HomeMy WebLinkAbout03/13/2007 (4)INDEX TO MINUTES OF REGULAR MEETING
OF BOARD OF COUNTY COMMISSIONERS
OF MARCH 13, 2007
1. CALL TO ORDER 1
2. INVOCATION 1
3. PLEDGE OF ALLEGIANCE 1
4. ADDITIONS/DELETIONS TO THE AGENDA/EMERGENCY
ITEMS 2
5. PROCLAMATIONS AND PRESENTATIONS 2
A. PRESENTATION OF PROCLAMATION DESIGNATINGMARCH12-18, 2007, AS
SURVEYORS WEEK 2
6. APPROVAL OF MINUTES 3
A. WORKSHOP MEETING OF JANUARY 5, 2007 3
7. CONSENT AGENDA 3
7.A. APPROVAL OF WARRANTS - FEBRUARY 23- MARCH 1, 2007 3
7.B. RESIGNATION OF DISTRICT 5 APPOINTEE TO UTILITY ADVISORY COMMITTEE 4
7.C. APPOINTMENT TO THE HISTORIC RESOURCES ADVISORY COMMITTEE 4
March 13, 2007 1
7.D. APPROVAL OF BID AWARD AND SAMPLE AGREEMENT FOR IRC BID #2007039
UPGRADES & GENERATORS FOR IRCD US LIFT STATION NUMBERS 68 & 69
BENT PINE/UTILITIES DEPARTMENT 4
7.E. FINAL PAYMENT TO J. & H. WATERSTOP, INC. FOR LIFT STATION 166
REHABILITION UCP #2866 5
7.F. CR-512, 1-95 TO ROSELAND ROAD —IRC PROJECT NO. 9611, ADDENDUM #8,
TASK A, REQUEST FOR FINAL RELEASE OF RETAINAGE 5
7.G. UNITED INDIAN RIVER PACKERS, LLC REQUEST FOR RELEASE OF AN
EASEMENT AT 4310 77TH STREET (HOBART ESTATES UNIT 1) 6
7.H. AQUALAGO, LLC's REQUEST FOR EXTENSION OF SITE PLAN APPROVAL FOR A
MULTI-FAMILY RESIDENTIAL DEVELOPMENT TO BE KNOWN AS TOSCANA
(QUASI-JUDICIAL) 6
71. IRC JAIL EXPANSION PROJECT DEDUCTIVE CHANGE ORDER NUMBER 9 7
7.J. PROFESSIONAL ENGINEERING SERVICES AGREEMENT, CR 512 CORRIDOR
IMPROVEMENTS - IRC PROJECT NO. 9611, ADDENDUM NO. 10 (MASTELLER &
MOLER, INC.) RELEASE OF RETAINAGE 7
7.K. WORK ORDER #5, APPLIED TECHNOLOGY AND MANAGEMENT INC., SECTOR 7
CONSTRUCTION PHASE SERVICES 8
7.L. WORK ORDER #6, APPLIED TECHNOLOGY AND MANAGEMENT INC., SECTORS 1
& 2 CONSTRUCTION PHASE SERVICES 8
7.M REQUEST FOR FLOODPLAIN CUT AND FILL BALANCE WAIVER FOR MICHAEL
CREEK SUBDIVISION 9
7.N. RELEASE OF RETAINAGE AND FINAL PAYMENT TO INDIAN RIVER INDUSTRIAL
CONTRACTORS FOR THE CENTRAL PLANT EXPANSION UCP #2347, BID NO.
7029 9
7.0. JON FICHTELMAN REQUEST FOR RELEASE OF EASEMENTS AT 1086 9TH STREET
SW (LoTs 2-7, BLOCK D, OSLO PARK SUBDIVISION (ADMINISTRATIVE) 9
7.P. ACCEPTANCE OF CHANGE ORDER NO. 6, NEW COUNTY EMERGENCY
OPERATIONS CENTER 10
7.Q. WORK ORDER NO. 3 —SURVEYING AND MAPPING/GIS SERVICES FOR THE
INDIAN RIVER COUNTY VERTICAL CONTROL NETWORK (IRCVCN) 10
7.R. MISCELLANEOUS BUDGET AMENDMENT 013 11
March 13, 2007 2
7.S. RIGHT OF WAYACQUISITION, 74TH AVENUE SOUTH OF STATE RD. 60 AND
SOUTH OF 12TH STREET, HAYDN CURTIS AND CYNTHIA A. TREVINO AVERSA 11
7.T. RIGHT-OF-WAY ACQUISITION. WHOLE TAKE, NORTH SIDE OF 8TH STREET,
WEST OF 66TH AVENUE, EAST OF 74TH AVENUE, EDNA C. FRANKS' AND LOIS
FRANKS RICE 12
7.U. APPROVAL OF ANNUAL FINANCIAL REPORT BY COUNTY COMMISSIONERS 12
8. CONSTITUTIONAL OFFICERS AND GOVERNMENTAL
AGENCIES -NONE 13
9. PUBLIC ITEMS 13
9.A.1. PUBLIC HEARING 13
MGC DEVELOPMENT GROUP, LLC'S REQUEST FOR PLANNED DEVELOPMENT (PD)
SPECIAL EXCEPTION USE APPROVAL FOR A PROJECT TO BE KNOWN AS
BLOOMFIELD (LEGISLATIVE) 13
9.A.2. ORDINANCE IMPOSING STATE ROAD 60 INTEREST SHARE FEE -AND -
RESOLUTION TO EXECUTE JOINT PARTICIPATION AGREEMENT WITH THE
FLORIDA DEPARTMENT OF TRANSPORTATION TO ADVANCE CONSTRUCTION
OF THE WIDENING OF STATE ROAD 60 BETWEENI-95 AND 66THAVENUE
(LEGISLATIVE) 16
9.B. PUBLIC DISCUSSION ITEMS 21
9.B.1. REQUEST TO SPEAK FROM BW TREASURE, INC., RENNE HAMBLIN
REGARDING CODE ENFORCEMENT LIEN 21
9.B.2. REQUEST TO SPEAK FROM SPENCER SIMMONS REGARDING COMMISSION VOTE
TO REHEAR OR REVERSE PREVIOUS DECISION ON TRANSITIONAL HOUSING
CENTER ON 37TH STREET (THE SOURCE) 23
9.B.3. REQUEST TO SPEAK FROM P&S PROPERTIES, JERRYSWANSON, REGARDING
CONCURRENCY INTERPRETATION 23
March 13, 2007 3
9.C. PUBLIC NOTICE ITEMS 23
9.C.1. NOTICE OF SCHEDULED PUBLIC HEARING FOR MARCH 20, 2007: 23
CONSIDER PROPOSED AMENDMENTS TO THE LANDSCAPE AND BUFFER
REGULATIONS OFLDR CHAPTER 926, THE CORRIDOR LANDSCAPE
REGULATIONS AND THE MULTI -FAMILY GREEN SPACE REGULATIONS OF LDR
CHAPTER 911, THE SUBDIVISION GREEN SPACE REQUIREMENTS OF CHAPTER
913, THE STORMWATER MAINTENANCE AREA REGULATIONS OF LDR CHAPTER
930, THE LITTORAL ZONE REGULATIONS OF LDR CHAPTER 934, AND THE
DEFINITIONS OF LDR CHAPTER 901 (LEGISLATIVE) 23
9.C.2. NOTICE OF SCHEDULED PUBLIC HEARING FOR MARCH 2O, 2007: 24
ADOPT AMENDMENTS TO THE COUNTY'S EXISTING INDUSTRIAL PRETREATMENT
ORDINANCE (LEGISLATIVE) 24
10. COUNTY ADMINISTRATOR'S MATTERS 24
10.A. SPECIAL CALL MEETING 24
10.B. JOINT MEETING WITH CITY OF PALM BAY 25
10. C COMMITTEE VOLUNTEER BANQUET 25
11. DEPARTMENTAL MATTERS 25
