BCC Minutes 02/11/2014 R BCC
REGULAR
MEETING
MINUTES
February 11 , 2014
February 11, 2014
TRANSCRIPT OF THE MEETING OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, February 11, 2014
LET IT BE REMEMBERED, that the Board of County
Commissioners, in and for the County of Collier, also acting as the
Board of Zoning Appeals and governing board(s) of such special
districts as have been created according to law and having conducted
business herein, met on this date at 9:00 a.m. in REGULAR SESSION
in Building "F" of the Government Complex, East Naples, Florida,
with the following members present:
CHAIRMAN: Tom Henning
Tim Nance
Donna Fiala
Fred Coyle
Georgia Hiller
ALSO PRESENT:
Jeffrey Klatzkow, County Attorney
Leo E. Ochs, Jr., County Manager
Crystal Kinzel, Finance Director
Tim Durham, Executive Manager, Corp. Business Operations
Troy Miller, Communications & Customer Relations Manager
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COLLIER COUNTY
Board of County Commissioners
Community Redevelopment Agency Board (CRAB)
Airport Authority
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AGENDA
Board of County Commission Chambers
Collier County Government Center
3299 Tamiami Trail East, 3rd Floor
Naples FL 34112
February 11, 2014
9:00 AM
Tom Henning - BCC Chairman; BCC Commissioner, District 3
Tim Nance - BCC Vice-Chairman, District 5
Donna Fiala - BCC Commissioner, District 1; CRAB Chairman
Georgia Hiller - BCC Commissioner, District 2
Fred W. Coyle - BCC Commissioner, District 4; CRAB Vice-Chairman
NOTICE: ALL PERSONS WISHING TO SPEAK ON AGENDA ITEMS MUST
REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE
EXECUTIVE MANAGER TO THE BCC PRIOR TO PRESENTATION OF THE
AGENDA ITEM TO BE ADDRESSED. ALL REGISTERED SPEAKERS WILL
RECEIVE UP TO THREE (3) MINUTES UNLESS THE TIME IS ADJUSTED BY
THE CHAIRMAN.
COLLIER COUNTY ORDINANCE NO. 2003-53 AS AMENDED BY
ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYISTS
SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING
BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY
COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE
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February 11,2012
BOARD MINUTES AND RECORDS DEPARTMENT.
REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON
THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION
TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF
THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS."
PUBLIC PETITIONS ARE LIMITED TO THE PRESENTER, WITH A
MAXIMUM TIME OF TEN MINUTES.
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD
WILL NEED A RECORD OF THE PROCEEDING PERTAINING THERETO,
AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD
OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE
TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY
ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING,
YOU ARE ENTITLED, AT NO COST TO YOU, THE PROVISION OF CERTAIN
ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES
MANAGEMENT DEPARTMENT LOCATED AT 3335 EAST TAMIAMI TRAIL,
SUITE 1, NAPLES, FLORIDA, 34112-5356, (239) 252-8380; ASSISTED
LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN
THE FACILITIES MANAGEMENT DEPARTMENT.
LUNCH RECESS SCHEDULED FOR 12:00 NOON TO 1:00 P.M.
1. INVOCATION AND PLEDGE OF ALLEGIANCE
A. Pastor Jim Thomas - East Naples United Methodist Church
2. AGENDA AND MINUTES
A. Approval of today's regular, consent and summary agenda as amended (Ex
Parte Disclosure provided by Commission members for consent and
summary agenda.)
B. January 14, 2014 - BCC/Regular Meeting Minutes
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February 11,2012
3. SERVICE AWARDS
4. PROCLAMATIONS
A. Proclamation designating February 16-22, 2014 as Engineer's Week in
Collier County, To be accepted by Ralph Verrastro, State Director, Florida
Engineering Society, Calusa Chapter; Norman Trebilcock, President, Florida
Engineering Socety, Calusa Chapter; Alison Bradford, Professional
Development Chair, Florida Engineering Society, Calusa Chapter; and
Marlene Messam, Florida Engineering Society, Calusa Chapter. Sponsored
by Commissioner Fiala.
B. Proclamation designating February 2014 as Career and Technical Education
Month in Collier County. To be accepted by Yolanda Flores, Principal,
Lorenzo Walker Institute of Technology and Denise Duzick, Administrator,
Lorenzo Walker Institute of Technology. Sponsored by Commissioner Fiala.
C. Proclamation designating February 17-23, 2013 as Art Appreciation Week
in Collier County in recognition of the 60th Anniversary of the Naples Art
Association. To be accepted by Aimee Schlehr, Executive Director, Naples
Art Association and Stacey Bulloch, Board President, Naples Art
Association. Sponsored by the Board of County Commissioners.
5. PRESENTATIONS
A. Presentation of the Collier County Business of the Month for February 2014
to Brian Glaeser State Farm Insurance. To be accepted by Brian A. Glaeser.
B. Recommendation to recognize Ivette Monroig, Operations & Regulatory
Department Technician, Growth Management Division, as the Employee of
the Month for January 2014.
C. Recommendation to recognize Travis Gossard, Superintendent Roads &
Bridges, Growth Management Division as the Supervisor of the Year for
2013.
6. PUBLIC PETITIONS
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February 11, 2012
Item #7 to be heard no sooner than 1:00 p.m. unless otherwise noted.
7. PUBLIC COMMENTS ON GENERAL TOPICS NOT ON THE CURRENT
OR FUTURE AGENDA
Item #8 to be heard no sooner than 1:30 p.m. unless otherwise noted.
8. BOARD OF ZONING APPEALS
Item #9 to be heard no sooner than 1:30 p.m. unless otherwise noted.
9. ADVERTISED PUBLIC HEARINGS
A. Recommendation to consider approving the Bayshore/Thomasson Drive
Subdistrict small-scale amendment to the Collier County Growth
Management Plan, Ordinance 89-05, as Amended, for transmittal to the
Florida Department of Economic Opportunity. (Adoption Hearing)
(PL20120002382/CPSS-2013-1) [Companion to Petition PUDZA-
PL20120002357]
B. This item requires that ex parte disclosure be provided by Commission
members. Should a hearing be held on this item, all participants are
required to be sworn in. Recommendation to approve an Ordinance of the
Board of County Commissioners of Collier County, Florida amending
Ordinance Number 2005-63, as amended, the Cirrus Pointe Residential
Planned Unit Development (RPUD) which allows a maximum number of
108 residential dwelling units; by changing the name of the RPUD to
Solstice RPUD; by revising the Master Plan; by deleting Exhibit B, the
Water Management/Utility Plan; by deleting Exhibit C, the Location Map;
by removing Statement of Compliance and Project Development
Requirements; by adding a parking deviation; and by deleting and
terminating the Affordable Housing Density Bonus Agreement. The subject
property is located northeast of Bayshore Drive and Thomasson Drive in
Section 14, Township 50 South, Range 25 East, Collier County, Florida
consisting of 9.92+/- acres; and by providing an effective date. (PUDZA-
PL20120002357) [Companion to Petition PL20120002382/CPSS-2013-1]
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February 11,2012
10. BOARD OF COUNTY COMMISSIONERS
A. Reconsideration request by Commissioner Hiller regarding Item 11A
from the January 28, 2014 BCC meeting titled: Recommendation to
consider options for improved EMS response times throughout Collier
County, as it pertains to North Naples, Big Corkscrew, Immokalee and Ave
Maria.
B. This item to be heard at 2:30 p.m. Recommendation that the Board of
County Commissioners (1) adopts the attached Resolution which would
authorize the use of the uniform method of collecting non-ad valorem
special assessments within the La Peninsula Community to fund the costs of
providing seawall improvements and other waterway improvements for the
La Peninsula community, and (2) to adopt an Ordinance to establish the La
Peninsula Seawall Municipal Service Benefit Unit. This item was approved
for reconsideration at the January 14, 2014 BCC Meeting.
C. Recommendation to approve a Resolution in support of the budget request
made by the South Florida Ag Council to the Florida Legislature to fund the
Southwest Florida Research and Education Center, and to distribute
resolution in the manner set forth below.
11. COUNTY MANAGER'S REPORT
A. Recommendation to award a construction contract to Douglas N. Higgins,
Inc., for Bid No. 14-6203 - J&C Boulevard Roadway Improvements (from
Taylor Road to Airport-Pulling Road) Project No. 60182-5 funded by the
Pine Ridge Industrial Park MSTU, in the amount of$1,574,005.80 and
reserve $50,000 on the purchase order for funding allowances, for a total of
$1,624,005.80. (Jay Ahmad, Transportation Engineering Director)
B. Recommendation to review the staff analysis of a proposed Natural Gas
Franchise in Northeast Collier County and provide direction. (Jamie French,
Operations and Regulatory Management Director)
12. COUNTY ATTORNEY'S REPORT
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February 11,2012
13. OTHER CONSTITUTIONAL OFFICERS
14. AIRPORT AUTHORITY AND/OR COMMUNITY REDEVELOPMENT
AGENCY
A. AIRPORT
B. COMMUNITY REDEVELOPMENT AGENCY
15. STAFF AND COMMISSION GENERAL COMMUNICATIONS
A. Current BCC Workshop Schedule
16. CONSENT AGENDA - All matters listed under this item are considered to be
routine and action will be taken by one motion without separate discussion of
each item. If discussion is desired by a member of the Board, that item(s) will
be removed from the Consent Agenda and considered separately.
A. GROWTH MANAGEMENT DIVISION
1) Recommendation to approve a release of lien with an accrued value of
$252,712.64 for payment of$562.64, in the Code Enforcement Action
entitled Board of County Commissioners vs. Susan Shroyer, Code
Enforcement Special Magistrate Case No. CEPM-2009-0005325,
relating to property located at 4728 Capri Drive, Collier County,
Florida.
2) Recommendation to approve a release of lien in the accrued amount
of$166,583.43 for payment of$39,583.43, in the Code Enforcement
Action entitled Board of County Commissioners vs. Senen Lugo,
Code Enforcement Board Case No. CESD20090019403, relating to
property located at 4287 12th Ave NE, Collier County, Florida.
3) Recommendation to standardize the CityView software system
implemented at the Growth Management Division - Planning &
Regulation, declare CityView a sole source product and waive future
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February 11, 2012
competition, and authorize future enhancements to the software.
4) Recommendation to approve a Post Project Maintenance Agreement
with the Florida Department of Transportation (FDOT), for the
maintenance of the turn lane and intersection improvements at CR31
(Airport-Pulling Rd) and North Horseshoe Dr., upon completion of
the FDOT intersection improvements project, Financial Project No.
429908-1-52-01, and a Resolution authorizing the Chairman to sign
the Agreement.
5) Recommendation to approve a proposal from Coastal Planning &
Engineering dated December 16, 2013 for a historic beach
performance report and presentation under Contract #09-5262-CZ,
authorize budget amendment, authorize the County Manager or his
designee to execute the work order for a not to exceed amount of
$19,980.60, and make a finding that this expenditure promotes
tourism.
6) Recommendation to approve a proposal with Humiston & Moore
Engineers dated January 18, 2014 for Professional Services to develop
a conceptual plan for an updated beach profile design on Marco Island
under Contract #09-5262-S2 and authorize the County Manager or his
designee to execute the work order for a not to exceed amount of
$9,890 and make a finding that this expenditure promotes tourism.
7) Recommendation to approve a proposal with Humiston & Moore
Engineers dated December 26, 2013 for Professional Services to assist
the County in developing current beach renourishment industry trends
under Contract #09-5262-S2, authorize the necessary budget
amendment and authorize the County Manager or his designee to
execute the work order for a not to exceed amount of$10,000 and
make a finding that this expenditure promotes tourism.
B. COMMUNITY REDEVELOPMENT AGENCY
1) Recommendation that the Collier County Board of County
Commissioners (BCC) as the Collier County Community
Redevelopment Agency (CRA) approve Amendment #01 to
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February 11, 2012
Agreement No. 4600002788 with the South Florida Water
Management District (SFWMD) for Immokalee Drive Drainage
Improvements.
C. PUBLIC UTILITIES DIVISION
1) Recommendation to 1) amend an Agreement with CollectorSolutions,
Incorporated, for credit card and Automated Clearing House
processing to meet Payment Card Industry Data Security Standards
compliance for the Utility Billing and Customer Service Department's
hosted Interactive Voice Response system, and extend these services
to the iWEB internet payment service for water/sewer bill payments
on an annual basis with a reduction in transaction costs from 2.7
percent to 2.35 percent; 2) terminate the Contract Agreement #06-
3972 with TWI and all its relevant amendments.
2) Recommendation to award Request for Quote No. 08-5011-111,
"Replacement of Process Air Blowers at South County Water
Reclamation Facility," to Quality Enterprises USA, Inc., in the
amount of$645,239.15, for project No. 73969 South County Water
Reclamation Facility Technical Support Project.
3) Recommendation to direct the County Manager or his designee to
advertise an ordinance amending Ordinance No. 2001-73, as
amended, the Collier County Water-Sewer District Uniform Billing,
Operating, and Regulatory Standards Ordinance, to maintain
compatibility with the Collier County Consolidated Impact Fee
Ordinance, as amended.
D. PUBLIC SERVICES DIVISION
1) Recommendation to approve three (3) mortgage satisfactions for the
State Housing Initiatives Partnership (SHIP) loans in the combined
amount of$23,000.
2) Recommendation to approve a release of lien for an owner occupied
affordable housing dwelling unit for which State Housing Initiatives
Partnership (SHIP) have been repaid in full has a fiscal impact of
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February 11, 2012
$7,698.82.
3) Recommendation to adopt a Resolution amending Resolution No.
2013-227, the Collier County Domestic Animal Services Fee Policy,
to provide for the limited waiver of fees under specific conditions.
4) Recommendation to approve the use of the Central Florida Regional
Transportation Authority d/b/a LYNX Contract No. 14-C-09, for the
purchase of buses for Collier Area Transit system.
5) Recommendation to approve, after-the-fact, a Standard Contract and
Attestation Statement with Area Agency on Aging for Southwest
Florida, Inc., dba Seniors Choices of Southwest Florida, and to
authorize associated budget amendments for the FY14 Older
Americans Act Title III Program with a net fiscal impact of$ 21,610.
6) Recommendation to approve an agreement with Pelican Isle Master
Association, Inc. to partially fund repairs to the culvert bridge at
Pelican Isles and Cocohatchee River Park in the amount of$29,945.30
and authorize the necessary budget amendment.
7) Recommendation to approve a substantial amendment to the
Community Development Block Grant FY2013-2014 Action Plan and
a Subrecipient Agreement in the amount of$385,000 with Collier
County Housing Authority for an electrical rewiring project at Farm
Worker Village in Immokalee.
8) Recommendation to approve amendments to two subrecipient
agreements with Immokalee Non-Profit Housing, Inc. d/b/a
Immokalee Housing & Family Services funding Timber Ridge
Community Center Upgrades and Saunders Pines Playground
Upgrades with Community Development Block Grant (CDBG) funds.
9) This item continued from the January 28, 2014 BCC Meeting.
Recommendation to approve a Resolution superseding Resolution No.
2013-28 establishing New Bike Locker Rental Fees, Policies and
Procedures.
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February 11,2012
10) Recommendation to approve a one-time Facility Use Agreement with
Voices for Kids of Southwest Florida to provide an after-hours event
rental of the Naples Depot Museum.
E. ADMINISTRATIVE SERVICES DIVISION
1) Recommendation to authorize the sale of Collier County Surplus
property on March 29, 2014; authorize the County Manager or
designee to sign for the transfer of vehicle titles and County Attorney
approved Naples Airport space lease; and, authorize the donation of
previously loaned radar equipment to the Florida Highway Patrol.
2) Recommendation to grant a Deed of Conservation Easement to the
Florida Department of Environmental Protection over preserve lands
at the Resource Recovery Business Park.
3) Recommendation to accept reports and ratify staff-approved change
orders and changes to work orders.
4) Recommendation to approve the Assumption Agreement of Bid #10-
5513 "Sublet/Parts Bid for Collier County" for Fleet Management
services, repair parts, accessories, and end items from Florida Detroit
Diesel-Allison, Inc. to Stewart & Stevenson FDDA, LLC.
5) Recommendation to ratify Property, Casualty, Workers'
Compensation and Subrogation claim files settled and/or closed by the
Risk Management Director pursuant to Resolution #2004-15 for the
first quarter of FY 14.
6) Recommendation to retroactively approve change orders #1 and 2 to
Contract #13-6084 for the Pelican Bay Crosswalk Construction
project to Quality Enterprises USA, Inc.
7) Recommendation to approve a Second Amendment to Lease
Agreement with LG Mercantile Holdings, LLC, for the continued use
of warehouse/office space used by the Sheriff's Office.
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February 11, 2012
8) Recommendation to approve payment in the amount of$26,800 to
Quality Enterprises USA, Inc. for services rendered to correct parking
conditions in Bayview Park (Project #80060) and waive the
competitive solicitation requirement pursuant to the Purchasing
Ordinance No. 13-69, Section Nine (B)(3).
9) Recommendation to award Bid #13-6113, "Janitorial Services," to ISS
Facility Services for County-wide janitorial cleaning and services.
F. COUNTY MANAGER OPERATIONS
1) Recommendation to adopt a resolution approving amendments
(appropriating grants, donations, contributions or insurance proceeds)
to the Fiscal Year 2013-14 Adopted Budget.
2) Recommendation to approve a report covering a budget amendment
impacting reserves in an amount up to and including $24,000 and
budget amendment moving funds
G. AIRPORT AUTHORITY
1) Recommendation to approve the attached t-hangar and tie-down
agreements for the Everglades Airpark, Immokalee Regional Airport
and Marco Island Executive Airport as executed by the Airport
Manager's and the County Manager's Designee.
2) Recommendation to authorize the Airport Authority to proceed with
construction of the south taxiway extension at Everglades Airpark,
despite not receiving FDOT grant funds and authorize the necessary
budget amendments.
3) Recommendation to approve a Third Amendment to License
Agreement between the Collier County Airport Authority and
Immokalee Regional Raceway, pending FAA approval, permitting,
environmental and zoning compliance.
H. BOARD OF COUNTY COMMISSIONERS
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February 11, 2012
1) Commissioner Fiala requests Board approval for reimbursement
regarding attendance at a function serving a Valid Public Purpose.
Attended the League Club Inspiration & Anecdotes with Dorris
Goodwin on February 7, 2014. The sum of$70 to be paid from
Commissioner Fiala's travel budget.
2) Commissioner Fiala requests Board approval for reimbursement
regarding attendance at a function serving a Valid Public Purpose.
Will attend the Stars in the Arts Awards Luncheon on March 7, 2014.
The sum of$50 to be paid from Commissioner Fiala's travel budget.
3) Appointment of member to the Ochopee Fire Control District
Advisory Committee.
