 percent for an anticipated increase. Mr. Petsos addressed Mr. Veenstra and clarified that his intention toward random drug testing of City employees which was presented during the Union Negotiations was for all City employees and not for Union members only. A motion was made by Ms. Roberts and seconded by Mr. Nicholas to Approve the Renewal of Health First — Health Plan 24 at a rate of $219,262.04. The vote on the motion carried 4-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, Mr. Petsos, For, and Ms. Roberts, For. 3. Motion to Approve: City Manager's Evaluation. Mr. Boucher expressed his appreciation to the Council for their feedback during his evaluation. Mr. Petsos pointed out that he would like to have daily reports from the City Manager and suggested a broadcast memo to all Council Members on important issues such as Robert Lefever's promotion to Recreation Director. Mr. Boucher apologized for that oversight and replied that he would amend his method of distribution in the future. Mr. Boucher formally announced that Walter Bandish was promoted to Public Works Director and Jeff Ratliff was promoted to Assistant Public Works Director. A motion was made by and seconded by to Approve the City Manager's Evaluation. The vote on the motion carried 4-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For, Mr. Petsos, For, and Ms. Roberts, For. • Todd Morley, Building Official, thanked the Council for their support on the new building. He also thanked the Council for their vote on the health insurance renewal. • Walter Bandish, congratulated the successful candidates and also thanked the Council for vote on the health insurance renewal. City of Cape Canaveral, Florida City Council Special Meeting November 8, 2007 Page 5 of 6 City Manager • Mr. Boucher informed that he met with Chuck Bilias, Cocoa Beach City Manager, on the beach -cleaning machine. Cape Canaveral and Cocoa Beach would work on an Interlocal Agreement for its joint -use. Mr. Petsos also requested a letter to the Tourist Development Council for their assistance with the beach -cleaning machine. • Mr. Ratliff informed that the beach re -nourishment crew would work 24 -hours and stated that there would be disruption to residents. A notice was on the City's web site about the project. Mr. Boucher clarified that the project would begin in the Royal Mansions area and continued to Polk Avenue. Mr. Boucher thanked the Council for their continued support. • Mr. Boucher related from Mr. Bandish that Florida Power and Light desires for the removal of City's banners from the concrete poles. Council Member Roberts Ms. Roberts commended the City Manager and staff for their work in light of the challenging year due to the workload. Ms. Roberts questioned the status of a Community Planner. Mr. Boucher replied that the position was in the budget; however, the job duties were undeveloped. Council Member Nicholas No report. Council Member Petsos Mr. Petsos expressed to not see the Ridgewood Avenue project expire. Ms. Roberts pointed out how a Master Schedule of Initiatives would help to focus Council's important discussion items. Mr. Boucher responded that a scheduled discussion with the Council in December or January would help to prioritize projects. Ms. Roberts brought out alternative sources of funding. Mayor Pro Tem Hoog Mayor Pro Tem Hoog requested better maintenance on the Sea Grapes at the dune crossovers predominately at Fillmore Avenue. Mr. Petsos included Coconut Palm trimming. Mayor Pro Tem Hoog also questioned the transfer of the palm trees on Washington Avenue. Mr. Bandish replied that the intent was to relocate the trees to Manatee Sanctuary Park. City of Cape Canaveral, Florida City Council Special Meeting November 8, 2007 Page 6 of 6 ADJOURNMENT: A motion was made by Mr. Petsos and seconded by Ms. Roberts to Adjourn the Meeting. The vote carried unanimously. Robert E. Hoog, MAYOR PRO TEM Susan Stills, CMC, CITY CLERK Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consent Item 3 No. Article 22.1 Duration - The duration of this agreement shall be for a period of three (3) years. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSENT: AMENDMENT TO THE COLLECTIVE BARGAINING AGREEMENT WITH THE INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 673 (AFL-CIO) DEPT/DIVISION: ADMINISTRATION/HUMAN RESOURCES -CITY CLERK Requested Action: City Council consider approval of an amendment to the collective bargaining agreement with the International Union of Operating Engineers Local 673 (AFL-CIO) Summary Explanation & Background: City Clerk Susan Stills negotiated the amendment to: Article 16.1 Wages - 2.7% cost of living increase effective 10-01-07. Article 22.1 Duration - The duration of this agreement shall be for a period of three (3) years. I recommend approval. Exhibits Attached: City ManlZer's)Office Department ADMINISTRATION/HUMAN RESOURCES of\kim\myd ctunerts\admin\council\meet4-ng\2007\12-18-07\union.doc 105 Polk Avenue, Cape Canaveral, FL 32920 P.O. Box 326 321-868-1220/1221 321-868-1248 Memo To: Honorable Mayor and City Council Members From: Susan Stills, CMC, City Clergy ---� Q Bennett Boucher, City Manager Date: December 12, 2007 Re: Union Negotiations In summary, Larry Jordan, Union Business Agent, Kenneth Veenstra, Union Steward, Walter Bandish, Public Works Director and Susan Stills, City Clerk/ HR Services met on the following dates: August 20th, October 18th, November 27th and on December 5th to execute the Sign -Off Agreements and the Union Contract. Random Drug Testing was the major point of discussion. The City Attorney provided an opinion on November 26, 2007 which concluded that, "the City may not institute a random drug testing program for all its employees, but may institute random drug testing for employees in a limited class of "safety -sensitive" positions." Since the program would not apply to all City employees, City Management removed the issue from the table for discussion. The Contract duration was extended until 2010 and both the Union and the City may bring up three items each for discussion in 2008 and 2009. Ncv 26 2007 5:06PM HP LASERJET FAX p.2 BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Aaorneys at Lain Debra S. Babb-Nutcher' Offices m Orlando, Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale & Tampa Vivian P. C000tas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta' Mitchell B. Haller Anthony A Garganese` J.W. Taylor Katherine W. Latorre Jeffrey S, Weiss Terri E. Oster Amy J. Pitsch 'Boar3 Certified Civil Trial -awoer 'Board Cerlified City, Courtly & Local Govemrnent Law Board Cer`Jfled Appellate Freclica November 26, 2007 Via Facsimile (321) 868-1224 Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue P.O. Box 326 Cape Canaveral, F132920 RE: City of Cape Canaveral/Random Drug Testing Issue Our File No. 513-001 Dear Mr. Boucher: Erin J. O'Leary' Catherine D. RNschmann= Wllllam E. Reischmann, Jr Of Counsel You have asked us for a legal opinion concerning whether the City may institute random drug testing for all its employees. My research indicates that the City may not institute a random drug testing program for all its employees, but may institute random drug testing for employees in a limited class of "safety -sensitive" positions. The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Drug testing of government employees constitutes a "search" within the meaning of the Fourth Amendment, See Chandler v. Miller, 520 U.S. 305 (1997); Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 632-33 (1989) ("[b]ecause it is clear that the collection and testing of urine intrudes upon the expectation of privacy that society has long recognized as reasonabl e...these intrusions [ are] searches under the Fourth Amendment."). In order to comply with the Fourth Amendment, a search must be "reasonable." A government entity does not need a warrant to conduct drug testing of its employees, 225 East Robinson Street, Suite 660 - P.O. Box 2973.Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 - Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net - Email: firm@odandclaw.net Noy 26 2007 5:06PM HP LASERJET FAX November 26, 2007 Page 2 Generally, "[t]o be reasonable under the Fourth Amendment, a search must be based upon individualized suspicion of wrongdoing." Chandler, 520 U.S. at 313. Thus, across-the-board random drug testing of public employees is prohibited. However, limited drug testingofgovernment employees occupying "safety -sensitive" positions may be performed in the absence of any individualized suspicion. Skinner, 489 U.S. at 620-21. The scope of what constitutes a "safety - sensitive" position is rather narrow. The Skinner case dealt with railway workers. In that case, the Court relied in part on statistical evidence indicating that on-the-job intoxication was a significant problem in the railroad industry and that accidents, death, and property damage were attributable. at least in part, to alcohol and drug use. Id. at 607. The Court found that the expectation of privacy of railroad workers was diminished by reason of their participation in an industry that is pervasively regulated to ensure safety. Id. at 627. The Court found that suspicionless random drug testing of railroad workers was thus "reasonable" under the Fourth Amendment. The rationale of Skinner has been extended to law enforcement agents, firefighters, and a limited class of government employees who operate motor vehicles (generally large vehicles) as a routine part of their day-to-day duties. National Treasury Employees Union v. Iron Raab, 489 U.S. 656 (1989). There has also been recognition that the Skinner rationale could be extended to government employees who routinely work with dangerous chemicals, in determining whether suspicionless drug testing of government employees is "reasonable" and appropriate under the Fourth Amendment, courts conduct an elaborate context -specific inquiry and closely examine the competing private and public interests advanced bytheparties. Chandler, 520 U.S. at 314. Courts require more than hypothetical risks before they will approve suspicionless drug testing of government employees. Id. In sum, the City may not conduct across-the-board random drug tests of its employees. However, the City may conduct random drug tests of those employees occupying safety -sensitive positions. Before the City embarks on random drug testing of safety -sensitive employees, a focused inquiry must be conducted to establish that such drug testing is warranted by the circumstances and "reasonable" for Fourth Amendment purposes. The regular job duties of those persons occupying the potential safety -sensitive positions would have to be closely scrutinized. In the absence of additional information, I cannot offer any opinion as to whether any of the City's employees occupy cognizable safety -sensitive positions. I trust that this is responsive to your inquiry. If you have any questions, please do not hesitate to contact me. cc: Anthony A. Garganese, Esq., of p.3 Cape Canaveral 2007 Contract Negotiations Sign Off Agreement ARTICLE XVI WAGES 16.1 Employees' wages shall be determined as set forth in the Pay and Classification Plan for fiscal year 2007/2008, attached to this agreement as Exhibit One. Effective October 1. 2007, the employees will receive a 2.7% increase for their classification as a cost of living adjustment (COLA). Exhibit One shall be amended such that the bottom and top of each grade's salary range will be adjusted equal to the COLA. Employees will be paid bi-weekly. klAccepted Local 673 AFL-CIO n/./, Unio ep�tative Kenneth Veenstra, Union Steward ❑Impasse City of Cape Canaveral,,, Florida Bennett Boucher, City Manager Susan Stills, City Clerk/ HR Director Cape Canaveral 2007 Contract Negotiations Sign Off Agreement ARTICLE XXII DURATION 22.1 The duration of this Agreement shall be for a period of three (3) years provided that both the City and the Union shall have the ability to open negotiations on no more than three (3) articles annually. Notice of intent to open negotiations must be given at least one hundred twenty (120) days before September 30 of each year of the Agreement's term. [q►ccepted Local 673 AFL-CIO L rese nneth Veenstra, Union Steward ❑Impasse City of Cape Canaveral, Florida Bennett Boucher, City Manager Susan Stills, City Clerk/ HR Director PREAMBLE This AGREEMENT is entered into as of October 1, 2007 between the City of Cape Canaveral, hereinafter referred to as the City, and Local 673, International Union of Operating Engineers (AFL-CIO), hereinafter referred to as the Union. It is the intent and purpose of this Agreement to assure sound and mutually beneficial working and economic relationships between the parties hereto, to provide an orderly and peaceful means of resolving any misunderstandings of differences which may arise, and to set forth herein basic and full agreement between the parties concerning rates of pay, wage, hours of employment and other terms and conditions of employment. There shall be no individual arrangement contrary to the terms herein provided. Either party hereto shall be entitled to required specific performances of the provisions of this agreement. It is understood that the City of Cape Canaveral is engaged in furnishing essential public services, which vitally affect the health, safety, comfort and general well being of the public and both parties hereto recognize the need of continuous and reliable service to the public. 