11.A. COMMUNITY DEVELOPMENT - NONE 25
11.B. EMERGENCY SERVICES - NONE 25
11. C. GENERAL SERVICES - NONE 25
11.D. HUMAN RESOURCES 26
1. APPROVAL TO ENTER INTO A CONSULTANT AGREEMENT TO CONDUCT A
CLASSIFICATION AND PAY STUDY 26
11.E. HUMAN SERVICES - NONE 26
11.F. LEISURE SERVICES -NONE 26
11. G. OFFICE OF MANAGEMENT AND BUDGET - NONE 26
11.H. RECREATION - NONE 26
11.L PUBLIC WORKS 27
March 13, 2007 4
1. FLORIDA INLAND NAVIGATION DISTRICT 2007-2008 WATERWAYS ASSISTANCE
PROGRAM AUTHORIZING RESOLUTION FOR THE OSLO ROAD PUBLIC BOAT
RAMP 27
11..1 UTILITIES SERVICES 29
11.J.1. PAYMENT OF OUTSTANDING UTILITY ASSESSMENT 29
11.J.2. EMERGENCY OPERATIONS CENTER WATER MAIN EXTENSION WORK
AUTHORIZATION DIRECTIVE NO. 2007-001, UCP No. 2938 29
12. COUNTY ATTORNEY MATTERS 30
12.A. ATTORNEY-CLIENT SESSION: DIVOSTA HOMES, L.P. AND DIVOSTA HOMES
HOLDINGS, L.L.C. VS. INDIAN RIVER COUNTY, CASE NO. 20070109 -CA -19 30
12.B. RESOLUTION CONCERNING RIGHT-OF-WAY ACQUISITION FOR ROAD
IMPROVEMENT PROJECTS 31
12.C. EXECUTIVE AIDE - MUTUAL RELEASE AND COVENANT NOT TO SUE
(DEFERRED FROM MEETING OF MARCH 6, 2007 32
12.D. AUTHORIZATION REQUESTED FROM ATTORNEY COLLINS TO WORK ONA
DRAFT INTERLOCAL AGREEMENT WITH THE LEGAL STAFF OF VARIOUS
MUNICIPALITIES 36
13. COMMISSIONER ITEMS 37
13.A. COMMISSIONER GARY C. WHEELER, CHAIRMAN 37
1. UPDATE ON THE DISCUSSION REGARDING THE FORMATION OF AN
ARCHITECTURAL REVIEW COMMITTEE FROM THE APRIL 11, 2006 BCC
MEETING 37
13.B. COMMISSIONER SANDRA L. BOWDE, VICE CHAIR 37
1. DISCUSSION OF L UNCHBREAKS' ONBOARD OF COUNTY COMMISSION MEETING
DAYS 37
13. C. COMMISSIONER WESLEY S. DAVIS-NONE 38
13.D. COMMISSIONER JOSEPH E. FLESCHER-NONE 38
13.E. COMMISSIONER PETER D. O'BRYAN--NONE 38
March 13, 2007 5
14. SPECIAL DISTRICTS AND BOARDS 38
14.A. EMERGENCY SERVICES DISTRICT 38
14.A.1. APPROVAL OF MINUTES FOR NOVEMBER 7, 2006, NOVEMBER 21, 2006, AND
DECEMBER 12, 2006 38
14.A.2. APPROVAL OF FY2006/07EMS COUNTY AWARDS GRANT: PURCHASE OF
CAPITAL/OPERATING EQUIPMENT USING NON-MATCHING EMS GRANT
FUNDS AND GRANT RESOLUTION 38
14.A. 3. APPROVAL TO PURCHASE Two (2) CHEVROLET TYPE III AMBULANCES FROM
TEN-8 FIRE EQUIPMENT, INC 38
14.A.4. FIRE RESCUE UPDATE 38
14.B. SOLID WASTE DISPOSAL DISTRICT - NONE 39
14. C. ENVIRONMENTAL CONTROL BOARD - NONE 39
15. ADJOURNMENT 39
March 13, 2007 6
March 13, 2007
REGULAR MEETING OF THE BOARD OF COUNTY
COMMISSIONERS
The Board of County Commissioners of Indian River County, Florida, met in Regular
Session at the County Commission Chambers, 1840 25th Street, Vero Beach, Florida, on
Tuesday, March 13, 2007 at 9:00 a.m. Present were Chairman Gary C. Wheeler, Vice
Chair Sandra L. Bowden, Commissioners Wesley S. Davis, Joseph E. Flescher, and Peter
D. O'Bryan. Also present were County Administrator Joseph A. Baird, County Attorney
William G. Collins II, and Deputy Clerk Maria I. Suesz.
1. CALL TO ORDER
Chairman Wheeler called the meeting to order at 9:00 a.m.
2. INVOCATION
Reverend Dawn Lawton, Christ By the Sea United Methodist Church, delivered the
Invocation.
3. PLEDGE OF ALLEGIANCE
Commissioner Wesley S. Davis led the Pledge of Allegiance to the Flag.
March 13, 2007 1
4. ADDITIONS/DELETIONS TO THE AGENDA/EMERGENCY
ITEMS
Chairman Wheeler requested the following changes to today's Agenda:
1. Deletion: Item 9.B.3. — Request to Speak from P&S Properties, Jerry Swanson
regarding concurrency interpretation
2. Addition: Item 12.D. — Authorization for County Attorney to work with local
municipalities on Interlocal Agreement.
ON MOTION by Vice Chair Bowden, SECONDED by
Commissioner Davis, the Board unanimously made the
above changes to the Agenda.
5. PROCLAMATIONS AND PRESENTATIONS
A. PRESENTATION OF PROCLAMATION DESIGNATING MARCH 12-18,
2007, AS SURVEYORS WEEK
Commissioner Flescher read and presented the Proclamation to Michael O'Brien,
County Surveyor, representing the local Surveyor community. Mr. O'Brien spoke of
contributions the surveyors provide to the County, and the achievements of Robert Daniel
"R.D." Carter and his family, who for 96 years has continued to contribute to the
profession and the community. He afforded the Proclamation and granted a Certificate of
Achievement to Marvin Carter (grandson of R.D. Carter), who continues to remain
involved.
March 13, 2007 2
6. APPROVAL OF MINUTES
A. WORKSHOP MEETING OF JANUARY 5, 2007
The Chairman asked if there were any corrections or additions to the Minutes of the
Chapter 910 Concurrency Management System Public Workshop - January 5, 2007. There
were none.