MISCELLANEOUS CORRESPONDENCE
1) Miscellaneous correspondence to file for record with action as
directed.
J. OTHER CONSTITUTIONAL OFFICERS
1) To obtain Board approval for disbursements for the period of January
17, 2014 through January 23, 2014 and for submission into the official
records of the Board.
2) To obtain Board approval for disbursements for the period of January
24, 2014 through January 30, 2014 and for submission into the official
records of the Board.
3) To obtain Board approval for disbursements for the period of January
31, 2014 through February 5, 2014 and for submission into the official
records of the Board.
4) To provide to the Board of County Commissioner's the Clerk of the
Circuit Court's Audit Report 2014-2 Fee Payment Assistance
Program: Advanced Medical Center, LLC. (This is a companion to
Item 16K2).
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February 11,2012
K. COUNTY ATTORNEY
1) Recommendation to approve the proposed Settlement Agreement
reached by the parties in the lawsuit styled Board of County
Commissioners of Collier County, Florida, v. Bay Electric of Collier,
Inc. and Bentley Electric Company of Naples, FL, Inc., Case No. 13-
2365-CC, filed in the County Court of the Twentieth Judicial Circuit
in and for Collier County, Florida, for the sum of$7,382.42, and to
authorize the Chair to execute the proposed Settlement Agreement.
2) Recommendation that the Board of County Commissioners directs the
County Attorney to work with the County Manager, or his designee,
to negotiate with the current owners of 1250 Pine Ridge Road on the
matter of the terms and obligations of the Fee Payment Assistance
Agreement executed between Collier County and Advanced Medical
Center, LLC, and in the event a mutually agreed upon solution cannot
be reached, authorize the Office of the County Attorney to initiate any
and all legal action including, but not limited to, lien foreclosure.
(This is a companion to Item 16J4).
3) Recommendation that the Board of County Commissioners approves,
and authorizes the Chair to execute, the proposed Collier County
Emergency Services Deputy Medical Director Agreement with Dr.
Lee.
4) Recommendation to approve an Assumption Agreement substituting
the law firm of Fixel & Willis for the law firm Fixel, Maguire &
Willis in the Retention Agreement dated April 24, 2007 and amended
January 25, 2011 and January 22, 2013.
17. SUMMARY AGENDA - THIS SECTION IS FOR ADVERTISED PUBLIC
HEARINGS AND MUST MEET THE FOLLOWING CRITERIA: 1) A
RECOMMENDATION FOR APPROVAL FROM STAFF; 2) UNANIMOUS
RECOMMENDATION FOR APPROVAL BY THE COLLIER COUNTY
PLANNING COMMISSION OR OTHER AUTHORIZING AGENCIES OF
ALL MEMBERS PRESENT AND VOTING; 3) NO WRITTEN OR ORAL
OBJECTIONS TO THE ITEM RECEIVED BY STAFF, THE COLLIER
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February 11, 2012
COUNTY PLANNING COMMISSION, OTHER AUTHORIZING
AGENCIES OR THE BOARD, PRIOR TO THE COMMENCEMENT OF
THE BCC MEETING ON WHICH THE ITEMS ARE SCHEDULED TO BE
HEARD; AND 4) NO INDIVIDUALS ARE REGISTERED TO SPEAK IN
OPPOSITION TO THE ITEM. FOR THOSE ITEMS WHICH ARE QUASI-
JUDICIAL IN NATURE, ALL PARTICIPANTS MUST BE SWORN IN.
A. Recommendation to adopt an ordinance amending Chapter 74 of the Collier
County Code of Laws and Ordinances, which is the Collier County
Consolidated Impact Fee Ordinance, providing for modifications directed by
the Board of County Commissioners related to a change in the timing of
payment of impact fees to issuance of a certificate of occupancy.
B. Recommendation to adopt an Ordinance amending Chapter 74 of the Collier
County Code of Laws and Ordinances, the Collier County Consolidated
Impact Fee Ordinance, to incorporate provisions clarifying the imposition of
Water and Sewer Impact Fees on geographic areas within the Collier County
Water-Sewer District, by eliminating the requirement to pay such impact
fees unless a connection is made.
C. Recommendation to adopt an ordinance amending Ordinance No. 97-8, as
amended, relating to the Collier County False Alarm Ordinance.
18. ADJOURN
INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD
BE MADE TO THE COUNTY MANAGER'S OFFICE AT 252-8383.
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February 11, 2012
February 11, 2014
MR. OCHS: Mr. Chairman, you have a live mic.
CHAIRMAN HENNING: Good morning. Welcome to the
February 11, 2014, Board of Commissioners' regular meeting.
If you-all would either silence or turn off your cell phones, it
would help us in our proceeding today.
Today's invocation will be given by Pastor Jim Thomas from the
East Naples United Methodist Church. Would you all rise for the
invocation and followed by the pledge.
Item #1
INVOCATION AND PLEDGE OF ALLEGIANCE
PASTOR THOMAS: May we pray.
Lord, we come this morning and ask you for the help of the spirit
as we offer our prayer. We pray, dear Lord, for the residents of
Collier County and for these people who represent them. We pray,
dear Lord, and give thanks for their time that they take for the
responsibility that they have.
We pray, Lord, for the decisions that need to be made. We pray
for open minds and open hearts, to hear the voice of the people, to
hear what each other has to say and, most importantly, dear Lord, to
hear your will.
Please guide and direct us in all things. And we pray this
humbly, Father, in your name. Amen.
(The Pledge of Allegiance was recited in unison.)
CHAIRMAN HENNING: County Manager, would you walks us
through the change sheet, please.
Item #2A
APPROVAL OF TODAY'S REGULAR, CONSENT AND
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February 11, 2014
SUMMARY AGENDA AS AMENDED (EXPARTE DISCLOSURE
PROVIDED BY COMMISSION MEMBERS FOR CONSENT
AGENDA) — APPROVED AND/OR ADOPTED W/CHANGES
MR. OCHS: Yes, sir. Good morning, Chairman and
Commissioners. These are the proposed agenda changes for your
Board of County Commissioners' meeting of February 11, 2014.
The first proposed change is to move Item 16A5 from your
consent agenda to become Item 11C on your regular agenda. And that
item is moved at the separate requests of both Commissioner Nance
and Commissioner Hiller.
The next proposed change is to move Item 16A7 from your
consent agenda to become Item 11D on your regular agenda. This
item is moved at Commissioner Hiller's request.
The next proposed change is to withdraw Item 16E9, and that is a
staff request due to a bid inquiry.
The next proposed change is to move Item 16G3 from your
consent agenda to become Item 14A1 under your airport authority.
And this item is moved at Commissioner Hiller's request.
The next proposed change is to continue Item 17C from your
summary agenda. It's a proposed ordinance regarding an amendment
to your false alarm ordinance. And that continuance is made on behalf
of the Sheriffs Office.
You have one time-certain item this morning, Commissioner --
excuse me -- this afternoon, Commissioners, scheduled to be heard at
2:30 p.m. That's Item 10B regarding the La Peninsula seawall
proposed MSBU.
And you have court reporter breaks scheduled for 10:30 a.m. and,
if needed, 2:50 p.m.
Those are all the changes that I have, Mr. Chairman.
CHAIRMAN HENNING: Thank you.
County Attorney?
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February 11, 2014
MR. KLATZKOW: No changes, sir.
CHAIRMAN HENNING: Commissioner Nance, do you have
any further changes or ex parte for today's agenda?
COMMISSIONER NANCE: Mr. Chairman, I have no changes.
I have no ex parte on either the consent or the summary agenda. I do
on the regular agenda. Would you like that at this time?
CHAIRMAN HENNING: No.
Commissioner Hiller?
COMMISSIONER NANCE: That's all.
COMMISSIONER HILLER: No changes, no ex parte.
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: No changes and no ex parte
disclosure for consent and summary agenda.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yes. I do have -- I don't -- I do not
have any changes, no further comments on the entire agenda, and I
have no ex parte on either the summary or the regular -- I'm sorry --
summary or the consent agenda.
CHAIRMAN HENNING: Okay. I have no ex parte on today's
consent or summary agenda; however, I do have a change --
requesting a further change to today's agenda; however, the Clerk of
Court provided information to me about Cirrus Pointe and wanted to
provide it to the board members and, basically, it's the history of the
affordable housing agreement for Cirrus Pointe.
At present we have a lien on the property for $320,000. I would
like to further amend the agenda to continue Items 9A and 9B until the
developer pays the $320,000.
So I'll entertain a motion to approve today's agenda as amended.
COMMISSIONER HILLER: Motion.
COMMISSIONER FIALA: Question on that first.
CHAIRMAN HENNING: Yes.
COMMISSIONER FIALA: If we just continue this item and
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February 11, 2014
say, for instance, we -- if there was -- if there were some that didn't
want to see it go forward no matter whether it was continued or not,
would it help to continue it, or is it better to just let it go?
CHAIRMAN HENNING: It would be better, on my part, to
continue it. I can't speak for the rest of the board members.
Commissioner Hiller?
COMMISSIONER HILLER: May I?
Commissioner Fiala, I understand your concern. We can't make a
determination that we want or don't want the proposed changes that
are related to that project till we actually hear what they're --
COMMISSIONER FIALA: Right.
COMMISSIONER HILLER: -- proposing. So what we have to
do is -- I suggest that we follow Commissioner Henning's lead and
require that they pay us back for the money that is owed and then
allow them to come forward and be heard. And then based on what's
presented, if you don't agree for, you know, the reasons that we have
the right to disagree on the basis of, that we, at that time in the
hearing, deny them.
COMMISSIONER FIALA: Okay. I just had some questions to
ask them, but I guess I can do it in private.
COMMISSIONER HILLER: When they come back. Yeah, or --
you can do it in private or when we have the hearing after they've paid
what they owe for what they've taken.
COMMISSIONER FIALA: That's fine. I'll go along with that.
COMMISSIONER HILLER: I will, too.
COMMISSIONER FIALA: I was just concerned with asking
questions --
COMMISSIONER HILLER: Yeah, I agree. Yeah. I will make
a motion to support the agenda as amended by Commissioner
Henning.
CHAIRMAN HENNING: Is there a second?
COMMISSIONER NANCE: Second.
Page 5
February 11, 2014
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: I'd just like to point out one thing
to the board. There's no argument that we're owed a substantial
amount of money here. The agreement as it apparently is currently
written requires that that money be paid back or they can't get permits.
So if we don't approve this thing, we are not going to get that money
back.
COMMISSIONER NANCE: That's not true.
COMMISSIONER COYLE: Well, it's what the record shows.
COMMISSIONER HILLER: They have an obligation. And,
quite frankly, there's a question of, you know, conditioning the
approval on them paying us back as being contract zoning, which is
unacceptable. And it's a question.
So I think, you know, they have an obligation. They took the
taxpayers' money. They owe the taxpayers those dollars back. They
need to pay that money back to the taxpayers.
COMMISSIONER COYLE: I agree. There's no question about
that. It's just that if we don't find a way to allow them to pay it back
from the profits of their development, they might not proceed and,
consequently, we won't get any money at all.
COMMISSIONER HILLER: Not necessarily, because they can
turn around. They could sell the property, and we could be paid from
the proceeds from the sale, for example, or they can get those -- you
know, that funding from some other source.
MR. OCHS: Mr. Chairman?
CHAIRMAN HENNING: Yes.
MR. OCHS: If I might just -- on this item, just for clarification
sake, for the record, just refresh the board's memory. What happened
was there was a $320,000 HUD grant provided.
COMMISSIONER HILLER: We know. We have the memory.
We have it all documented in this package.
COMMISSIONER FIALA: For the audience.
Page 6
February 11, 2014
MR. OCHS: Well -- yeah, for the audience's benefit, then. That
$320,000, HUD was made whole on that over two successive years by
withholding $160,000 from your annual HUD grant allocation over
two years. So there -- they are made whole, and there was no
expenditure of county funds to make --
COMMISSIONER HILLER: I'm sorry. Collier County was
deprived of those $320,000.
MR. OCHS: Yes, ma'am, and --
COMMISSIONER HILLER: The money was held back. And
we have people who are in need of assistance, and this county was
deprived of that money to the benefit of this developer, and that's not
acceptable.
MR. OCHS: Right.
COMMISSIONER HILLER: So HUD wasn't made whole.
What happened was HUD deprived Collier County of$320,000 at
$160,000 a clip over the past two years, meaning our local residents
were deprived of the federal assistance they rightfully deserved.
MR. OCHS: And that's what I was about to say before --
COMMISSIONER HILLER: Yeah, thank you.
MR. OCHS: -- I was not allowed to --
COMMISSIONER HILLER: Thank you.
MR. OCHS: -- but I wanted to clarify the record.
You're not out any hard cash, but the community lost the use
through those $320,000 that were not allocated to the program, and we
would like to have those back to put those into the program.
COMMISSIONER HILLER: And the developer was unjustly
enriched, because he got the proceeds without giving the community
back --
MR. OCHS: Yes, ma'am.
COMMISSIONER HILLER: -- what he was obligated to do
contractually.
MR. OCHS: Yes, ma'am.
Page 7
February 11, 2014
CHAIRMAN HENNING: County Attorney?
MR. KLATZKOW: It's the board's prerogative which way you
want to go. I'm comfortable, either approach.
COMMISSIONER HILLER: I really applaud you,
Commissioner Henning, for suggesting this, because you will be doing
the right thing by the community and, Commissioner Fiala, I
appreciate your concern. Thank you for highlighting what you have
highlighted.
CHAIRMAN HENNING: Any further discussion on the
motion?
(No response.)
CHAIRMAN HENNING: Seeing none, all in favor of the
motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: And opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
And we go to approval of—
MR. OCHS: This is Item 2B, sir. It's the approval of the January
14, 20 —
Item #2A — Added (During Agenda Changes)
MOTION TO ACCEPT PACKET REGARDING CIRRUS POINTE
INTO THE RECORD — APPROVED
COMMISSIONER HILLER: May I -- just for -- just before we
continue. You handed us a packet that came to us after the start of the
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February 11, 2014
meeting. Since we've changed our ordinance to allow a commissioner
to introduce anything into the record without the vote, I just want to
make sure that it's understood that this packet that you have presented
will be introduced as part of the record as it relates to the discussion
we just had.
CHAIRMAN HENNING: Is that how our ordinance reads?
MR. KLATZKOW: I don't think we've changed it yet.
COMMISSIONER HILLER: Oh, you didn't. Okay. Well, then
-- I thought we had. Forgive me. In that case, we have to have a vote.
So I'd like to make a motion to accept the packet that Commissioner
Henning has introduced on the record as part of the discussion related
to Cirrus Pointe.
May I have a second?
COMMISSIONER NANCE: Second.
COMMISSIONER FIALA: Yeah. I think people hand us things
all the time, don't they?
COMMISSIONER HILLER: No. We have an ordinance that
requires that. We just have to procedurally do this. It's not a big deal,
but we just --
COMMISSIONER FIALA: Then I'll second it.
COMMISSIONER HILLER: Thank you. Do you want to --?
CHAIRMAN HENNING: Does the motion --
MR. KLATZKOW: Do you want to go back to the prior way we
did business, and I'll amend the ordinance or --
COMMISSIONER HILLER: Yes.
MR. KLATZKOW: Well, that's one vote.
COMMISSIONER HILLER: Well, I know, but we -- I think we
had already discussed it.
MR. KLATZKOW: I know we discussed it, ma'am, but they
didn't.
COMMISSIONER HILLER: Go ahead.
CHAIRMAN HENNING: Okay. There's a motion by
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February 11, 2014
Commissioner Hiller, second by Commissioner Nance, to introduce
the --
COMMISSIONER FIALA: No, the name is Fiala.
CHAIRMAN HENNING: Okay. Well, Commissioner Nance --
COMMISSIONER COYLE: No, it was Nance. He was first.
COMMISSIONER FIALA: Oh, was it?
COMMISSIONER COYLE: Yeah.
COMMISSIONER FIALA: Okay. Sorry. I didn't hear him.
CHAIRMAN HENNING: No, that's quite all right -- to
introduce the submission of documents delivered by the Clerk of the
Court into the record.
All in favor of the motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
Page 10
Proposed Agenda Changes
Board of County Commissioners Meeting
February 11,2014
Move Item 16A5 to Item 11C: Recommendation to approve a proposal from Coastal Planning&
Engineering dated December 16,2013 for a historic beach performance report and presentation
under Contract 09-5262-CZ,authorize budget amendment,authorize the County Manager or his
designee to execute the work order for a not to exceed amount of$19,980.60,and make a finding
that this expenditure promotes tourism. (Commissioner Nance and Commissioner Hiller's separate
requests)
Move Item 16A7 to Item 11D: Recommendation to approve a proposal with Humiston &Moore
Engineers dated December 26,2013 for Professional Services to assist the County in developing
current beach renourishment industry trends under Contract 09-5262-S2,authorize the necessary
budget amendment and authorize the County Manager or his designee to execute the work order
for a not to exceed amount of$10,000 and make a finding that this expenditure promotes tourism.
(Commissioner Hiller's request)
Withdraw Item 16E9: Recommendation to award Bid#13-6113, "Janitorial Services," to ISS
Facility Services for County-wide janitorial cleaning and services. (Staff's request)
Move Item 16G3 to Item 14A1: Recommendation to approve a Third Amendment to License
Agreement between the Collier County Airport Authority and Immokalee Regional Raceway,
pending FAA approval,permitting,environmental and zoning compliance. (Commissioner Hiller's
request)
Continue Item 17C to the February 25,2014 BCC Meeting: Recommendation to adopt an
ordinance amending Ordinance No. 97-8,as amended, relating to the Collier County False Alarm
Ordinance. (Sheriff's request)
Time Certain Items:
Item 10B to be heard at 2:30 p.m.
2/11/2014 8:32 AM
February 11, 2014
Item #2B
MINUTES FROM THE JANUARY 14, 2014 BCC/REGULAR
MEETING — APPROVED AS PRESENTED
MR. OCHS: Item 2B is the approval of the regular Board of
County Commissioners' meeting minutes from January 14, 2014.
CHAIRMAN HENNING: Is there a motion?
COMMISSIONER NANCE: Of approval.
COMMISSIONER FIALA: Second.
COMMISSIONER HILLER: Second.
CHAIRMAN HENNING: Motion by Commissioner Nance,
second by Commissioner Hiller and Commissioner Fiala.
All in favor of the motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
Proclamations.
MR. OCHS: Yes, sir. Item --
MR. KLATZKOW: Commissioner, before you get to
proclamations, 9A and 9B, did you want to continue that to a date
certain so we wouldn't have to re-advertise or continue it indefinitely?
COMMISSIONER HILLER: I believe Commissioner Henning's
motion was continue indefinitely until they pay us back.
MR. KLATZKOW: I understand.
COMMISSIONER HILLER: How can you --
CHAIRMAN HENNING: Well, it was a motion to continue if
Page 11
February 11, 2014
we can avoid any further costs.
