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HomeMy WebLinkAbout08-17-1999 Regular Meeting1 1 1 CITY COUNCIL REGULAR MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY August 17, 1999 7:00 P.M. MINUTES CALL TO ORDER: PLEDGE OF ALLEGIANCE: ROLL CALL: Council Members Present Tony Hernandez Richard Treverton Burt Bruns Mayor Pro Tem Buzz Petsos Mayor Rocky Randels Others Present City Manager, Bennett Boucher City Attorney, Kohn Bennett City Clerk, Sandra Sims City Treasurer, Andrea Bowers Public Works Director, Edward Gardulski Building Official, Dennis Franklin SETTLEMENT AGREEMENT: Blarney 67 (Fairvilla Mega Store) vs City of Cape Canaveral City Manager, Bennett Boucher explained that this revised agreement has a language change in sect. 6 on page 4; this agreement will run with the land and restricts the use of the land; the use can not be expanded, including signage. The business can only be used as an adult bookstore, however, after 18 months nonuse the use is revoked entirely. Exempt signs were clarified as smoking, etc. Florida League of Cities attorney for the City, Scott Pendley and Christopher Coleman, attorney for Fairvilla were present. Mr. Bruns queried, why is it so important that the exception run with the land? Mr. Coleman responded that the financing /mortgage holder deemed that it would potentially compromise their collateral if the use were changed. Their reasoning is that the present cash flow as a bookstore would likely degenerate.if the use changed. The restrictions as stipulated in the original agreement still apply. The only change is that the 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 2 agreement runs with the land. If the current owners sell or assign the business to another entity, the agreement will remain in full force. The business may revert to another commercial use, however, not for adult entertainment. If the business terminates for any reason, another business could go in. City Attorney, Kohn Bennett explained that this agreement is the same as a deed restriction. It restricts the use. This agreement is beneficial to the city requiring the restriction to run with the land rather than the business entity because the restriction remains in place. Without the restriction, another assignee would be required to conform to the prevailing codes, which would not be as restrictive. Mr. Hernandez stated that for the citizens' benefit, he supports the agreement. Adult entertainment is allowed by federal law to conduct business in the city. The issue is how many restrictions can be imposed, but not banned. It is logical to approve the settlement agreement rather than going thru a costly trial, which would not prevent an adult entertainment business from being here. By allowing the adult bookstore, we are meeting our constitutional requirements without experiencing the more liberal adult entertainment establishments. Mr. Hernandez stated that this decision must be determined by means of intellectual argument, not emotionally, politically nor public opinion motivated. Mr. Bruns stated that approving this settlement agreement does not preclude the City from entering litigation with other establishments inclined to establish business within the city, but does provide the city more leverage. This agreement does preclude four entities (the current assignees) from pursuing future suit against the City. Mr. Petsos stated that he appreciates the fact that Blarney 67 recognizes the constitutionality of the City's adult entertainment code, and they could challenge any future amendments. Mr. Petsos related that he was questioned today about what the hardship would be if the settlement agreement issue was tabled. Attorney, Scott Pendley explained that it would mean having to go to court. He provided a brief recapitulation of this case. He related that the City was first involved in adult entertainment litigation about three years ago. The freedom of expression law is complicated and the City lost that suit. The court concluded that the ordinances adopted years ago were unconstitutional even though they were when the ordinance was adopted. The ordinance was not revised to conform to current federal law, and erroneous pubic notices were published. Currently, an adult business can be restricted on geographical location, but cannot be prohibited. A lot of cities take the position that they will allow adult entertainment establishments, but draft ordinances so restrictive that in fact they are prohibited. For example, disallowing locations within 1000' of certain areas (such as churches). 