ON MOTION by Vice Chair Bowden, SECONDED by
Commissioner Davis, the Board unanimously approved the
Minutes of the January 5, 2007 Public Workshop, as
written and distributed.
7. CONSENT AGENDA
The Chairman pulled Item 7.H for discussion.
7.A. APPROVAL OF WARRANTS — FEBRUARY23 —MARCH 1, 2007
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
the list of Warrants as issued by the Clerk to the Board for
February 23 — March 1, 2007, as requested in the
memorandum of March 1, 2007.
March 13, 2007 3
7.B. RESIGNATION OF DISTRICT 5 APPOINTEE TO UTILITY ADVISORY
COMMITTEE
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously accepted
the resignation of Mr. Herbert V. Whittal, District 5
Appointee to the Utility Advisory Committee, as
recommended in the memorandum of March 5, 2007.
7.C. APPOINTMENT TO THE HISTORIC RESOURCES ADVISORY COMMITTEE
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously appointed
Reverend Dr. Kyle C. Gibson to the Citizen at Large
position on the Historic Resources Advisory Committee
replacing Kathleen Smith, as recommended in the
memorandum of March 5, 2007.
7.D. APPROVAL OF BID AWARD AND SAMPLE AGREEMENT FOR IR C BID
#2007039 UPGRADES & GENERATORS FOR IRCDUS LIFT STATION
NUMBERS 68 & 69 BENT PINE/UTILITIES DEPARTMENT
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
the Bid be awarded to T.L.C. Diversified, Inc, as the lowest
most responsive and responsible bidder meeting the
specifications as set forth in the Invitation to Bid; approved
March 13, 2007 4
the sample agreement and authorized for the Chairman to
execute same when required performance and payment
bonds have been submitted along with appropriate
certificate of insurance and the County Attorney has
approved the agreement as to form and legal sufficiency, as
recommended in the memorandum of March 2, 2007.
AGREEMENT IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.E. FINAL PAYMENT TO J. & H. WATERSTOP, INC. FOR LIFT STATION 166
REHABILITION UCP #2866
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
final payment for Bid 20077018 to J&H Waterstop, Inc. for
a final payment of $38,000.00 and authorized the Chairman
to execute same, as recommended in the memorandum of
February 26, 2007.
7.F. CR -512, 1-95 TO ROSELAND ROAD -IRC PROJECT NO. 9611,
ADDENDUM #8, TASK A, REQUEST FOR FINAL RELEASE OF RETAINAGE
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
to release the retainage for Addendum No. 8 — Task A in the
total amount of $1,593.90, as recommended in the
memorandum of March 6, 2007.
March 13, 2007 5
7.G. UNITED INDIAN RIVER PACKERS, LLC REQUEST FOR RELEASE OF AN
EASEMENT AT 4310 77TH STREET (HOBART ESTATES UNIT 1)
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Resolution 2007-022, releasing a portion of an easement
on the recorded Plat of Hobart Estates Unit 1.
7.H. AQUALAGO, LLC'S REQUEST FOR EXTENSION OF SITE PLAN
APPROVAL FOR A MULTI -FAMILY RESIDENTIAL DEVELOPMENT TO BE KNOWN
AS TOSCANA (QUASI-JUDICIAL)
Chairman Wheeler saw a lack of progress when he visited the development. Since
they have been making changes to the Comprehensive Plan he preferred that staff bring it
back when the developer has completed certain requirements. Planning Director Stan
Boling advised the Board that the site plan was modified, and the developer has met all the
criteria.
Bill McCain, W. F. McCain and Associates, informed the Board they were here
today because his client was delayed in getting their site plan released through negotiations
for contributions for road improvements on 27th Avenue.
ON MOTION by Vice Chair Bowden, SECONDED by
Commissioner Davis, by a 4-1 vote (Chairman Wheeler
opposed) the Board approved Aqualago, LLC's request for
a one-year extension of the revised, approved site plan for
March 13, 2007 6
Toscana with all original approval conditions to remain in
effect, as recommended in the memorandum of March 5,
2007. The new site plan expiration date will be February
23, 2008.
7.1. IRC JAIL EXPANSION PROJECT DEDUCTIVE CHANGE ORDER NUMBER
9
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Deductive Change Order #9 in the deductive amount of
$429,412.28, and authorized the Chairman to execute same,
as recommended in the memorandum of March 5, 2007.
CHANGE ORDER NO. 9 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.J. PROFESSIONAL ENGINEERING SERVICES AGREEMENT, CR 512
CORRIDOR IMPROVEMENTS — IRC PROJECT NO. 9611, ADDENDUM NO. 10
(MASTELLER & MOLER, INC.) RELEASE OF RETAINAGE
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
the Release of Retainage to Masteller & Moler, Inc. for
Addendum No. 10, Tasks I & II for a total of $1,803.25,
with funding as specified as recommended in the
memorandum of March 6, 2007.
March 13, 2007 7
7.K. WORK ORDER #5, APPLIED TECHNOLOGYAND MANAGEMENT INC.,
SECTOR 7 CONSTRUCTION PHASE SERVICES
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Work Order #5 to the contract with Applied Technology
and Management Inc. and authorized the Chairman to
execute said work order. The work is subject to 90% cost
sharing with the State of Florida under Grant Agreement
H51R1., as recommended in the memorandum of March 5,
2007.
WORK ORDER NO. 5 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.L. WORK ORDER #6, APPLIED TECHNOLOGYAND MANAGEMENT INC.,
SECTORS 1 & 2 CONSTRUCTION PHASE SERVICES
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Work Order #6 to the contract with Applied Technology
and Management Inc. and authorized the Chairman to
execute said work order on behalf of the County. This work
is subject to cost sharing with FEMA at a 95% level under
FEMA PW: IRC -002 -BG., as recommended in the
memorandum of March 5, 2007.
WORK ORDER NO. 6 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
March 13, 2007 8
7.M. REQUEST FOR FLOODPLAIN CUT AND FILL BALANCE WAIVER FOR
MICHAEL CREEK SUBDIVISION
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Alternative No. 1 to approve the Cut and Fill Balance
Waiver Request, as recommended in the memorandum of
March 5, 2007.
7.N. RELEASE OF RETAINAGE AND FINAL PAYMENT TO INDIAN RIVER
INDUSTRIAL CONTRACTORS FOR THE CENTRAL PLANT EXPANSION UCP
#2347, BID No. 7029
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
final payment for Bid 7029 to Indian River Industrial
Contractors, Inc. for a final retainage payment of
$10,000.00 and authorized the Chairman to execute same
as presented and recommended in the memorandum of
February 26, 2007.
BID NO. 7029 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.0. JON FICHTELMANREQUEST FOR RELEASE OF EASEMENTS AT 1086
9TH STREET SW LOTS 2-7, BLOCK D, OSLO PARK SUBDIVISION
(ADMINISTRATIVE)
March 13, 2007 9
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Resolution #2007-023, releasing certain easements on Lots
2-7, Block D, Oslo Park Subdivision.