MR. KLATZKOW: You would have to have a date certain
which is, in our ordinance, five weeks, so it could be two meetings
from now if you want to.
CHAIRMAN HENNING: Yeah, two meetings from now.
COMMISSIONER HILLER: But if they don't pay by then?
MR. KLATZKOW: You won't have it. You'll continue it again.
COMMISSIONER HILLER: Okay. So you're just -- well, why
can't you continue it indefinitely unless they --
MR. KLATZKOW: Because they'll have to re-advertise it.
Unless you give me a date certain right now so the public is aware of
when it's coming back --
COMMISSIONER HILLER: Okay.
MR. KLATZKOW: -- I'll have to re-advertise it.
COMMISSIONER NANCE: That's a good idea.
COMMISSIONER HILLER: That's a better idea then. Go
ahead, and we'll do it for a date --
CHAIRMAN HENNING: You'll accept that in your motion --
COMMISSIONER HILLER: Yes.
CHAIRMAN HENNING: -- that it was two meetings from --
COMMISSIONER HILLER: Whatever the County Attorney --
how would you like to have it phrased?
MR. KLATZKOW: That the continuance is to a date certain.
Leo, what's the first?
MR. OCHS: March 11th.
MR. KLATZKOW: To March 11th. My computer's down.
COMMISSIONER HILLER: Okay. That the continuance of 9A
and 9B is to March 11th, and that in the event the developer has not
paid by that point in time --
MR. KLATZKOW: It will be continued indefinitely.
COMMISSIONER HILLER: -- that it will be continued again
for another five-week period until the developer pays, and that will
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February 11, 2014
continue until he pays.
MR. KLATZKOW: Okay.
CHAIRMAN HENNING: Is that okay with the second?
COMMISSIONER NANCE: Yes, sir.
CHAIRMAN HENNING: Does anybody have a problem with
that clarification of the motion to approve today's agenda?
(No response.)
CHAIRMAN HENNING: Seeing none, we're going to move on
to proclamations.
COMMISSIONER HILLER: Do you need us to take a vote on
that again, or no?
MR. OCHS: Item 4A is a proclamation --
COMMISSIONER HILLER: I just -- should we take a vote on
that just to be sure? If you don't mind.
CHAIRMAN HENNING: Oh, okay. So recognizing there is an
amendment to the motion to approve today's agenda by Commissioner
Hiller, seconded by Commissioner Nance, all in favor of the motion,
signify by saying aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Opposed?
COMMISSIONER COYLE: Aye.
CHAIRMAN HENNING: The motion passes 4-1 ;
Commissioner Coyle dissenting.
Okay. Let's go to proclamations.
Item #4
PROCLAMATIONS — ONE MOTION TAKEN TO ADOPT ALL
PROCLAMATIONS
Page 13
February 11, 2014
Item #4A
PROCLAMATION DESIGNATING FEBRUARY 16-22, 2014 AS
ENGINEER'S WEEK IN COLLIER COUNTY, ACCEPTED BY
RALPH VERRASTRO, STATE DIRECTOR, FLORIDA
ENGINEERING SOCIETY, CALUSA CHAPTER; NORMAN
TREBILCOCK, PRESIDENT, FLORIDA ENGINEERING
SOCETY, CALUSA CHAPTER; ALISON BRADFORD,
PROFESSIONAL DEVELOPMENT CHAIR, FLORIDA
ENGINEERING SOCIETY, CALUSA CHAPTER; AND
MARLENE MESSAM, FLORIDA ENGINEERING SOCIETY,
CALUSA CHAPTER — ADOPTED
MR. OCHS: Item 4A is a proclamation designating February
16th through 22nd, 2014, as Engineers' Week in Collier County. To
be accepted by Ralph Verrastro, state director, Florida Engineering
Society, Calusa Chapter; Norman Trebilcock, president, Florida
Engineering Society, Calusa Chapter; Alison Bradford, professional
development chair, Florida Engineering Society, Calusa Chapter; and
Marlene Messam, Florida Engineering Society, Calusa Chapter.
This item is sponsored by Commissioner Fiala. If you'd please
step forward to receive your proclamation.
(Applause.)
CHAIRMAN HENNING: If you want to say a few words.
MR. TREBILCOCK: Good morning. My name is Norman
Trebilcock, and I'm the president of the Florida Engineering Society,
Calusa Chapter, which includes Collier County and four other
Southwest Florida counties. My local engineering and planning firm
is Trebilcock Consulting Solutions, and my technical expertise is in
transportation and illuminating or lighting engineering. My degrees
are in civil and public works engineering.
Page 14
February 11, 2014
I'd like to thank you, the board, for this proclamation today. The
stereotypical engineer is quiet and reserved; however, next week is
Engineers' Week, so now is the time of year that we like to make a
little noise to raise awareness about our quiet contributions to society.
There are so many different types of engineers. The first
engineering college in the United States was the U.S. Military
Academy in West Point, and they initially produced military and civil
engineers. The world today is so much more complex, and so we have
a lot of different engineers; computer, biomedical, software, industrial,
mechanical, illuminating, electrical, environmental. The list goes on
and on.
All aspects of our daily lives, though, are impacted by
engineering. From the alarm that wakes us, to the water we drink, to
the roads we drive, to the buildings we work in, and even the seats we
sit in.
There's one thing all engineers have in common, and that -- they
use math and science to solve real-world problems. A core value of
all engineers is that they shall hold paramount the health, safety, and
welfare of the public.
So for us, no matter who we're working for, the public is always
our ultimate client, which keeps us on the right side of things.
So thanks again for this proclamation, and we're honored to
receive it today. Appreciate it.
(Applause.)
COMMISSIONER HILLER: I actually thought you were going
to say, when you said that engineers are normally quiet and reserved,
that next week we were going to -- you know, you're going to make
noise, I thought you were going to say next week you're really going
to party. That was where I thought you were going. That wasn't the
speech I expected to hear, but very nicely done.
Item #4B
Page 15
February 11, 2014
PROCLAMATION DESIGNATING FEBRUARY 2014 AS
CAREER AND TECHNICAL EDUCATION MONTH IN COLLIER
COUNTY, ACCEPTED BY DEBRA YOUNG, ADVISOR WITH
LORENZO WALKER INSTITUTE OF TECHNOLOGY, AND BOB
WALLER, ADVISOR WITH LORENZO WALKER INSTITUTE OF
TECHNOLOGY— ADOPTED
MR. OCHS: Item 4B is a proclamation designating February
2014 as Career and Technical Education Month in Collier County. To
be accepted by Debra Young, advisor with Lorenzo Walker Institute
of Technology, and Bob Waller, advisor with Lorenzo Walker
Institute of Technology. And this item is sponsored by Commissioner
Fiala.
If you'd please step forward and receive your proclamation.
(Applause.)
COMMISSIONER HILLER: Would you like to say a few
words?
MR. WALLER: No.
COMMISSIONER HILLER: No? I'd like to say a few words. I
really think that vocational training is so important as an option to our
students. I don't believe that all students necessarily have to go to a
university and get a bachelor's degree, and there are so many students
that will learn a trade and learn how to earn a living and support their
families notwithstanding a bachelor's degree.
So I applaud you for providing the opportunity for another way
for these students to be educated and self-supporting and productive
members of society. They really promote it in Europe. I don't think
we promote it enough here. So I really want to thank you for what
you do. I think it's just outstanding.
COMMISSIONER FIALA: Excellent. And could I just
mention, don't you have a fly-in coming up pretty soon as a
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February 11, 2014
fundraiser?
MR. WALLER: We do.
COMMISSIONER FIALA: You ought to stand over here and
just tell us a little bit about it, because everybody's invited in the
whole community.
MR. WALLER: On March 1st, we're going to have a fly-in
cruise-in at the airport. Everybody's welcome. It's a pancake
breakfast, and there will be planes and cars there. It is one of our
fundraisers for the year. So please come and visit. And come visit our
campus at any time. Just stop by, and we'll be more than happy to give
you a tour. It's pretty amazing when you get inside the building.
Thank you.
COMMISSIONER HILLER: And, Commissioner Fiala, thank
you for sponsoring this proclamation. Good job.
COMMISSIONER FIALA: I'm proud to do that.
COMMISSIONER HILLER: Good job. Yeah, very well done.
CHAIRMAN HENNING: And our last proclamation?
Item #4C
PROCLAMATION DESIGNATING FEBRUARY 17-23, 2014 AS
ART APPRECIATION WEEK IN COLLIER COUNTY IN
RECOGNITION OF THE 60TH ANNIVERSARY OF THE NAPLES
ART ASSOCIATION. ACCEPTED BY AIMEE SCHLEHR,
EXECUTIVE DIRECTOR, NAPLES ART ASSOCIATION —
ADOPTED
MR. OCHS: Is Item 4C. It's a proclamation designating
February 17th through 23rd, 20 -- it should probably be '14 -- is Art
Appreciation Week in Collier County in recognition of the 60th
anniversary of the Naples Art Association.
To be accepted by Aimee Schlehr, executive director, Naples Art
Page 17
February 11, 2014
Association. And this item is sponsored by the entire Board of County
Commissioners.
Please step forward.
(Applause.)
MS. SCHLEHR: I'm not shy to say a few words. I would like to
thank the board for recognizing this proclamation. It's very important.
As you heard, the Naples Art Association is 60 years old. We are
one of the founding arts organizations here in Collier County. In a
county that is rich with arts and culture, we are proud to be one of
those founding organizations.
As the two proclamations before us, both of them are impacted
by art. Lorenzo Walker with the culinary arts, and certainly engineers
are artists in their own rights. We want to support that in our school
system, in our young people, in careers, and in our community,
because art touches every aspect of our lives as well as the
engineering.
So we thank you. Our celebration is February 20th at the beach
club. We invite all to attend, and we hope that you always make art a
part of your life. Thanks.
(Applause.)
CHAIRMAN HENNING: Entertain a motion to accept the
proclamations as --
COMMISSIONER HILLER: Motion to approve the
proclamations as presented.
COMMISSIONER FIALA: Second.
CHAIRMAN HENNING: Motion by Commissioner Hiller,
second by Commissioner Fiala.
All in favor of the motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
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February 11, 2014
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
Next item is presentations.
MR. OCHS: Yes, sir.
Item #5A
PRESENTATION OF THRE COLLIER COUNTY BUSINESS OF
THE MONTH FOR FEBRUARY 2014 TO BRIAN GLAESER
STATE FARM INSURANCE. ACCEPTED BY BRIAN A.
GLAESER — PRESENTED
Item 5A is a presentation of the Collier County Business of the
Month for February 2014 to Brian Glaeser State Farm Insurance. To
be accepted by Brian Glaeser.
Brian, please step forward.
(Applause.)
CHAIRMAN HENNING: Next item.
Item #5B
RECOMMENDATION TO RECOGNIZE IVETTE MONROIG,
OPERATIONS & REGULATORY DEPARTMENT TECHNICIAN,
GROWTH MANAGEMENT DIVISION, AS EMPLOYEE OF THE
MONTH FOR JANUARY 2014 — RECOGNIZED
MR. OCHS: Item 5B is a recommendation to recognize Ivette
Monroig, operations and regulatory department technician with our
Growth Management Division, as the Employee of the Month for
January 2014.
Page 19
February 11, 2014
Ivette, please step forward.
(Applause.)
CHAIRMAN HENNING: Here's a letter from the board, on
behalf of the board, a plaque, and a small token of our appreciation for
your good service.
MS. MONROIG: Thank you.
MR. OCHS: Commissioners, Ivette has been an employee of the
county for more than 23 years working with our Growth Management
Division. Her normal responsibilities include clerical support of the
engineering, environmental, and zoning staff. She deals directly with
planners, project managers, and developers on a daily basis, and staff
relies on her organizational skills to track and monitor multiple
projects in the division.
Ivette is really a one-person shop, but she often goes out of her
way to keep processes going and ensures that documents and materials
are handled appropriately and in a timely manner.
She consistently demonstrates her dedicated and efficient nature,
always accompanied by a warm smile and positive upbeat attitude.
She's truly an asset to the community and very deserving of this
award, and it's my honor to present Ivette Monroig as your Employee
of the Month for January 2014.
Congratulations. Thank you.
(Applause.)
CHAIRMAN HENNING: Next item.
Item #5C
RECOMMENDATION TO RECOGNIZE TRAVIS GOSSARD,
SUPERINTENDENT ROADS & BRIDGES, GROWTH
MANAGEMENT DIVISION AS THE SUPERVISOR OF THE
YEAR FOR 2013 — RECOGNIZED
Page 20
February 11, 2014
MR. OCHS: Commissioners, Item 5C is a recommendation to
recognize Travis Gossard, superintendent of roads and bridges for
your Growth Management Division, as the Supervisor of the Year for
2013.
Travis, please step forward.
(Applause.)
COMMISSIONER FIALA: Travis, look back. Travis, look back.
Everyone was standing.
COMMISSIONER HILLER: I know. And you know what that
tells me is that I thought everyone was here to listen to us, but it's
really all for Travis, so we're going to have an empty room in a few
minutes. We're going to hear our own echo, in fact.
That's really great. Congratulations, again.
MR. OCHS: Commissioners, this man needs little introduction,
but I'm going to tell you a little bit about him for the audience.
Travis has been an employee of the county since 1993 as the
superintendent of our road and bridge operations. His responsibilities
include managing, coordinating, planning, and executing projects
involving construction and maintenance of roads, bridges, sidewalks,
and overseeing and reviewing work of supervisors and staff
responsible for coordinating and implementing the county's road and
bridge maintenance and construction programs.
Travis spearheaded coordination with the Big Cypress Basin to
minimize the stormwater impacts and developed a mutual cooperation
agreement to address drainage and flooding issues.
He was nominated for this award by his entire staff, not just one
or two staff members. And this is a true testimonial to his leadership
abilities.
Here are just a few comments made by his staff and coworkers
about his nomination. His door is always open. I could not ask for a
better person to be in charge. He holds himself to the highest standard
and, therefore, his staff. He's hard working, honest, and a pleasure to
Page 21
February 11, 2014
work with. He's professional, thorough, responsive, and approachable.
And, Commissioners, he is truly deserving of this award, and you
could tell by the audience today, he's a rock star in his own division,
and we're very grateful and honored to recognize Travis Gossard as
the Supervisor of the Year for 2013.
Congratulations. Thank you.
(Applause.)
COMMISSIONER NANCE: Travis is just now getting dried
out, actually.
MR. GOSSARD: Yes, sir. I want to thank you so much. This
nomination is a complete honor, but I want you to understand that's no
way possible without the excellent county staff, South Florida Water
Management. Everybody has just been unconditionally supportive of
me and our entire staff, and I really appreciate it.
Thank you very much.
(Applause.)
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yes. And just to add a couple
words. We get a lot of calls from constituents who are having a
problem, whether they be roads or bridges or anything to do with
them. And all you need to do is call Travis.
And even when you have a customer that isn't very pleasant on
the phone, he gets over there, and by the time he leaves and they've
got all this things fixed up -- and it's quickly, by the way -- when he
leaves they're singing his praises. Instead of being angry anymore,
they're just loving the service that they get. And he and his staff,
altogether, they're the friendliest, nicest people to work with, and I just
wanted to say an extra applause for him.
Thank you.
(Applause.)
CHAIRMAN HENNING: Well, yeah, that's -- very well noted.
This year, or this past year, we've had historical rain events in
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February 11, 2014
Southwest Florida. Quite frankly, from my experience, Travis and his
-- the people that work with him have done a tremendous job through
this rainy season.
And I received, actually, less complaints this past rain season
than I did prior, and that shows you the positive, proactive responses
by the transportation department with the leadership.
So, good job, Travis.
Okay. Let's move onto --
(Applause.)
MR. OCHS: Commissioners, that will take us --
CHAIRMAN HENNING: Commissioner? Oh, let's -- yeah, we
can't --
COMMISSIONER HILLER: We have this next item.
CHAIRMAN HENNING: Yeah, you don't want to do that,
right?
COMMISSIONER HILLER: Right. Maybe you could go to this
one, and I'll --
CHAIRMAN HENNING: Can we go to 10C, please.
MR. OCHS: Yes, sir.
Item #10C
RESOLUTION 2014-33: RECOMMENDATION TO APPROVE A
RESOLUTION IN SUPPORT OF THE BUDGET REQUEST MADE
BY SOUTH FLORIDA AG COUNCIL TO THE FLORIDA
LEGISLATURE TO FUND THE SOUTHWEST FLORIDA
RESEARCH AND EDUCATION CENTER, AND TO DISTRIBUTE
RESOLUTION IN THE MANNER SET FORTH BELOW —
ADOPTED
Item 10C is a recommendation to approve a resolution in support
of the budget request made by the South Florida Ag Council to the
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February 11, 2014
Florida Legislature to fund the Southwest Florida Research and
Education Center and to distribute resolution in the manner set forth
below.
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: Yes. Members of the board and
the Collier County citizens, I've brought this resolution forward. It's a
continuation and memorializes the support that the Board of County
Commissioners has -- and concern has expressed earlier about funding
for the Southwest Florida Research and Education Center in
Immokalee, Florida.
The request to the Florida Legislature is being made by the
Florida Ag Council. I would just like to hand out a little list just for
the commissioners. Again, it was included in the backup material.
But just a listing of-- a listing of who is on the South Florida Ag
Council, not only to just bring a notice of how many very important
businesses in Southwest Florida but throughout the state are asking the
legislature to take this action.
So I would like to -- I would like to make a motion that the board
approve this resolution to support the budget request by the South
Florida Ag Council to try to bring funding to this agency that's
involved with so many research activities, including citrus greening
disease, which I would like to make a little bit of comment about at
some point in today's proceedings.
CHAIRMAN HENNING: Sure. Okay. There's a motion to
approve 10C. Is there a second to the motion?
COMMISSIONER FIALA: Second.
CHAIRMAN HENNING: Second by Commissioner Fiala.
Discussion on the motion?
(No response.)
CHAIRMAN HENNING: Seeing none, all in favor of the
motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
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February 11, 2014
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
Now we can go to 10A.
MR. OCHS: Yes, sir.
Item #10A
RECONSIDERATION REQUEST BY COMMISSIONER HILLER
REGARDING ITEM #11A FROM THE JANUARY 28, 2014 BCC
MEETING TITLED: RECOMMENDATION TO CONSIDER
OPTIONS FOR IMPROVED EMS RESPONSE TIMES
THROUGHOUT COLLIER COUNTY, AS IT PERTAINS TO
NORTH NAPLES, BIG CORKSCREW, IMMOKALEE AND AVE
MARIA — RECOMMENDATION TO ALLOW NORTH NAPLES,
BIG CORKSCREW, IMMOKALEE AND AVE MARIA FIRE
DISTRICTS THE OPPORTUNITY TO MEET WITH EMS FOR
JOINT PARTICIPATION AND DISCUSSION — FAILED
Item 10A is a reconsideration request by Commissioner Hiller
regarding Item 11A from the January 28, 2014, BCC meeting titled
"Recommendation to consider options for improved EMS response
times throughout Collier County as it pertains to North Naples, Big
Corkscrew, Immokalee, and Ave Maria."