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 3 However, knowing that there were no places available. The court has determined that approach as unconstitutional, which is why Fairvilla is located here today. Mr. Pendley further explained that the business now in operation provides the lowest crime associated impact possible while maintaining operations under the definition of adult entertainment. The public's primary concern is with crime and public safety. Adult establishments that serve alcohol tend to generate criminal incidents. During the last litigation, the City was urged to change its Charter to allow alcohol sales in conjunction with adult establishments. Statistics reveal according to Canaveral Precinct Major George McGee, that there has been zero adverse secondary affects to the City, meaning no calls to the area. Fire Chief, David Sergeant reported that Fairvilla has always responded to required needs. Mr. Pendley opined that bars like country western saloons create police crime effects that this retail business does not. He reiterated that this adult entertainment issue cannot be considered on a moral basis, Having the usage run with the land as opposed to the individual, strengthens the city's position for the future. There are insufficient sites to allow other adult entertainment establishments, even if this establishment disappears. We have provided a site and those who want to avail themselves, can. He recommended approval of this revised agreement although the trial would not be compromised as alluded to earlier in the meeting. Mr. Hernandez opined that although this decision may not be politically palatable, it is the only correct legal decision to make for the city. Mr. Pendley concurred. Mr. Bruns queried, exactly what does it mean, the only change is that the exception will run with the land? City Attorney, Kohn Bennett explained that it means the restriction of transferability has been removed, which is a tighter restriction than the previously approved agreement. Anyone who buys or otherwise receives the business, must do so as defined in this agreement. Mr. Petsos queried, what would happen if Fairvilla backed out of the agreement? Mr. Bennett replied that the City having approved this agreement would provide the City with more ammunition in court should Fairvilla not honor the stipulation. Mayor Randels stated that the revised agreement provides that the use will remain with any ownership transfer. He maintained that this stipulation is beneficial only to Blarney 67 and the use should be revoked with ownership transfer. Mr. Bruns responded that the profitable sale of any enterprise cannot be restricted. This allows them to do what is their constitutional right. • Mayor Randels stated that a statement was added to the sentence regarding Blamey67 and Mr. Murphy agreeing not to take any position to attack the city for constitutionality — the new statement adds - unless the `city adopts any ordinances or enforcements which is contrary to the spirit of this agreement. Mayor Randels stated that this establishment was allowed to stay for only three years according to our ordinances. Mr. Bennett explained 1 1 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 4 that the court decision was procedural. Mr. Pendley added, the issue is that the ordinances were improperly adopted according to legal notice requirements. The constitutionality of the City's amortization ordinance is being challenged. • Mayor Randels stated that the effective date is different — new language says the agreement has no force if the city does not repeal the amortizing ordinance. Mr. Bennett stated that the effective date is identical to language in the original agreement. • Mayor Randels queried, if this agreement is approved tonight, are we permitting a business to operate in an area that is not properly zoned for that business? • Mr. Bennett responded that it is a nonconforming use like many others in the city. It exists because they won the court case three years ago. If the City were to be successful winning this case in court, Fairvilla MegaStore (Blarney 67) would be out in September. However, the City would have to offer viable provision for an adult entertainment establishment within the City. That establishment would be regulated according to our current ordinances that are not as restrictive as this agreement. On the contrary, if they were to win, Fairvilla MegaStore would still be there and would open doors for other similar lawsuits. Additionally, the City would be required to pay their attorneys and possible liability fees. • Mayor Randels stated that in talking to a landowner adjacent to the Fairvilla property, they apparently understood when they purchased the land, the adult entertainment establishment would be amortized out. He queried if the City created a misrepresentation that can hold us liable? City Attorney, Kohn Bennett replied that as landowners, we all incur the risk that rezoning will occur. The City certainly can change policy. It may have caused them a problem, but it would not likely be severe. Mr. Treverton stated that he is convinced as to the legality versus the morality and emotional or political ramifications. Mr. Petsos concurred that approving the settlement agreement is the best decision for the City. A motion was made by Mr. Hernandez to approve the settlement agreement as signed by Blamey 67 and seconded by Mr. Treverton. Mr. Bill Young, resident expressed concern that there is a segment being overlooked, which is the citizens of Cape Canaveral. The public in general needs to hear some of these discussions. Mr. Young requested that the 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 5 approval be tabled until the next meeting. He wants more residents to hear the discussion. Mr. Hernandez responded that all notice requirements have been complied with and the discussions have gone on for months. Mr. Coleman explained that according to the City's Code the business would have to shut down by September 1, 1999 and tabling would risk code enforcement. City Attorney, Kohn Bennett stated that the day after this was discussed in the previous meeting, an