7.P. ACCEPTANCE OF CHANGE ORDER No. 6, NEW COUNTY EMERGENCY
OPERATIONS CENTER
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Change Order No. 006, which results with no change to the
existing GMP of $4,187,656.00 and a reduction in the
owner's contingency by $11,734.00 resulting in a revised
owner's contingency of $36,586.00, as recommended in the
memorandum of March 7, 2007.
CHANGE ORDER NO. 6 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.Q. WORK ORDER No. 3 - SURVEYING AND MAPPING/GIS SERVICES FOR
THE INDIAN RIVER COUNTY VERTICAL CONTROL NETWORK (IR CVCN)
March 13, 2007 10
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Work Order No. 3, under the umbrella of Master Contract
No. 0504 in the amount of $10,400.00, authorizing the
scope of services for said Work Order and authorized the
Chairperson to execute the Master Contract and Work
Order No. 3, as recommended in the memorandum of
March 6, 2007.
WORK ORDER NO. 3 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
7.R. MISCELLANEOUS BUDGET AMENDMENT 013
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Resolution 2007-024, amending the fiscal year 2006-2007
Budget.
7.S. RIGHT OF WAY ACQUISITION, 74TH AVENUE SOUTH OF STATE RD. 60
AND SOUTH OF 12TH STREET, HAYDN CURTIS AND CYNTHIA A.
TREVINO A VERSA
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Alternative 1, authorizing the $37,800.00 purchase of
right-of-way, and authorized Chairman to execute the
March 13, 2007 11
Agreement, as recommended in the memorandum of March
6, 2007.
7.T. RIGHT-OF-WAY ACQUISITION. WHOLE TAKE, NORTH SIDE OF 8TH
STREET, WEST OF 66TH AVENUE, EAST OF 74TH AVENUE, EDNA C. FRANKS
AND LOIS FRANKS RICE
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Alternative No. 1, the counter offer to the Agreement for
the right-of-way purchase in the amount of $168,300.00,
and the payment of the closing costs as requested by the
sellers, and authorized the Chairman to execute the
Agreement, as recommended in the memorandum of March
06, 2007.
7.U. APPROVAL OF ANNUAL FINANCIAL REPORT BY COUNTY
COMMISSIONERS
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
and authorized the Chairman to execute the County's
Annual Local Government Financial Report for the fiscal
year 2005-2006, as recommended in the memorandum of
March 7, 2007.
March 13, 2007 12
8. CONSTITUTIONAL OFFICERS AND GOVERNMENTAL
AGENCIES -NONE
9. PUBLIC ITEMS
9.A. L PUBLIC HEARING
MGC DEVELOPMENT GROUP, LLC'S REQUEST FOR PLANNED
DEVELOPMENT (PD) SPECIAL EXCEPTION USE APPROVAL FOR A PROJECT
TO BE KNOWN AS BLOOMFIELD (LEGISLATIVE)
PROOF OF PUBLICATION OF ADVERTISEMENT FOR HEARING IS ON FILE IN THE
OFFICE OF THE CLERK TO THE BOARD
Planning Director Stan Boling presented this item to the Board, using a map and
aerial view of the site to review the various available options and land use densities. He
noted that if the conceptual plan were approved, the Planning and Zoning Commission
(P&Z) and staff would review a more detailed site plan. P&Z recommended approval of
the Conceptual Plan with the conditions outlined in Senior Planner Brian Freeman's
memorandum of March 5, 2007.
Mr. Boling invited questions from the Board.
Chairman Wheeler wished they had more Planned Developments with
interconnectivity in the project, and he felt the location was good for this project.
The Chairman opened the public hearing.
March 13, 2007 13
Dave Woodward, Kimley-Horn and Associates, Inc., representing the project, was
available to answer questions.
Commissioner O'Bryan wanted to know what the affordable housing prices would
be and Mr. Woodward responded that there were no plans for Affordable Housing at this
time.
Bob Johnson, Coral Wind Subdivision, was opposed to the Bloomfield
Development.
Ray Scent, 1615 70 Court, spoke in favor of this project, stating that there is no
place in the County that would be more fitting for this type of development.
There were no additional speakers and the Chairman closed the public hearing.
ON MOTION by Vice Chair Bowden, SECONDED by
Commissioner Flescher, the Board unanimously approved
MGC Development Group, LLC's Request for Planned
Development Special Exception Use Approval for a Project
to be known as Bloomfield
(PD -06-10-08/2006020021-55458), with the following
conditions:
(1) Within five years after special exception approval, the
applicant shall obtain final PD plan approval for the
entire project. If such final PD plan approval is not
obtained, then the PD special exception approval shall
automatically expire.
March 13, 2007 14
(2) Prior to issuance of a land development permit for this
project (or prior to release of the preliminary PD plan,
if applicable), the applicant shall: (a) Obtain approval
of the final design for the 12th Avenue SW
improvement by the County's Public Works
Department and the Indian River Farms Water Control
District; (b) Obtain a County wetland resource permit;
(c) Obtain Environmental Planning staff approval of a
tree protection plan and a tree mitigation replacement
plan; (d) Obtain a gopher tortoise incidental take
permit from the Florida Fish and Wildlife
Conservation Commission (the applicant has agreed to
relocate all gopher tortoises to upland preservation
areas on the subject site).
(3) Prior to or via final PD plan approval, the applicant
shall: (a) Dedicate without compensation 25 feet of
11th Street SW right-of-way; (b) Establish a
conservation easement over the wetland conservation
area; (c) Establish a conservation easement over the
upland conservation areas.
(4) Prior to issuance of the first certificate of occupancy
for the project, the applicant shall: (a) Complete all
improvement of 12th Avenue SW from 9th Street SW to
11`h Street SW; (b) Install all required landscape
buffers and opaque features.
(5) Prior to issuance of a certificate of occupancy for each
building, the applicant shall: (a) Construct all internal
sidewalks in the vicinity of that building; (b) Construct
March 13, 2007 15
the pedestrian connection to the 11`h Street SW
sidewalk in the Southwest corner of the site; (c)
Construct both full access connections to 12th Avenue
SW.
(6) Prior to preliminary PD plan approval, the applicant
shall propose a plan for coordination of an accelerated
construction schedule of the 11`h Street SW sidewalk
with Habitat for Humanity, the developer of the
adjacent Grace Woods subdivision, all as
recommended in the memorandum of March 5, 2007.
9.A. 2. ORDINANCE IMPOSING STATE ROAD 60 INTEREST SHARE FEE — AND —
RESOLUTION TO EXECUTE JOINT PARTICIPATION AGREEMENT WITH THE
FLORIDA DEPARTMENT OF TRANSPORTATION TO ADVANCE CONSTRUCTION
OF THE WIDENING OF STATE ROAD 60 BETWEENI-95 AND 66TH AVENUE
(LEGISLATIVE)
PROOF OF PUBLICATION OF ADVERTISEMENT FOR HEARING IS ON FILE IN THE
OFFICE OF THE CLERK TO THE BOARD
Assistant Public Works Director Chris Mora, using a PowerPoint presentation
(not on file), presented the proposed State Road 60 Interest Share Fee Ordinance, and
introduced David Tucker from the Law Firm of Nabors, Giblin and Nickerson,
Tallahassee, who assisted in the preparation of the ordinance. Mr. Mora provided
background information on the six-laning of SR60, the recovery efforts of the interest
costs, and the proposed joint participation agreement with the Florida Department of
March 13, 2007 16
Transportation (FDOT) to advance the 6-laning of SR60. The project would be split into
two segments: 66th Avenue to 82nd Avenue (Segment One), and 82nd Avenue to I-95
(Segment Two).