CHAIRMAN HENNING: And I believe, according to our rules,
there's very little discussion on a motion for reconsideration until the
item comes back for the reconsideration.
So with that, I'll entertain a motion.
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February 11, 2014
COMMISSIONER HILLER: I'd like to make a motion that we
reconsider Item 11A from the January 28, 2014, BCC meeting titled
"Recommendation to consider options for improved EMS response
times throughout Collier County" but only as to North Naples, Big
Corkscrew, Immokalee, and Ave Maria.
And the reason for the request for reconsideration is to allow
these various fire districts and special districts to have the opportunity
to meet with EMS and talk to EMS about how they could contribute to
improving response times and with that possibly save EMS the
expenditures that it is proposing as it relates to these districts.
And as such, notwithstanding the savings, hopefully, through
joint participation, improve the response times even more than they
would be improved if EMS worked on its own.
CHAIRMAN HENNING: Okay. Is that -- that's not a
reconsideration to any other item that the board had on the agenda?
COMMISSIONER HILLER: No, no. It's just -- it's only as it
relates to -- like, for example, the East Naples, you know, portion of
the analysis would remain as we approved it. It's only as it relates to
the partnership between EMS and the jurisdictions named.
CHAIRMAN HENNING: Okay. There's a motion by
Commissioner Hiller --
COMMISSIONER HILLER: Could we hear if there are any
public speakers. I don't know if there are any.
CHAIRMAN HENNING: I don't think --
MR. MILLER: I have no registered public speakers on this item.
COMMISSIONER HILLER: I'd like to ask a question before we
vote on the motion.
CHAIRMAN HENNING: You want a second on the motion?
COMMISSIONER HILLER: I'd love a second on the motion,
but I'd also like to ask a question.
CHAIRMAN HENNING: Right now you don't have a second.
So there's a motion by Commissioner Hiller to reconsider the Item
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February 11, 2014
11A from the January 28, 2014, BCC meeting.
Is there a second to the motion?
(No response.)
CHAIRMAN HENNING: I'll second the motion.
COMMISSIONER HILLER: Thank you.
CHAIRMAN HENNING: Okay. Go ahead, Commissioner
Hiller.
COMMISSIONER HILLER: Mr. Ochs, did any of the fire
districts or special districts named reach out to EMS to discuss any
possibility for joint participation in this effort to improve response
times?
MR. OCHS: Yes, Commissioner. Chief Kopka reached out, I
think, to Chief Stotts, and he's also had a conversation with Chief
Greenberg about the recommendations. I don't believe anything has
come out of those discussions that is different than what we've
discussed or what you've heard so far.
And there's nothing at this point in time that I'm aware of that
would cause us to change any of our recommendations, but we are
continuing the dialogue. And I think there are, you know,
opportunities to continue that dialogue down the road. I don't know
that it would necessarily require us to hold up any of the action items
that the board had previously approved.
COMMISSIONER HILLER: Let me just ask the question.
Chief Greenberg, could you come to the podium for just one
second. I just want to --
CHAIRMAN HENNING: Well, I might say, it's my
understanding that North Naples has been communicating with the
staff, and my understanding has been very positive, so --
COMMISSIONER HILLER: Is it going to -- are you aware that
any of these communications will change the recommendations that
were proposed as to what EMS was going to do? In other words,
would North Naples pick up any of the cost as opposed to it coming
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February 11, 2014
out of our General Fund with respect to what they're talking about?
Because if so, then we definitely want to continue, you know, or
reconsider that portion of what we approved, because I wouldn't want
our staff to go out spending money out of our General Fund to
subsidize EMS further if North Naples is going to come to the table
with support.
CHAIRMAN HENNING: To answer your question, that's in the
affirmative.
COMMISSIONER HILLER: Oh, it is? So if that's the case, then
we should really reconsider this, at least as opposed to those items,
because we don't want to start spending money if someone else will
support the effort and jointly participate, which is what we would like
to see.
What was your involvement in these discussions?
CHIEF GREENBERG: I met with Chief Kopka, I believe it was
last week, and we discussed the proposal on the table with the
personnel being assigned to our station and housing in one of our
facilities.
We've worked out some of the logistics on that, and we continue
to talk with them. And it is our intent to continue pursuing avenues
that may work with EMS and expand that option. But we do not have
anything concrete at this time.
COMMISSIONER HILLER: So as far as -- I just -- I need to get
an understanding of how we are going to use those General Fund
dollars. If you are still in the process of communicating with these fire
districts -- and, as Commissioner Henning says, it does look like they
are willing to come to the table and share in the cost and support to
improve these services -- why would we start expending those funds
and hiring people and buying equipment if there is a possibility that
another taxing district will do that instead or -- instead of us picking
up that entire tab?
CHAIRMAN HENNING: Well, we're bringing this item back,
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February 11, 2014
so I hope that we get staffs recommendation if things have changed.
Would that be an appropriate direction?
MR. OCHS: Yes, sir. But as I mentioned, the discussions to date
so far wouldn't cause us to make any changes to our recommendation,
and, you know, unless the board decides at a policy level that they
want to give COPCNs to other jurisdictions to do ALS transport, we
don't have that many more options out there on the table beyond those
that we brought forward.
COMMISSIONER HILLER: Well, there were other options.
There were staffing options, as well as the COPCN, as well as
transport. I mean, there are many -- there are actually multiple
different options and combinations of those options, which should be
explored. It's not just ALS transport.
MR. OCHS: Yes, ma'am, but, you know, the COPCN issue, at
least as it relates to Big Corkscrew, was denied previously by the
board, and it's what led to the direction from the board to bring back
other options. And I know we're not supposed to get into the merits of
this at this point in time, but --
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: Yes. I think that the agenda item
that we had last meeting, which was a very comprehensive and very
well presented program by Chief Kopka, received very wide support
of the Board of County Commissioners.
I endorse, presently, that Chief Kopka remain as the manager to
recommend the management of EMS in a comprehensive manner
across Collier County.
So I cannot support reconsideration at this time. I certainly
encourage all the first responder agencies to work with Chief Kopka
for additional coordination and synergy, and at the time they have
something, I hope that Chief Kopka will bring those forward to the
board and amend the program that he has presented, which I think is a
very good one.
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February 11, 2014
So, you know, I can't support reconsideration of the entire item at
this time, but I do encourage --
COMMISSIONER HILLER: It's not the entire item.
COMMISSIONER NANCE: -- everyone to continue to work.
And if there are agreements and things that come forward, Chief
Kopka, at any time, can come forward and bring those amendments to
his plan. So that's my feeling at this time. I simply can't support it.
COMMISSIONER HILLER: To clarify, it's not an amendment
-- it's not looking to reconsider the entire proposal. It is simply
looking to allow for ongoing discussions and modifications as a result
of those discussions with respect to North Naples, Big Corkscrew,
Immokalee, and Ave Maria before county funds are expended when
they could be funded by these other districts.
CHAIRMAN HENNING: Okay. Any other discussion on the
motion?
(No response.)
CHAIRMAN HENNING: All in favor of the motion, signify by
saying aye.
COMMISSIONER HILLER: Aye.
CHAIRMAN HENNING: Aye.
Opposed?
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Motion fails 3-2 with Commissioner
Coyle, Commissioner Fiala, and Commissioner Nance dissenting.
Now we'll move to the county manager's items.
Item #11A
RECOMMENDATION TO AWARD A CONSTRUCTION
CONTRACT TO DOUGLAS N. HIGGINS, INC. FOR BID #14-6203
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February 11, 2014
- J&C BOULEVARD ROADWAY IMPROVEMENTS (FROM
TAYLOR ROAD TO AIRPORT-PULLING ROAD) PROJECT NO.
60182-5 FUNDED BY THE PINE RIDGE INDUSTRIAL PARK
MSTU, IN THE AMOUNT OF $1,574,005.80 AND RESERVE
$50,000 ON THE PURCHASE ORDER FOR FUNDING
ALLOWANCES, FOR A TOTAL OF $1,624,005.80 — APPROVED
MR. OCHS: Item 11A, Commissioners, is a recommendation to
award a construction contract to Douglas N. Higgins, Incorporated, for
Bid No. 14-6203. It is the J&C Boulevard roadway improvements in
the amount of$1,574,005.80, and reserve $50,000 on the purchase
order for funding allowances, for a total of$1,624,005.80.
Mr. Jay Ahmad, your transportation engineering director, can
respond to questions or make a presentation at the pleasure of the
board.
COMMISSIONER COYLE: Motion to approve.
COMMISSIONER FIALA: Second.
CHAIRWOMAN HILLER: Motion by Commissioner Coyle,
second by Commissioner Fiala to approve.
Commissioner Hiller?
COMMISSIONER HILLER: Yes. I've noticed that this
company is winning bids with us over and over and over and over
again. I see their name come up repeatedly. And they may surely be
the most qualified and they may be providing the highest possible
service at the lowest cost, but I want assurances to that end. I want to
make sure that we're not seeing change orders on their projects that, at
the end of the day, make these projects more expensive than they are
being bid at.
So I would like to see how many projects have been let to this
company over the past, let's say, three years. I would like to see what
the projects were bid at, and I want to see what the final total cost was
for these projects that they undertook.
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February 11, 2014
And it may prove that, you know, it's absolutely fantastic and
we're getting an incredible, you know, service for a fair price, but I
just want to make sure of that.
So if you could get me that information, I would appreciate it.
MR. AHMAD: Good morning, Mr. Chairman, Commissioners.
I'm Jay Ahmad, for the record. We'll do -- Commissioner Hiller,
purchasing essentially oversees all the contracts --
COMMISSIONER HILLER: Sure.
MR. AHMAD: -- with the county, and we'll work with
purchasing to get that.
COMMISSIONER HILLER: Thank you very much. I
appreciate it.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yeah. Just a side note on that. I
remember when DN Higgins -- is that how they say it -- DN Higgins
was working on the first phase of the sewer and water replacement on
Isles of Capri. And they had a guy following them every step of the
way taking pictures of the whole thing.
And, in fact, the community started participating. They were so
pleased with their work performance; however, on the next phase the
company didn't win that bid and another company did, and the whole
cooperative agreement seemed to kind of dissipate a little bit.
So I can say, just from Isles of Capri's standpoint, they were very
impressed with this company, and they were sorry that they lost the
second bid.
COMMISSIONER HILLER: Can I ask one more question?
CHAIRMAN HENNING: You sure can.
COMMISSIONER HILLER: Thank you.
You know, it's also interesting, and I just was -- as Commissioner
Fiala, I was thinking a little bit in looking at these numbers. How
come our engineer's cost -- and this is our engineer's cost estimate?
MR. AHMAD: We have the consultant firm ABB did the --
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February 11, 2014
COMMISSIONER HILLER: Come up with that?
MR. AHMAD: -- did the design for this project, and we
reviewed these numbers and agree.
COMMISSIONER HILLER: So we've got -- our design
engineer's estimated the cost to be a million five, approximately?
MR. AHMAD: Correct, ma'am.
COMMISSIONER HILLER: How can Douglas Higgins be the
only one so close to that number with, you know, the others being
100- to almost $200,000 more? I mean, that's a material difference.
I don't understand. And when I look at OAK, Quality, and Haskins,
they're -- you know, they're within, you know -- I mean, two of them
are almost identical. I mean, just, like, a hundred dollars off, less than
a hundred dollars apart from each other.
How could two companies like Quality and Haskins be a million
seven ninety-six, both exactly the same dollar amount? OAK is one --
a million, seven forty and, then all of a sudden Douglas Higgins is a
million, six twenty-four? I just -- something gives me pause for
concerns. I just don't quite understand.
MR. AHMAD: We provided the bid analysis as backup for --
with your agenda, Commissioner. I can't answer why a firm --
purchasing sends these out to bid, and we --
COMMISSIONER HILLER: No, I understand.
MR. AHMAD: -- get these bids. So we are -- we take the low
responsive bid, and the low responsive, as it stands today, is Doug
Higgins.
COMMISSIONER HILLER: I understand. I'm just -- these
numbers are very interesting.
With respect to the engineer's cost estimate, are bidders privy to
that information ahead of the bidding?
MR. AHMAD: I believe so. I know Joanne is here. She can
speak to the purchasing issues.
MS. MARKIEWICZ: Joanne Markiewicz, director of
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February 11, 2014
procurement services.
Commissioner, yes, they do. They often ask what the budget is
for this and what the engineer's estimate is, and we would provide that
to them.
COMMISSIONER HILLER: Great. Thank you.
CHAIRMAN HENNING: Well, okay. Is that -- is that a wise
business practice to provide that information?
COMMISSIONER HILLER: Well, I guess the question is, how
can you deny it? It's a public record.
MS. MARKIEWICZ: It's a public record, Commissioner. I
would prefer that the supplier community not ask that question --
COMMISSIONER HILLER: But they can't be denied that
information.
MS. MARKIEWICZ: -- but they can't be denied the information
given that it's a public record.
CHAIRMAN HENNING: Okay. Well, I think that we need to
change our practice. If the engineer's going to provide that
information, maybe it ought to be in a draft form.
The Florida Statutes provides for the best, lowest qualified
bidder. And if they know how much we're budgeting for that --
COMMISSIONER HILLER: I have a solution.
CHAIRMAN HENNING: I think that -- quite frankly; I think we
need to do something different.
Commissioner Hiller?
COMMISSIONER HILLER: I don't disagree with you. I think
you're right. And it's been something that's concerned me for quite
some time. What we could do is we could -- obviously, you know, the
issue of the budget for the project is something that's difficult not to
disclose because we establish that right at the outset.
But as far as the engineer's cost estimate, what we could do is --
are you using the engineer's cost estimate ahead of formulating the
budget, or do you use the engineer's cost estimate subsequently to
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February 11, 2014
validate the budget?
MR. AHMAD: The engineer's estimates keep changing from
design levels, 30, 60, and 90 until the final. We budget early on for a
project based on prior projects. But the final number is the last
number.
But to your point, Commissioner Henning, my past experience in
Connecticut, for example, they -- we stamp it confidential, the
engineer's estimates. We don't release it.
CHAIRMAN HENNING: Well, the laws might be different --
MR. AHMAD: But they don't have laws that are similar to here.
CHAIRMAN HENNING: -- up north than they are here.
COMMISSIONER HILLER: But going to the issue of the
engineer's cost estimate, what we could -- which is the most important
number to us, you know, because it is based on that final design, what
we could do is withhold receiving it until after the bidding and then
compare what the contractors have submitted as against what the cost
estimate should be.
I don't know if that could, you know, potentially -- I mean; look
at the engineer's cost estimate as validation rather than the benchmark.
I don't know if that could make a difference.
Could we look to other jurisdictions and see what the practices
are --
MR. OCHS: Sure.
COMMISSIONER HILLER: -- so that we can, you know,
maybe adopt some practice that protects the taxpayers as much as
possible?
MR. OCHS: Sure.
MS. MARKIEWICZ: Absolutely, yes.
COMMISSIONER HILLER: Thank you.
CHAIRMAN HENNING: Leo, do you have any input on that
suggestion?
MR. OCHS: Sir, I think it is a good idea to look at other
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February 11, 2014
jurisdictions to see how they handle this, but even in this case you'll
note that every one of the bidders, even the low bidder, still came in
higher than the engineer's cost estimate, so I would doubt that they're
going to bid a job to lose money. You know, they're going to bid it at
what they think they need to bid to be competitive but still make a
profit.
So I do think it -- you know, in a perfect world it would be nice if
they didn't have that number before they submitted a bid. And the
only way to avoid that, that I know of in our jurisdiction, is for the
engineers to hold that --
COMMISSIONER HILLER: Exactly.
MR. OCHS: -- document in their possession, not ours, because
once we have it, it's public record, of course. So that's the kind of
change we'll look at and see if there's other jurisdictions that manage
the process that way.
COMMISSIONER HILLER: Wouldn't it even be a public record
even if it's in their possession, since they are our contractor? So I
don't think even -- you know, if they produce that number, even if
they don't release it to us, I think it's still subject to request.
MR. OCHS: I'd have to --
COMMISSIONER HILLER: And I see an affirmative nod from
just about all your staff.
CHAIRMAN HENNING: Jeff, do you have any concern with
the direction?
MR. KLATZKOW: No. I was going to suggest that. There's 67
counties, 400 municipalities; they all do purchasing under the same
statutes that you do purchasing. Staff will do a review of their
practices and see if somebody does it better than we do.
COMMISSIONER HILLER: That's a -- yeah, thank you.
CHAIRMAN HENNING: Commissioner Coyle, then
Commissioner Nance.
COMMISSIONER COYLE: Just -- I don't argue with the idea
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February 11, 2014
that we should look at what other people are doing, but be very, very
careful about how you finally come up with a recommendation.
I have bid on hundreds of millions of dollars of government
contracts, and when you start trying to safeguard information such as
this and not release it to all potential bidders, you are risking illegal
activity occurring where the engineer that you hire to come up with an
estimate, somebody in that engineering firm might very well get a
payoff from somebody who wants to bid on that to get that number.
Now, you avoid that problem if you give it to everybody. But
when you start trying to safeguard it, not only members of our staff
but members of those -- the staffs of those companies we hire will be
subject to accusations about releasing data that may or may not be
true. So it's a very, very touchy issue, and I would urge you to be very
careful about how you proceed.
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: Yes. I would just like to ask -- we
had some discussions earlier about indexing the costs of volatile
products that are necessary for some of these road-building things, like
petroleum based. Is staff completely comfortable now that we have
those in place, those indexing things, that allow the bids to be the most
competitive bids possible? Is everybody -- you know, I talked about
that, but I'm -- excuse me, but I'm unfamiliar where we ended up on
that.
Nick, could you comment on that?
MR. CASALANGUIDA: It's on a job-by-job basis, sir.
COMMISSIONER NANCE: Okay.
MR. CASALANGUIDA: It depends.
And to Commissioner Coyle's comments, you're right. I believe
putting out an engineer's estimate is not a bad idea to the sense that
what our engineer does, it does to design of record. He looks at recent
bids on the materials that have been put out there, and he uses those
quantities and prices to formulate his engineer's estimate.
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February 11, 2014
And I think we'd have a hard time trying to conceal that. And for
my purposes, I meet with staff monthly if not sometimes every other
week to go over estimates and budgeting to get through our year and
prepare the AUIR and your board's budget every year.
So sometimes -- I just talked to Joanne. We get people that bid
below the engineer's estimate. And in roadway work, the most volatile
pricing is asphalt. It's trending up. So if we look at a historical price
of asphalt for the last six months, we're seeing bids come in higher
because asphalt's coming in higher, and that's a major component of
roads.