9 This Agreement shall be effective October 1, 2007, and shall remain in force until expiration date of September 30, 2010. CITY OF CAPE CANAVERAL, FLORIDA 17-W Bennett Baucher, City Manager Susan Stills, City Clerk/Human Resource Director Attest: Mia Goforth, Administrative Assistant Notary Public - INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL-CIO) LOCAL 673 arrJord6h Ksiness'Age V nneth Veenstra, Union Steward Signed this --6' day of December 2007 by the City. Signed this —,5 day of December 2007 by the Union. Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item 4 No. Please advise. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: CANCELLING OR RESCHEDULING THE FIRST REGULAR CITY COUNCIL MEETING OF JANUARY 2008 DEPT/DIVISION: LEGISLATIVE Requested Action: City Council consider canceling or rescheduling the first regular City Council meeting of January 2008. Summary Explanation & Background: Pursuant to City Code Section 2-56, if a regular meeting date falls on a holiday, then the regular meeting shall be held on the next day. The first Tuesday in January is New Year's Day; the City Council is required to meet on January 2, 2008 unless this date is cancelled or rescheduled. Please advise. Exhibits Attached: City Code Section 2-56 City Manager's Office Department LEGISLATIVE �c - kim\m doc tints\admin\council\meetir__g\2CC7\12-18-07\meeting.dcc ARTICLE Il. CITY COUNCIL* Sec. 2-56. Regular meetings. Page 1 of 1 The city council shall hold regular meetings on the first and third Tuesday of each month at 7:00 p.m. When the day fixed for any regular meeting falls upon a day designated by law as a legal national holiday, such meeting shall be held on the next succeeding day not a holiday. Regular meetings may be otherwise postponed, canceled or rescheduled only by motion adopted at a regular meeting by a majority vote of the city council. All regular meetings shall be held in the city hall annex or such other place asdesignated by a majority of the council in open session. (Code 1981, § 271.02; Ord. No. 24-93, § 1(271.02), 8-17-93) http://library1.municode.com/newords/DocView/12642/1/'I')/35 12/12/2007 Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item 5 No. Exhibits Attached: AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: ANNUAL EVALUATION OF WASTE MANAGEMENT DEPT/DIVISION: ADMINISTRATION/CITY MANAGER Requested Action: City Council, pursuant to the franchise agreement with Waste Management, Inc., is to evaluate annually the solid waste services provided under said franchise agreement. Summary Explanation & Background: The city manager's office prepared the attached evaluation report. Please advise. Exhibits Attached: Annual evaluation City Manager's Office Department ADMINISTRATION/CITY MANAGER cape-t4;tk im\my oco-.uments\admin\ccunc-1\meet-agV2007\12-18-07\wm.doc Memo To: BENNETT BOUCHER, CITY MANAGER From: KIM M. MC INTIRE, EXECUTIVE ASSISTANT Date: November 27, 2007 Re: WASTE MANAGEMENT ANNUAL EVALUATION Following are our comments per Section 9.0, Level of Service; Customer Complaints; Annual Evaluation by City. CONTRACTOR'S PERFORMANCE IN RESOLVING CITIZEN COMPLAINTS IN A PROFESSIONAL AND EXPEDIENT MANNER. Acceptable CONTRACTOR'S RESPONSIVENESS TO DIRECTION GIVEN BY THE AUTHORIZED REPRESENTATIVE Acceptable NUMBER OF TIMES THE CONTRACTOR HAD TO PAY LIQUIDATED DAMAGES PURSUANT TO PARAGRAPH 25.0 OF CONTRACT None CONTRACTOR'S PARTICIPATION IN COMMUNITY MEETINGS SPONSORED BY CITY AND CONTRACTOR'S PERFORMANCE IN RESOLVING THE COMPLAINTS RECEIVED AT THOSE MEETINGS IN A PROFESSIONAL AND EXPEDIENT MANNER Good CONTRACTOR'S FINANCIAL VIABILITY TO CONTINUE PERFORMING THE COLLECTION AND DISPOSAL SERVICES AS REQUIRED BY THIS AGREEMENT N/O ADDITIONAL NOTES: The Contractor failed to present a quarterly report to the City Council for the first quarter of 2007. The Contractor averaged 32 documented concerns per quarter (garbage, recycle, Y/W and general/dumpster complaints). Concerns continue to be addressed via e-mail rather than E - Better Place in order to expedite said concerns. The majority of the complaints received by the City Manager's Office concern yard waste and drivers are tagging piles that are not in compliance. After nearly two years, the automated cart system continues to be a learning curve for the residents of the City; however, most of the residents have embraced the new system. Respectfully submitted, Kim M. McIntire 0 Page 2 9.0 Level of Service; Customer Complaints; Annual Evaluation By City. 9.1 Level of Service. Contractor acknowledges and agrees that the continuation of this Franchise depends on Contractor consistently providing a high quality and efficient level of collection and disposal services to all customers. To insure such services are provided in such a manner, Contractor's performance shall be evaluated, on an annual basis, pursuant to the procedure established in paragraph 9.3 of this Agreement and based on the following review criteria: A. The number of complaints received pursuant to paragraph 9.2 herein and Contractor's performance in resolving the complaints in a professional and expedient manner. B. Contractor's responsiveness to direction given by the Authorized Representative. C. The number of times that Contractor had to pay liquidated damages pursuant to paragraph 25.0 herein. D. Contractor's participation in community meetings sponsored by City and Contractor's performance in resolving the complaints received at those meetings in a professional and expedient manner. E. Contractor's financial viability to continue performing the collection and disposal services as required by this Agreement. 9.2 Customer Complaints. It is the intent of this Agreement to ensure that the Contractor provides a high quality level of collection and disposal services to all customers. To this end, all failures to provide collection and disposal services to customers, or failures observed by the Authorized Representative, and reported to the Contractor shall promptly be resolved pursuant to the provisions of this Agreement. All customer complaints should be made to the Authorized Representative and will be forwarded to the Contractor by person, telephone, or in writing by mail or facsimile. When received, whether directly from the Customer or forwarded from the Authorized Representative, the Contractor shall record complaints on a form approved by the Authorized Representative and shall take appropriate steps to resolve the complaint in a professional and expedient manner. Any complaints received by the Contractor before 12:00 noon shall be resolved before 5:00 p.m. of that same day. Complaints received after 12:00 noon shall be resolved before 12:00 noon of the following day. The Contractor shall make contact with the customer complainant, within the above times, for all complaints related to collection and disposal services. The Contractor shall notify the Authorized Representative within twenty-four (24) Solid Waste Agreement City of Cape Canaveral / Waste Management of Florida. Inc. Page 23 of 43 4 WASTE MANAGEMENT, INC. Bennett Boucher, City Manager City of Cape Canaveral 105 Polk Ave, Cape Canaveral, Florida 32920 July 10, 2007 Re: Second Quarter 2007 Report Dear Mr. Boucher: Waste Management provided a total of 52 garbage collections (including Ocean Woods and the bulk pick up), 13 green waste and 13 recycle collections to the single-family residents. This equates to approximately 142,896 collections. In addition, service was provided to approximately 6863 multi -family units, 1 I 1 commercial can customers, 188 commercial customers and 5 permanent roll off accounts. A total of 32 documented concerns were received by the City during this time period and the breakdown is as follows: 10 garbage/bulk complaints, 1 recycle complaint, 6 green waste, 6 general /dumpster complaints, and 7 cart deliveries. If you have any questions or need further information, please feel free to contact me. Sincerely. James Tuggle Operations Manager Waste Management -Cocoa Hauling W WASTE MANAGEMENT, 11MC_ Bennett Boucher, City Manager City of Cape Canaveral I05 Polk Ave, Cape Canaveral, Florida 32920 Oct. 08, 2007 Re: Third Quarter 2007 Report Dear Mr. Boucher: Waste Management provided a total of 52 garbage collections (including Ocean Woods and the bulk pick up), 13 green waste and 13 recycle collections to the single-family residents. This equates to approximately 142,896 collections. In addition, service was provided to approximately 6863 multi -family units, 1 11 commercial can customers, 188 commercial customers and 5 permanent roll off accounts. A total of 32 documented concerns were received by the City during this time period and the breakdown is as follows: 6 garbage/bulk complaints, 4 recycle complaint, 5 green waste, 4 general /dumpster complaints, and 4 cart deliveries. If you have any questions or need further information, please feel free to contact me. Sincerely, James Tuggle Operations Manager Waste Management -Cocoa Hauling Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item City Council on 8/9/07 granted conditional approval of the Mermaid Key Site Plan. There were (10) No. application shall stand as denied, per City Code Section 110-223(1). The compliance period ended 11/7/07. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: MERMAID KEY SITE PLAN COMPLIANCE PERIOD EXTENSION REQUEST DEPT/DIVISION: COMMUNITY DEVELOPMENT/BUILDING Requested Action: City Council review and consider the Mermaid Key Site Plan Compliance Period Extension Request: submitted by Attorney Timothy Pickles representing Mermaid Key, LLC. Summary Explanation & Background: City Council on 8/9/07 granted conditional approval of the Mermaid Key Site Plan. There were (10) conditions that had to be satisfied within 90 days or the site plan would be automatically withdrawn and the application shall stand as denied, per City Code Section 110-223(1). The compliance period ended 11/7/07. Per City code, upon written request of the applicant prior to the expiration of the 90 day compliance period, and where the applicant demonstrates unusual circumstances or undue hardship, City Council may grant art extension of the compliance period. This item was postponed from the 12-04-07 City Council meeting to give the applicant time to address outstanding issues. Please advise. Exhibits Attached: Letter of request and related documents City Managers Office Department COMMUNITY = I _ DEVELOPMENT/BUILDING cape --rrC\kim\m cuments\admin\council\meeting\2007\12-18-07\mermaidkey.doc Pagel of 3 Bennett Boucher From: Martin Greene[martin@greeneinternational.com] Sent: Wednesday, November 28, 2007 11:58 AM To: 'Bennett Boucher' Cc: Tim Pickles Subject: RE: Mermaid Key Development Good morning Bennett, Sorry I haven't got back to you earlier, I was in meetings all day yesterday and I find out Tim has a family appointment out of the office today and is not in. I am seeing him tomorrow morning so I will speak to him then about this but I don't think that I will be able to get an actual draw for the funds from the bank in time for next week. Banks in normal circumstances are very very slow around this time of year and this year it's impossible. Why are the actual funds so important as long as a permit isn't issued without them? That will allow us all to do all the legal work and be ready to go as soon as they are released. I am not sure if I am right or not but I think the only thing now holding up St John's is the city's sewer easement from 1966 that they found went over their mangrove protection area on the north east bank of the south parcel and I think Tim has done all that with Mary Ellen. Regards Martin From: Bennett Boucher [mailto:boucher-cape@cfl.rr.com] Sent: Tuesday, November 27, 2007 2:24 PM To: martin@greeneinternational.com; 'Tim Pickles' Subject: FW: Mermaid Key Development Afternoon Martin & Tim, Are you all going to submit payment for the sewer line relocation cost in the amount of $109,283 prior to the 12-4- 07 Council meeting? If you do, then I can place the vacation of the old sewer easement, approval of the new sewer easement, approval for the change orders on the agenda. ifi ILIle site I.,... ate..,.,: 1-1 I 11 not, 111G11 yVlJl sILC plcJll e�7.Lt�11111_lIl lel�llell V�%III I)e 11-1 E2 (jllly IIF?IT! (lfl fIPY1 I.:esn..ay'.C. age naa. Take care, Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL. 32920 phone 321-868-1230 fax 321-868-1224 www.myflorida.com/cape Fr omit: Bennett voucher [lilaiity: bout ier-l.aI.lCLwcf 1.1"f .(,ol I l] 11/28/2007 Law Offices `vv'A i SON, SOI1` jGAIJ, Del IG O, DU mkffn' 1 1 OL rit-M t^3 A PROFESSIONAL ASSOCIATION 3490 N. U.S. HIGHWAY 1 COCOA, FLORIDA 32926 VICTOR 19. WATSONt JOIIN L. SOIIEAU+ JOSEPH E. DeLEO STACY !_ BURCETT I IMO T IIY 1'. PICKLES+ 000 JUSTIN R. PAYNE SE F11 1). CHIPMAN +130:\RD CERTIFIED IN RF,%1. 