Assistant Director Mora recommended approval of the interest share fee ordinance,
and the resolution to execute the joint participation agreement with the Florida Department
Of Transportation.
Commissioner Flescher asked staff whether is was possible to accelerate the State's
repayment schedule, in order to reduce the amount of lost interest. Administrator Baird
noted that the repayment schedule had already been shortened from 2025 to 2017. He
disclosed that the State is only able to allocate approximately 10 million a year towards us,
and gave his perspective on the importance of this project.
Staff responded to further questions from the Board regarding additional specifics
of the financial responsibilities and aspects of the project, shortfall dollars, and whether the
County could oversee the cost factors.
The Chairman opened the public hearing.
The following people spoke in favor of this proposal:
Ray Scent observed that the project has been under consideration for many years.
Joseph Paladin, Chairman of the Growth Awareness Committee, urged the Board
to include future return trips in their calculations.
March 13, 2007 17
George Buetell, 5000 16th Street, spoke of improvements to the business
community and to evacuation routes.
Jerry Swanson, 3001 Ocean Drive, set forth the urgency of moving ahead at
today's prices.
Karen Hall, President of the Realtor's Association, presented her report (copy on
file) supporting the project.
Bill Penny, 635 36th Avenue, voiced his support.
Spencer Simmons, Simmons Construction, proposed having his firm do the
roadwork for less money than the State.
George Christopher, 945 Painted Bunting Lane, favored the project but was
concerned about who would pay for any overruns, and about the 50% of the interest which
is not recoverable.
Bruce Barkett, Esquire, revealed that the projects that he represents support
paying the fees.
Peter Robinson, 315 Greytwig Road, encouraged Board action.
Nancy Offutt, President of the Builder's Association, voiced support and had
several questions for the Board.
John Kurtz, 205 9th Court, applauded the Board and encouraged them to proceed
with the project.
March 13, 2007 18
Chuck Mechling, 1999 Pointe West Drive, commented that this is a County
initiated matter, and urged the Commissioners to proceed with this investment. He
introduced Wayne Klinesdiver who gave a PowerPoint Presentation (copy on file) to
illustrate how one community (Pointe West) contributes to the overall economic impact in
Indian River County.
(Clerk's Note: Chairman Wheeler called for a recess at 10:34 a.m. and he reconvened the
meeting at 10:43 a.m. with all members present except Commissioner Davis,
who rejoined the meeting at 10:46 a.m.)
The following two speakers opposed the project:
Bob Johnson, Coral Winds Subdivision, who wanted road improvements to the
east -west corridors, rather than the continuation of traffic moving north -south.
Rene Renzi, Waverly Place, cited the hazardous driving conditions which may
occur with road projects. She suggested the Board contact Tallahassee about getting I-95
access at Oslo Road, rather than SR60.
There were no additional speakers, and the Chairman closed the public hearing.
Discussion ensued among the Commissioners regarding the re -payment schedule, and
reducing the initial cost of the project.
ON MOTION by Commissioner O'Bryan, SECONDED by
Chairman Wheeler, the Board, by a 4-0 vote
(Commissioner Flescher opposed), adopted Ordinance
March 13, 2007 19
2007-025, Imposing a State Road 60 Interest Share Fee to
Recover the Interest Loss Incurred Under the Advance
Construction of Segment Improvements to State Road 60
Pursuant to Advance Construction Agreements with the
Florida Department of Transportation; Providing that New
Development Occurring Within the State Road 60 Radius
of Influence Shall Pay a State Road 60 Interest Share Fee as
a Condition of Development Approval; Approving a
Technical Memorandum Calculating the State Road 60
Interest Share Fee based upon the New Trips Provided
Within the State Road 60 Radius of Influence as a
Consequence of the Construction of Segment
Improvements to State Road 60; Defining Certain Terms;
and Providing an Effective Date.
The Board also approved Resolution 2007-011, Executing
Joint Participation Agreement with the Florida Department
of Transportation to Advance Construction of the Widening
of State Road 60 between I-95 and 66th Avenue.
(Clerk's Note: Chairman Wheeler called for a recess at 11:45 a.m. and he reconvened the
meeting at 11:55 a.m. with all members present).
March 13, 2007 20
9.B. PUBLIC DISCUSSION ITEMS
9.B.1. REQUEST TO SPEAK FROM BW TREASURE, INC., BENNE
HAMBLIN REGARDING CODE ENFORCEMENT LIEN
Renne Hamblin, 849 20th St., (Property Manager of Winn Dixie), relayed that she
had been fined with an order of lien for a non -conforming landscape site. She provided the
Board a timeline to demonstrate her efforts to comply with code enforcement, stating that
due to the location of the drains, oak trees do not grow well on the property. Ms. Hamblin
showed some slides of the property, before and after her landscaping work, and stated that
although she had upgraded the property, her revision was denied. She requested that the
Board remove the lien.
Roland DeBlois, Chief of Environmental Planning and Code Enforcement,
conveyed that Ms. Hamblin had been given seven extensions, and was presented with two
options — to come into compliance with the existing plan and/or comply with the revised
landscape plan. Neither of those two things ever occurred, and eventually after almost a
year, the Board imposed the fine. Mr. DeBlois said there are some basic non-compliance
issues.
Upon Commissioner Flescher's inquiry, Attorney Collins advised that if there was
an appeal of a Code Enforcement order, it would be filed in Circuit Court within 30 days.
Mr. DeBlois said that once a respondent comes into compliance, the Board inspects the
property and has another hearing to acknowledge the compliance and set the fine.
Mitigating circumstances are taken into consideration at that time. Mr. DeBlois declared
that this case cannot go back to the Board yet, because it is not yet in compliance.
March 13, 2007 21
Chairman Wheeler said legal was advising them that this item needs to follow the correct
process, and he felt that the Board should not continue with this discussion.
Commissioner O'Bryan asked staff if it has been spelled out to the applicant what
she needs to do to come into compliance. Mr. DeBlois replied that Code Enforcement has
gone over the approved site plan, which is specific.
Joseph Montanto, the Landscape Architect who was retained by Renne Hamblin,
stated that he has presented a plan to Mr. Freeman, but he had added some technical aspects
that were requested by Mr. Freeman, and was going to resubmit the plan. He had also, in
the meantime, asked his client to stop doing anything on her property until the site plan
receives approval.
Renne Hamblin said the original plan that was signed off on is not the one that is
presently in place.
Commissioner Davis asked Ms. Hamblin to proceed with the landscaping, and
provide the language requested by Mr. Freeman, and once the property is in compliance,
the item could go back to Code Enforcement.
