VB MSTU Agenda 11/03/2011V amd er6id f BeacA JIB AY.&
Advisory Corhmliffee IN OT 9 W 13
2705 Horseshoe Drive South
Naples, FL 34104 1 NOV 2 1 201 i
November 3, 2011
AGENDA
I. Call Meeting to Order
II. Attendance
III. Approval of Agenda
IV. Approval of Minutes: October 13, 2011
V. Budget Report
VI. Landscape Maintenance Report - CLM
VII. Utilities Report - Charles Arthur
VIII. Project Manager Report
A. ATM Department - Darryl Richard
B. Public Utilities Department - Mark Sunyak
IX. Old Business
X. Update Report
A. Maintenance — Bruce Forman
B. Tax Analysis — Bud Martin
XI. New Business
XII. Public Comment
XIII. Adjournment
Fiala P v
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Henning
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Misc. Corres:
Date: t 1 i Oh -z.
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The next meeting is December 1, 2011 at 2:00 P.M.
ST. JOHNS PARISH LIFE CENTER
625 111TH Ave.
Naples, FL
Budget Office Response to Question regarding carryforward variance
From: FinnEd
Sent: Tuesday, October 18, 20116:44 PM
To: HerreraGloria
Subject: Vanderbilt MSTU Carry Forward
Gloria,
Attached is a preliminary analysis for FY 11 comparing what we thought we were
going to spend to how much we actually spent. You will see that we spent $2.3
million less than anticipated.
When we figure the under spending back in you will note that the carry forward is
$5.7 million. You will want to look at the column titled FY 11 Total Actual. At
the bottom the estimated carry forward is calculated by subtracting total expenses
from total revenue. The preliminary carry forward estimate is $5.7 million or
approx $700k more than Mr. Lydon is looking for. Again, this variance is due to
the forecast expenditures not happening as planned.
The carry forward difference between $5.7M and $3.3M is still in the fund but it is
presently unbudgeted. It will be budgeted when
• we need the funding to issue a contract and recognize the carry forward to
fund it
• when we prepare for the FY 13 budget
If you have any questions please let me know
Ed Finn
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Collier County, Florida
Vanderbilt Beach MSTU
Adjusted Balance Sheet (Unaudited)
As of respective date
Unaudited
As of
9/30/2011 11/3/2011 12/2/2011
Pooled cash and investments $ 5,732,292.12 $ 5,719,338.38 $ -
Market valuation of investments (done annually) 2,290.13 2,290.13 -
Due from Tax Collector 8,084.16 -
Due from Property Appraiser 1,174.00 - -
Due from other funds -
Interest receivable 6,307.40 6,307.40 -
Total Assets
Goods ReceiptlInvoice Receipt
Accounts Payable
Ending Fund Balance, 10 /01110 - audited
Beginning Fund Balance, 10/01/2011 - unaudited
Revenues:
Ad Valorem Collections
Interest Revenue
Miscellaneous
Expenditures:
Other Contractural Services
Legal Fees
Engineering
Surveying Fees
Abstract Fees
Indirect Cost Reimbursement
Water and sewer
Sprinkler maintenance
Landscaping
Mulch
Other miscellaneous (fertilizer, electricity, etc.)