So we'll give you an analysis of what we've seen, but I know six
months ago I looked at a couple bids that came in that were below
engineer's estimate, and they're using that information based on
current bids that come out.
So hopefully that gives you a little comfort. But we will come
back and let you know on Mr. Higgins, and we'll give you an analysis
on what other counties are doing.
COMMISSIONER NANCE: Are these bidders, Nick, protected
against volatility within our bidding process so they can make the
most conservative bids possible? I'm just concerned that we're
constantly exposing ourselves to bids that have to be unnecessarily
high because people are unaware of what the costs of materials are
going to be, particularly when the cost of materials is a huge portion
of the costs that they incur.
MR. CASALANGUIDA: When -- we did a presentation,
Norman and I, a while back to the engineering group, and we talked
about contractor at risk versus county at risk, and it depends on if
prices are escalating dramatically, because if you tell a contractor "I
want your best price" -- and you're going to be locked in. And if
asphalt prices are on an up-curve, you're obviously going to pay a lot,
because he's assuming that risk.
So on a bid proposal that we put out in that respect, we would put
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February 11, 2014
an index in there and did allow him to claim that increase, because
we'll get a better price, because he's passing that risk on to us.
COMMISSIONER NANCE: Right. So everybody's comfortable
with where we are on that segment of our bidding process?
MR. CASALANGUIDA: Yes, sir. I think --
COMMISSIONER NANCE: Thank you.
MR. CASALANGUIDA: And I think we do that on a
case-by-case basis.
COMMISSIONER NANCE: Thank you.
MR. CASALANGUIDA: You're welcome.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yeah. I just have one little fear also
as we discuss this. It's almost like we're cherry-picking when the
public records request applies and when it doesn't. Well, today it
applies, but it doesn't apply to you guys, and then tomorrow, well, it
doesn't apply. And I just -- I'm concerned that --
COMMISSIONER HILLER: We can't do that.
COMMISSIONER FIALA: Excuse me. I'm just concerned that,
you know, whatever -- if we say public records doesn't apply, then it
shouldn't apply to anything, or if it -- if we are under the public
records law, then everything should be open for public viewing.
CHAIRMAN HENNING: I think the emphasis is on how to get
the best bang for your buck.
COMMISSIONER FIALA: Yes, it is.
CHAIRMAN HENNING: It's not about hiding the public record.
What was suggested is don't receive that information; it's not public
record.
So staff is going to come back to us and tell us what best business
practice is so that we can get the best and lowest price.
COMMISSIONER FIALA: Just so that we don't -- we're not
accused of cherry-picking. I just don't want to do that.
CHAIRMAN HENNING: Yeah. We're not asking staff to do
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February 11, 2014
anything illegal. We're just, again, trying to get a good price.
Commissioner Hiller?
COMMISSIONER HILLER: Yeah. I think, Commissioner
Fiala, we are bound by public-records laws, and we apply
public-records laws equally to everybody. We don't cherry-pick and
say we are or we're not. I mean, we have to follow the law, so that's
not a concern.
The issue is exactly what Commissioner Henning said; we are
looking for best management practices to ensure that we are
procedurally doing what's in the best interest of the public and getting
a truly -- you know, basically having a bidding process that is as good
as possible to get the best price.
COMMISSIONER FIALA: Of course you are. I mean, I
understand what you're doing. I mean, you don't have to really give
me a lesson on that. But I understand that. I'm just warning us that
we want to make sure that we follow the public-records law.
COMMISSIONER HILLER: We have to.
COMMISSIONER FIALA: That's all I'm concerned with --
COMMISSIONER HILLER: We have to.
COMMISSIONER FIALA: -- and I wanted to put that on the
record. Thank you.
COMMISSIONER HILLER: And we have our County Attorney
who will make sure that we do.
CHAIRMAN HENNING: Mr. Ahmad, I have an unrelated
question but on the topic. J&C Boulevard, is that a public road?
MR. AHMAD: Yes, sir.
CHAIRMAN HENNING: And we're using the taxing district,
the MSTU, for -- is that Naples Production Park?
MR. AHMAD: This is Pine Ridge Industrial Park. It was
created 20 years ago, and I believe it's been sunset, but there's some
funds that are in that account that we are bringing projects before you
to improve that industrial park. I think there's a couple more projects
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February 11, 2014
left in that whole district, the whole MSTU.
CHAIRMAN HENNING: But the MSTU doesn't exist anymore;
there's just funds there.
MR. OCHS: Correct.
MR. AHMAD: I think -- it exists from a budgeting standpoint,
but I believe the -- and I'm not going to venture --
CHAIRMAN HENNING: Okay. That's fine.
MR. AHMAD: -- speaking to that. Mr. Greenberg is the expert
on this industrial park. He works in our budgeting office.
MR. OCHS: We're not levying the assessment any longer.
COMMISSIONER HILLER: You're just using up the funds that
are in there --
MR. OCHS: Yes, ma'am, that's correct.
COMMISSIONER HILLER: -- to finish up the project --
MR. OCHS: Yes, ma'am.
COMMISSIONER HILLER: -- that the MSTU committed to
undertake?
MR. OCHS: Yes.
CHAIRMAN HENNING: So it's not private property that we're
MR. AHMAD: No, sir.
CHAIRMAN HENNING: Okay. Is there a motion on this? I
think -- yeah; Commissioner Coyle made the motion, seconded by
Commissioner Fiala. Am I correct on that?
COMMISSIONER FIALA: Yes.
CHAIRMAN HENNING: Any discussion on the motion?
(No response.)
CHAIRMAN HENNING: All in favor of the motion, signify by
saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
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February 11, 2014
COMMISSIONER HILLER: Aye, eh.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
COMMISSIONER HILLER: Eh, for all Canadians.
CHAIRMAN HENNING: Motion carries unanimously.
Now we go to 11B.
MR. OCHS: Yes, sir.
Item #11B
RECOMMENDATION TO REVIEW THE STAFF ANALYSIS OF
A PROPOSED NATURAL GAS FRANCHISE IN NORTHEAST
COLLIER COUNTY AND PROVIDE DIRECTION — DIRECTING
NABORS, GIBLIN & NICKERSON TO WORK WITH THE
COUNTY ATTORNEY AND BRING BACK A PROPOSED
ORDINANCE AND FRANCHISE AGREEMENT — APPROVED
That's a recommendation to review the staff analysis of a
proposed natural gas franchise in northeast Collier County and provide
further direction. Mr. Jamie French, your operations and regulatory
management director, will present.
MR. FRENCH: Good morning, Commissioners. For the record,
my name is Jamie French. This is a follow-up item to a public petition
from your November 12, 2013, board meeting.
Since that time, staff has met with the petitioner. We've had
discussions with the -- staffs had discussions with the Florida Public
Service Commission staff. We have reached out to neighboring
counties, and we've also had discussion with our outside counsel to
determine how a natural gas franchise, whether exclusive or
nonexclusive, might work.
The petitioners are here today; Mr. Kates, Mr. Knight, and their
outside counsel, Burt Saunders, are present today along with the
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February 11, 2014
county's outside counsel, Brian Armstrong. And we're happy to
answer any questions that you might have.
COMMISSIONER HILLER: Where is Mr. Armstrong? Oh, hi.
And you're with?
MR. ARMSTRONG: Good morning. Nabors Giblin &
Nickerson.
COMMISSIONER HILLER: Can you speak into the -- and just
introduce yourself for the record.
MR. ARMSTRONG: Good morning, Commissioners. Brian
Armstrong from Nabors, Giblin, and Nickerson. I'm up in the
Tallahassee office.
COMMISSIONER HILLER: Can you talk to us about this?
MR. ARMSTRONG: Certainly, Commissioner. Natural gas is
obviously an expanding business here in Florida. It's expanding into
areas previously unserved in many locations. Our firm, as you're
probably aware, represents many counties and cities in Florida and, in
particular, I've been doing a lot of franchise work recently, both for
electric and natural gas and other. But in -- particularly natural gas
we'll see it expanding.
And when I was contacted with (sic) Mr. Klatzkow and Mr.
French regarding this topic and heard the exclusivity versus non-
exclusivity issue in particular, since we are around the state, I can tell
you I have done quite a bit, but I also went and researched and looked
to see if there was any other franchise that was nonexclusive, and I
haven't been able to -- I mean, that was exclusive. I haven't been able
to find one, not one.
So I did read the recommendation. I had worked with Mr.
French and Mr. Klatzkow regarding the recommendation of staff
before you today, and I would agree with it in every respect.
COMMISSIONER HILLER: Could you explain what you agree
with and why?
MR. ARMSTRONG: Certainly. I would suggest that if the
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February 11, 2014
board were to consider this franchise -- and I would recommend that
you do that, and I would recommend that if you do so, you also
consider enacting an ordinance. An ordinance would say, you know,
if it could be natural gas, it could also extend to the other utilities in
the county, but it would basically -- you could do two things to an
ordinance. You could say if you want to provide service in the
county, you come to the county for a franchise. And in the franchise
we're going to identify and address certain issues and outline either
generally what those issues are or the board can actually put into a
franchise the way -- the terms of the franchise, addressing those issues
so that when somebody comes to you and says, I would like to
provide, for instance, natural gas, they will either have one of two
things.
In the general ordinance it will say, okay, come and we'll talk
about these different issues and how we're going to decide them and
negotiate them, but if you have the ordinance that's more specific,
they'll know coming in and say, I'll take the franchise. I understand
your ordinance says the terms have to be X, Y, and Z.
In the latter case, you know, as in all things, the board has to treat
similarly situated people similarly to avoid equal-protection issues and
other legal issues of that nature. So in a case where you're more
specific, obviously, you'll avoid those kinds of issues coming up.
So I would recommend, one, that, you know, you do not need
that ordinance, but I do recommend -- and some counties have said,
yes, we're going to do an ordinance and some counties have said we
will not.
Others actually enact a franchise as an ordinance. So you have a
number of opportunities to do that, but --
COMMISSIONER HILLER: Can I continue with the
questioning?
CHAIRMAN HENNING: Yeah, please, and then Commissioner
Nance after you.
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February 11, 2014
COMMISSIONER HILLER: Yeah.
Thank you for what you're saying or what you're -- you know,
how you're educating us on this. So, essentially, of the various
options, one is a general ordinance; two is an ordinance specific to the
industry; and three is an agreement that's then enacted as an ordinance
specific to the company.
Shouldn't we -- I'm just -- I'm thinking that, you know, given
we've never done this before and this is very new to us, wouldn't it
make sense to have you sit down with our County Attorney and come
back to us with respect to which of those three approaches would
make most sense in this particular situation and also deal with the
exclusivity issue and work with Mr. Saunders to better understand,
you know, what he is proposing with respect to exclusivity, and then
bring that back to the board to allow us to make an informed decision?
Because as of right now, all we're being presented are, you know,
here are -- you know, here's the universe of options, and we're
completely uneducated to make the decision as to which option is best
in the interest of the county.
And so, I would like to make a motion to direct Nabors Giblin to
work with the County Attorney to bring back a proposal and, in the
process of doing that, to work with Mr. Saunders to see how what he
would like to do would fit in with what your ultimate specific
recommendation to the board will be.
CHAIRMAN HENNING: Okay. There's a motion.
COMMISSIONER NANCE: I will second that, but I would like
to ask Commissioner Hiller, does that -- ma'am, does your motion
basically suggest that they develop a general utility franchise-enabling
ordinance?
COMMISSIONER HILLER: Well, no. It's asking them to
consider what we should develop as an ordinance. Because,
remember, what our attorney from Nabors Giblin just said is that there
are three possible ordinances that could apply in a franchise situation.
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February 11, 2014
The first is a general ordinance, Option 1; the second is an ordinance
specific to an industry franchise, like gas versus any other type of
franchise; or third is whether you contract with, for example, this
company and put the agreement into a franchise.
There are three options. So what I'm saying is, let them go back
and figure out what is best for the county, make that proposal to us,
which option would be best for us going forward when we have
projects that come before us like this and, in the course of doing that,
work with Mr. Saunders to see how his proposal fits into what you are
recommending so that they can appropriately move forward under that
recommendation.
CHAIRMAN HENNING: Commissioner Nance, then
Commissioner Coyle.
COMMISSIONER NANCE: Yes. I support the motion. I really
think that we should, indeed, have something general to allow utility
franchises to be enabled in general and, certainly, we need to have
some sort of a franchise agreement for each sort of utility that comes
forward.
So I will second the motion and look forward to the discussion.
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I agree with the intent of the
motion, but I am a little concerned about the fact -- the direction to
work with one of the potential bidders to draft the ordinance. I don't
think that any bidder should be involved in writing the ordinance.
COMMISSIONER HILLER: No, they shouldn't be. I agree with
you 100 percent.
COMMISSIONER COYLE: Okay. If we could clarify that.
COMMISSIONER HILLER: Yeah.
COMMISSIONER COYLE: And there's no reason why we can't
have informal discussions and gather information from any bidder --
COMMISSIONER HILLER: Right.
COMMISSIONER COYLE: -- but we don't want to leave the
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February 11, 2014
impression that we're having --
COMMISSIONER HILLER: Absolutely.
COMMISSIONER COYLE: -- one bidder instruct us on how we
should --
COMMISSIONER HILLER: Absolutely not. And this is not to
take instruction from them at all, because that would be most
inappropriate. And thank you for clarifying that. You're absolutely
right, Commissioner Coyle, and that has to be absolutely clear.
CHAIRMAN HENNING: County Attorney?
MR. KLATZKOW: There are two issues. The first issue is
whether or not you want a franchise ordinance, and we'd certainly
come back to you on that one. Your second issue is this particular
proposal that's before you. And my understanding is that there's a
point of the deal that's a deal breaker for them, and that's the
exclusivity versus the non-exclusivity. And if the board is going to
come to the conclusion they do not want to do an exclusive, then this
deal goes away.
COMMISSIONER HILLER: But I think we need to be educated
first on all of this and why exclusive versus nonexclusive --
MR. KLATZKOW: Nobody does exclusive, and I cannot tell
you, as a matter of law, you can do it. These are public right-of-ways.
I do not know that you've got the power to tell somebody you cannot
use the public right-of-way. It's never been litigated to my
knowledge.
COMMISSIONER HILLER: I see. Oh, so -- well, then -- but
could you please bring that back to us? I mean, if as a matter of law
we can't give them an exclusive --
MR. KLATZKOW: I don't know. What I'm saying is that
you've got an open issue here.
MR. ARMSTRONG: Yeah. It has not been decided whether or
not a county or city can provide an exclusive utility franchise which
would allow one entity to use the public rights-of-way to the exclusion
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February 11, 2014
of somebody else. That has not been decided. It's never been a case
that's been brought, so -- Mr. Klatzkow and I have spoken about that.
Granting exclusive raises those questions about whether that is
subject to attack, you know, for equal-protection grounds if somebody
else were to desire to come.
I can tell you, you know, like I say, that I did go and look
throughout the state of Florida. I haven't seen any. That's not to say
there isn't a single one somewhere, but I have looked at scores of
franchises as well as worked on them, and not one has been exclusive.
CHAIRMAN HENNING: Well, what does the law say about the
public roadway?
MR. ARMSTRONG: Well, you do have the opportunity to
regulate the public rights-of-way and to grant the franchise. And you
-- you know, basically it's -- a franchise is like any other contract. It's
a bargain for exchange. The county -- many counties and cities will
say, part of my bargain is I will not compete with you. I will allow
you to provide, in this instance, natural gas.
You're using the public rights-of-way, so I want to make sure that
the public health and safety is protected, so you have some provisions
in that. You will have a franchise agreement. You have to regulate
those public rights-of-way. If there was an incident, obviously your
public health and safety folks have to come out and take care of that.
So -- and then there's other aspects of rent, you know, the rent for
the use of the rights-of-way that are all reflected in the ultimate
franchise fee if you were to impose one.
CHAIRMAN HENNING: Well, can we close off a road to the
general public without having a good reason to do it?
MR. KLATZKOW: No.
CHAIRMAN HENNING: No. So how can we close off the
right-of-way to business without having a public concern about
closing off that right-of-way?
MR. KLATZKOW: That's why I raise the issue. I'm not sure you
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February 11, 2014
can do that.
COMMISSIONER HILLER: Can you --
CHAIRMAN HENNING: Well, we definitely don't want to
direct --
COMMISSIONER HILLER: Yeah. We have to -- could that be
part of the research? You know, obviously, as part of my motion,
that's the kind of information you need to bring back to us.
MR. KLATZKOW: I've done the research. And what I'm going
to tell you is I don't know. It's never been litigated, the issue --
COMMISSIONER HILLER: I see.
MR. KLATZKOW: -- because, as Mr. Armstrong said,
nonexclusive agreements is what is done in this state.
CHAIRMAN HENNING: Well, why ask the Florida --
COMMISSIONER HILLER: Public utilities.
CHAIRMAN HENNING: -- general utilities?
COMMISSIONER HILLER: Or actually, go to the -- or go to
the AGO.
MR. KLATZKOW: It won't be binding. And my concern --
here's my concern in a nutshell. If I was dealing with Teco, I wouldn't
be that concerned because I would ask them for a duty to defend and a
hold harmless. My concern is, I get a Teco bringing up this action and
suing the county, and we don't have the resources, you know, to fight
a multi-billion-dollar company.
And so I'm dealing with a start-up company here faced with the
possibility of a lawsuit with a multi-billion-dollar company. I don't
know how to protect the county in that instance.
COMMISSIONER NANCE: Well, Mr. Chairman, I believe we
should allow our consultants to bring back the elements --
COMMISSIONER HILLER: Yep.
COMMISSIONER NANCE: -- of a general franchise enabling
ordinance, as Commissioner Hiller has suggested, and then we can get
into the details of the individual franchise agreement as negotiated
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February 11, 2014
with this petitioner or any subsequent petitioner that comes forward
and address the issues at that time.
CHAIRMAN HENNING: Well, are we putting the cart before
the horse? I mean, should -- I mean, before creating a franchise
ordinance or an agreement based upon a public petition that we don't
know is lawful, shouldn't we answer the legality of what we're doing?
COMMISSIONER HILLER: I think you're absolutely right. I
think that as it specifically relates to this particular proposal, the
threshold question is, can it be legally done? And if so, you know, by
what procedure, like, with or without competitive bidding, you know,
ensuring that you've got all the constitutional considerations taken into
account, like you pointed out, equal protection.
If the answer is no, then since we don't have any other utility
franchises coming forward or franchise requests coming forward, then
we don't need to proceed to the next question.
If the answer is yes, then proceed to the next question, and that is
what type of ordinance would be most appropriate for the county to
have in light of requests for a franchises.
So I think you make a very good point. Excellent point,
Commissioner Henning.
CHAIRMAN HENNING: So you're changing your motion?