1'ROPFRTI" L, \W November 7, 2007 Mr. Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL 32920 Re: Mennaid Kev, LLC Our File No.: 04-5091 Dear Bennett: TELEPHONE (321)631-1550 (321) 631-1567 Via Facsimile, E-mail & Regular U.S. Mail Pursuant to our meeting yesterday and applicable City of Cape Canaveral Ordinances, the undersigned on behalf of Mennaid Key, LLC requests an extension through and including December 4"', 2007, to satisfy the conditions contained in the site plan which was approved on August 9`I', 2007. The status of the conditions are as follows: • The sewer lime from the south commercial building needs an easement; and th sewer line needs to be relocated to save a 20" tree. - The developer is currently complying with the building official's requests to complete this condition. See attached correspondence. • The lift station pump sequence shall be changed so an alai -in is activated fr the liquid level rises above the lead pump "on " level and before the liquid level reaches the lag pump "on" level. - The developer is currently complying with the building official's requests to complete this condition. See attached correspondence. • The north and south fountain details shall be redesigned, because the present 18" dimensions are incorrect. -The developer is currently complying with the building official's requests to complete this condition. See attached correspondence. • Provision shall be made for recycling containers at each dumpster site. - The developer is currently complying with the building official's requests to complete this condition. See attached onrracnnndonoo City of Cape Canaveral / Boucher ltr Re: Mermaid Kev_ LLC - Site Plan November 7, 2007 Page 2 of 2 • A lighting plan. for the streets and sidewalks shall be submitted and approved by the City. - The de_ve_.lone_.r 1_s ottrrently oornnlvincl with the hiiddino nffwial'c rennPctc to rornplPtP this I- r ---a -a n».,.,.., r,....... condition. See attached correspondence. • A shared parking easement on the north parcel shall be approved by the City. - The form of the easements were submitted to the City Attorney. He is currently reviewing them. Once they are approved in form they shall be executed and recorded to comply with this condition. • Cross access casements shall be provided on the north and south parcels. - The form of the easements were submitted to the City Attorney. He is currently reviewing them. Once they are approved in form they will be executed and recorded to comply with this condition. • The Unity of Title be prepared and executed on the south commercial parcel. - The Deeds were submitted to the City Attorney. He is currently reviewing them. • All costs associated with the vacation of the existing sewer easement and the dedication of the proposed relocated sewer main casement. as well as design and installation change orders for the force main replacement project, be borne by the applicant. - Per the discussion, provisions will be made for the payment of the change order as well as the dedication of the casement in conjunction with the December 4'" City Council meeting. • An approved mitigation plan form the St. Johns River Water Management District for the pond area classified as wetlands shall become part of the approved Site Plan. - The general plan has been approved. We are waiting confirmation, perhaps as early as today, from St. Johns that the mitigation plan has been officially approved and that pen -nits will shortly be issued. Please advise if I can provide any additional infonnation. Thank you for your attention to this matter. Sincerely,--,-,- Timotlfy F. Pickles X TFP/nlc cc: Martin Greene Anthony A. Garganese, Esquire rva Luc alicaauivra vi. Mr. Todd Morley Building Official City of Cape Canaveral 105 Polk Ave, Cape Canaveral, Fl 32920 March 30, 2005 Dear Mr. Morley, Re: Mermaid Key Site plan approval conditions_ Further to my meeting today with Mr. Boucher and later with yourself, I would like to address the 10 conditions the city, council required at the time of approval of the above project. Condition i. The easement from the south commercial building has been drawn up also we have attempted to relocate the sewer to save the tree but unfortunately this is not possible. As the tree is under 24 inches in diameter we intend to implement our right to mitigate it and this will be shown on the landscaping plan and with the city prior to us applying for a site work permit. Condition 2. We have discussed this condition with the lift station manufactures and they stated that all lift stations now function in this way and we will comply on installation and will supply the city with its specification prior to us applying for a building permit on the first building on the south portion of the site. Condition Q This was a typo and the correct drawing with dimensions are attached. Condition 4. See Site plan addendum #1 Condition 5. See site plan addendum #2. Condition # 6, y, S. Have all been completed and submitted to the city attorney. My attorney Mr. Pickles will address these in his letter. Condition 9. We Mermaid Key LLC agree that all costs associated with the sewer works as mentioned in the conditions are acceptable by the applicant. - Condition #1o. An email from SJRWMD will be sent to the city manager tomorrow November 7t" confirming that the mitigation plan has been approved by them and a permit for the entire project will be shortly forthcoming and will be with the city prior to any site work permit being issued. Tth.ank you for your time. Sincerely, { MARTrT CrR.EIaiF. NTNAFilCMCEL MTCb;A President Addcnddi�aap, #1 November,S, 2, C�7 As per tic City Conditions ofsitz pian apps -oval Proosions shall be for recycling contains at sects 41kmqpste�r Ate Tt Plarmaidd KeySite, Plan A"'didendum #2 Novem, ber, 6, 2007 As per the City Conditions of site l4an approval A complete lighting plan will be subrnitt,,!d to the city prior to the u�, hullcling per-nnit is issued in the North portion of ihe site. I`''A""a'U i,-ky Page 1 of 1 Bennett Boucher From: John Juilianna riiuilianna(a_)sirwmd roll Sent: Wednesday, November 07, 2007 4:09 PM To: boucher-cape@cfl.rr.com Cc: Martin Greene; morley-cape@cfl.rr.com Subject: Mermaid Key Mr. Boucher: Our staff has been working very closely with Mr. Greene and his consulting team to bring this project to a permittable stage. At this point, the issues with the design of the stormwater system appear to have been resolved. On the environmental side, the mitigation required for the project is two -fold. The first part is the applicant's contribution towards the purchase of a baffle box as part of the City's stonnwater retrofit project in this area. This has been approved by the District staff and there are no unresolved issues associated with this part of the mitigation plan. The second part of the mitigation plan is the placement of a conservation easement over the mangrove shoreline along the canal. This has been complicated by the presence of a drainage easement in this area that is held by the City. Although we have indications from Mr. Greene and your staff that this can be resolved, there will need to be significant legal document work done on this issue between Mr. Greene's attorney, the City and the District attorney on this case, Mary Ellen Winkler. 1 Dope t hat this update gives you a better indication as to where we are with this project. It does appear as though the District staff will be able to issue a pen -nit upon resolution of the above issues. Ifyou have any questions, please feel free to contact me. John Juilianna, Service Center Director Palm Bay Service Center St. Johns River Water Management District 525 Community College Parkway, N.E. Palm Bay, FL 32909 rl?l � F7F_FF)n Office SC 350-6620 (321) 863-0051 cell jjuilianna@sjrwmd.com No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.503 / VHnus Database: 269.15.24/1115 - Release Date: 11/7/2007 9:21 AM 11/27/2007 A • The sewer line from the south commercial building needs an easement, and the sewer line needs to be relocated to save a 20" tree. • The lift station pump sequence shall be changed so an alarm is activated if the liquid level rises above the lead pump "on" level and before the liquid level reaches the lag pump "on" level. • The north and south fountain details shall be redesigned, because the present 18" dimensions are incorrect. • Provisions shall be made for recycling containers at each dumpster site. • A lighting plan for the streets and sidewalks shall be submitted and approved by the City. • A shared parking easement on the north parcel shall be approved by the City. • Cross access easements shall be provided on the north and south parcels. • The Unity of Title be prepared and executed on the south commercial parcel. • All costs associated with the vacation of the existing sewer easement and the dedication of the proposed relocated sewer main easement, as well as design and installation change orders for the force main replacement project, be borne by the applicant. • An approved mitigation plan from the St. Johns River Water Management District for the pond area classified as wetlands shall become part of the approved Site Plan. Sheet Index - �•ih _ �d��t iABi'tt'aLh?!'t £CP . 'jjA�+� M•, /�/_J Mayor 1rA zx tJrrr •? f•-ka25 i'�}:.:r2 z ate'-�w:'�'......•. "av a�', eYrtat,; ..3 � � 1 • Site Pian — Mermaid Key North 2. Site Plan — Mermaid Key South 3. Existing Conditions and Demolition Plan — Mermaid Key North 4. Existing Conditions and Demolition Plan — Mermaid Key South 5. Erosion Control Plan — Mermaind Key North 6• Erosion Control Plan — Mermaid Key South 7. SWPPP — Mermaid Key North S. SWPPP — Mermaid Key South 9. Grading and Drainage Plan — Mermaid Key North 10. Grading and Drainage Plan — Mermaid Key South 11. Wetland — Surface Water Impact and Mitigation Plan — South 11A. Wetland — Surface Water Impact and Mitigation Plan — North FtT 1 '• Potable Water Pian — Mermaid Key North 13. Potable Water Plan — Mermaid Key South 14. Sanitary Sewer Plan — Mermaid Key North IS- Sanitary Sewer Plan — Mermaid Key South 1 a• 1 Drainage Sections and Details Mermaid Key North 1g Drainage Sections and Details Mermaid Key South Miscellaneous Details 19• City of Cncnn P^fMk1e Page] of 2 Bennett Boucher From: Bennett Boucher rhnucher-rtar,P(n_)rf1 rr rnml Sent: Friday, November 02, 2007 10:25 AM To: 'Timothy Pickles' Cc: 'Anthony Garganese'; 'Todd Morley'; 'Walter Bandish'; 'Jeff Ratliff, CC Public Works' Subject: RE: Mermaid Key Development Attachments: BCCost.pdf; MermaidKeyll.pdf Morning Tim, The 90 days are up on November 7th to meet the conditions of site plan approval. I sent Martin a payment request of $109,283 to relocate the sewer force main. The vacation of the old sewer easement and the recording of the new requested sewer easement will not occur until payment has been received by the City. Attached are the cost breakdowns for engineering and construction. If you cannot get all the site plan conditions completed by November 7th, you can request an extension from City Council. 1, Il the (city (.�1oun cil elects to Rr.] ti l 1 fl 1 1 ., grant conditional, approval of a site plan subject to any conditions or contingencies, the applicant shall have 90 days from the date of conditional site plan approval to satisfy any such conditions and/or contingencies. If all conditions and/or contingencies are satisfied, the final site plan approval date shall be either the expiration of the 90 -day period; or the date the building official certifies by notation on all city site plan copies, that all conditions and/or contingencies are satisfied, whichever first occurs. If the conditions and/or contingencies are not satisfied before the expiration of the 90 -day period the conditional approval shall be automatically withdrawn and the application shall stand as denied. The 90 -day compliance period may be extended at the discretion of the city council, upon written request of the applicant prior to the expiration of the 90 -day compliance period, and where the applicant demonstrates unusual circumstances or undue hardship. Please contact me anytime. Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL. 32920 phone 321-868-1230 fax 321-868-1224 www.myflorida.com/cape 11/27/2007 Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration item 7 No. Exhibits Attached: AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: SEWER LINE RELOCATION AGREEMENT WITH MERMAID KEY, LLC DEPT/DIVISION: PUBLIC WORKS/WWTP Requested Action: City Council review and consider the approval of a sewer line relocation agreement with Mermaid Key, LLC. Summary Explanation & Background: The agreement outlines the terms and conditions related to the relocation of the sewer force main located within a new sewer easement on Mermaid Key's property. See attached agreement. I recommend approval. Exhibits Attached: Agreement City Manager' Office P— 2 Department PUBLIC WORKS/WWTP kim\ ments\admin\co -\meeting\2007\12-18-07\relocation.doc SEWER LINE RELOCATION AGREEMENT THIS SEWER LINE RELOCATION AGREEMENT ("Agreement"), is made and entered this day of , 2007 by and between the CITY OF CAPE CANAVERAL, Florida, a Florida municipal corporation ("City"), and MERMAID KEY, LLC, a Florida limited liability company ("Mermaid"). WITNESSETH: WHEREAS, Mermaid desires to develop certain real property located within the City and legally described in "Attachment 1" of EXHIBIT "A," attached hereto (the "Property"); and WHEREAS, in furtherance of developing the Property, Mermaid desires to relocate a sewer line currently located within the footprint of a proposed structure on the Property; and WHEREAS, Mermaid desires relocate this sewer line to the outer perimeter of the Property; and WHEREAS, the City Council approved Mermaid's site plan application on August 9, 2007 subject to several conditions; and WHEREAS, one condition of the City's site plan approval requires Mermaid to bear financial responsibility for all costs associated with the vacation of the existing sewer line easement and the dedication of the proposed relocated sewer line easement, as well as the design and installation for the sewer line relocation project; and WHEREAS, on December 18, 2007, the City Council approved Mermaid's request to extend site plan approval to allow Mermaid the requisite time to complete the conditions of site plan approval and to complete refinancing of the Property; and WHEREAS, in consideration of the City advancing the cost of the engineering and construction of the sewer line relocation, Mermaid agrees to secure a letter of credit, in form and substance reasonably satisfactory to the City, from a federally insured bank naming the City as beneficiary. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party, the parties agree as follows: 1. Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference. SEWER LINE RELOCATION AGREEMENT City of Cape Canaveral / Mermaid Key, LLC Page 1 of 4 2. Obligations and Commitments. The parties hereby agree as follows: A. Pei petual Sewer Line Easement. Mermaid shall grant to the City a perpetual sewer line easement for the relocated sewer line. Said easement shall be in form and substance reasonably acceptable to the City. Upon Mermaid granting said easement to the City, the City shall terminate and vacate the existing utility easement on the Property. B. Engineering and Construction of Relocated Sewer Line. The City shall contract for the engineering and construction of the sewer line relocation project and shall advance the costs associated with said sewer line relocation. C. Reimbursement to City for Relocation of Sewer Line. Mermaid shall reimburse the City for advancing the costs of the engineering and construction of the sewer line relocation in the amount of One Hundred Nine Thousand Two Hundred Eighty -Three and no/100 Dollars ($109,283.00). Said sum shall be paid to the City no later than March 24, 2008. Mermaid shall be responsible for reimbursing the City for any additional costs subject to reasonable written change orders approved by the City related to the sewer line relocation on said Property. The City shall provide prompt notice of any such change orders which shall be deemed automatically incorporated into this Agreement. D. Letter of Credit. In consideration of the City advancing the costs associated with relocating the sewer line, Mermaid agrees to secure a letter of credit in the amount of One Hundred Nine Thousand Two Hundred Eighty -Three and no/100 Dollars ($109,283.00) from a federally insured bank naming the City as beneficiary. The letter of credit shall be in form and substance reasonably acceptable to the City and shall be issued in accordance with the terms, conditions and instructions set forth in EXHIBIT "A," attached hereto and fully incorporated herein by this reference. 3. Entire Agreement. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, or agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 4. Modifications. This Agreement may onlybe modified, altered or amended, in whole or in part, by a written instrument setting forth such changes and signed by all parties hereto. 5. Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): SEWER LINE RELOCATION AGREEMENT City of Cape Canaveral / Mermaid Key, LLC Page 2 of 4 TO CITY: City Manager 105 Polk Avenue Cape Canaveral, FL 32920 WITH A COPY TO: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 TO MERMAID: Martin Greene, President Mermaid Key, LLC 6500 North Atlantic Ave. Cape Canaveral, FL 32920 6. Jurisdiction: Venue. This Agreement shall be construed and enforced pursuant to the laws of the State of Florida. Exclusive venue for any dispute arising regarding this Agreement or any alleged breach thereof shall be in a court of competent j urisdiction in Brevard County, Florida. If any dispute concerning this Agreement arises under Federal law, the venue will be Orlando, Florida. Any objections to jurisdiction and venue are expressly waived. 7. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 8. Assignment. This Agreement shall not be assigned or transferred by Mermaid without the express, written consent of the City Council of the City of Cape Canaveral. 9. Attornevs Fees. In the event it shall be necessary for either party to this Agreement to bring suit to enforce any provision hereof or for damages on account of any breach of this Agreement, the prevailing party shall, to the extent permitted by law, be entitled to recover from the other, in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and reasonable attorney's fees (including attorney's fees and costs of appeals) as fixed by a court of competent jurisdiction. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. SEWER LINE RELOCATION AGREEMENT City of Cape Canaveral / Mermaid Key, LLC Page 3 of 4 ATTEST: SUSAN STILLS, City Clerk CITY OF CAPE CANAVERAL, a Florida municipal corporation. ROCKY RANDELS, Mayor MERMAID KEY, LLC. a Florida limited liability company. WITNESSES: By: GREENE INTERNATIONAL DEVELOPMENT CORP., its managing member. MARTIN GREENE, President STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 2007, by MARTIN GREENE, as President of GREENE INTERNATIONAL DEVELOPMENT CORP., managing member of MERMAID KEY, LLC, a Florida limited liability company[ ] who is personally known to me, or [ ] who has produced as identification. (SEAL) NOTARY PUBLIC, State of Florida My commission expires: SEWER LINE RELOCATION AGREEMENT City of Cape Canaveral / Mermaid Key, LLC Page 4 of 4 EXHIBIT "A" TERMS AND CONDITIONS IRREVOCABLE LETTER OF CREDIT Mermaid Key, LLC ("Mermaid'') shall provide the City of Cape Canaveral ("City") with an Irrevocable Letter of Credit in the amount of One Hundred Nine Thousand Two Hundred Eighty -Three and No/100 ($109,283.00) to secure Mermaid's obligations to pay for the relocation of a sewer line on property owned by Mermaid and legally described in Attachment 1, inclusive of granting the City an acceptable perpetual utility line easement. Said relocation shall be under the terms and conditions set forth in the Sewer Line Relocation Agreement between Mermaid and City, dated December 18, 2007 ("Sewer Line Relocation Agreement"). Said Irrevocable Letter of Credit shall be according to "Instructions for Irrevocable Letter of Credit" attached. The Irrevocable Letter of Credit shall be in full force and effect until March 31, 2008. The Irrevocable Letter of Credit shall provide that the issuing federally insured Bank, in form and substance reasonably satisfactory to the City. The Irrevocable Letter of Credit shall be issued by a federally insured bank in a form and substance reasonably satisfactory to the City. The Irrevocable Letter of Credit shall be governed by the International Standby Practices set by the International Chamber of Commerce, and shall be transferable by the City (with multiple transfers permitted). If, at any time, Mermaid fails to perform any of its obligations under the Sewer Line Relocation Agreement, the City may, at its option, draw upon the Irrevocable Letter of Credit to cure Mermaid's default or to pay for damages caused by Mermaid's default. The City's exercise of its rights to draw under the Irrevocable Letter of Credit shall not limit the City's remedies for default under the terms and conditions of the Sewer Line Relocation Agreement. The City shall be unconditionally entitled to draw upon the Letter of Credit upon the City Manager's written statement to the Issuer that Mennaid is in default under the tenns and conditions stated herein and under the Site Plan approval conditions. Provided there is no lapse of coverage, Mermaid may substitute a Letter of Credit issued by a different federally insured bank for the original Letter of Credit. Upon the City's receipt of cash (collected funds) from Mermaid in the amount of $109,283.00, the City will return the original Letter of Credit to Mermaid Key. "Instructions for Irrevocable Letter of Credit" The beneficiary should be the City of Cape Canaveral, a Florida Municipality. The initial term of the Irrevocable Letter of Credit shall commence no later than December 19, 2007 and shall be fixed until March 31, 2008. The Irrevocable Letter of Credit should include the following provisions: Re: Relocation of Sewer Line Agreement between Mermaid Key, LLC ("Mermaid") and the City of Cape Canaveral, ("City"), dated December 18, 2007. This Irrevocable Letter of Credit shall be paid on sight, accompanied by an affidavit executed and sworn on behalf of the City's City Manager that Mermaid is in default of its obligations under the Sewer Line Relocation Agreement, dated December 18, 2007. 4. The Irrevocable Letter of Credit shall be in the amount of $109,283.00. 11 M+A� men t I ;~North parcel A parcel of land lying to Government Lot 4 of Section 15, Tolvitship 24 South, Mange 37 East, Brevard County, Florida; said subject parcel being more fully described as follows. Commence at the Southeast corner of said Section iS as mcnumented by an unstamped railroad spike as shows on the Florida Department of Natural Resources Certified Corner Regards Document No 0048810; thence North 89°27'20" West, along the South line of said Government Lot 4, a distance of 1271.45 fect to the SOuthcast corner of the plat of "Discovery Bay„ said plat being recorded in Plat Book 40, Page 23 of the Public Records of Brevard County, Florida; thence departing said South tine and along the Easterly line of said plat the following five (5) courses to wit: North 00"31'28" East, a distance of 83.94 feet to the Point of Beginning of the lands herein described; forth 00'31 �3" East a distance of 111M feet; North 37'20`33" West, a distance of 244.:24 feet; north 52°26141" East, a distance of 49.60 feet, thence North 37°14'38" West and along tate extension of said Milli lime, a distance of 57.1.3' feet to the Southerly tine of Thum Boulevard, a 60.00 toot wide ingress -egress and public utilities easement recorded in OFfeial Records .Boon 2584, Page 27% -and Official Records Boos: 2473, Page 0049 of said Public Records, also being on the arc of a 380.00 foot radius non -tangent curve concave to the Northwest which has a chord bearing of North 55°45'37" East; thence Northeasterly, along said Southerly easement ling, through a antral angle of t)E,°48102", an are distance of 40.68 feet to a point of tangency; thence North 521141"36" East, along said Southerly easement line per said Official Records Book. 25K Page 2796 and its Northeast" extension to the South line of said caseimen.4 per Officio! Records Boole 2473, Page 0049 and its South line, a total distance of 604.43 feet to the Westerly line of the Iands described in Official Records Book 0665, mage 0003 of said public Records; thence departing said Southerly easement line, South 37018124" East, along said Westerly line, a distance of 197.49 feet to the North line of those lands as described in Official Records Book 0623, Page 04$4 of said public Records; thence North 89°27'20" !Vest, along said North fine and parallel with said South tine of Government Lot 4, a distance of 10991 feet to the Westerly line of said lands per Official Records Boole 0623, Page 0431; thence South 3701814" East along said Westerly line and its Southeasterly projection, parallel with the Westerly rigbt-of-V-ay line of Stale Road leo 401, a 140.00 foot wide right -of --tray per State Road Department Map Section 74080.3202., a distance of .177.99 feet to the North tine of a 50.40 foot wide drainage easement as I regarded in Official laggards Book 937, Page 0850 of said Public Records; thence South fib°49'30" West, along said North easement Fine and the North line of a MOO !not wide drainage easement per Official Records Book 0979, Page N1z39 of said Public Reroi,4 a distance of 539.84 feet; thence departing said north lines, North 89°27'24" West Parallel with and 83 9Ft feat Yartherty, toy r{aht angle measure of said South line of Government Lot 4, a distance of 193.36 feet to the Point of Beginning. { Subicet to any restrlctions, covenants, easements andior rights -of -tray of record. South parcel A parcel of land lying in Government lot 4 of Section 15, ,'ownship 24 South, Range 3 i East, Brevard County, Morida; said subject pard being more fulls described as folior.5t ` Commence