Improvements - General (Capital)
Transfer to PA
Transfer to TC
Transfer to Fund 111 (Unic. MSTD)
Total Liabilities and Equity
Collier County, Florida
Vanderbilt Beach MSTU
Source of monies from inception - CUMULATIVE
Ad valorem taxes
Miscellaneous income (refund)
Interest earnings
Insurance recoveries
Good and services
Transfers out to other County funds
Cash balance as of respective date
$ 5,750,147.81 $ 5,727,935.91 $ -
$ - $ 10,025.00 $
17,216.22 -
5,093,220.84
5,732,931.59 5,732,931.59
968,706.32 4,757.44
43,274.19 -
(63,779.65)
$ 7,660,655.51 $ -
(83,983.50)
(9,830.00) -
(4,024.70)
626,245.55 -
(8,000.00)
(5,600.00) -
(26,638.70)
(1,580.55) -
(1,093.53)
(76.36) -
(5,818.94)
(390.00) -
(3,364.90)
- -
(11,907.02)
(30.27) -
(113,456.22)
(6,673.42)
(2,128.22) -
(11,529.18)
(142.72) -
(32,000.00)
$ 5,750,147.81 $ 5,727,935.91 $ 5,732,931.59
$ 7,655,898.07
$ 7,660,655.51 $ -
503.65
503.65 -
626,245.55
626,245.55 -
13,085.17
13,085.17 -
(2,245,240.32)
(2,262,951.50) -
(318,200.00)
(318,200.00) -
$ 5,732,292.12
$ 5,719,338.38 $ -
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Date: November 3, 2011
CURRENT SCHEDULE CONTINGENT UPON
BCC APPROVAL ON NOV 8 FOR PAYMENT TO FPL
Activity Date
BCC Approval of payment of CIAC November 8, 2011
Check is issued to FP & L for 1.8 mill. December 5, 2011
John Lehr orders equipment December 16, 2011 (note: John will not place the order
until he confirms check has been processed — this has
15 week order time -line for equipment
Shipment received for material
Construction Start (FPL)
Construction Completion (FPL)
Comcast - Construction Start
Comcast - Construction Completion
Completion of Pole Removal
Project Completion
taken up to 2 weeks previously)
December 16 (order is placed with vendor(s))
March 30, 2012
March 30.2012 [BEGIN CONSTRUCTIONI
June 30, 2012 (based on 3 months construction)
June 30, 2012 (NOTE: WE NEED TO PROCESS A CHECK
FOR COMCAST PER THE JUNE 14 BCC APPROVAL FOR
$331,351.25; Upon BCC approval of UFCA on Nov. 8,
2011 BCC meeting staff will request payment to
Comcast in the amount of $331,351.25
August 30, 2012
September 13, 2012 (per discussion with FP & L poles
will be removed within 2 weeks after Comcast
completion)
October 13, 2012 (includes complete site restoration)
Reply to Tallahassee
November 1, 2011
Via Electronic Mail
Scott R. Teach
Deputy County Attorney
Collier County, Florida
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112 -5749
Re: Vanderbilt Beach Beautification MSTU
Dear Mr. Teach:
You have requested an opinion concerning certain issues relating to the
Vanderbilt Beach Beautification Municipal Services Taxing Unit (the "MSTU').
On October 8, 2009, we rendered an opinion that the proceeds of the MSTU
could be used to fund the cost of undergrounding and relocating utility lines of
Florida Power & Light. We further opined that property owners could be required
to connect to the electrical system once it is tmderground.
It is my understanding that the MSTU is beginning the process of placing
those utility lines and facilities underground and that you will be relocating and
installing them within the Collier County right -of -way. You have indicated that
there are other prospective permittees who may wish to obtain right- of-way
permits and install other utility facilities in the right- of-way, which may conflict
with the proposed location of the undergrounding project. You have requested an
opinion as to what extent the County may limit the use of its right -of -way when it
160
FORT LAUDERDALE
208 S.E. Sixth Street
Nabors
Fort Lauderdale, 33301
TALLAHASSEE
(954) 25 000
Suite 200
1500 Mahan Drive
..
Giblin
(954) 525 -8331 Fax
Tail Florida
(850) 2
{850}2244070Te€
Tel
TAMPA
(850) 224-4073 Fax
NickersonP.A.