NO BOARD ACTION REQUIRED OR TAKEN
March 13, 2007 22
9.B. 2. REQUEST TO SPEAK FROM SPENCER SIMMONS REGARDING
COMMISSION VOTE TO REHEAR OR REVERSE PREVIOUS DECISION ON
TRANSITIONAL HOUSING CENTER ON 37TH STREET (THE SOURCE)
Spencer Simmons, Simmons Construction, announced that he would defer his
discussion until later in the meeting, when Administrator Baird speaks about the item.
NO BOARD ACTION REQUIRED OR TAKEN
9.B.3. REQUEST TO SPEAK FROM P&S PROPERTIES, JERRY SWANSON,
REGARDING CONCURRENCY INTERPRETATION
Chairman Wheeler announced that this item would be deleted from the Agenda.
NO BOARD ACTION REQUIRED OR TAKEN
9.C. PUBLIC NOTICE ITEMS
9.C.1. NOTICE OF SCHEDULED PUBLIC HEARING FOR MARCH 20, 2007:
CONSIDERATION OF PROPOSED AMENDMENTS TO THE LANDSCAPE AND
BUFFER REGULATIONS OF LDR CHAPTER 926, THE CORRIDOR LANDSCAPE
REGULATIONS AND THE MULTI -FAMILY GREEN SPACE REGULATIONS OF
LDR CHAPTER 911, THE SUBDIVISION GREEN SPACE REQUIREMENTS OF
CHAPTER 913, THE STORMWATER MAINTENANCE AREA REGULATIONS OF
March 13, 2007 23
LDR CHAPTER 930, THE LITTORAL ZONE REGULATIONS OF LDR CHAPTER
934, AND THE DEFINITIONS OF LDR CHAPTER 901 (LEGISLATIVE)
9.C.2. NOTICE OF SCHEDULED PUBLIC HEARING FOR MARCH 20, 2007:
ADOPT AMENDMENTS TO THE COUNTY'S EXISTING INDUSTRIAL
PRETREATMENT ORDINANCE (LEGISLATIVE)
The Chairman read the notices into the record.
10. COUNTY ADMINISTRATOR'S MATTERS
10.A. SPECIAL CALL MEETING
Administrator Baird and Mr. Keith Hedin had discussed available dates and settled
on April 20, 2007 to hold a special call meeting regarding the Source Project. Mr. Hedin
stated that Steve Henderson (the other Counsel) could not be available until then, and he
was fine with the proposed date.
Douglas Vitunac, Esq., reported that he had not received notice that there was
going to be a decision on the request for the rehearing at the last meeting. He thought that
deciding to rehear on the merits was a reversal of a previous decision made by the Board.
Chairman Wheeler asked if the meeting could be held on April 18, and Mr. Vitunac
agreed, observing that Mr. Henderson would be available then. Mr. Vitunac reported that
he would be filing a judicial appeal before the meeting.
The CONSENSUS was to hold the Special Call meeting,
between the Indian River County Board of Commissioners
March 13, 2007 24
and The Source, on April 18, 2007 at the County
Commission Chambers.
Spencer Simmons opined that the Board was being one-sided on this issue, and felt
that the appeal should never have been heard. He declared that the Board was willing to
burden the County with expensive lawsuits for an issue they were going to lose.
10.B. JOINT MEETING WITH CITY OF PALM BAY
Administrator Baird provided the following potential dates to hold the joint
meeting with the City of Palm Bay: Tuesday, April 10; Wednesday, April 11; Tuesday,
April 17, Tuesday, April 24, and Wednesday, April 25. Administrator Baird will provide
a list of the dates to the Board, and then finalize a date with the City Manager's office.
10. C COMMITTEE VOLUNTEER BANQUET
Administrator Baird explained that it is very hard to find a venue that will hold such
a large number (over 300) of people. He was going to see about the feasibility of having
the event in the new complex.
Commissioner Davis suggested, if the weather permits, the event could take place
outdoors. Commissioner Flescher added that the Board could erect tents.
11. DEPARTMENTAL MATTERS
11.A. COMMUNITY DEVELOPMENT - NONE
11.B. EMERGENCY SERVICES - NONE
11. C GENERAL SERVICES - NONE
March 13, 2007 25
11.D. HUMAN RESOURCES
1. APPROVAL TO ENTER INTO A CONSULTANT AGREEMENT TO CONDUCT
A CLASSIFICATION AND PAY STUDY
James Sexton, Director of Human Resources, presented two quotes from Cody &
Associates. The first quote ($71,000.00) is the cost to conduct a comprehensive
classification and compensation study for all BOCC and Constitutional Officers. The
second quote ($60,000.00) is the cost to study only compensation. He informed everyone
that the results of the pay study should be available by budget hearing time.
ON MOTION by Commissioner O'Bryan, SECONDED by
Commissioner Flescher, the Board unanimously approved
to waive the RFQ process and enter into a Comprehensive
Classification and Compensation Study for all Board of
County Commissioner employees and Constitutional
Officers, as recommended in the memorandum of March 7,
2007.
11.E. HUMAN SERVICES - NONE
11.F. LEISURE SERVICES - NONE
11.G. OFFICE OF MANAGEMENT AND BUDGET - NONE
11.H. RECREATION- NONE
March 13, 2007 26
11.1. PUBLIC WORKS
(Clerk's note - Item 11.1.1 was moved to Public Hearings, Item 9.A.2. Item 11.1.2. became
Item 11.1.1.)
1. FLORIDA INLAND NAVIGATION DISTRICT 2007-2008 WATERWAYS
ASSISTANCE PROGRAM AUTHORIZING RESOLUTION FOR THE OSLO ROAD
PUBLIC BOAT RAMP
Chris Mora introduced Project Manager Mike Nixon, who presented this item to
the Board. Mr. Nixon stated that the new ramp would consist of a canoe and kayak launch,
wooden docks, an observation deck, and a paved parking area. Small powerboats would
also be accommodated.
Commissioner O'Bryan (referring to Dr. Gilmore's letter on fish populations in the
Indian River Lagoon) voiced his concerns about minimizing environmental impact to the
region.
Mr. Nixon stated that meetings had been held with other environmental groups,
and before the plans are finalized, one additional meeting would be held. He also
disclosed that a grant for the project is available from the Department of Environmental
Protection (DEP) and the projected completion date is April 2009.
Commissioner Davis wondered if the project would be stopped if the funding were
not appropriated. Administrator Baird replied that the item would be returned to the
Board for reprioritization. Commissioner Davis surmised that channeling (for small boats)
might be a better direction to take, environmentally.
March 13, 2007 27
Dr. Richard Baker, President of the Audubon Society, expressed his concerns
regarding the omission of plans for stormwater facilities in this project, and possible
damage to sea grasses and fish. He was also concerned about dredging, which heretofore
had not been included in any of the project plans.
The Board and Dr. Baker discussed the pros and cons of dredging, and Dr. Baker
reminded everyone there is an alternate site for a boat dock on 45th Street, Gifford Docks.
The advantages to using this site include cheaper cost, close proximity to the intercoastal, a
lack of sea grass, and the increased depth of the water.