at the Southeast corner of said Section 15 as mouumented by nu unstamped railroad spike i as shown an Department of Nlatural Resources Certified Corner Report Document No. 0048314; thence ;earth 0027'20" West, along the South line of said Government Lot 4, a distance of 64.49 feet to the N Westerly line of the 700.00 font wide right-of-tr ry of State Road Ito. 401 as established per State Road Department Map i\o. Section 70080.220'b; thence continue North 89°27'20" West along said South line, a distance of 784.61 feet to the Point of Beginning of the lands herein described; thence continue :Porth 84°27'20" li'csi, slang said South 1"sac, a distance of 748:41 feet; thence departing said South. line, North 62°l1 `33" Ems a distance of 566.14 feet thence :forth 52*40'43" East, ;i .distance of 33.42 feet to the West line of those lands as described in Official Records Boot; 4092, Fuge 4040 of #l:e I Public Records of Brevard County, }3orida; the South 37°10'2«" East, along said West tine, a 4092, Page 0040, distance of 253 00 feet to the South line of said lands per official Records Baal: thence Nortb 52141146" East, along raid South line, a distance of 2rs3.19 iter #v said Westerly ,ripltt-of ss;,_ #:fie of State Ftna�] ltio• 441, being an the °..rc of,,, 5679.65 foot radices tion tanacnt t urN,e cuncare. t0 the Sautbst'tst ivlsicii etas a c1lord bear,ng of South 36°x2'13" East, thence Snutticaztcriy, along said Westerly richt-o[-stay line and 010119 an arc of said sttrte, tltroitgh a eerttrai :fie of 00°30'16" an arc distance of 50.00 feet; tbcoce departiag said Westerly ri_6t-0f-1,r2p Iint, South 52141146" West, parallel with and SOHO feet Southerly, by right angle measure, of said South line of tate lands per Official Records Book 4092, Page 0040, a distance of 234.49 feet to the intersection of the Southerly projection of said Nest Niue of those lands pe ccti fscFaa distantaf 6? R1 feetecords Zook 4M, eto4 ii►e thence Sotith 37°10'22" Bast, i long said Southerly } Point -of -Beginning. Subject to any restrictioas, covettanis, easements andlor rights-of-way of record. A parcel of land lying in Government tot 4 of Section 15, Township 24 South, Range 37 East, Brevard county, Florida; said subject parcel being more fully described as follows: Commence at the Southeast corner of said Section 15 as monumented by an unstamped railroad spike as shown on Florida Department of Natural Resources Certified Corner Record Document No. 0048810; thence North 89127120" West, along ! the South line of said Government Lot 4, a distance of 64.49 feet to the West line of the 100.00 foot wide right-of-way of State Road No. 401 as established per State Road Department Map No. Section 70080-02202 and to the Point -of -Beginning Of the lands herein described; thence couthwe North '89°27120" West, along said South Zine, a distance of 284.61 feet to an intersection with said South line and the Southeasterly projection of the Westerly line of those lands as described in Ofiicial Records Book 4092, Page 0040 of the Public Records of Drevard County, Florida; thence departing said South line, North 37110'22" West along said Southeasterly projection, a distance of 62.81 feet to a line parallel with and $0.00 feet Southeasterly, by right angle measure, of the Southerly line of said .lands per Official Records Book 4092, Page 0040; thence North 52°4X'46" hast, parallel with and X1.00 feet Southeasterly, by right j angle measure, of said Southerly line, a distance of 234.49 feet to said Westerly right-of-way line of State Road No. 401, also being on the are of a non -tangent 5679.65 foot radius curve concave to the West which has a chord bearing of South 34055110" East; thence Southeasterly, along said Westerly right of clay line and an arc of said curve, through a central angle of 02023151" an arc distance of 237.166 feet to the Point -of -Beginning. Subject to any restrictions, covenants, easements and/or rights of way of record. pge t of l Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item 8 No. attached easement document. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: DEDICATION OF A 10 -FOOT WIDE SANITARY SEWER EASEMENT WITHIN THE MERMAID KEY REVISED NORTH PARCEL DEPT/DIVISION: COMMUNITY DEVELOPMENT/P&Z Requested Action: City Council consider the dedication of a 10 -foot wide sanitary sewer easement within the Mermaid Key, revised north parcel, as recommended by the Planning and Zoning Board, at the request of Mermaid Key, LLC. Summary Explanation & Background: The Planning and Zoning Board recommended this easement dedication at their 09-12-07 meeting. See attached easement document. I recommend approval. Exhibits Attached: Easement Agreement City Ma Office Department COMMUNITY DEVELOPMENT/P&Z cape-nt\xim\mydocuments\admin\council\meeting\2007\12-18-07\easement.doc Prepared by and return to: Anthony A. Garganese, Esq. Cape Canaveral City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. P.O. Box 2873 Orlando, Florida 32802-2873 Parcel ID. #(s): UTILITY & INGRESS/EGRESS EASEMENT AGREEMENT THIS UTILITY EASEMENT AGREEMENT ("Agreement") is made the last date signed below, by MERMAID KEY, LLC, a Florida limited liability company, whose mailing address is 6500 North Atlantic Avenue, Cape Canaveral, Florida 32920 (hereinafter "Grantor"), in favor of the CITY OF CAPE CANAVERAL, a Florida municipal corporation, and having a mailing address of 105 Polk Avenue, Cape Canaveral, Florida 32920 (hereinafter "Grantee"). WITNESSETH: WHEREAS, Grantor desires to develop certain real property located within the City and legally described in EXHIBIT "A," attached hereto ("the Property"); and WHEREAS, in furtherance of developing the Property, Grantor desires to relocate a sewer line currently located within the footprint of a proposed structure on the Property; and WHEREAS, the City Council approved Grantor's site plan application on August 9, 2007 subject to several conditions; and WHEREAS, one condition of the City's site plan approval requires Grantor to relocate the sewer line and dedicate a public utility easement to the City for same; and WHEREAS, Grantor desires to convey, a perpetual easement for the placing, constructing, repairing, and maintaining of public utility lines, including the aforementioned relocated sewer line, as well as a non-exclusive perpetual easement for ingress and egress in order to install, construct, maintain, access and use the public utility lines as provided herein; and WHEREAS, providing of public utilities constitute a public purpose and also has a benefit to Grantor; and NOW, THEREFORE, in consideration of the public purpose stated herein, Ten Dollars ($10.00), and the mutual covenants, terms, and conditions and restrictions contained herein, together Utility & Ingress/Egress Easement City of Cape Canaveral/Mermaid Key, LLC Page 1 of 5 with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated fully herein by this reference. 2. Subiect Property. Thereat property subject to this Agreement is legally described in EXHIBIT "A" attached hereto and fully incorporated herein by this reference ("the Property"). 3. Grant of Easement. Grantor hereby voluntarily grants and conveys to Grantee, subject to any previous and duly recorded easements or grants of record, a perpetual non-exclusive public utility easement and ingress/egress easement under, through, and across the real property legally described and depicted in EXHIBIT "B," attached hereto and fully incorporated herein by this reference ("Easement"). Said Easement shall be of the nature and character and to the extent hereinafter set forth. 4. Rights and Oblh!ations of Grantee. To accomplish the purpose stated above, the following rights are conveyed to Grantee by this Agreement: A. To perpetually use the Easement for the right to fit, construct, maintain and repair road surfaces, ditches, underground or above ground pipes, lines or mains, conduits, lines and the like for public utilities; including the right to excavate, fill, and/or trench thereon, and further the right to remove obstructions, trees, bushes, and undergrowth, all as necessary for the intended use of the Easement, as well may be reasonably and customarily required in connection therewith. B. To inspect, alter, improve, construct, repair, rebuild, remove, connect to, disconnect from, and maintain the Easement, together with the right to excavate and refill ditches and trenches for the placement of public utilities and to fill the Easement to the extent necessary to provide vehicular access; C. All other rights and privileges reasonably and customarily necessary for Grantee's safe and efficient placement, construction, operation, maintenance, and/or repair of public utilities, including the right to access the Easement such that it shall remain open, with no gate or other closure in or on any part of the Easement; D. The right to take appropriate action to protect the rights granted hereunder including, but not limited to, the right to evict trespassers, provide security for the utility lines, and file actions in a court of competent jurisdiction. In addition, Grantee agrees to and shall promptly restore, or cause to be restored; the surface and subsurface of the real property described herein to the condition said property was in prior to the performance of any reconstruction, replacement, removal, operation, inspection, maintenance, repair improvement, or any other use or work contemplated by this Agreement. Any such restoration shall Utility & Ingress/Egress Easement City of Cape Canaveral/Mermaid Key, LLC Page 2 of 5 be in a workman like manner. 5. Grantor's Use of Easement. Grantor hereby reserves for itself the right to use the area burdened by the Easement; provided, however, that Grantor shall not (i) violate any provision of this Agreement, or (ii) unreasonably interfere with any of Grantee's easements, rights or interest under this Agreement, or (iii) construct any improvements on the Easement nor install any landscaping which Grantee believes may adversely impact the integrity of the utility lines. 6. Easement Runs with the Land. This Easement shall remain a charge against the Property. Therefore, this Easement shall run with the land and be automatically assigned by any deed or other conveyance conveying the Property, or a portion thereof, relating to this Easement, even though the conveyance makes no reference to this Easement as such. 7. Recordation. This instrument shall be recorded in the Official Records of Brevard County, Florida and may be re-recorded at any time to preserve the rights of either party to this Agreement. 8. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 9. Indemnification. To the extent provided by law and subject to the limitations set forth in paragraph 8 of this Agreement, Grantee agrees to indemnify, defend and hold harmless Grantor from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability, arising from, out of, or caused by Grantee's own acts, errors, and omissions in the placement, operation, maintenance, construction, repair of any utilities in the Easement area which are owned and controlled by Grantee. The indemnification provided above shall obligate the Grantee to defend at its own expense or to provide for such defense, at the option of the Grantee, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the Grantor which may result under this Agreement. 10. Injunctive Relief. The parties agree that, in the event of default, there may not be an adequate remedy at law, and therefore, it is agreed the parties shall be entitled to seek injunctive relief, including a mandatory injunction. Utility & Ingress/Egress Easement City of Cape Canaveral/Mermaid Key, LLC Page 3 of 5 11. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for all disputes shall be properly placed in Brevard County, Florida. The parties agree that the Agreement was consummated in Brevard County, and the site of the Easement is in Brevard County, Florida. 12. Notice. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") required or permitted to be given hereunder or which are given with respect to this Agreement shall be effective only if in writing and delivered by personal service, or delivered to an overnight courier service with guaranteed next day delivery or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: TO GRANTOR: Greene International Development Corp. Attn: Martin Greene, President 6500 North Atlantic Ave. Cape Canaveral, FL 32920 TO GRANTEE: Attn: City Manager City of Cape Canaveral, Florida 105 Polk Ave. Cape Canaveral, FL 32920 or to such other address as such party shall have specified most recently by like Notice. The attorneys for the parties hereto are also hereby respectively authorized to give any Notice permitted under this Agreement. Any Notice given as provided herein shall be deemed received as follows: if delivered by personal service, on the date so delivered; if delivered to an overnight courier service, on the business day immediately following delivery to such service; and if mailed, on the third business day after mailing. 