Suite 1060
2502 Rooky Point Drive
A F T O k N €= Y S A 'C L. A W
Tampa, Florida 33607
(813) 281 -2222 Tel
(813) 281 -0129 Fax
Reply to Tallahassee
November 1, 2011
Via Electronic Mail
Scott R. Teach
Deputy County Attorney
Collier County, Florida
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112 -5749
Re: Vanderbilt Beach Beautification MSTU
Dear Mr. Teach:
You have requested an opinion concerning certain issues relating to the
Vanderbilt Beach Beautification Municipal Services Taxing Unit (the "MSTU').
On October 8, 2009, we rendered an opinion that the proceeds of the MSTU
could be used to fund the cost of undergrounding and relocating utility lines of
Florida Power & Light. We further opined that property owners could be required
to connect to the electrical system once it is tmderground.
It is my understanding that the MSTU is beginning the process of placing
those utility lines and facilities underground and that you will be relocating and
installing them within the Collier County right -of -way. You have indicated that
there are other prospective permittees who may wish to obtain right- of-way
permits and install other utility facilities in the right- of-way, which may conflict
with the proposed location of the undergrounding project. You have requested an
opinion as to what extent the County may limit the use of its right -of -way when it
160
Scott R. Teach
Deputy County Attorney
November 1, 2011
Page 2
comes to multiple utility customers making simultaneous requests to bury their
lines when an active project is underway.
Under Florida law, public utilities are given broad authority to locate their
lines and facilities within public rights -of -way. For example, section 425.04(l 1),
Florida Statutes, grants rural electric cooperatives the following powers:
(11) To construct, maintain, and operate electric
transmission and distribution lines along, upon, under
and across all public thoroughfares, including without
limitation, all roads, highways, streets, alleys, bridges
and causeways, and upon, under and across all publicly
owned lands, subject, however, to the requirements in
respect of the use of such thoroughfares and lands that
are imposed by the respective authorities having
jurisdiction thereof upon corporations constructing or
operating electric transmission and distribution lines or
systems;
Similar authority is granted to other public utilities. (See also section 362.0 1,
Florida Statutes, granting broad powers to enter onto public lands for all public
utilities). The primary purpose of this policy is to minimize the cost of utilities by
allowing them to locate their lines and facilities on public lands. Though a utility
may have the authority to place their lines and facilities within the public rights -of-
way, that use is subject to reasonable regulation by governmental entities. This
includes the obtaining of permits, payment of reasonable fees, and the requirement
that they be installed consistent with the use of the rights -of -way of others. Collier
County has enacted such provisions relating to the use of its public rights -of -way
and established guidelines for its use. (See Ordinance 2003 -37, as amended, and
the adopted "Construction Standards Handbook for Work within the Public Right -
of- Way ".)
IL
Scott R. Teach
Deputy County Attorney
November 1, 2011
Page 3
As to the issue of the undergrounding of utility lines, there are certain
alternatives which are available to the County to make certain that the proposed
plans for the undergrounding of electric facilities by the MSTU are not disrupted.
First, as indicated in your initial inquiry, the County could impose a moratorium on
the locating of all other utility lines and facilities until such time as the
undergrounding of the utilities has been completed. The viability of this
alternative is dependent on the timing of the project. Based upon the information I
have received, it appears that the undergrounding will commence in February 2012
and be completed by May 2012. As this is a relatively short period, a brief
moratorium would be viable. However, any moratorium can cause some
hardships. These can consist of scheduling concerns for other utilities and the
potential of an increase in the expense of placing their facilities in the right -of -way
due to the delay.
A second alternative would be to file a reservation of right -of -way for the
specific location that the lines will be located. This would allow any other utility,
seeking to use the night-of-way, to be on notice as to the reservation of that portion
of the right -of -way. The notice would require them to either adjust their plans or
arrive at a placement which would assure that there would not be an intrusion upon
the reserved area. Further, as the County has adopted extensive guidelines to
address the use of the right -of -way, the recording of the reservation would allow
the County to approve plans of other utilities subject to that reservation.
If you have any additional
GTS:pad
se feel free to contact me.
4
r. Stewart
12.