COMMISSIONER HILLER: I'm going to modify my motion
only to the extent that I'm suggesting that the threshold question be
asked first so we don't -- I would love to pay you legal fees for this
study, but if we don't need it, we shouldn't waste the money. So the
threshold question should be asked first, and if the answer to that is no
or, you know, not recommended as you see appropriate, then don't go
to the question of the ordinance.
If the answer is yes, then go to the question of the ordinance. So
it's just -- it's just -- I'm modifying my motion only to recommend the
order of how the research ought to be done.
CHAIRMAN HENNING: Is that agreeable to the second?
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February 11, 2014
COMMISSIONER NANCE: Well, I just want to point out one
thing. According to the backup material in the agenda item, an
enabling ordinance does things like require a franchise agreement,
provide for a public-comment period, prepare public advertised
solicitations, require the utility service provider, whoever it is, to be --
to conform with the Public Service Commission, the Florida
Administrative Code. So that's -- an enabling ordinance is a very
general thing that I believe is going to have utility for not just this
petitioner but for everything else.
So I think it's -- I think it's a good thing that we have that
regardless of this individual petitioner.
COMMISSIONER HILLER: But here's the thing. You know,
the requirements of the law change constantly. Why should we spend
money to develop and pass an ordinance if we don't have any
franchisees applying? I mean, let's spend the money if and when the
issue comes forward. It has come forward, so we are properly
considering it. But if the particular request that is before us can't be
legally pursued, then let's not do something we don't need now. That's
not to say down the road we may not need it, but we can wait to get it
done.
COMMISSIONER NANCE: That's fine. My second still stands.
CHAIRMAN HENNING: Okay. Commissioner Coyle?
COMMISSIONER COYLE: I'd like to draw your attention to
the recommendation in the staffs -- and the legal consideration of this
particular item.
COMMISSIONER NANCE: Right.
COMMISSIONER COYLE: The research work has already
been done to the extent that it needs to be done. We only need to
make a decision about what we want to do. And the primary legal
consideration is that given the specific facts and circumstances, that
the Board of County Commissioners direct staff to negotiate a
nonexclusive franchise. And if that kills the deal, then that's right, we
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February 11, 2014
don't go any further, and -- but the idea of having an ordinance to
govern our public utilities and the franchises associated therewith, I
think it's a good idea, and I think all of the elements that staff has
already recommended are important elements of that ordinance.
So all we have to do is to say bring back an ordinance that
contains these elements, and we don't have any more expense -- any
significant expense, and we can get this thing done. And if this is a
deal breaker, it's a deal breaker on this particular thing.
But I don't know how you justify just giving an exclusive
franchise on -- I just don't know how you do that. And -- so I would
strongly recommend that the board just give the staff direction here,
and then everything will fall into place.
CHAIRMAN HENNING: Okay. But that wasn't the original
motion.
COMMISSIONER COYLE: It is not the original motion, and
the original motion, essentially, extends the process of evaluation and
questioning and that sort of thing and requires it to come back to us. It
takes a lot of time.
COMMISSIONER HILLER: Not really.
COMMISSIONER COYLE: It leaves people in limbo. I think
we should address the specific issue: Do we want to negotiate an
exclusive franchise? Yes or no.
COMMISSIONER HILLER: No. It's can we legally negotiate
an exclusive franchise? Yes or no.
COMMISSIONER COYLE: No, it's not. If we could find a way
in the law to negotiate an exclusive franchise, I would vote no, okay.
It's not whether the law allows it.
COMMISSIONER HILLER: But you can't even reach the
question. If our attorneys are telling us that they don't believe that it's
-- they would make the argument that it wouldn't be legally permitted
and that if we did it, we would face a lawsuit, then the issue is moot.
It's done. I mean, it's all over. We don't even have to get to the next
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February 11, 2014
question because, I mean, our County Attorney just told us that if we
did something like this, that we would likely face a lawsuit from Teco
or could.
MR. KLATZKOW: I didn't say likely. I'm saying, it's a question
of exposure here.
COMMISSIONER HILLER: Right. Well, forgive me. You're
right. The exposure is that we could face a suit from Teco challenging
that.
I think Burt wants to speak.
COMMISSIONER COYLE: Then we ought to take a stand --
CHAIRMAN HENNING: Yeah, I'm trying to get to it.
COMMISSIONER COYLE: -- and say what we're going to do
with that.
CHAIRMAN HENNING: Commissioner Nance? And then
we'll go to public speakers.
COMMISSIONER NANCE: Yeah. Is there support on the
Board of County Commissioners for an exclusive franchise at this
moment?
COMMISSIONER FIALA: No.
COMMISSIONER NANCE: Then I don't think we need to go
and investigate it, do we?
COMMISSIONER HILLER: Do you want to let Burt speak?
MR. SAUNDERS: And, Mr. Chairman, with your permission.
CHAIRMAN HENNING: Please.
MR. SAUNDERS: My name's Burt Saunders, for the record,
with the Gray Robinson law firm, and I'm representing Immokalee
Natural Gas.
Your staff recommendation is fine. It deals with developing an
ordinance which I think is a fairly standard ordinance. I don't want to
be involved in any discussions concerning that ordinance. That's a
fairly standard ordinance.
Get that process going. Do the invitations for bids. Be prepared
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February 11, 2014
to issue a non-exclusive franchise, and let's move forward with trying
to get natural gas to Immokalee.
There are numerous businesses out there that want to expand, and
they're waiting for natural gas for that purpose.
CHAIRMAN HENNING: So you're saying you're okay -- your
client's okay with a nonexclusive --
MR. SAUNDERS: We're okay.
COMMISSIONER HILLER: That's a completely different
position than is being presented, Burt.
MR. SAUNDERS: I understand, I understand, but we want to
get this moving. And if nonexclusive -- if nonexclusive is the issue,
then fine, we'll work with you on that, and we'll work with the Public
Service Commission on that, because there's some confusion, I
believe, as to how that -- how the sale of natural gas will work in a
particular area.
But from your perspective, have your staff develop the
ordinance, bring it back, have your staff do the invitation to bid or
invitation to negotiate, whatever you want to call it. Let's try to
expedite this. We've been trying to get this moving since November,
and there are folks in Immokalee that would like to have natural gas.
CHAIRMAN HENNING: Do you want to change your motion?
COMMISSIONER HILLER: Yeah. I -- if we're not dealing
with a question of exclusivity, and this board does not want to
entertain an exclusive franchise, then I'm going to amend my motion
so that Nabors Giblin works with the County Attorney to develop the
appropriate type of ordinance to address the franchise request, and you
have to recommend to us which of those three types of ordinances best
applies for our county to be able to do franchise business and then
come back to us with that proposal.
And so, A, we're considering non-exclusivity only; we're not
going to consider exclusive franchise. B, it will be competitively let.
MR. KLATZKOW: I don't know that you need to competitively
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February 11, 2014
let if it's non-exclusive, but we can come back to you with a
recommendation on that as well.
COMMISSIONER HILLER: Right. But that -- not only would
it be non-exclusive but that there will be competitive bidding for
whichever franchise -- well --
MR. KLATZKOW: You don't need to.
COMMISSIONER HILLER: No, you can't -- that's right. You
can't -- no competitive bidding if--
COMMISSIONER NANCE: Non-exclusive.
COMMISSIONER HILLER: Right, if it's non-exclusive, which
means -- does that -- well, let me -- so what we're going to do, if I
understand -- like, take the parameters that were outlined. If
somebody complies with all of the parameters --
MR. KLATZKOW: Of the ordinance.
COMMISSIONER HILLER: -- of the ordinance, then they will
automatically get the franchise.
MR. KLATZKOW: Not automatically. I mean, the board needs
to make a business decision as well. But we'll have to come back to
whether or not a bid's required. Because if it's non-exclusive, I'm not
sure of the need.
COMMISSIONER HILLER: Well, if it's non-exclusive, we still
have parameters. If it's at our discretion to deny, we have to also
understand on what grounds we can deny so someone doesn't say, you
know, we fell within the four corners and now you're saying,
notwithstanding, no.
MR. KLATZKOW: We'll give you the appropriate criteria in the
ordinance.
COMMISSIONER HILLER: Which goes to the whole
equal-protection argument.
MR. KLATZKOW: Right.
CHAIRMAN HENNING: Commissioner Nance, do you agree
with the amended motion?
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February 11, 2014
COMMISSIONER NANCE: Yes.
COMMISSIONER HILLER: Thank you.
CHAIRMAN HENNING: Any further public speakers?
MR. MILLER: Mr. Saunders, did you --
MR. SAUNDERS: We have two other speakers. They do not
need to speak. Let me just make one comment on their behalf,
though.
If the commission could urge this to move along fairly quickly,
that would be appreciated. Do I understand that you'll do the
ordinance, you'll advertise it, and then we'll negotiate a franchise
agreement? And whoever else wants to negotiate a franchise
agreement will do the same. But we'd like to have the commission, if
you don't mind, saying that this is something that you'd like to see
move forward.
COMMISSIONER HILLER: Why?
MR. SAUNDERS: Because there are folks in Immokalee that
would like to have natural gas, and we don't want to be sitting here six
months from now talking about this ordinance, so I'd like to --
CHAIRMAN HENNING: Did you sign up to speak?
MR. KNIGHT: Yes. I'd just like to answer --
CHAIRMAN HENNING: No, you'll have to get up to the mic.
MR. SAUNDERS: That's all. Just -- we'd like to move it along.
Thank you.
CHAIRMAN HENNING: No, that's fine. He can -- we have all
day.
COMMISSIONER HILLER: We do?
CHAIRMAN HENNING: Your name, for the record.
COMMISSIONER HILLER: And actually tomorrow, too.
MR. KNIGHT: My name's John Knight, and I'd just like to
answer the why question. You're talking about building roads in
Collier County. The difference in propane price right now is
four-and-a-half dollars. I would be delivering natural gas to an asphalt
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February 11, 2014
plant for about 60 cents.
CHAIRMAN HENNING: Okay. So it's important to your future
company?
MR. KNIGHT: So that's a great savings to Collier County for us
to go ahead and get this thing moving. And our clients that we've
been speaking about, we've been talking with them for two years, and
they're really kind of-- because we could not get anybody to bring
natural gas to Immokalee. That's the only reason we're doing it now.
We don't normally do this. We're predominantly just the gas sale, but
nobody else would bring natural gas to Immokalee, and that's why
we're here.
So anything we could do to make this move along as quickly as
possible, it would be a great savings to the county and to the people of
Immokalee and help us get started, so thank you.
MR. KLATZKOW: It will be on your next agenda.
CHAIRMAN HENNING: It will be on the next agenda, okay.
Is that quick enough?
MR. SAUNDERS: I would say, for the record, that's faster than
light speed when you're talking about government, so thank you.
CHAIRMAN HENNING: Government speed.
COMMISSIONER HILLER: Moving as fast as a turtle with
broken legs.
CHAIRMAN HENNING: Okay. Any further discussion on the
motion?
(No response.)
CHAIRMAN HENNING: Seeing none, all in favor of the
motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
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February 11, 2014
CHAIRMAN HENNING: Opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
We're going to take a 15-minute break for the court reporter and
brownies, right. Okay.
(A brief recess was had.)
MR. OCHS: Mr. Chairman, you have a live mic.
CHAIRMAN HENNING: Okay. Next item, 12C (sic) or 11C.
Item #11C
RECOMMENDATION TO APPROVE A PROPOSAL FROM
COASTAL PLANNING & ENGINEERING DATED DECEMBER
16, 2013 FOR A HISTORIC BEACH PERFORMANCE REPORT
AND PRESENTATION UNDER CONTRACT #09-5262-CZ,
AUTHORIZE THE BUDGET AMENDMENT, AUTHORIZE THE
COUNTY MANAGER OR HIS DESIGNEE TO EXECUTE THE
WORK ORDER FOR A NOT TO EXCEED AMOUNT OF
$19,980.60, AND MAKE A FINDING THAT THIS EXPENDITURE
PROMOTES TOURISM — MOTION TO CONTINUE THE ITEM
AND STAFF TO BRING BACK ADDITIONAL INFORMATION
TO THE BOARD REGARDING FEMA REQUIREMENTS,
POSSIBLE DISCREPANCIES AND TO ALSO SHARE ANY
INFORMATION WITH COMMISSIONER NANCE AND THE TDC
— APPROVED
MR. OCHS: 11C, sir, that was previously 16A5. It's a
recommendation to approve a proposal from Coastal Planning and
Engineering for a historic beach performance report and presentation,
and authorize the budget amendment, authorize the county manager to
execute the work order for a not-to-exceed amount of$19,980.60, and
make a finding this expenditure promotes tourism. This was moved at
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February 11, 2014
Commissioner Nance and Commissioner Hiller's separate request.
Mr. Casalanguida will present.
CHAIRMAN HENNING: Who wants to go first? Nick?
MR. CASALANGUIDA: I can. I can give you some color or
you can -- and answer questions.
CHAIRMAN HENNING: Sure.
MR. OCHS: Go ahead, Nick.
MR. CASALANGUIDA: Okay.
CHAIRMAN HENNING: Then Commissioner Hiller.
MR. CASALANGUIDA: All right, very good.
Thank you, Commissioners. First, I apologize if we didn't give
you enough color on this item to give you an explanation.
When coastal zoning came under our department, one of the
things I worked with Gary on is I asked, since it's a singular asset, the
beaches, is if I could get a compilation of all the history that we've
done in terms of erosion accretion and all the project that's been done.
And Gary pointed out to me they're all individual vendors, and they all
provided individual data.
So when you bring this project into your AUIR, I have no way of
representing to you the changes historically that have happened on all
your beach segments. That's one.
The second part of that is your FEMA de-obligation. One of the
comments from FEMA was, historical evaluations and rates. All the
different vendors that have worked on these projects, some of them
use different datasets and different formats.
So in the scope, it's -- in Item 1, it's compile historic beach survey
data and normalize datasets to be referenced in a uniform, vertical, and
horizontal datum.
And then the second part of that is each new vendor that takes a
project on for Collier County, we will give them this finished product,
and they will add to it in the same format. So you will have a living
beach asset document. Then when we meet with you for your AUIR
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annually, you can see what's changed.
I think it's a good starting point. Our last two projects were 9
million and 24 million respectively. To spend $20,000 to compile 20
years' worth of beach history and have a living document going
forward, I thought, was a very important project for us.
CHAIRMAN HENNING: Commissioner Hiller?
COMMISSIONER HILLER: Yeah. You know, we do annual
monitoring. The information is compiled. This is merely, I guess,
synthesizing it into one graph; is that essentially it? Because the study
-- the information is already done. Like I said, we've got annual
monitoring that tells us exactly what's going on every single year with
respect to accretion and erosion along the entire coastline, and we hire
these outside engineering firms to do it.
So why are we spending 20,000 to compile this information that's
readily available to us? I mean, why are we -- I mean, why can't staff
just pull the results together in one book?
MR. CASALANGUIDA: You don't -- you have all different
datasets from different vendors. So you have your annual beach
monitoring, and then you have, like, your emergency beach
renourishment that we did in certain areas, then you have your annual
beach renourishment, which we just completed.
So, you know, if you're asking staff to do that, I don't think we
have the resources on staff to take all of that data and put it into a both
tabular and graphical format, GIS.
COMMISSIONER HILLER: It's already done. I've seen it. I've
looked at the results of the storm renourishment. I've looked at the
results of the annual general beach renourishment monitoring, and it's
all there. It's all tabulated. It says, you know, where the accretion is,
where the erosion is. It's graphed. It's done. I mean, I don't
understand why we're hiring someone to do what's already there.
And as far as the FEMA de-obligation, what exactly are they
asking for? And are we actually compiling this study as evidence in
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February 11, 2014
what is now the third appeal on this de-obligation?
MR. CASALANGUIDA: I would use it to argue for our
de-obligation as well, too, because they've suggested in their responses
to us that, historically, certain things have happened which we argue
did not happen.
COMMISSIONER HILLER: Well, that they -- let me, if I may,
expound on that --
MR. CASALANGUIDA: Sure.
COMMISSIONER HILLER: -- because I think it's important
that this be on the record.
What they say is very clear. They said that the county, and
CP&E specifically, who prepared this information, commingled
general renourishment and storm renourishment and, as a result,
inflated the request to FEMA for reimbursement.
And, in effect, what FEMA did is they denied the portion that
relates to general renourishment because they're only reimbursing for
storm renourishment.
So I just want to be clear on that point. So, again, are we doing
this to address FEMA's de-obligation? And then the other thing is, I'm
also concerned about the consistency in the measurements, because
the question of at what point do you start calculating the -- from which
point you start calculating the erosion, from, you know, where the
vegetation was back in 1996 or where the vegetation is now, and is
that being consistently applied along the coast?
Because I have a concern; for example, if, you know, North
Naples is looking at -- to where the vegetation was in 1996, and
they're only adding 50,000 -- or saying that we've only lost, you know,
X number of yards as a result but you look at, you know, another
beach and you look at the vegetation line as to where it is now and
say, as a consequence, that beach has lost that much more and should
be entitled to that much more, that is very concerning to me as well.
So I just have some concerns about why we're doing this and how
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February 11, 2014
we're doing this.
MR. CASALANGUIDA: I'll address your two questions, ma'am.
In terms of FEMA, the responses I've seen and been part of,
they've stated that they don't believe that the post survey after the
initial survey that showed that the sand had settled is accurate, and that
was one of their comments in the de-obligation.
So they've said, you measured once. And we said, well, we
measured again a little later, and we had no events in between the two
measurements, and the sand has normalized, and this is what we've
lost. So that was one of the arguments.
In terms of even one of the -- Item 3 in the scope, it's calculated
both mean-high water shoreline and volumetric changes. So
consistency is what I'm looking for, exactly what you talked about for
that -- for that shoreline measurement.
I would like to be able to show for the past 20 years exactly
what's happened per annual measurement, per event, per each time
we've deposited sand on the beach, and then every time a vendor does
work for -- on our beaches. So you have an AUIR that's consistent,
they're going to have to update that living document as part of the
deliverables, and it will be in the same format.
So when I present the AUIR, if Gary does, you will have a
document that clearly explains to you what happened in the last 12
months, or if a storm came in and what happened after that storm, or if
we renourished again either through a Wiggins Pass dredge or general
renourishment.
COMMISSIONER HILLER: Why would we have the same
vendor that's doing the design, that's doing the renourishment, also do
this compilation?
MR. CASALANGUIDA: They're the latest vendor that did that
comparison that you saw, so they've got one year of comparison data,
and they've been -- they've heard my frustration when I've asked for
historical data. And they said, well, we didn't work on some projects
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February 11, 2014
before or it's in different formats or it's a different vendor. And so --
COMMISSIONER HILLER: But that doesn't make any sense.
MR. CASALANGUIDA: Well, they're the most currently
involved in our beach renourishment now. That's why we chose them.