Vice Chair Bowden suggested that the Board re-examine this plan. Commissioner
O'Bryan agreed and communicated the importance of proceeding with the application (due
by the end of March) for the grant money. It was noted that the grant money is site specific.
Chairman Wheeler wanted to research the Gifford Dock project and felt there could
be two boat ramps.
Bob Johnson voiced his impatience with the delays on this item, and encouraged
the board to make the decision to build the ramp.
Dr. Baker cautioned the Board that they would be spending 1.3 million dollars and
end up with a non-functioning dock, unless dredging is done, which is a whole different
issue.
ON MOTION by Commissioner Davis, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
Resolution 2007-026, under the Florida Inland Navigation
March 13, 2007 28
District Waterways Assistance Program, for the Oslo Road
Public Boat Ramp. Staff was directed to bring back a
presentation of their plan for further discussion.
11.J. UTILITIES SERVICES
11.J.1. PAYMENT OF OUTSTANDING UTILITY ASSESSMENT
Erik Olson, Utilities Director, gave a brief history of a very large water assessment
project back in 1992 as it impacted Mr. & Mrs. Willie Brown. He requested limiting the
amount of calculated interest over a 10 -year period of time, waiving the penalties and
interest which have occurred beyond the original window. Director Olson asked the Board
to allow the Utilities Department to charge Mr. Brown and his wife, $6,023.99 (the 10 year
principal and interest @ 8 percent).
ON MOTION by Commissioner Davis, SECONDED by
Commissioner Flescher, the Board unanimously approved
staff's request to limit the amount owed by Mr. And Mrs.
Willie Brown, in the amount of $6,023.99, the 10 -year
principal and interest at 8% interest only, for outstanding
fees, as recommended in the memorandum of March 4,
2007.
11.J.2. EMERGENCY OPERATIONS CENTER WATER MAIN EXTENSION
WORK AUTHORIZATION DIRECTIVE No. 2007-001, UCP No. 2938
Erik Olson declared that the Utilities Department is ready to move forward with
this project.
March 13, 2007 29
ON MOTION by Commissioner Flescher, SECONDED by
Commissioner O'Bryan, the Board unanimously approved
the project at a total cost of $38,516.44 and authorized the
Chairman to execute Work Authorization Directive No.
2007-001 to the Utilities Department Labor Contractor
authorizing payment up to $22,378.00, as recommended in
the memorandum of February 27, 2007.
WORK AUTHORIZATION NO. 2007-001 IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
12. COUNTY ATTORNEY MATTERS
12.A. ATTORNEY-CLIENT SESSION: DIVOSTA HOMES, L.P. AND DIVOSTA
HOMES HOLDINGS, L.L.C. VS. INDIAN RIVER COUNTY, CASE No.
20070109 -CA -19
(Clerk's Note: This item was heard after Item 12.C. At 1:39 p.m., the Chairman
announced that the Board would retreat to the County Administrator's Conference Room
to conduct the Attorney -Client Session).
Chairman Wheeler read into the record the Attorney -Client Session scheduled for
1:30 p.m. (which commenced at 1:40 p.m.). It was estimated that the session would last
one half-hour. Those in attendance were Commissioners Wesley S. Davis, Joseph E.
Flescher, Gary C. Wheeler, Peter D. O'Bryan, Sandra L. Bowden, Administrator Joseph A.
Baird, County Attorney William G. Collins II, John Shubin, Esquire (outside Counsel),
and a certified court reporter.
March 13, 2007 30
The Board returned to the Chambers at 2:37 p.m., and the Chairman closed the
Attorney -Client Session.
12.B. RESOLUTION CONCERNING RIGHT -OF- WAYACQUISITION FOR ROAD
IMPROVEMENT PROJECTS
Attorney Collins recommended that the Board adopt the resolution.
Joseph Paladin, Chairman of Growth Awareness Committee, was in favor of the
Resolution. There were three points that he asked the Board to consider: (1) Referring to
Item 4(b.), whether language should be incorporated into the resolution about advising
property owners of their rights; (2) referring to Item 4(f), whether the wording should
include that the offer supported by the appraisal must be declined within 30 days, and (3)
referring to Item 4(g.), whether the area about subdivisions should be placed as Item No. 5.
Attorney Collins responded to Mr. Paladin's concerns. To the first, he did not feel
it was necessary; to the second, he said that this is a general policy, but the wording could
be included; and to Mr. Paladin's third concern, Attorney Collins felt the item could remain
in the negotiations section of the document.
MOTION WAS MADE by Commissioner Davis,
SECONDED by Commissioner Flescher, to approve staff's
recommendation.
March 13, 2007 31
Bob Johnson, Coral Wind Subdivision, voiced concern about ensuring that the
property owners receive their letters. Chairman Wheeler commented that the notices
would be sent via registered mail.
There was discussion about including provisions in the Resolution for property that
has already been sold.
Michael Zito, Assistant County Administrator, suggested that the Board leave the
Resolution general, and follow Chapter 73 of the Florida Statutes.
The Chairman CALLED THE QUESTION and the Motion
carried unanimously. The Board approved Resolution
2007-027, setting forth policies for acquisition of
Right -of -Way for Road Expansion and Improvement
Projects.
12. C EXECUTIVE AIDE — MUTUAL RELEASE AND COVENANT NOT TO SUE
(DEFERRED FROM MEETING OF MARCH 6, 2007
(Clerk's note: This item was heard prior to 12.A and is placed here for continuity.)
Attorney Collins stated that this matter was deferred from last week; at which he
had presented a Mutual Release and Covenant Not To Sue, which the Board had requested
on January 23, 2007. On said date, the Board approved a severance package with Ms.
Massung that was conditioned upon getting a satisfactory release.
March 13, 2007 32
Attorney Collins advised the Board there had been some unfruitful discussion on
getting a release on an age discrimination claim, because at last week's meeting there were
only three board members present so the Board could not proceed. Mr. Collins related that
Attorney Peterson stated that the age release (which requires separate consideration from a
severance package) would be executed and the amount would be reduced from $1,000.00
to $100.00.
Attorney Collins agreed with the other attorneys involved that the age
discrimination release was unnecessary. Ms. Massung requested that her contract be
terminated based on some provisions in it that dealt with pressure from one or more of the
Commissioners who suggested a constructive discharge.
Attorney Collins recommended authorizing the Chairman to execute the Mutual
Consideration Release, which Ms. Massung signed on February 5, 2007. Her severance
package (which totals $105,000 including accrued vacation and sick time) comes to
$71,747.00 after taxes.
Commissioner Flescher believed that the Executive Aide contract itself is part of
the concern, and inquired as to how long the position has been under contract. Attorney
Collins thought that the Executive Aide had been a county officer at least since 1990, and
believed that the job became a contract position when it went to Senior Management
(possibly since 2000).
Commissioner Flescher referred to a meeting where Mr. Peterson (Ms. Massung's
Attorney) had referred to some incidents that occurred in 2005, and told the Board that they
"did not want to go there". Commissioner Flescher felt that the invoking of Ms. Massung's
contract seemed without cause and that with no explanation, the Board has allowed
$70,000 to go to an escrow account at the Attorney's office. Further, no elements of any
March 13, 2007 33
harassment were revealed, and the Board has not heard any elements of constructive
discharge. Attorney Collins explained that a constructive discharge occurs when working
conditions are made so intolerable, a reasonable person in the employee's position would
resign.