13. Modification. This Agreement shall only be modified by a written instrument executed by the parties hereto or any successor, assigns, heirs, or representatives thereto. 14. Entire Agreement. This Agreement constitutes the full and entire agreement between the parties hereto and supersedes any oral or written prior communications between the parties related to the subject matter contained in this Agreement. 15. Assignment. Grantee may assign the Easement rights granted hereunder, in whole or in part, to any other public utility for public utility purposes, provided said assignment does not overburden the Easement. Any assignment granted pursuant to this paragraph must be in writing and recorded with the same formalities as this Agreement. Utility & Ingress/Egress Easement City of Cape Canaveral/Mermaid Key, LLC Page 4 of 5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ATTEST: IIN CITY OF CAPE CANAVERAL, a Florida municipal corporation. By: SUSAN STILLS, City Clerk ROCKY RANDELS, Mayor MERMAID KEY, LLC, a Florida limited liability company. WITNESSES: By: GREENE INTERNATIONAL DEVELOPMENT CORP., its managing member. MARTIN GREENE, President STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 2007, by MARTIN GREENE, as President of GREENE INTERNATIONAL DEVELOPMENT CORP., managing member of MERMAID KEY, LLC, a Florida limited liability company[ ] who is personally known to me, or [ ] who has produced as identification. (SEAL) NOTARY PUBLIC, State of Florida My commission expires: Utility & Ingress/Egress Easement City of Cape Canaveral/Mermaid Key, LLC Page 5 of 5 North parcel A parcel of land Tying in Government Lot 4 of Section 15, Township 24 South, Range 37 East, Brevard County, I� tori a; said subject parcel being more fully described as follows. Commence at the Southeast corner ofsaid Section i5 as monumeuted by an unstamped railroad spike as shown on the Florida Department of Natural Resources Certified Corner Rerirds Document No 00493ID; thence North $9°2T20" West, along the Sonat Use of said Government Lot 4, a distance of 127195 feet to the Southeast corner of the plat of "I7lsco%'ery Bay" said plat being recorded in Plat Book 40, Page 23 of the Public Records of Brevard County, Florida; thence departing said South line and alone the Easterly line of said plat the 1`0110 -Mug five (5) coarses to wit: North 00'3128" East, a distance or 83.94 feet to the Point of Beginning of the lands herein described; North 00'31 28" East a di stanet of 11152 feet; North 37°20`33" West, a distance of 204 24 ferE; North 5L°26'41" Test, a distance of 49.60 feet; thence forth 37°14'38" !'fest and along the extension of said West rime, a distance of 57...3 feet to tate Southerly tine of 'num Boulevard, z 60:00 foot wide ingress -egress and public utilities easement recorded in Orriciai Records Book 2584, Page 2796 -and Official Records Book 2473, Page 0049 of said Public Records, also being on the are: of a 380:00 foot radius non•taagent curve concave to the Northwest which has a chord bearing of Piorth 55045'37" East; thence Northeasterly, along said Southerly easement line, through a central an tic of 06"0$'02", an are distance of 40.68 feet to a point of tangency; thence ;Porth 52041'36" East, along said Southerly easement line per said Official Records 806!: 2584, Page 2796 and its a iortheasteriy extension to the South line of said easement, per Official Records Book 24'73, Page 0049 and its South line, a total distance of 604.43 feet to the Westerly line of the Sands described in Official Records Book 0663, Page 000-4 of said Public Records; thpce departing said Southerly easement ltne, South 37018124" East, along said Westerly line, a distance of 187 49 feet to the north Tine of those lands as dmribed in official Records Book 0623, Page 0434 of said Mile Records; thence forth 89°27'20" West, along said North fine and parallel with said South line of Government Lot 4, a distance of 109.91 feet to the Westerly line of said Lints per Off►cial Records Book 0623, Page 0484; thence South 37°1874" East along said Westerly line and its Southeasterly projection, parallel with the Westerly right-af umy line of State Road No 401, a 100.00 toot wide right -o[ -way per State Road Department Map Section 70030 -?.207,, a distance of X377.99 feet to the North line of a 50.40 foot {ride drxinagt easement as recorded in Official Records Book 937, Page 0850 of said Public Records; thence South 661,49'30" West, along said North easement rine and the North line of a 50.00 foot wide drainage easement per Qlfiela! Records Book 0379, Page 0239 of said Public Records, a distance of 539.84 feet; thence departing said North lines, North 89°ZT20" West parallel with and tl3.94 feet Northerty, by right angle measure of said South line of Government Lot 4, a distance of 193.36 feet to the 'Paint of seginning. i Subject to any restrletious, cotenants, casements andior rights-nf-way of record. South parcel A parcel of land tyros in Government lot 4 of Section I5, Township 24 South, Range 3 7 East, Brevard Con oty, Florida; said subject parcel being more fully described ss follos:s: CantmeOct at the Southeast corner of said Section 15 as monumented by an ttastamped railroad spike j as shown an Department of N tural Resources Certified Corner Report Document No. 4048310; thence !Porth 89°27'20" West, afang the South pine of said Government Lot 4, a distance of 64.49 feet to the Westerly line of the 1 DODO foot bride rtght-oi w;iy of State Road No, 401 as established per State Road Department Map No. Section 70080.2203; thence continue North 8902720" West along said South line, a disiaace of :84.61 feet to the Point of Beginning of the lands htrciu described; thence continue North 89027120" 1ve st, along said Soufh Eac, a distance of 748:41 feet; thence depsrdAg, said South. line, north 62°11'33" Fast a distance of -40U4 feet; thence North 52°40'43" ;East, i .distance of { 33.42 feet to the West lint of those lands as described in Orricial Records Book 4092, Page 0040 of the Public Records of Brevard County, Florida; thence South 37°10'22" least atong said West fine, a distan;e of 253.00 feet to.the South tine of sold lands per OrArcial Records ',Book 4092, Page 0040; along said South line, n distance of 253.1.9 feet to said Westerly licence cYortiz ,2°41't6" East, rintii-af tis:,,lige o£ Stats F;na] No. 401, lacing on tits aft of .f SG7a-tS5 foot C3dILJ I:OfI tzna4:nt Nur:;e concave to the Souttssrest Which has a cliord beari!!y, of South 3611,12113" 1rHst, thence Soutiiia•cteriv, along said NVesterly right -of vay line and along an arc of said curyc, through a ect+trA x4e of Ot►°30'16" au arc distance of 50.00 feet; tttcnce tleparting said Westerly right of -way line, South 52'91'46"rest, patallei with and SD.00 feet Southerly, by right angle tneasure, of said South line of the 1 -Inds per Official Records Boot; 4092, Page 0040, :'t distance of 234.49 feet to the iattmeetion of lite Southerly projection of Said iv Nit line of those lands per Official Records Book 4093, Page 0040; thence South 37°18'22" bast R1412p said Southerly Projection, a distance of 62.437 feet to tile Point-o%Beginniap. Subject to any restrictivus; covenants, easements andlor rights-of-�F». of record. A parcel of land }yang in Go,, ern:tient lot 4 of Section 15,Township 24 South, Range 37 East, Brevard County, Florida; said subject parcel being more fully described as follows: Commence at the Southeast corner of said Section 15 as monumented by an unstamped railroad spike as shown on Florida Department of Natural Resources Certified Corner Record Document No. 0048810; thence North 89027'20" West, along the South line of said Government Lot 4, a distance of 64.49 feet to the West line of the 100.00 .foot ►vide right-of-way of State Road No. 401 as established per State Road Department Map No. Section 70080.02202 and to the Point -of -Beginning of the lauds herein described; thence continue North 89°27'20" West, along said South hue, a distance of 284.61 feet to an intersection with said South fine and the Southeasterly projection of the Westerly line of those lands as described in Official Records Book 4092, Page 0040 of the Public Records of Srevard County, Florida; thence departing said South fine, North 37°10'22" 'Nest along said Southeasterly projection, a distance of 62.81 feet to a line parallel with and $0.00 feet Southeasterly, by right angle treasure, of the Southerly .line of said lands ger Officiat Records Book 4092, Page 0040; thence North 52"4:1'46t/ East, parallel with and 50.00 feet Southeasterly, by right angle measure, of said Southerly line, a distance of 234.19 feet to said Westerly right-of-way line of State Road No. 401, also being on the are of a non -tangent 567-9.65 foot radius curve concave to the West which has a chord bearing of South 340551101/ East; thence Southeasterly, along said Westerly right -of way tine and an are of said curve, through a central angle of 02023151" an arc distance of 237.66 feet to the Paint -of -Beginning. , Subject to any restrictions, covenants, easements and/or rights of way of record. pse t ar i NOTE: SEE SHEET 2 OF 2 FOR NOTES, LEGAL DESCRIPTION AND CERTIFICATION. LEGEND: O.R.B. P. B. PG. rn d 0 0 c� n_ n a N m F- O w v'S w In cD r` N In W Q 00 f m = N <m m m m >a: Z) Oa bi 04 M In �MN N W OEt CJ O maw I oN roN C N W L CN c� gym? a 0 Li =Ee> �w� ao o� 0.1 EC Uj3 0 I - a Y TRACT "A" OFFICIAL RECORDS BOOK PLAT BOOK PAGE F - Z w m LJ In a w 0 Q w J O m Of O w z 0 O rn TAX PARCEL 761 TAX PARCEL 759 IH/. I"AMULL /JJ.1 NORTH PARCEL \1\�= LOCATION OF NEW EASEMENT = EXISTING EASEMENT "D" OF O.R.B. 1019, PG. 0086 0 00 � o Q (7 2a O ON j oCZ) o h O O �CO a o�woi �o a0)lotZC� zf?o , m On` p O C) a � 2WQ OO / oW I O 2O W �Wa Imo^ / 20 arm � O /mow _a 4 O C; W U iltQ 01 ti J 5 9 10 A v 10.0 FT. WIDE PORTION 3 VA OF EASEMENT "D" 11 O.R.B. 1019, PG. 0086 W. PLAT LINE \ xz�/' Sec.: 15 Twp.:24 South Rng.:37 East D... by : N/A bm. by . RKB Tby : MPC / PLAT OF F 6i DISCOVERY BAY 9\ \\ . 40 PG. 23 AD A6 O� 0 POINT—OF—COMMENCEMENT S.E. CORNER OF THE PLAT OF "DISCOVERY BAY" PER P.B. 40, PG. 23 LINE TABLE REVOON0 LINE NO. BEARING DISTANCE L1 N37'20'33"W 187.28 L2 N33'35'24"E 119.32 L3 N37'21'10"W 33.18 L4 N 52.41'36"E 10.00 L5 S37'21'10"E 40.29 L6 S33'35'24"W 119.32 L7 S37'20'33"E 260.27 L8 N89'08'12"E 140.34— L9 S37'21'10"E 53.00 L10 S66'49'30"W 10.31 1-11 N37'21'10"W 45.43 L12 S89'08'l2"W 140.34 L13 N37'20'33"W 85.15 0 00 � o Q (7 2a O ON j oCZ) o h O O �CO a o�woi �o a0)lotZC� zf?o , m On` p O C) a � 2WQ OO / oW I O 2O W �Wa Imo^ / 20 arm � O /mow _a 4 O C; W U iltQ 01 ti J 5 9 10 A v 10.0 FT. WIDE PORTION 3 VA OF EASEMENT "D" 11 O.R.B. 1019, PG. 0086 W. PLAT LINE \ xz�/' Sec.: 15 Twp.:24 South Rng.:37 East D... by : N/A bm. by . RKB Tby : MPC / PLAT OF F 6i DISCOVERY BAY 9\ \\ . 40 PG. 23 AD A6 O� 0 POINT—OF—COMMENCEMENT S.E. CORNER OF THE PLAT OF "DISCOVERY BAY" PER P.B. 40, PG. 23 A SKETCH AND DESCRIPTION PREPARED FOR: GREENE INTERNATIONAL REAL ESTATE BREVARD COUNTY LOCATION OF NEW ESM'T. - RKB/A REVOON0 Date 04/17/ OJT Scale : 1"=100' FLORIDA \�i Otc �O 0p\ \ A, F hJ OA, P J� G A SKETCH AND DESCRIPTION PREPARED FOR: GREENE INTERNATIONAL REAL ESTATE BREVARD COUNTY LOCATION OF NEW ESM'T. - RKB/A REVOON0 Date 04/17/ Scale : 1"=100' FLORIDA P. N. :339505 Bussen - Ma. er Engineering GrouPA Sheet No 7#- f -� 1 100 PARNELL STREET* MERRITT ISLAND, FLORIDA 32953 f 2 PH. NO.: (321) 4530010 FAX NO.: (321) 454-6885 SURVEY DEPT. �XH//S 17 ,.4 // Description: 10.00 ft. Wide Sanitary Sewer Easement at the "Revised North Parcel" A strip of land 10.00 feet wide, by right angle measure, lying in Government Lot 4 of Section 15, Township 24 South, Range 37 East, Brevard County, Florida; said subject parcel being more fully described as follows: Commence at the southeast corner of the plat of "Discovery Bay" as recorded in Plat Book 40, Page 23 of the Public Records of Brevard County, Florida; thence along the easterly line of said plat the following two (2) courses: N.00'31'28"E., a distance of 195.46 feet to the Point -of -Beginning of the lands herein described; N.37'20'33"W., a distance of 187.28 feet; thence departing said easterly line, N. 3335'24"E., a distance of 119.32 feet; thence N.37'21'10"W., a distance of 33.18 feet to the south line of the 60.00 foot wide ingress -egress and public utility easements know as Thurm Boulevard recorded in O.R. Book 2280, Page 2332, O.R. Book 2473, Page 0049 and O.R. Book 2584, Page 2796, all as recorded in said Public Records; thence N.52'41'36"E., along said south line, a distance of 10.00 feet; thence departing said south line, S. 37'21'10"E., a distance of 40.29 feet; thence S.33'35'24"W., a distance of 119.32 feet; thence S.37'20'33"E., parallel with and 10.00 feet easterly, by right angle measure, of said easterly line of the plat of "Discovery Bay", a distance of 260.27 feet; thence N.89'08'12"E., a distance of 140.34 feet; thence 5.37'21'10"E., a distance of 53.00 feet to the northerly lines of the 50.00 foot wide drainage easements recorded in O.R. 0937, Page 0850 and O.R. Book 0979, Page 0289 of said Public Records; thence 5.66'49'30"W., along said northerly lines, a distance of 10.31 feet; thence deporting said northerly lines, N.37'21'10"W., a distance of 45.43 feet; thence 5.89'08'12"W., a distance of 140.34 feet; thence N.37'20'33"W., along the southeasterly projection of that portion of said easterly plat line which adjoins the first course of the lands described herein, a distance of 85.15 feet to the Point -of -Beginning. Containing 0.14 acres (6,120 square feet), more or less, and being subject to any restrictions, covenants, easements and/or rights-of-way of record. Notes: 1. Bearings shown hereon are based on the south easement line of Thurm Boulevard being "N.52'41'36"E"., an assumed bearing. 