They're the ones who are actively doing the most recent information.
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: Yes. The thing that concerns me
most about this agenda item is that the agenda item that is included,
the Board of County Commissioners today looks very little like the
agenda item that was presented to the Tourist Development Council.
The agenda item that was presented to the Tourist Development
Council said that the objective was to provide a historic beach
performance presentation. And under considerations, it goes on to say
what the images are like and say that it's a visual display.
Then, in the letter sent from Coastal Planning and Engineering, it
says, the attached scope of work and fee proposals for services needed
to prepare a visually captivating presentation, okay. This was voted
down by the Tourist Development Council 5-3 because they didn't
think it had a valid public purpose. There wasn't a lot of time under
this executive summary presented to them that had anything to do with
a data-based analysis.
So I can understand that it may well be beneficial to have this
sort of information, but I have absolutely no idea what the citizens
advisory -- the CAC got. I know what the TDC got, and the Board of
County Commissioners is getting something else.
So I don't understand what's going on here. And I'm, frankly, a
little concerned about it. I don't know how this whole thing's coming
down, because I don't think we know who's doing what.
COMMISSIONER HILLER: Or what the real purpose is.
MR. CASALANGUIDA: Well, Commissioner, I wasn't -- I
didn't present at the TDC, and I'll have that discussion with staff.
COMMISSIONER NANCE: Nick, I'm not saying it's your fault.
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February 11, 2014
What I'm saying is, we've got apples and alligators here that have been
presented. And you know, they're saying, well, you know, this
committee voted this, and this committee voted that. But it doesn't
seem -- the executive summaries and the agenda items are vastly
different.
So that's the only reason I pulled this, because I don't know who's
-- you know, I don't know what's going on.
MR. CASALANGUIDA: Understood, and those are good
comments, Commissioner.
And I'm going to go off the scope, because I helped make sure
that scope was written so that we'd have deliverables we could use.
How it was presented to the TDC, I'd have to have Gary discuss that
with you or present.
But I can tell you when questions came up, I rewrote some of this
executive summary to include that paragraph that explained it a little
bit better, because I was concerned that maybe the TDC didn't
understand the scope as well as they could have.
So I apologize for that and, hopefully, I've provided clarification
today.
CHAIRMAN HENNING: Nick, a quick question before I go to
Commissioner Hiller.
MR. CASALANGUIDA: Sure.
CHAIRMAN HENNING: Have you asked the other coastal
engineering companies that we use to provide how much it would cost
to do what you're asking, provide the historical information?
MR. CASALANGUIDA: This is -- this is under that purchase
amount, so it's by work order. And I think -- we've been splitting it
up. I think on your next item it's Humiston and Moore, so we've been
kind of going back and forth to different firms. We went to CP&E
only; I didn't ask another firm to do it.
CHAIRMAN HENNING: Okay. Well, I kind of agree with
what Commissioner Hiller is saying. Information is there. All you
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February 11, 2014
need to do is compile it. And for $16,000 --
COMMISSIONER HILLER: Twenty thousand, actually.
CHAIRMAN HENNING: Well, yeah, but that's for other stuff.
But to compile the information is $16,000.
COMMISSIONER HILLER: Yeah.
CHAIRMAN HENNING: It appears to me that the information
is available. That is a lot of money.
So, anyway, let me go to Commissioner Hiller then
Commissioner Fiala.
COMMISSIONER HILLER: I would like to make a motion that
we continue this item. I think Commissioner Nance's concerns need
to be addressed. I'd like to hear the response back from Commissioner
Nance after he finds out what's really going on.
I would like to see exactly, you know, what is being proposed for
these monies that we don't already have, and I would also like
validation as to, you know, what we are using as the starting point
along all the beaches for, you know, how the erosion is being
calculated, which is a question I've already asked but have not
received the response to.
So I would like to make a motion that we continue this and allow
for more communication between staff and the board before we
approve this project to any vendor.
COMMISSIONER NANCE: I'll second that.
CHAIRMAN HENNING: Okay. There's a motion and second
to continue the item with direction.
Commissioner Fiala?
COMMISSIONER FIALA: Yes. I see hidden in this whole
thing or, really, the most important part of this whole thing is the
FEMA requirement. And we're trying to -- from what I understand
from reading this, FEMA is requiring some of these things, and what
you're trying to do is coordinate everything and put it in the format
that FEMA can accept, because what we're trying to do right now is
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February 11, 2014
we're trying to save our taxpayers' insurance bills. Right now they
don't complain about our taxes, but they sure complain about the
insurance that they have to pay.
Some of them -- like, I have to pay a flood insurance now, and
for 20 years I never paid any flood insurance. All of a sudden I'm in a
flood zone -- or maybe 30 years. I don't know how long it was.
And, you know, so I think all of us would like to see that savings
come to us. Is there any time limitation to have this presented before
we lose another year on our insurance bills?
MR. CASALANGUIDA: No, ma'am. I have time. I'd like to get
it done hopefully before the AUIR in the fall. But, no, I'm not under
any deadlines to meet any FEMA requirements.
COMMISSIONER FIALA: Okay.
CHAIRMAN HENNING: Well, 30 years ago we didn't have sea
level rise and, of course, we didn't have Y2K either at that time. And
at that time we knew that if you ate too much bacon you're going to
get cancer.
COMMISSIONER FIALA: So?
CHAIRMAN HENNING: Okay. So --
COMMISSIONER FIALA: So you're telling me that my land is
now lower than it was 30 years ago?
CHAIRMAN HENNING: No. I'm just saying that people want
to profit on theories, which is Y2K.
COMMISSIONER HILLER: I have to share with you,
Commissioner Henning, I was up in Boston a short while ago, and I
went to a restaurant called The Salty Pig, and everything in that
restaurant was, you know, pig related, bacon included. So I'm
delighted to hear that that theory was dispelled. And I think they are,
too.
But could I make a quick comment?
CHAIRMAN HENNING: I thought you did.
COMMISSIONER FIALA: Well, I wanted to finish with mine --
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February 11, 2014
with my comment, because I just think that that is -- is a very
important concern with all of our residents who live here and the
amount of their insurance bills. It's so much higher than even what
they pay in taxes, in most cases.
And I think we need to be pushing forward and addressing this.
It's too bad we lost the opportunity a couple years ago, but we need to
move forward.
CHAIRMAN HENNING: Maybe we ought to raise taxes.
Commissioner Hiller?
COMMISSIONER FIALA: Are you trying to say that that's
what I said?
CHAIRMAN HENNING: No. Absolutely not.
COMMISSIONER FIALA: Okay.
COMMISSIONER HILLER: I think that if this has anything to
do with the FEMA de-obligation, then I think it's absolutely
unequivocal that CP&E not be the firm to do this project; that it ought
to be a completely different firm that, you know, independently
verifies and compiles the information. Because, again, what FEMA
said, specifically, was that there was commingling where there should
not have been. And I would hate to see this data presented in a way to
not fairly represent what happened, because there's a conflict of
interest, and there's a perception that it is like this when, in fact,
another firm may view it as otherwise.
So that just moves this to even another reason why we absolutely
need to continue this and not approve this contract.
COMMISSIONER FIALA: Are you suggesting a certain firm?
COMMISSIONER HILLER: No. I'm suggesting not CP&E --
COMMISSIONER NANCE: Well, present --
COMMISSIONER HILLER: -- if this is to used for FEMA.
COMMISSIONER NANCE: Well, presently we have two
agenda items.
COMMISSIONER HILLER: Right.
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February 11, 2014
COMMISSIONER NANCE: Neither of which include the words
"FEMA" anywhere in there.
COMMISSIONER HILLER: Yeah, that's another concern.
COMMISSIONER NANCE: So this is where -- I think we're on
an Easter-egg hunt here. We need to figure out what we need.
COMMISSIONER HILLER: Yeah. And they're taking
reservations for Easter dinner at -- I was at a restaurant the other day.
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: Well, since we got off track, I
thought I'd at least add my few comments with respect to insurance
rates.
Isn't it interesting that more and more people now are being
included in flood zones and are paying premiums, yet the cost keeps
going up and up and up?
COMMISSIONER HILLER: Yes.
COMMISSIONER COYLE: When the cost should be going
down because you have more people paying into the program.
COMMISSIONER FIALA: No matter what Commissioner
Henning says.
CHAIRMAN HENNING: But your health insurance bill -- your
health insurance bill --
COMMISSIONER COYLE: Is going to do the same thing.
CHAIRMAN HENNING: -- is going down, right?
COMMISSIONER COYLE: Well, we know the reason for that.
But the other thing is that the wind -- the flood program is a national
program so that the contributions are gathered nationally so that if one
area has a catastrophic loss and it's spread across the entire nation,
then it's not so bad. The rates don't -- should not increase that much.
But wind coverage is done on a state-by-state basis. We haven't
had a serious hurricane here in Florida in years, but the rates keep
going up. They should have plummeted. But until there is an
investigation of the ways that insurance companies incorporate their
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February 11, 2014
state units and the way they shift costs and drain off excess, we're
never going to solve this problem of insurance, and it's going to keep
going up and up and up.
So, folks, get to your congressmen and your state legislators and
tell them to quit cozying up to the insurance companies and start
demanding some kind of investigation. End of story. Okay.
CHAIRMAN HENNING: Nick, do you have clear direction on
the motion?
MR. CASALANGUIDA: Let's see if I can recap it, sir, so I
understand it.
To bring back this item with some more specificity and
information so it's a little clearer what we're asking.
You asked me to consider using a different firm that's not
affiliated with the de-obligation.
CHAIRMAN HENNING: That wasn't a part of the motion.
MR. CASALANGUIDA: Okay. That -- so the motion is just to
bring it back with more specificity?
COMMISSIONER HILLER: No. The motion was to have staff
communicate with Commissioner Nance and clarify the discrepancies
MR. CASALANGUIDA: Okay.
CHAIRMAN HENNING: -- with the TDC and the board.
COMMISSIONER HILLER: Right. And he -- the difference
between the executive -- what was presented to the TDC versus what's
being presented to the board, and Commissioner Nance has added the
FEMA de-obligation, because that was not mentioned in either
executive summary, and the first we've heard of it is here. Is it in
there?
MR. CASALANGUIDA: It's in my summary, ma'am.
COMMISSIONER HILLER: Oh.
COMMISSIONER NANCE: Is it in there?
MR. CASALANGUIDA: Yes, ma'am.
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February 11, 2014
COMMISSIONER FIALA: Yes, sir.
COMMISSIONER NANCE: I apologize then, sir.
MR. CASALANGUIDA: It's okay.
COMMISSIONER HILLER: Okay. So then to explain this --
and, you know, to make sure that CP&E is definitely not the firm if
this relates to the FEMA de-obligation, because it would be a conflict
of interest because they're the ones, you know, who presented that
information to FEMA that was denied --
MR. CASALANGUIDA: It will be --
COMMISSIONER HILLER: -- for being improperly calculated
and presented.
CHAIRMAN HENNING: Does the second agree with that?
COMMISSIONER HILLER: And then, you know, basically
continue it until that information comes back to us. And then, based
on that, you know, we can decide whether or not it should be put back
on the agenda.
CHAIRMAN HENNING: Commissioner Nance, do you agree
with the capsulation of the motion?
COMMISSIONER NANCE: Yes.
CHAIRMAN HENNING: Okay. Any further discussion on the
motion?
(No response.)
CHAIRMAN HENNING: All in favor of the motion, signify by
saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
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February 11, 2014
Item #11D
RECOMMENDATION TO APPROVE A PROPOSAL WITH
HUMISTON & MOORE ENGINEERS DATED DECEMBER 26,
2013 FOR PROFESSIONAL SERVICES TO ASSIST THE
COUNTY IN DEVELOPING CURRENT BEACH
RENOURISHMENT INDUSTRY TRENDS UNDER CONTRACT
#09-5262-S2, AUTHORIZE THE NECESSARY BUDGET
AMENDMENT AND AUTHORIZE THE COUNTY MANAGER
OR HIS DESIGNEE TO EXECUTE THE WORK ORDER FOR A
NOT TO EXCEED AMOUNT OF $10,000 AND MAKE A
FINDING THAT THIS EXPENDITURE PROMOTES TOURISM —
APPROVED AS PRESENTED — APPROVED
MR. OCHS: Mr. Chairman, Item l 1 D is previously Item 16A7.
It's a recommendation to approve a proposal with Humiston & Moore
Engineers for professional services to assist the county in developing
current beach renourishment industry trends, authorize the budget
amendment, and authorize the county manager execute the work order
in a not-to-exceed amount of$10,000, and make a finding that this
expenditure promotes tourism.
This item was moved off the consent agenda at Commissioner
Hiller's request.
CHAIRMAN HENNING: Commissioner Hiller?
MR. McALPIN: For the record, Gary McAlpin, coastal zone
management.
Commissioner --
MR. OCHS: Hold on, Gary. Gary, hold on. There may be a
question.
CHAIRMAN HENNING: No. Yeah, I recognized
Commissioner Hiller. She asked a question.
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February 11, 2014
COMMISSIONER HILLER: Thank you.
You know, Gary, the concern I have with this is, you know, what
are we -- what are we looking to have them develop, current beach
renourishment industry's trends? Are we looking at the cost? Are we
looking at the methodology? Shouldn't we be looking at all of that?
It's -- I guess we have to -- I mean, in my mind, what I think we
should be focusing on is the source of funding. I mean, if we're
looking at beach renourishment industry trends, that's the only thing
that I feel that we can glean from the other areas generally that apply
to us with respect to specifically what any particular beach is doing to
renourish.
Whether it's for so many years or so many years or using, you
know, a hopper or using a truck haul, I don't think, really, will benefit
us, because all of these beaches are uniquely situated and have
different situations that don't necessarily mirror ours. I mean, these
beaches are very unique in their character.
You know, some of them don't have hard-bottom issues. Some
of them have, you know, readily accessible sand sources. Some of
them don't. You know, some of them have, you know, really bad
wave conditions that were -- you know, necessitate, you know,
renourishment much more frequently.
Some communities don't have the funding and, therefore, have
very different standards than we have.
To me what's most significant in this is finding out how these
beach projects are being funded.
MR. McALPIN: Thank you, Commissioner. And we certainly
can do that and will do that.
What we wanted to try to do is have a workshop and talk about
beach renourishment, and we wanted to present, historically, where
we have been, which was kind of the genesis of the first item and
putting it on a standard footprint, and we'll do the items that you
talked about, gave Nick direction on, but then we also wanted to talk
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February 11, 2014
about this latest beach renourishment project, the lessons that we
learned, what was good, what was bad, what we would change.
And then moving forward, what's happening in the industry, how
the industry is going, you know, what's our -- you know, there's a
definite move to larger and larger projects, which limits the dredging
operation.
So if we know kind of where the industry's going, then we could
say what fits right for us and what appears to be right, the approach
that we can take moving forward. So what we wanted to do to get an
unbiased perspective is to get Humiston & Moore to come through,
survey the industry, talk about -- talk about what's happening in terms
of regionalization, what's happening in terms of dredging versus sand
trucking, the factors that influence the decisions that we make, like
you mentioned, whether we can get offshore sand sources, near sand
sources, so that we could have more of a comprehensive presentation
and be able to present that to the board.
So that's what we were trying to achieve, Commissioner.
COMMISSIONER HILLER: And I appreciate that. I think it's
just essential that we look at, you know, like-kind projects. It doesn't
make any sense, like I said, for us to look at a project where the
situation is so materially different from ours and say, oh, but look, the
trend is to have, you know, a longer cycle.
Well, it's a sheltered beach and they have no erosion, and so
putting more on, you know, makes it -- is easy for them because it's
not going to erode over time anyway because of the nature of that
beach.
So I think we have to be very, very careful that when we're
looking at this information that we -- you know, we cannot just look at
general industry trends and say, oh, look, because this is the industry
trend, we should do it. We should look at, you know, similarly
situated beaches to the extent we can and also look at the funding,
because the TDC in prior years had a subcommittee, and they did a
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February 11, 2014
study, and they looked at that and found that nobody was doing what
we were doing.
So I think it is absolutely important that we consider, if we're
looking at beach renourishment industry trends from the standpoint of
how we're going to get this done, that the funding component be
included as part of that analysis.
MR. McALPIN: And we had intended that, Commissioner. Yes,
that is correct.
COMMISSIONER HILLER: Awesome; thank you.
MR. McALPIN: Thank you.
MR. OCHS: Commissioners, again, just to remind you, you have
a beach renourishment workshop scheduled for April 1st. So, you
know, my direction to the staff was, let's try to get some of these
questions answered in advance of that workshop so the board has as
much good information as we can provide to allow them to have as --
COMMISSIONER HILLER: Which is what --
MR. OCHS: -- as productive a discussion at your workshop as I
know you-all want to have. And I've heard so many times people in
the community say, well, you know, we don't need to renourish. We
just need to put groins and jetties out there, and we're done. But most
of them don't understand what the state requirements are with respect
to those things. So these are some of the information we wanted to
gather through this report.
COMMISSIONER HILLER: I think 11D is good, as long as it
does include these other factors.
MR. OCHS: Oh, yes, ma'am.
COMMISSIONER HILLER: And, for example, what you just
said, too, should be incorporated as well. The legal parameters that we
have to consider should be part of this also. So, yeah. I mean, I think
it's great, and it's ironic that you're having it on April 1st. I'm not
saying any more.
MR. OCHS: It's just the first Tuesday of the month.
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February 11, 2014
COMMISSIONER HILLER: So it happens to be.
MR. OCHS: Yes, ma'am.
COMMISSIONER HILLER: I'd like to make a motion, then, to
approve 11D as presented.
CHAIRMAN HENNING: Motion on the floor.
COMMISSIONER HILLER: To make sure it includes the
financing.
MR. OCHS: Yes, ma'am.
COMMISSIONER NANCE: I'll second the motion.
CHAIRMAN HENNING: Okay. There's a motion by
Commissioner Hiller to approve Item 14A (sic), formerly known as --
no, I'm sorry --
COMMISSIONER HILLER: It's 11D.
COMMISSIONER NANCE: 11D.
CHAIRMAN HENNING: -- 11D, formerly known 16A7,
second by Commissioner Nance; is that correct?
COMMISSIONER NANCE: Yes, sir.
CHAIRMAN HENNING: Discussion on the motion?
(No response.)