Commissioner Flescher had strong concerns about the allegations of harassment
that caused the Executive Aide to invoke the contract because there were unanswered
questions, and without knowing what has gone wrong, the Board would never know how to
make it right. Commissioner Flescher emphasized that the County Commission has an
obligation to all other employees to ensure that the alleged problem is identified.
MOTION WAS MADE by Commissioner Flescher to deny
the request today, and to request that the monies that have
been placed in escrow in the attorney's office be brought
forward into an account to be held in escrow while any civil
action is instituted to identify the problem. MOTION
DIED for lack of a second.
Commissioner Davis stated that he is ready to move on, and was unwilling to spend
any more money than what the contract stipulates. His concern was how the contract
escalated with deferred compensation, and believes that this has cost the taxpayers a lot of
money.
Chairman Wheeler asked if the Board would have to pay Ms. Massung's legal fees
if the contract is denied and she wins a suit against the Board. Attorney Collins responded
that generally, in civil matters, each side bears their own attorney's fees absent some
Statute that shifts the attorney fee to the prevailing party.
March 13, 2007 34
Commissioner Flescher reiterated that the Board needs to identify what the
situation was which caused the Executive Aide to leave the building. Commissioner Davis
agreed that we still do not know the reason, but noted that the Board would still be in this
same position. Chairman Wheeler added that it would be nice to have everything placed on
the table but noted that this was not the situation.
Kim Massung informed the Board that she would speak to the Board only after
they approved the release.
ON MOTION by Commissioner O'Bryan, SECONDED by
Commissioner Davis, by a 3-2 vote (Vice Chair Bowden
and Commissioner Flescher opposed) the Board approved
to authorize the Chairman to execute the Mutual Release
and Covenant Not to Sue with the severance package,
which was executed by Ms. Massung on February 5, 2007,
as recommended in the memorandum of March 7, 2007.
RELEASE IS ON FILE IN THE OFFICE OF THE CLERK TO THE BOARD
Kim Massung spoke about the financial loss that has resulted from her having to
leave her job as Executive Aide due to conflict between her and Vice Chair Sandra
Bowden.
Ms. Massung stated that she had signed the Mutual Release and Covenant Not To
Sue on February 5, 2007, but before Attorney Collins could place the agreement on the
next agenda, Vice Chair Bowden had Helen Scott, her attorney, submit a different version
of the contract, which contained additional verbiage relating to older workers and to
March 13, 2007 35
mutual non -disparagement. Attorneys Collins, Peterson, and Mendel all agreed that the
original signed agreement would suffice.
Ms. Massung mentioned that she had known that Ms. Bowden had
wanted to have her own aide, but she objected to the tactics employed by the
Commissioner. Ms. Massung read from her notes (copy not on file) to detail the reasons
and list the incidents that resulted in her requesting termination of her employment
contract.
Vice Chair Bowden found the allegations about her outrageous, and declared that
they were unfounded rumors.
12.D. AUTHORIZATION REQUESTED FROM ATTORNEY COLLINS TO WORK ON
A DRAFT INTERLOCAL AGREEMENT WITH THE LEGAL STAFF OF VARIOUS
MUNICIPALITIES
Commissioner O'Bryan related that several of the Commissioners and Attorney
Collins had attended a meeting at Vero Beach City Hall, where the discussion centered on
working on an Interlocal Agreement (ILA) on annexations, among the five municipalities
in the County. He felt that Attorney Collins should be given some direction/approval to
work on this item with the legal staff of the other municipalities.
ON MOTION by Commissioner O'Bryan, SECONDED by
Vice Chair Bowden, the Board unanimously approved
giving Attorney Collins the authority to work with the
municipal attorneys to draft an Interlocal Agreement.
March 13, 2007 36
13. COMMISSIONER ITEMS
I3.A. COMMISSIONER GARY C. WHEELER, CHAIRMAN
I. UPDATE ON THE DISCUSSION REGARDING THE FORMATION OF AN
ARCHITECTURAL REVIEW COMMITTEE FROM THE APRIL II, 2006 BCC
MEETING
Chairman Wheeler remarked that staff had been directed at the meeting of April 11,
2006 to come up with the pros and cons of establishing an Architectural Review
Committee (ARC). To date, nothing has been provided, and he would like to re -direct staff
to come back with this information.
Administrator Baird informed the Chairman that a chronology of what had been
done so far had been distributed to the Board, but apparently Chairman Wheeler had not
received it. Mr. Baird stated that Planning and Zoning (P & Z) has also set up a committee
for better -improved development, which also encompasses the ARC. Administrator Baird
would re -deliver the chronology.
Chairman Davis disclosed that the committee would be called the Indian River
Homeowner's Association
13.B. COMMISSIONER SANDRA L. BoWDE, VICE CHAIR
I. DISCUSSION OF LUNCH BREAKS ON BOARD OF COUNTY COMMISSION
MEETING DAYS
There was a CONSENSUS of the Board regarding the
necessity for lunch breaks at County Commission meetings
to make those determinations on an individual basis.
March 13, 2007 37
13.C. COMMISSIONER WESLEY S. DAVIS-NONE
13.D. COMMISSIONER JOSEPH E. FLESCHER-NONE
13.E. COMMISSIONER PETER D. O'BRYAN-NONE
14. SPECIAL DISTRICTS AND BOARDS
14.A. EMERGENCY SERVICES DISTRICT
The Chairman announced that immediately upon adjournment, the Board would
reconvene as the Board of Commissioners of the Emergency Services District. Those
Minutes are being prepared separately and appended to this document.
14.A.1. APPROVAL OF MINUTES FOR NOVEMBER 7, 2006, NOVEMBER 21,
2006, AND DECEMBER 12, 2006
14.A.2. APPROVAL OF FY2OO6/O7EMS COUNTY AWARDS GRANT:
PURCHASE OF CAPITAL/OPERATING EQUIPMENT USING NON-MATCHING
EMS GRANT FUNDS AND GRANT RESOLUTION
14.A.3. APPROVAL TO PURCHASE Two (2) CHEVROLET TYPE III
AMBULANCES FROM TEN -8 FIRE EQUIPMENT, INC.
14.A.4. FIRE RESCUE UPDATE
March 13, 2007 38
14.B. SOLID WASTE DISPOSAL DISTRICT - NONE
14. C ENVIRONMENTAL CONTROL BOARD - NONE
15. ADJOURNMENT
ALL BACKUP DOCUMENTATION, RESOLUTIONS, AND ORDINANCES ARE ON FILE IN THE
OFFICE OF THE CLERK TO THE BOARD AND ARE HEREBY MADE A PART OF THESE MINUTES
There being no further business, on Motion duly made, seconded and carried, the Board
adjourned at 2:59 p.m.
ATTEST:
Jeffrey K. Barton, Clerk Gary C. Wheeler, Chairman
Minutes Approved:
BCC/MIS/2007Minutes
March 13, 2007 39