extensive article was published. He asked the City Clerk if responses were received. There were no public inquiries or statements received either by telephone or letter. Mr. Petsos stated that City Council cannot act on an emotional or political basis. In this case, public cannot sway the legal decision - making. Mr. Young stated that we should not back down from the image standpoint, and when did we think this issue was a lost cause? Mr. Hernandez explained that we should have 8,000 people here every week, but that is why they elect representatives. Mr. Young opined that the City should not back down and consider crumbs a victory. Mr. Hernandez speaking as an attorney, said that the company who owns that business is a good corporate citizen and has proven to be agreeable in coming to this settlement. Mr. Young stated that he perceived that the issue was choreographed to rush through. Mr. Bennett reiterated that: the assignability is the "only" new thing. Mr. Bruns explained that the City has imposed the most restrictive language possible. This is the least evil we can get. Attorney, Scott Pendley stated that he would be glad to advise Mr. Young outside the meeting because statements made here can be used in court. He reiterated that this issue has been going on since February. It was a unanimous decision at the last closed session to place this agreement on this agenda. Mr. Young stated that he does not think the public will understand. There should have been a broader forum. Mr. Bennett related that at the next meeting, there will be an agenda item for the second reading of the amortization ordinance. If that ordinance is not passed, this agreement will be null. The public will have another opportunity to hear the rationale at that time. Ms. Connie Duncan, of Discovery Bay, stated that the City of Cocoa Beach allowed entertainment establishments and are now stuck with them even though they are not happy. She queried, why not force those establishments to be where there are no children living and no visibility to all entering the city. 1 1 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 6 Mayor Randels stated that we never issued an occupational license. Mr. Bruns explained that the City did not allow them. The court mandated it. The City lost the case and have to abide by the court decision. Council is of the same opinion as the general public and understands the concern. The fact is that the City has no better alternative than this settlement agreement. Mr. Leo Nicholas, resident stated that this is now a nonconforming use even though by virtue of the court that put it in. He stated that the city is going into agreement with the property owners and it sounds good. However, the question is, since it is there by no zoning law, it will be there by this agreement. What happens if it changes hands? How does the city enforce the agreement? Mr. Bennett explained that enforcement is by a stipulated and immediate injunction. Mr. Nicholas forewarned that it will happen and the City should take precautions to be prepared. Mayor Randels stated that he is voting against the agreement because by settling, the City will never know whether we would lose or win. Mr. Bruns responded that if the City did lose the case, the repercussions would be far beyond the costs involved. The other implications are immense. For example, consider the adult entertainment ordinance as it stands. The only other area that the City could provide for any adult entertainment establishment has no access to sewer and water. Would we have to provide that for them? The issue is that they have to be provided a viable place for their business. The City would have a tremendous problem defending that stance. Mr. Hernandez urged that all Council Members vote intellectually rather than politically. The question was called and the motion passed 4-1, with voting as follows: Mr. Treverton, For Mr. Bruns, For Mr. Hernandez, For Mayor Pro Tem Petsos, For and Mayor Randels, Against. The meeting recessed at 8:31 pm and reconvened at 8:39pm. CONSIDERATIONS: 1. A motion was made by Mr. Petsos and seconded by Mr. Hernandez to approve the City Council Regular Meeting Minutes for August 3, 1999. The motion passed 5 -0, with voting as follows: Mr. Treverton, For Mr. Bruns, Mr. Hernandez, For Mayor Pro Tem Petsos, For and Mayor Randels, For. 2. (Tape 2, 200) Quarterly City Treasurer's Report and Budget Transfers Ms. Andrea Bowers, City Treasurer, explained the proposed transfers. 1 1 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 7 Mr. Petsos queried, what other entities are contributing to the TRIAD? Ms. Bowers responded that she is unaware of other entities contributing, possibly because it is a Cape Canaveral Precinct COPS project. Ms. Bowers is to obtain more information on this issue. A motion was made by Mr. Bruns and seconded by Mr. Hernandez to approve the Treasurer's Report and Budget Transfers, contingent upon the explanation from the TRIAD. The motion passed 5-0, with voting as follows: Mr. Treverton, For; Mr. Bruns, For; Mr. Hernandez, For; Mayor Pro Tem Petsos, For; and Mayor Randels, For. 3. Mr. Ed Gardulski, Public Works Director, explained that Bid #99 -02, Reclaimed Water Line Extension, Phase III was issued with the alternatives of directional bore and open cut. There was one bid for directional bore and three for open cut. Open cut