- - - -- Original Message---- -
From: Crystal K. Kinzel [mailto:Crystal.Kinzel @collierclerk.com]
Sent: Thursday, November 03, 2011 11:47 AM
To: Charles Arthur
Cc: AmoldMichelle; TeachScott; RichardDarryl
Subject: RE: Status of FPL PAYMENT
Mr. Arthur,
Consistent with our approach once this item was brought to our attention, which was only
recently, we continue to diligently work with the department and the county attorney's office
toward validating our ability to pay.
While we have not yet determined a "final" status of the payment, we are and have been devoting
substantial time, efforts and resources working on the issue - the specific issue that needs to be
resolved is the Clerk's ability to lawfully "pre -pay" $1.8M into an FPL bank account without the
ability to validate the expenditures made. The deposit requested is based upon a "best cost
estimate" and according to correspondence between the county attorney's office and FPL , FPL
has indicated that they "do not believe additional detail is warranted" or that allowing an audit of
the expenditures "would serve any useful purpose ".
In addition to addressing concerns that the payment not violate the Florida Constitution's
prohibition against the county [or in the case the county's MSTU] lending credit to a
corporation, we also need to address whether such a lump sum payment precludes the Clerk from
performing his constitutionally required pre -audit function and post payment function.
The courts and the Florida Attorney General have consistently stated that the duties of the clerk
as county auditor must be preserved to ensure that the payment of a claim from county funds is a
proper and legal charge against the county. Even assuming that the appropriation of county funds
would serve a county purpose that has been authorized by statute or ordinance, there must be
some type of pre -audit review of the disbursement to make sure that the funds will not be used
for other than the county purpose for which the donation was made. Some control over the
disbursement of county funds must therefore be maintained, and although an appropriation of
county funds may serve a county purpose, there must be some type of pre -audit review of the
disbursement in order to be sure that the funds will not be used for an unlawful purpose. A lump -
sum disbursement of county funds to a non - county agency to be expended by that organization in
its discretion without pre -audit review by the clerk poses may not be lawfully made in the
absence of express statutory or constitutional authorization.
To assist county staff in addressing this issue, the Clerk's Office has extensively researched the
possibility of making the requested advance payment. Section 28.235, F.S (attached) provides
statutory authority to make advance payments in certain situations "pursuant to rules or
procedures adopted by the Chief Financial Officer for advance payments of invoices submitted
to agencies of the state ". We then followed up to ascertain the rules and procedures. We are
currently reviewing with the county attorney's office the conditions precedent outlined in the
rules of the Chief Financial Officer.
13.
I believe your anger may be misdirected at the Clerk's Office, we became aware of this issue
when it first appeared on the BCC agenda, I believe, September of this year. As can be seen,
while we have not yet determined a "final" status of the payment, we are, and have diligently
been, working on the issue.
I unfortunately have another scheduled meeting today and would not be able to attend your
meeting today. Please share this with your members and be assured we continue to work with
County staff and legal toward resolution.
Thank you.
Crystal K. Kinzel
Director of Finance and Accounting
Clerk of the Circuit Court
Collier County Government Center
3301 E. Tamiami Trail Bldg F 4th Floor
Naples, FL 34112
(239)252 -6299
Crystal.Kinzel@Collierclerk.com
- - - -- Original Message---- -
From: Charles Arthur [mailto:ccarthur @earthlink.net]
Sent: Wednesday, November 02, 2011 10:59 PM
To: Crystal K. Kinzel
Cc: Arnold, Michelle; Teach, Scott; Richard, Darryl
Subject: Status of FPL PAYMENT
Crystal, Our MSTU board meets tomorrow at 2 pm for our regular monthly meeting. I would like
to bring them up to date on the situation with the FPL payment and any issues which may be
remaining.
Could you tell me the current status and where the Clerk's office stands on making the payment.
Also what is the likelihood approval will be given in time for the November S BCC meeting?
What specific issues are still unresolved?