2. This is not a boundary survey. 3. See sheet 1 of 2 for the sketch of description. 4. This sketch and description was prepared for the exclusive use of the parties listed below; copies are valid only when bearing the Surveyor's original signature and embossed seal. 5. Certified for the exclusive use of: MERMAID KEY, LLC; GREENE INTERNATIONAL REAL ESTATE, INC.; THE CITY OF CAPE CANAVERAL. CERTIFICATE I hereby certify that the sketch 'and description shown hereon is true and correct to the best of my knowledge and belief, as performed under my direction and supervision, and that it meets or exceeds the minimum technical standards set forth by Florida Board of Professional Land Surveyors in apter 61G1 6 Flor' Administrative Code, ;pr uant to S o 2.0 7, Florida statutes. rcP.l CazessLSate FLORIDA SURVEYORsRTIF4762 BUSSEN-MAYER ENGI ERING CERTIFICATE NO.: 3535 SURVEY DEPT. A SKETCH AND DESCRIPTION PREPARED FOR: Date 04/17/07 4 South GREENE INTERNATIONAL REAL ESTATEScale N/A 7 East BREVARD COUNTY FLORIDA P. N. :339505 $Sec y :N/A t3ussen- tY1ay¢r Engineering Group Sheet No. 2y of100 2y : RKB PARNELL STREET • MERRITT ISLAND, FLORIDA 32953 PH. NO.: (321) 453-0010 FAX NO.: (321) 454-6685 :MPC SURVEY DEPT. PLANNING & ZONING BOARD Planning & Zoning Board Meeting Minutes September 12, 2007 Page 2 Page 2 of 5 Mr. Johanson, Applicant, advised that there would be a party wall agreement, but he did not believe it was required by code. Kate Latorre advised that a party wall agreement was a part of the protective covenants; they were required because they would need to be recorded and run with the property. The Board reviewed city code Sections 110-377, 98-41, and 98-59. Following discussion of the code sections, Mr. Johanson commented that he was not convinced that the documents were required. He stated that he was not going to do something that was not required by the code; however, he was going to record a party wall agreement similar to what was in the Board's packet. Vice Chairperson, Lamar Russell, advised that the code should be specific and spell -out what the owner(s) responsibilities were for the common elements. Todd Peetz announced that the Board would be discussing the replat process at the next meeting. Ron Friedman commented that the P & Z Board needs to use common sense to protect the life, safety, and welfare of the citizens. John Johanson rebutted that there were no life, safety, or welfare issues. Sandra Butler, citizen, commented that people who buy townhomes and not condominiums do so because they don't want to live in a place where there are specific rules and regulations that they are made to follow. Motion by Harry Pearson, seconded by Lamar Russell to recommend approval of the Casa Esperanza Final Replat to City Council, with the condition that a party wall agreement be recorded. Vote on the motion carried unanimously. _ 3. Recommendation to City Council Re: Dedication of a 10.00 ft. Wide Sanitary Sewer Easement at the Mermaid Key Revised North Parcel. Todd Peetz, City Planner, clarified that the requested action for this agenda item was to recommend approval of a new proposed dedication for the easement at the Mermaid Key project. The Board members reviewed the proposed dedication. Brief discussion followed. Motion by Chairperson McNeely, seconded by Harry Pearson to recommend approval. Vote on the motion carried unanimously. http://www.myflorida.com/cape/Minutes/2007/PandZ_09-12-07.htm 12/12/2007 Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item 9 No. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: PROPOSAL TO PROVIDE ENGINEERING SERVICES FOR THE RELOCATION OF THE 12 -INCH FORCE MAIN DUE TO THE MERMAID KEY DEVELOPMENT DEPT/DIVISION: PUBLIC WORKS/WWTP Requested Action: City Council review and consider the proposal by Brown & Caldwell to provide engineering services for the relocation of the 12 -inch sewer force main due to the Mermaid Key Development in the amount of $9,497. Summary Explanation & Background: See attached scope of services. Mermaid Key, as a condition of site plan approval, is responsible for this expenditure. I recommend approval. Exhibits Attached: Brown & Caldwell proposal City Mana t Office Department PUBLIC WORKS/WWTP ca im\m oc t admin\co eeting\2007\12-18-07\b&c.doc Suite 300, 850 Trafalgar Court Maitland, Honda 32751 Tel: (407) 661-9500 Inas: (407) 661-9599 \�ww.bro\enandcaldwcl I. com November 27, 2007 Mr. Walter Bandish Public `Forks Director 601 Thurm Boulevard P.O. Bos 326 Cape Canaveral, FL 32920 Subject: Cape Canaveral Water Reclamation Facility Proposal for Engineering Services for the Realigned Force Main at the Mermaid Key Development Dear Mr. Bandish: As requested, attached please find the proposal for providing engineering services associated with the realignment of the 12 -inch force main at the Mermaid Key Development. This proposal includes construction phase services for updating the Army Corp of Engineers permit application, meetings and site visits, reviewing any additional shop drawing submittals and updating the As -built Drawings. The detailed Scope of Services is presented in Exhibit A and the Engineering Fee is presented in Exhibit B. Thank you for the opportunity to help you and the City of Cape Canaveral. If you have any questions, please do not hesitate to call me at 407-661-9519 or Deborah Cole at 407- 661-9533. Sincerely, BROWN AND CALDWELL Steven J. Davies, CGC Project Manager cc: Blake C. Guillory, P.E., Brown and Caldwell Stu Oppenheim, P.E., Brown and Caldwell Deborah Cole, P.E., Brown and Caldwell PA6,nA.ap, G-,-,02007 Propoas'&S,r w:,IrarALunrBld2\prpreal letter stun, 062507Ad CC o n s u[ r a n r CITY OF CAPE CANAVERAL EXHIBIT A PROPOSAL TO PROVIDE ENGINEERING SERVICES FOR THE RELOCATION OF THE 12 -INCH FORCE MAIN DUE TO THE MERMAID KEY DEVELOPMENT The following sections describe the background, approach, scope of services, schedule and fee to be provided by Brown and Caldwell (BC). BC will provide construction engineering services related to relocation of the previously designed 12 -inch force main as it runs through the planned Mermaid Key development. BACKGROUND An existing force main crosses an undeveloped parcel along Thurm Boulevard. The existing force main runs through an existing 10 foot easement on this parcel. The City of Cape Canaveral (City) has a contract to install a parallel 12 -inch force main from Lift Station #1 to the existing 14 -inch force main on Thurm Boulevard. The new force main is presently designed to share this existing easement. This parcel is planned for development in the near future. This development requires that the force main be relocated so it won't be under a planned structure. A new easement has been recorded along the relocated route for the new force main. PROJECT APPROACH BC will perform the following construction services and permitting tasks to assist the City in the relocation of the 12 -inch force main: 1. Project Management 2. Update the ACOE Permit 3. Planning Meeting 4. Review Shop Drawings 5. Site Visits 6. Update As -Built Drawings. A-1 CITY OF CAPE CANAVERAL SCOPE OF SERVICES The following work activities will be performed for this project: Task 1 — Project Management The Project Manager (PM) will monitor the schedule, budget and personnel performing the Work under this proposal. Administrative support for filing, copying and billing is included under this task. There is a total of 10 hours included to perform Task 1. Task 2 — Update the ACOE Permit An Army Corp of Engineers (ACOE) permit has been submitted showing the original route for the new 12 -inch force main. The following Tasks will be necessary to determine the actions needed to modify the permit without lengthening the review time at the ACOS. This Task does not include any responses to Requests for Additional Information (RAI). There is a total of 26 hours included to perform Task 2. Task 2a — Discussions regarding development schedule and scope are necessary so BC can respond to questions that may arise from the ACOE. Task 2b — Any wetlands mitigation efforts needs to be determined so we can respond to questions that may be asked during the permit modification process. Task 2c — We will need to contact ACOE (by phone) to inform them of the changes being made to the location of the force main. This contact will inform ACOE of the modifications needed and get direction in exactly what method will minimize the possibility of the permit being delayed due to this modification. Task 2d — After contacting the ACOE, BC will modify the permit application and the accompanying graphics for submittal. Task 3 — Planning Meeting The PM and the Project Engineer (PE) will meet with the City and the Contractor to lay out a plan for the construction of the force main. Advance planning will minimize the possibility of field problems during construction. There is a total of 10 hours included to perform Task 3. Task 4 — Review Shop Drawings BC will review shop drawings that will include a new route and restraint locations. BC will also review the dewatering, excavation and sheeting plan developed by the Contractor. There is a total of 8 hours included to perform Task 4. A-2 CITY OF CAPE CANAVERAL. Task 5 — Site Visits There will be up to three site visits during construction of the relocated force main. Up to two of these visits will be related to when the dewatering, excavation and sheeting is constructed. There is a total of 20 hours included to perform Task 5. Task 6 — Update As -built Drawings BC will update the as -built drawings. There will be two plan and profile sheets where the relocated force main will need modification. There is a total of 8 hours included to perform Task 6. PROJECT SCHEDULE AND FEES BC's schedule will follow the Contractors schedule during construction. The fee for these six tasks is a lump sum amount of $9,497.00. A breakdown of the lump sum fee is shown on Exhibit B. A-3 (D 2 2 2 g / \ t e o m _ to UE). m e a / 0 - \ _ \ 00@ / \ \ e 0 _ o \ /% # _ wQ § \ CD \ Cl) o a 0 \ c - m f ƒ_ E w# qw 2 E # # L� 65u- m w q¥ LO \ 2 > 0 w ) @ / \ _ � r o c 04 LL w I / W - § k t c cm \ x z N 2 7( k c## o g NLU& < w _ k CL 0 w Uj W- m 0 g ) IL » 0 I IL 2 E \ # $ _ 7 \ \ q $ 04 a) a) ) 0 a % cm / 2 @ a)/ \ § CD d a < t ° / \ 6 U) / ° / / o I = E $ J \ CO / / $ in -1.1d / / / � \ Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Consideration Item 10 No. Mermaid Key, as a condition of site plan approval, is responsible for this expenditure. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: CONSIDERATION: CHANGE ORDER PROPOSAL TO RELOCATE THE 12 -INCH SEWER FORCE MAIN DUE TO THE MERMAID KEY DEVELOPMENT DEPT/DIVISION: PUBLIC WORKS/WWTP Requested Action: City Council review and consider the change order proposal from Expertech to relocate the 12 -inch sewer force main due to the Mermaid Key Development in the amount of $99,786. Summary Explanation & Background: See attached change order proposal. Brown & Caldwell has reviewed and recommended approval of the proposed change order. Mermaid Key, as a condition of site plan approval, is responsible for this expenditure. I recommend approval. Exhibits Attached: Expertech proposal ce5;7ce CityManager' I Department PUBLIC WORKS/WWTP ca m\m ents\admin i1\meeting\2007\12-18-07\expertech.doc 179 pertech OFFER OF SER VICES !N*twork Installs tion Date September 27, 2007 Attn: Walter Bandish Address: 105 Polk Avenue City, State: Cape Canaveral, FL. Zip Code: 32920 Phone Number: 321-868-1240 Quotation # 003 Project: Lift Station 1 Force Main Replacement Description of Work: Directional Drill 12" HDPE (a? increased depth per direction of the City of Cape Canaveral: Includes: • Clearing R -O -W • Dewatering/Sheeting • Survey and As-Builts • WirelineiTrueTracking Notes: Commencement Date: TBA Completion Date: TBD CONDITIONS AND ASSUMPTIONS: CHANGE ORDER PROPOSAL $99,786.00 The pricing in this Offer of Service is based upon the performance of tasks and provision of deliverables specifically defined in this document. Requests for additional work activities that arc not described in this document, including customer required overtime or night work, or the application of any different or additional criteria or testing in connection with any services or deliverables are subject to additional charges to the customer. Certain matters may require a new quotation under a separate Offer of Services. Should additional charges be required, Expertech will utilize a change order process for approval by both parties prior to commencement of work. INCLUDED: • Material. Labor, Equipment • All stated above EXCLUDED: • Engineering • Permits Payment Terms: Per Contract Documents Sip -natures: Expertech Network Installation (US) Inc. Per: ME E9 OFFER OF SERVICES Per: Date: PO #: CHANGE ORDER AMOUNT: S 99,786.00 City of Cape Canaveral: Should this offer meet your needs please confirm your acceptance by signature and fax to 877-994-0815 If you have any questions regarding this Offer of Services please contact John Wood at 9544358. 