methods create higher restoration costs and lower pipe costs. Any contractor would get paid by the unit, encouraging the best costs. All bids came close to the engineer's estimates. Mr. Gardulski stated that the City has experienced directional boring twice, our own experience with Dial Communications and the Port running sewer lines down A1A. Mr. Petsos queried why no sod restoration costs were delineated on any of the bids. Mayor Randels queried if the bid specifications required it? Mr. Hernandez stated that with open cut we will have more disruption to the citizens and the streets can not be restored to same integrity which is why council determined a long time ago to go with directional boring. He stated that the City cannot blame the method, it was the company's financial condition and underbidding that caused our problems before. Mr. Petsos stated that the remaining portion of the City needs directional boring more than any other part of the City. It would cause more problems if using the open cut method. City Attorney, Kohn Bennett queried if the directional boring contractors included the cost of sod. Mr. Gardulski explained that some companies only do open cut because of equipment availability. Mr. John Juliano, Santa Cruz of Merritt Island was the low bidder offering open cut. He stated that the bid documents were specifically for open cut. He related that the invitation to bid was not a part of the bid documents received. He futher explained that he received notice of the bid opportunity from the Builder's Exchange. Apparently, everyone may not have been privileged to the information that the City preferred directional boring unless they received an invitation. Directional Bore was never mentioned in the bid documents. When asked if they provide directional boring, he responded that they do not, but could use sub - contractors. He stated that they have been in the business 25 years and can do the job as competently as anyone. He explained that sod is included in the cost and will be restored to its original condition. It was included in the 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 8 pipe price because there was no line item for sod. Mr. Petsos queried if a time line was stipulated? Mr. Juliano recalled that it was 120 days. He further explained that it is unlawful to submit more than one bid on a project, but could have done an "add or deduct" line item approach for the alternative of directional boring if he had knowledge of the City's preference for directional boring. The bid was structured for open cut. Mr. Bruns clarified that the question was not to be critical of the contractor. Mr. Juliano stated that it is apparent there was a lapse of communication. Stottler, Stagg & Associates Engineer, John Pekar explained the specifications. Mr. Bruns queried why it is so difficult to solicit both methods and demonstrate it clearly in the bid specifications. Mr. Pekar stated that there was a non - mandatory pre -bid conference where all these issues could have been addressed. Maxwell Construction Representative, Mr. Brian Maxwell was also present. He reiterated that there was no option for directional boring and they would have bid if there had been. He emphasized that the bid was for open cut. It was not fairly specified in the bid specifications that directional boring was an option or a preference. Mr. Larry Morris, Carl Hankins Representative, the only directional bore bidder was present. Mr. Petsos queried, how did the miscommunication occur? He reiterated that it has been Council's policy to use directional boring only wondered how their position could be misinterpreted. Mr. Larry Morris, of Carl Hankins, stated that they became aware through the Orlando Sentinel bid advertisement. The advertisement stated the preference of directional boring. They were also aware through talking to the City and the Engineer that it was the preference. He stated that although the specifications did not illustrate alternatives, it was a line item process that provided the opportunity to bid according to the contractors' selection. He explained that each unit stands on its own merit and the project can be accomplished for the price on that paper. He opined that his company could complete the project for $270 - 280k. The reason their bid was higher because the specifications stipulated the number of units and they anticipate that the units will be less. Restoration costs are less because there is less disruption than with open cut. He explained that they could have bid open cut, but directional boring is their specialty and they are among the best in the state. He stated that his company responded with directional boring because it was preferred and there was an option. He opined that Carl Hankins was the responsive bidder. The driveway quantities were listed in the specifications, therefore, the bid is as stands even though it will cost substantially less. Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 9 Mr. Hernandez stated the he is more comfortable selecting a company who actually does the work without subcontracting. It means something that they knew how to bid and what to do. Mr. Treverton asked, are we constrained to go with the low bidder? Can we look at other aspects besides the low bid? Mr. Boucher replied, that all aspects should be reviewed and the low bidder is not automatically selected. Council queried if the way we advertised was sufficient? City Attorney, Kohn Bennett replied that typically, he never gets involved with advertising. Mr. Hernandez asked the City Clerk if the advertisement was published correctly. City Clerk, Sandra Sims responded that the advertisement was published properly, however the scope of the invitation to bid relationship to the bid document is the responsibility of the person who develops the bid specifications. Developing the specifications may not be the same' person who compiles the bid document. Public Works Director, Ed Gardulski stated that he believes the bid was advertised properly and contractors could have asked questions. Mr. John Pekar opined that there should be a mandatory sign in at a meeting to obtain the specifications when there is a project of significant magnitude to ensure that the bidders understand the project. City Attorney, Mr. Bennett clarified that the question at hand is, is it prudent that the invitation to bid was not a part of the bid documents. Mr. John Pekar, edified Council that the technical specifications did not have the inclusion of directional boring. Mr. Bruns stated that Council cannot approve the bid award until there is documentation that the bid method was appropriately accomplished. Council concurred that in -house directives should be researched. Mr. Bruns made a motion to table and Mr. Petsos seconded. 5-0 The motion passed 5 -0, with voting as follows: Mr. Treverton, For, Mr. Bruns, For Mr. Hernandez, For Mayor Pro Tem Petsos, For and Mayor Randels, For. ORDINANCES — Second Reading: 4. (Tape 2, 3o9o)Mayor Randels read Ordinance No. 09 -99 by title. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AMENDING SECTION 34 -186, DISPOSITION OF PROPERTY REMOVED BY CITY, OF THE CODE OF CAPE CANAVERAL,, FLORIDA; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES AND RESOLUTIONS; AND PROVIDING FOR AN EFFECTIVE DATE. Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 10 A motion was made by Mr. Hernandez and seconded by Petsos to adopt Ordinance No. 09-99. There was no public comment. The motion passed 5 -0, with voting as follows: Mr. Treverton, For Mr. Bruns, For Mr. Hernandez, For Mayor Pro Tem Petsos, For, and Mayor Randels, For. 5. (Tape 2, 3181)Mayor Randels read Ordinance No. 11 -99 by title. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AMENDING SECTION 74 -60, TRUCK PARKING, OF THE CODE OF CAPE CANAVERAL, FLORIDA, PROVIDING FOR THE PROHIBITION OF TRUCK PARKING IN THE CITY EXCEPT IN DESIGNATED AREAS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES AND RESOLUTIONS; AND PROVIDING FOR AN EFFECTIVE DATE. A motion was made by Mr. Petsos and seconded by Mr. Treverton to adopt Ordinance No. 11 -99. There was no public comment. The motion passed 5 -0, with voting as follows: Mr. Treverton, For; Mr. Bruns, For Mr. Hernandez, For Mayor Pro Tem Petsos, For and Mayor Randels, For. RESOLUTIONS: 6. (Tape 2, 3281)Mayor Randels read Resolution No. 99 -18 by title. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; APPOINTING ONE REGULAR MEMBER TO THE COMMERCIAL DEVELOPMENT BOARD OF THE CITY OF CAPE CANAVERAL, FLORIDA; PROVIDING FOR AN EFFECTIVE DATE. A motion was made by Mr. Petsos and seconded by Mr. Bruns to adopt Resolution No. 99 -18, inserting the name Craig Smith. The motion passed 5-0, with voting as follows: Mr. Treverton, Mr. Bruns, For Mr. Hernandez, For Mayor Pro Tem Petsos, For and Mayor Randels, For. 1 1 1 1 Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 11 DISCUSSION: 7. Proposal to Develop a Storm Water Master Plan This issue was referred to next regular meeting as an agenda item. Mr. Bruns emphasized that the City has to deal with the issue and quit putting it off. He stated that we have to establish funding and a plan. Mr. Petsos made a motion and seconded by Mr. Hernandez to extend the meeting from 10:00 p.m. for a maximum of 15 minutes. REPORTS: 8 City Manager's Report • Mr. Boucher reported that Florida Power & Light has notified the City that they will start installing concrete poles as replacements on the East side of State Road A1A and N. Atlantic Avenue. Mr. Bruns queried, can we tell them we do not want them? Council concurred that the City Manager notify FP &L that the City objects to the concrete poles and requests that a representative appear at the next Council Meeting. Audience • An individual who applied with the County for an occupational license, then the City appeared before Council to request special consideration as a disabled veteran. He.explained that the County provides Disabled Veterans a waiver. Council concurred that the City Treasurer is to research the County's policy on disabled veterans waiver for occupational licenses, including other County waivers and present a report to Council. • Mr. Leo Nicholas noted that a roll -off dumpster on Adams Ave is running over. City Clerk — Sandra Sims • No report. City Attorney — Kohn Bennett • No report. Cape Canaveral City Council Regular Meeting Minutes August 17, 1999 Page 12 City Council Member— Richard Treverton • No report. City Council Member — Burt Bruns • No report. City Council Member — Tony Hernandez • No report. Mayor Pro Tem — Buzz Petsos • No report. Mayor — Rocky Randels • No report. There being no further business, the meeting adjoumed at 10:15pm. Sandra Vms, CITY CLERK 1 Rocky Randels, MAYOR