Could you also provide me with a copy of the Florida Statute which prohibits prepayment by a
County to a regulated public utility?
You or the Clerk would certainly be welcome to attend our meeting to further explain the issues
surrounding the payment. Our meeting is held at St. John the Evangelist Church. We could put
you on the agenda at a time convenient to you. The meeting starts at 2 and is usually over by
3:30 or 4:00.
Thanks.
Charlie Arthur
14.
y
Statutes & Constitution :View Statutes: Online Sunshine
Select Year: 2011 L ; Go
The 2011 Florida Statutes
Title V Chanter 28
JUDICIAL BRANCH CLERKS OF THE CIRCUIT COURTS
Page l of 1
View Entire Chanter
28.235 Advance payments by clerk of circuit court. —The clerk of the circuit court is authorized
to make advance payments on behalf of the county for goods and services, including, but not limited to,
maintenance agreements and subscriptions, pursuant to rules or procedures adopted by the Chief
Financial Officer for advance payments of invoices submitted to agencies of the state.
History. —s. 12, ch. 94 -348; s. 89, ch. 2003 -261.
Copyright ®1995 -2011 The Florida Legislature • Privacy Statement • Contact Us
http: / /www.leg.state.fl.usI Statuteslindex,cfm ?App_mode--Display _Statute &Search_Strin... 10/23/2011 1 S'
This office's opinion in AGO 077 -97 prohibiting advance or lump -
sum payments by the county to a mental health board was based
upon a consideration of the constitutional and statutory duties
of the clerk of the circuit court as county auditor to audit and
approve claims against the county. See s. 1(d), Art. VIII, State
Const., and s. 129.09, F. S. This office has consistently stated
that the duties of the clerk as county auditor must be preserved
to ensure that the payment of a claim from county funds is a
proper and legal charge against the county. See, e.g., AGO's
079 -78 and 073 -113 stating that 'even assuming that the
appropriation of county funds would serve a county purpose that
has been authorized by statute or home rule ordinance, there
must be some type of pre -audit review of the disbursement to
make sure that the funds will not be used for other than the
county purpose for which the donation was made.' See also AGO's
071 -1501 064 -96, 059 -92, and 056 -151. Some control over the
disbursement of county funds must therefore be maintained. See
Alachua County v. Powers, 351 So.2d 32, 36 (Fla. 1977),
,[a] lthough an appropriation of county funds may serve a county
purpose, there must be some type of pre -audit review of the
disbursement in order to be sure that the funds will not be used
for an unlawful purpose.' Thus, this office has stated that a
lump -sum disbursement of county funds to a noncounty agency to
be expended by that organization in its discretion without
preaudit review by the clerk may not be lawfully made in the
absence of express statutory or constitutional authorization.
I6.
RE: Status FPL PAYMENT
.1
RE: Status of FPL PAYMENT
From:
To:
Cc:
Subject:
Date:
HillerGeorgia <GeorgiaHiller @colliergov.net>
Charles Arthur, "Dwight E. Brock", "Dwight E. Brock", "Crystal K. Kinzel"
RaineyJennifer <JenniferRainey @colliergov.net>
RE: Status of FPL PAYMENT
Nov 3, 2011 9:58 AM
Charlie /Dwight -
11/3/11 1:32 PM
I suggest we meet together to address this issue and invite the county attorney, if you
think this will help.
The law limits what both the Clerk and the BCC can do.
To the extent that the law allows the Clerk and /or the BCC to proceed, then that is what
will happen.
It is my understanding that Crystal has been diligently working with the county attorney's
staff to try to find a solution.
We can address what they have concluded to date, and determine what further can be done.
In terms of the best way to handle this matter, I recommend full transparency and
positive, open dialogue.
Thank you.