6b Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Resolution Item 11 No. Florida Department of Community Affairs and their preliminary review has to occur within 60 days of the AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: RESOLUTION NO. 2007-40, ADOPTING THE EVALUATION AND APPRAISAL REPORT FOR THE COMPREHENSIVE PLAN AND PROVIDING FOR THE TRANSMITTAL TO THE FLORIDA DEAPRTMENT OF COMMUNITY AFFAIRS DEPT/DIVISION: COMMUNITY DEVELOPMENT/PLANNING Requested Action: City Council consider Resolution No. 2007-40, adopting the Evaluation and Appraisal Report for the Comprehensive Plan of the City of Cape Canaveral, providing for the transmittal to the Florida Department of Community Affairs. Summary Explanation & Background: The Evaluation and Appraisal Report is a State mandated report. Three copies will be submitted to the Florida Department of Community Affairs and their preliminary review has to occur within 60 days of the adoption of this report, with a fmal sufficiency determination within 90 days. If the report is found insufficient, then the City will have to submit a revised report. The City can amend the Comprehensive Plan only after this report is found to be sufficient. The EAR Report, Exhibit "a" is a hand-out document. Exhibits Attached: Resolution No. 2007-40; EAR Report (hand-out) City Manager' Office Department COMMUNITY DEVELOPMENT/PLANNING ca m\myd s admin\council\meeting\2007\12-18-07\2007-40.doc RESOLUTION NO. 2007-40 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, ADOPTING THE EVALUATION AND APPRAISAL REPORT ("EAR") FOR THE COMPREHENSIVE PLAN OF THE CITY OF CAPE CANAVERAL, ATTACHED HERETO AS EXHIBIT "A"; PROVIDING FOR THE TRANSMITTAL OF THE EAR TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, section 163.3161 et. seq., Florida Statutes (1987) established the Local Government Comprehensive Planning and Land Development Regulation Act; and WHEREAS, section 163.3167, Florida Statutes, requires each municipality in the State of Florida to prepare and adopt a Comprehensive Plan as scheduled by the Florida Department of Community Affairs; and WHEREAS, section 163.3191, Florida Statutes, requires municipalities to adopt an evaluation and appraisal report every seven (7) years assessing the progress in implementing the City's Comprehensive Plan; and WHEREAS, as part of the evaluation and appraisal of the City's Comprehensive Plan, the City has held several community meetings over the course of the past year during which the City heard the concerns and input of the public regarding the City's preparation of the evaluation and appraisal report ("EAR"); and WHEREAS, the City Council and Local Planning Agency have participated in several public joint workshops for purposes of identifying major issues for inclusion in the EAR; and WHEREAS, the Local Planning Agency held two (2) public hearings on June 27, 2007 and July 11, 2007 and formally issued recommendations to the City Council regarding adoption of the proposed EAR; and WHEREAS, the City Council, after considering the Local Planning Agency's review comments and recommendations for changes to the Cape Canaveral Comprehensive Plan, desires to adopt the evaluation and appraisal report set forth in Exhibit "A," attached hereto; and WHEREAS, City Council deems that this Resolution is in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. City of Cape Canaveral Resolution No. 2007-40 Page 1 of 3 NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, THAT: Section 1. Incorporation of Recitals . The foregoing recitals are deemed true and correct and are hereby fully incorporated herein by reference. Section 2. Adoption of Evaluation and Appraisal Report ("EAR") Pursuant to the requirements of section 163.3191, Florida Statutes, the City Council of the City of Cape Canaveral hereby adopts the Evaluation and Appraisal Report, attached hereto as Exhibit "A," and fully incorporated herein by this reference. Section 3. Transmittal to the Department of Community Affairs The City Manager or his designee is hereby designated to sign a letter transmitting the adopted evaluation and appraisal report ("EAR") to the Florida Department of Community Affairs, in accordance with section 163.3191(6), Florida Statutes. Section 4. Severability. If any section, subsection, sentence, clause, phrase, word, or portion of this Resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, whether for substantive or procedural reasons, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions of this Resolution. Section 5. Repeal of Prior Inconsistent Resolutions. All prior resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 6. Effective Date. This Resolution shall become effective immediately upon its adoption by the City Council of the City of Cape Canaveral, Florida. [SIGNATURE PAGE FOLLOWS] City of Cape Canaveral Resolution No. 2007-40 Page 2 of 3 RESOLVED by the City Council of the City of Cape Canaveral, Florida, in a regular meeting assembled on this day of 2007. ROCKY RANDELS, Mayor ATTEST: For Against Bob Hoog Leo Nicholas SUSAN STILLS, City Clerk Rocky Randels Shannon Roberts Buzz Petsos Approved as to legal form and sufficiency for the City of Cape Canaveral only: ANTHONY A. GARGANESE, City Attorney City of Cape Canaveral Resolution No. 2007-40 Page 3 of 3 Meeting Type: Regular Meeting Date 12-18-07 AGENDA Heading Ordinances- 2" a Reading Item 12 No. I support the city treasurer's recommendation. AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: ORDINANCE NO. 11-2007, ADOPTING AMENDMENTS TO THE ANNUAL GENERAL FUND, SEWER ENTERPRISE FUND, STORMWATER UTILITY FUND, SPECIAL REVENUE FUNDS AND EXPENDABLE TRUST FUND BUDGETS FOR THE FISCAL YEAR ENDING 09/30/07 DEPT./DIVISION: ADMINISTRATION/FINANCE Requested Action: City Council consider the adoption of Ordinance No. 11-2007, providing amendments to the Annual General Fund, Sewer Enterprise Fund, Stormwater Utility Fund, Special Revenue Funds and Expendable Trust Fund Budgets for the fiscal year ending 09-30-07, as recommended by the city treasurer. Summary Explanation & Background: The city treasurer will be available to answer questions about this proposed budget ordinance. I support the city treasurer's recommendation. Exhibits Attached: Ordinance No. 11-2007 and Budget Amendment Summary City Mana •' M Department ADMINISTRATION/FINANCE t\kim\mydo is\admin\council\meeting\2007\12-18-07\11-2007.doc ORDINANCE NO. 11-2007 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; ADOPTING THE AMENDMENTS TO THE ANNUAL GENERAL FUND, SEWER ENTERPRISE FUND, STORMWATER UTILITY FUND, SPECIAL REVENUE FUNDS, NDS, AND EXPENDABLE TRUST FUNDS BUDGETS FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2006, AND ENDING SEPTEMBER 30, 2007; PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: SECTION 1. The Amendments to the Annual General Fund, Sewer Enterprise Fund, Stormwater Utility Fund, Special Revenue Funds, and Expendable Trust Funds Budgets which are attached hereto and by reference made a part hereof, of the City of Cape Canaveral, Florida for the fiscal year beginning October 1, 2006, and ending September 30, 2007, are hereby approved and adopted. SECTION 2. This Ordinance shall take effect immediately upon its adoption. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 18th day December, 2007. Rocky Randels, MAYOR ATTEST: FOR AGAINST Bob Hoog Susan Stills, CITY CLERK Leo Nicholas APPROVED AS TO FORM: Anthony A. Garganese, CITY ATTORNEY First Reading: Buzz Petsos Rocky Randels Shannon Roberts C:\Documents and Settings\bennettb\Local Settings\Temporary Internet Fi1es\0LK30\0RD - FINAL BUDGET ADOPTION.doc MEMORANDUM DATE: November 27, 2007 TO: Honorable Mayor and Members of the City Council FROM: Andrea Bowers City Treasurer SUBECT: Final Budget Report and Transfers for the Fiscal Year 2006/2007 Revenues The Fiscal Year 2006/2007 has been completed. Following is a brief review of the state of the Budget. Grants and Donations from Other Sources are reflecting the Non -Cash acquisition of the Ridgewood Avenue roadway. Removing Cash Forward and Non-cash donations from the mix, projected revenues finish the year at 102.4% collection. Planning Services and Legal Services in the Planning & Zoning Department have been increased to provide the funding required, due to the issues being addressed. Regular Salaries and Life and Health Insurance are reduced in the Building Department. These funds were not used due to the position remaining vacant. These funds are reallocated to cover the increase in expenditures in Planning & Zoning. The account Improvements Other Than Buildings is increased in the Streets Department representing the acquisition of Ridgewood Avenue from Brevard County. This is a non-cash contribution and is offset by the Grants and Donations in the revenue portion of the records. Specialized Legal Services are increased to cover the costs associated with litigation the City is involved in. Contingency is decreased to provide the balance of funding required for the above adjustments. This completes the requested Budget Amendments for the Fiscal Year 2006/2007. Following is a breakdown by line item to enable you to see the overall effect to the budget. 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G CC 0) C c: Q% c c m 2 C C «. > G _ W (D +L+ (D a) d O Q C. c c (u CL c () CL LU w0 0( (n EU_ 3 OOOOOOLOCD O O r N O O r O It m O (O N co M O M ct It 1-t LO co CO O p 4+ rd, 00O6 00 CO O co, 00 00 N M Co co co co M m M LO LO LO U -)LO LO LO U-) y C 00 (70 00 00 00 00 q0 a0 � C' C7M ('7 C'7 Ch M M E 0 0 0 0 0 0 0 0 It d' d' ' t t It It't Q Meeting Type: Regular Meeting Date: 12-18-07 AGENDA Heading Discussion item 13 No. Exhibits Attached: AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: DISCUSSION: REVENUE SOURCES ELIGIBLE FOR DEBT PLEDGE DEPT/DIVISION: ADMINISTRATION/FINANCE Requested Action: Councilmember Leo Nicolas requested a report from the city treasurer as to what City revenues are eligible as a debt pledge. See attached report. Summary Explanation & Background: Discussion item. Please advise. Exhibits Attached: City treasurer's report City A4a ger's Office Department ADMINISTRATION/FINANCE pe im\ doc admin\coun ing\2007\12-18-07\revenues. doc Andrea Bowers, City Treasurer P.O. Box 326 Cape Canaveral, FL 32920 (321) 868-1234 (321) 868-1248 fax Bowers-cape@cfl.rr.com Memo To: Bennett Boucher, City Manager Honorable Mayor and members of City Council From: Andrea Bowers, City Treasurer Date: 11 December 2007 Re: Revenue Sources eligible for Bond Pledge The following is a brief description and listing of revenue sources held by the City that are available to pledge in a bond issue. Some maintain restrictions to their use while the use of others is at the discretion of the governing body. Ad Valorem Taxes The City of Cape Canaveral is unique in the State in that we do not have a general millage. All of the City's millages are specific to an activity. These include Fire Rescue, Public Safety, Beautification and Library. Our Ad Valorem taxes can be pledged to the extent that the use of the loan or bonds goes strictly towards the restricted Ad Valorem activity. An example of this would be that a bond to build a Fire Department could be collateralized by the Fire Rescue millage. All Franchise Fees, Utility Fees and User Fees are eligible to be pledged for a bond issue. These include: • Franchise Fees from FPL, City Gas and Waste Management • Utility Taxes from FPL and Bottled Gas sales • Fire Alarm Permits • Community Appearance Fees • Zoning Fees 0 Sales of Maps, Publications and copies • Investigative Fees • Lot Clearing and Mowing Fees • Recreational Program Fees • Fines and Forfeitures • Violations of Local Ordinances Regulatory Fees such as Building Permit Fees, Stormwater Fees, Sewer or Impact Fees can only be applied to pay the cost of the regulatory activity. As such, they can be pledged only to the activity they are attached to, much like Cape Canaveral's Ad Valorem Taxes. Also of note, Impact Fees also maintain an additional restriction; they are limited in use to meeting the costs of capital expansion resulting from population growth. Impact Fees collected by the City are: • Fire Rescue • Public Safety • Library • Recreation • General Government • Aerial Fire Legislative Authorized Revenues available for bond pledges are: • Alcoholic Beverage Tax • Business and Insurance Taxes • Local Y2 Cent Sales Tax • Mobile Home License Tax • State Revenue Share which is comprised of State Sales Tax Revenue Share and Municipal Gas Tax • Communications Services Tax • Local Option Gas Tax — This tax can be used only for debt service in connection to transportation capital projects. 0 Page 2