Commissioner Georgia Hiller
District 2
Board of County Commissioners
3299 Tamiami Trail East, Suite 303
Naples, FL 34112
(239)252 -8602
3299 Tamiami Trail East, Suite 303
Naples, FL 34112
239 - 252 -8602
From: Charles Arthur [ccarthur @earthlink.net]
Sent: Wednesday, November 02, 2011 11:25 PM
To: HillerGeorgia
http: / /webmaii.c.earthlink .net /wam /printable.jsWmsgid= 3961 &x =- 204192315 Page 1 of 3
�.4PL PAYMENT
afbject: Fw: Status of FPL PAYMENT
11/3/11 132 Ph
Georgia, attached is an email I sent to Crystal to provide information for our MSTU
meeting on Thursday, Nov. 3. I appreciate your having her call me, however, I did not get
any new information from Crystal_ It seems the things they are doing are the same things
they were doing weeks ago and no progress has been made.
To my knowledge, no one has come up with the authority which precludes the prepayment.
in the event that the Clerk does not approve the payment for the November 8 BCC meeting, I
would like to request that the item be allowed to remain on the ballot so it can be
discussed and approved by the Commissioners on Tuesday. This would allow us to continue
working with the Clerk and perhaps getting the payment made before the Board meets again
in December.
This would also provide us a cleaner litigating position against the Clerk if that becomes
necessary. We would be able to exclude the Board from litigation, and would have a
stronger case if the payment had passed favorably at the BCC. Any litigation would most
likely be undertaken by the Residents Association and not the MSTU.
I would certainly hate to go down that road, but our neighborhood- -your constituents- are
becoming increasingly upset about this situation. They feel they have voluntarily taxed
themselves for the utilities project, already incurred expenses into six figures and now
are being prevented from providing more safety and security from storms, and improving our
property values. In reality, these costs should be borne by the County without having an
MSTU, but we have the funds and would like to see them spent for their intended purpose.
I am certainly open to suggestions, but just sitting back and waiting on the Clerk is not
working. we are being pushed into an unfavorable construction schedule. There is also the
risk that FPL will get tired of this and move us down the list or decide they won't do the
project at all. Based on my discussions with the PSC, they have that right.
I am not versed in County politics, but it would seem to me it is time for you to have a
heart to heart discussion with the Clerk.
Thanks for your assistance.
Charlie Arthur
- - - -- Forwarded Message -----
>From: Charles Arthur <ccarthur @earthlink.net>
http : / /webmaii.c.earthlink.net /wam /printable jsp?msgid= 3961 &x =- 204192315 Page 2 of 3
,IfPIPAYMENT 11/3/11132 PEA
Sent: Nov 2, 2011 10:59 PM
>To: "Crystal K. Kinzel" <Crystal.Kinzel @collierclerk.com>
>Cc: arnold m <MichelleArnold @colliergov.net >, TeachScott <ScottTeach @colliergov.net >,
Darryl Richard <DarrylRichard @colliergov.net>
>Subject: Status of FPL PAYMENT
> Crystal, Our MSTU board meets tomorrow at 2 pm for our regular monthly meeting. I would
like to bring them up to date on the situation with the FPL payment and any issues which
may be remaining.
> Could you tell me the current status and where the Clerk's office stands on making the
payment. Also what is the likelihood approval will be given in time for the November 8 BCC
meeting? What specific issues are still unresolved?
> Could you also provide me with a copy of the Florida Statute which prohibits prepayment
by a County to a regulated public utility?
>You or the Clerk would certainly be welcome to attend our meeting to further explain the
issues surrounding the payment. Our meeting is held at St. John the Evangelist Church. We
could put you on the agenda at a time convenient to you. The meeting starts at 2 and is
usually over by 3:30 or 4:00.
>Thanks.
>Charlie Arthur
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail
address released in response to a public records request, do not send electronic mail to
this entity. Instead, contact this office by telephone or in writing.
http: / /webmall.c.earthlink .net /wam /printablejsp ?msgid= 3961 &x =- 204192315 Page 3 of 3