CHAIRMAN HENNING: Seeing none, all in favor of the
motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
Item #14A1
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February 11, 2014
RECOMMENDATION TO APPROVE A THIRD AMENDMENT
TO A LICENSE AGREEMENT BETWEEN COLLIER COUNTY
AIRPORT AUTHORITY AND IMMOKALEE REGIONAL
RACEWAY, PENDING FAA APPROVAL, PERMITTING,
ENVIRONMENTAL AND ZONING COMPLIANCE — MOTION
TO DENY AND INITIATE CODE ENFORCEMENT ACTION
AGAINST THE BUSINESS FOR NON-COMPLIANCE BEFORE
THEY ARE ALLOWED TO OPERATE ANY FURTHER,
INCLUDING ALL INSURANCE REQUIREMENTS; ONCE
COMPLIANCE IS MET THE ITEM MAY THEN BE BROUGHT
BACK TO THE BOARD FOR CONSIDERATION — APPROVED
MR. OCHS: Mr. Chairman, that takes you to Item 14A1, which
was previously Item 16G3 on your agenda, and this is a
recommendation to approve a third amendment to license agreement
between the Collier County Airport Authority and Immokalee
Regional Raceway pending FAA approval, permitting, and
environmental zoning compliance.
And Commissioner Hiller brought this item forward for
discussion from the consent agenda.
CHAIRMAN HENNING: Commissioner Hiller?
COMMISSIONER HILLER: Thank you. I have serious
concerns about this. There's no way -- and it doesn't make any
difference to me, you know, what the business is or which company it
pertains to -- that we as a county can enter into an agreement with an
entity that is not legally compliant. So I don't see how we can do this.
It's my understanding now that there's going to be a meeting held
out in Immokalee to -- at the airport to address these issues. I'm very
concerned that, you know, the previous airport director, knowing full
well that there was no legal compliance, notwithstanding, you know,
allowed this business to continue to operate the way it did and really
putting the county at risk in the process.
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February 11, 2014
So I say that, you know, we -- I understand there's going to be a
meeting. I don't think that, notwithstanding this meeting, we can
allow this situation to pass us by without taking action.
So I think -- I'd like to make a motion that we deny the third
amendment to the licensing agreement and that we require this
business to come into compliance as required on all fronts before they
can continue to operate further in whatever manner, you know, you do
that through code enforcement; allow code enforcement to take this
over as a code enforcement action and to treat this business the same
way they would treat a noncompliant, non-legal operator and not to
put the county at any risk whatsoever legally in the process.
CHAIRMAN HENNING: Okay. Commissioner Nance, did you
want to speak to this item?
COMMISSIONER NANCE: Yeah. Nick, I understand that you
have gone through with your staff-- you've very recently taken over
the management of the county airport, and that you are in the process
of going through with county staff and addressing all the leases to
make sure that they're compliant across the board; is that not the case?
MR. CASALANGUIDA: Commissioner, that's correct.
COMMISSIONER NANCE: And I'm aware that this, of course,
has been one that has become noticed as one that is out of compliance
on a number of different fronts and that you're going to address this
going forward?
MR. CASALANGUIDA: Yes.
COMMISSIONER NANCE: So your proposal would be to go
ahead and include this in your workup and then bring it back to the
board with a recommendation on how we can address the
noncompliance and what the lessee can do to continue to function
within the rules that you're going to provide him?
MR. CASALANGUIDA: Yeah, and a little clarity I'll need from
the board. You know, the county manager had asked for a list to
review. We have an item that will be coming back, which is a
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February 11, 2014
presentation on all the leases that was -- I believe it was Commissioner
Henning made that motion to do the review. So that's coming back.
In the meantime, this one popped as, you know, almost requiring
immediate attention. This gentleman has a racetrack, and he also uses
some property for a go-cart operation, which he's used for about seven
years now. So his insurance is not compliant to include that go-cart
operation.
So the lease was going to be brought back in three phases. One
was going to address the insurance, second to address building permits
and zoning issues, and the third one would be for the board to work --
come up with some monetary fair value agreement to lease that
property.
COMMISSIONER NANCE: Right.
MR. CASALANGUIDA: I've discussed --
COMMISSIONER NANCE: But this one is -- basically, the
request of this issue is to designate the use of the go-carts as a
comparable and compatible use.
MR. CASALANGUIDA: Just as a use on the lease, not the
zoning portion. Just to say --
COMMISSIONER NANCE: Okay.
COMMISSIONER HILLER: It's illegal.
MR. CASALANGUIDA: The Catch 22 he may have is -- for
him to seek insurance, he may have to have the right to use the
property. But I've discussed this with the County Attorney, and we
can treat this as either a code-compliance action with some board
direction to not -- to stay other enforcement issues as long as he's
actively working, as we do any other -- like we've done with mobile
home parks or other people, say, as long as this gentleman is trying to
get into compliance and he's not putting us at risk with insurance, that
we'll continue to work with him with the property that he has.
COMMISSIONER NANCE: I'm fine.
MR. OCHS: And allow him to operate.
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February 11, 2014
COMMISSIONER NANCE: I'm fine with that.
MR. CASALANGUIDA: Yes, as long as he got insurance.
Allow him to operate. And as long as he's diligent in pursuing
compliance --
COMMISSIONER HILLER: Again, we cannot enter into a legal
agreement where he is not legally operating. So we have to continue
the proposal for a third amendment to the lease, and this has to turn
into a code enforcement action, and the appropriate measures need to
be taken to make him legal, at which point we can enter into a legal
agreement with him if we choose to do so.
MR. CASALANGUIDA: Yes, ma'am. If he provides -- I think,
just to be clear, if he provides insurance so that there's no liability to
the board --
COMMISSIONER HILLER: Exactly, provided that we have
fully protected --
MR. CASALANGUIDA: Yes, ma'am.
COMMISSIONER HILLER: -- the public's interest as the first
step in that process, and thank you for adding that.
COMMISSIONER NANCE: So your motion, ma'am, is to
continue the item?
COMMISSIONER HILLER: No. The motion is to deny the
third amendment to the license agreement and to begin a code
enforcement action to bring this raceway into compliance and then --
and as a first step requiring the insurance be provided to the county
before operations are allowed to continue further.
And then once this project is brought into legal compliance, at
that point staff can come back with the third amendment to the
licensing agreement for our approval.
COMMISSIONER NANCE: I'll second that.
COMMISSIONER HILLER: Thank you.
CHAIRMAN HENNING: Okay. I have -- I'm trying to get a
grasp on the issues here. What compliance issues do they have? Do
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February 11, 2014
they have a zoning compliance issue?
MR. CASALANGUIDA: Yes, sir. Part of their go-cart track is
in a different zoning area, so they'll have to seek a
comparable/compatible use in the section line or the zoning line
within the PUD. That go-cart track is outside his lease area, so that's
the zoning issue. He's also got building issues.
CHAIRMAN HENNING: Okay. So does there have to be a
rezone?
MR. CASALANGUIDA: No, sir. It can be done at the hearing
examiner quickly. It's one of those where the zoning official can
review.
CHAIRMAN HENNING: What is the zoning?
MR. CASALANGUIDA: It's a change -- in the south section of
the PUD where he's doing -- currently using racing, that's an allowable
use. In the north section, just -- I've got a graphic I can show you.
CHAIRMAN HENNING: How long has this been going on?
MR. CASALANGUIDA: Seven years, sir; maybe a little bit
longer.
CHAIRMAN HENNING: Why has this been going -- did -- staff
didn't realize that this was going on?
MR. CASALANGUIDA: And I can't speak for the prior staff. I
can tell you that in 2011, they did an amendment to the lease, and this
wasn't brought up in 2011 . That was one of the things I'd asked, if we
just did a recent update. But it was not, and we're going to try and
correct it.
CHAIRMAN HENNING: Yeah. I understand that. So the
operation of the go-cart's going to be moved in an area where it is
allowed?
MR. CASALANGUIDA: No. It's to have a finding that
racetrack and go-cart are very similar uses adjacent to each other, so
comparable and compatible. That's what will come through the
hearing examiner's office. Then he's got structures that are permanent
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February 11, 2014
that have to go through building department permits because that
bathhouse has plumbing and fixtures that were never permitted.
CHAIRMAN HENNING: When was this done?
MR. CASALANGUIDA: Over the last six years, sir, that some
of these additions were put on.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: So you mean to tell me that airport
staff-- I mean, they obviously knew the buildings were there. They
obviously knew go-carts were on the site. They obviously knew that
he was operating without being permitted to do so -- or permitted to
do so without FAA approval. They brought forward a lease in 2011
and didn't disclose any of this to us?
MR. CASALANGUIDA: Ma'am, I can't tell you what they
disclosed or didn't disclose. I wasn't reviewing them. I know --
COMMISSIONER HILLER: No, I know that you weren't, and
we appreciate that. I mean, I just -- that's unbelievable. In other
words, they knowingly allowed these violations to continue?
MR. CASALANGUIDA: I don't know what they knew. I know
Leo's direction -- it was very clear to me -- was Gene Shue, our
operations director, with Tim Durham, real property has gone through,
systematically, each lease and each property to make sure we're
compliant.
COMMISSIONER HILLER: Thank you.
MR. CASALANGUIDA: And that's what we're working on.
COMMISSIONER HILLER: And thank you for doing that, and
thank you for bringing forward what should have been brought to our
attention. Thank you.
MR. CASALANGUIDA: You're welcome.
COMMISSIONER HILLER: My motion stands.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Just possibly -- and, you know, we
don't know it all. It seems that Immokalee airport ran under different
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February 11, 2014
rules or provisions than the other airports did, and it seemed that when
the airport director tried to start cleaning some of them up at the
airport with force, there were many that came down on him.
And I think maybe he just backed away thinking, you know, I --
you know, it looks like, with just this one issue, I've got all guns aimed
at me, and maybe he just pulled back from trying to clean out any of
the other ones because of the fear of people crushing him. Of course,
he got crushed anyway.
But, you know, it could have been that. Could have been that
they've had kind of like a freer attitude over there. And we gave
permission for this freer attitude to hot fuel and to land on grass and so
forth just because it is a different airport. And because it has been run
differently, I think, in most cases --
CHAIRMAN HENNING: Do you have your light on?
COMMISSIONER FIALA: -- the airport directors -- excuse me,
I'm sorry, but I'm talking right now. And airport directors kind of just
let it run by itself before. So maybe that's it.
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: I have no further comments.
CHAIRMAN HENNING: Oh, I'm sorry.
Commissioner Hiller?
COMMISSIONER HILLER: Commissioner Fiala, are you
suggesting that the previous airport director knowingly and
intentionally allowed illegal activity to exist under his watch?
COMMISSIONER FIALA: No.
COMMISSIONER HILLER: Because that's what you just said.
COMMISSIONER FIALA: I'm suggesting that when he tried to
identify some -- and it blew up in his face when he tried to stop hot
fueling, for instance, or leaving the plane running with no chocks
under the wheels while somebody ran in to go to the bathroom or
something. And when he tried to stop that with force, he was -- you
know, he was reprimanded.
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February 11, 2014
And even though he tried to get the FAA in on it, there was --
there was much to do. And I'm just saying, maybe because of that --
of what happened there, he just kind of pulled back and didn't start
enforcing anything else because of fear of what was going to happen.
COMMISSIONER HILLER: So that he obviously wasn't
capable of doing the job because he couldn't enforce what was legally
right.
COMMISSIONER FIALA: No, I never said that at all. You're
trying to read things into something that I did not say. I'm saying that
he was forced not to pay attention to some of the things that went on
there and turn a blind eye to them.
And when he tried to not do that, it blew up in his face, is what
I'm saying. Don't say anything I didn't say.
COMMISSIONER HILLER: Kind of like -- let me ask a
question. What is the status of the insurance for the Turbo Services?
You know, the board clearly stated that $5 million was the required
insurance coverage, and Mr. Curry unilaterally reduced that to a
million dollars, exposing the public to, you know, significant risk.
COMMISSIONER FIALA: Commissioner Hiller, let's not aim --
COMMISSIONER HILLER: I just want -- I'm asking -- I just
want to know. What is the status of that?
COMMISSIONER FIALA: I just want to say to you, let's not
aim at each other. Let's start working together.
CHAIRMAN HENNING: Hang on, hang on.
COMMISSIONER HILLER: No, I'm not. I'm talking --
COMMISSIONER FIALA: Let's start working together for a
solution.
COMMISSIONER HILLER: I agree, I agree.
CHAIRMAN HENNING: I recognized Commissioner Hiller.
COMMISSIONER HILLER: I just want --
COMMISSIONER FIALA: I understand.
COMMISSIONER HILLER: What is the status of that
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February 11, 2014
insurance?
CHAIRMAN HENNING: If you want to speak after that --
MR. OCHS: Do you know?
COMMISSIONER HILLER: What is the status?
MR. CASALANGUIDA: I'll have to get back to you.
COMMISSIONER HILLER: Please do so, because I think it's
critical. That is -- and I bring that up now only because we have
another insurance issue over here.
What is the status of the review of the insurance for all these
projects? I know you're reviewing all the leases, but the insurance
compliance is something that is of real concern to me.
MR. OCHS: It's a component of the lease --
COMMISSIONER HILLER: Of the review.
MR. OCHS: -- review, ma'am, and we're coordinating that with
respect --
COMMISSIONER HILLER: Okay. Well, then I won't -- I don't
want to jump ahead. But the insurance is something we can't really sit
on, notwithstanding all the other --
MR. OCHS: Oh, yes, ma'am.
COMMISSIONER HILLER: -- noncompliance issues.
So if I may make a suggestion besides what we have here. If I
could ask you to really advance and quickly complete the insurance
component of your analysis as it relates to anyone operating out there
to make sure that -- you know, that the level of insurance the board
directed has, in fact, been acquired and that we are named as an
insured so that if anything does happen -- because that noncompliance
issue is something we cannot tolerate over time. And that's one of the
big issues that concerns me about this, especially considering
go-carting and, you know, Turbo Services with their hot fueling and
so forth and, you know, EPA issues related to that, to their business.
CHAIRMAN HENNING: Commissioner Nance?
COMMISSIONER NANCE: Yes. You know, I think that the
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February 11, 2014
county staff is becoming fully engaged with the airport, and it's been
kind of a little bit of a steep learning curve for them because they've
had to become engaged on a lot of issues and a lot of dangling
participles and a lot of concerns over a very short period of time.
And I feel like, just from my conversations with Mr.
Casalanguida, they're comporting themselves very well on this issue.
So I would --
COMMISSIONER HILLER: Very well.
COMMISSIONER NANCE: -- I would suggest that we allow
them to address things. I think they're on point. This, I think, came up
originally as an insurance concern, Commissioner Hiller, and a
liability, and I would encourage everyone to allow staff now to reach
out. They're meeting with people. They're becoming familiar with the
individual circumstances, the individual leases, the individual tenants
that we have; allow them a little bit of room to go -- to go ahead and
do their work and then come back to us with some solutions for
problems. I think we owe them the courtesy of letting them do that,
because I think they are -- it's my opinion and my understanding that
they're very well and effectively engaged on this, and I'm --
COMMISSIONER HILLER: I'm delighted.
COMMISSIONER NANCE: -- working with them closely on
upcoming meetings so we can establish the proper relationships. The
current management staff of the airport has been very cooperative
working forward, and I think it's all positive. And I'd just like to move
forward in a positive way and solve problems.
COMMISSIONER HILLER: I agree. And I'm thrilled with the
work that staff is doing. Leo, you know, Nick, and your staff, I mean,
everybody has absolutely done an outstanding job in trying to clean up
the mess that's out there.
The only reason I bring up the insurance is we cannot wait on
liability protection for the county. Risk management is our priority.
It's our obligation to the people. And so post haste on that. And, you
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know, normal -- as Commissioner Nance said, normal pace on
everything else appropriately.
So -- and I really have to commend you. I mean, you inherited a
pickle, and you've really all been doing a great job bringing it, you
know, into focus and into order, and we're grateful to you for that.
MR. OCHS: Thank you.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yes.
Commissioner Nance, I think that was well said. I think that was
the way it should be done. No pointing arrows, nothing, just get the
job done and just do it right. Start from today, not from the past. And
I -- it was so well said, and I really respect you for saying that.
COMMISSIONER HILLER: I agree. Very nicely said.
CHAIRMAN HENNING: Okay. Well, I just want to recognize
a correction for the record. I brought two issues on the board agenda,
and both of them had to do with lease agreements not being complied
to, okay. None of the board at that time had a problem with my
agenda enforcing leases to be complied to. Nobody had a problem.
And, you know, I brought it on, not staff, not the then airport director.
COMMISSIONER FIALA: I don't know -- I'm sorry, but I don't
know what you're talking about.
CHAIRMAN HENNING: Okay. Well, I'm talking about Larry
Fox.
COMMISSIONER FIALA: Who's Larry Fox?
CHAIRMAN HENNING: Larry Fox is one of the tenants out
there that has the incubator. And I forgot what the other one was. It
was --
COMMISSIONER NANCE: Mr. Sheppard, I believe.
CHAIRMAN HENNING: Mr. Sheppard. It was Mr. Sheppard
that --
COMMISSIONER FIALA: That's the one with the museum?
CHAIRMAN HENNING: He's the one with the museum. Staff
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February 11, 2014
did not bring it to the board. I brought it to the board, okay.
So, anyway, it was just like, now is -- like Commissioner Nance
has said, there's -- staff is cleaning up some of these things from the
past.
So there's a motion and a second on the dais. Any further
discussion on the motion?
(No response.)
CHAIRMAN HENNING: Seeing none, all in favor of the
motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Any opposed?
(No response.)
CHAIRMAN HENNING: Motion carries unanimously.
I think we're done with the regular agenda today.
MR. OCHS: Yes, sir, with the exception of your public
comments, which won't be heard -- that are heard no sooner than 1
p.m. on your agenda.
CHAIRMAN HENNING: Right. And then we --
MR. OCHS: And your staff communications.
CHAIRMAN HENNING: We have staff communications, and
then we have the La Peninsula reconsideration ordinance.
So why don't we take a break and come back at 2:15 for this
afternoon's session.
COMMISSIONER HILLER: Thank you.
MR. OCHS: Very good.
CHAIRMAN HENNING: We're in recess.
(A luncheon recess was had.)
MR. OCHS: Mr. Chairman, you have a live mic.
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February 11, 2014
Item #7
PUBLIC COMMENTS ON GENERAL TOPICS NOT ON THE
CURRENT OR.FUTURE AGENDA
CHAIRMAN HENNING: Welcome back to the Board of
Commissioners' meeting reconvening.
We have public comments. Do we have any public comments?
MR. MILLER: We have no registered speakers for public
comment, Mr. Chairman.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: How many?
MR. MILLER: None.
CHAIRMAN HENNING: We have none.
So let's go to staff communication and commissioners'
correspondence.
COMMISSIONER HILLER: Now?
CHAIRMAN HENNING: Sure.
COMMISSIONER HILLER: Okay. Oh, boy. I didn't expect
that.
Item #15
STAFF AND COMMISSION GENERAL COMMUNICATIONS
CHAIRMAN HENNING: County Manager, do you have
anything for us?
MR. OCHS: Just one follow-up item, Mr. Chairman. There was
a good question asked by Commissioner Hiller earlier today in our
discussion about insurance related to leases at the airports, and
specifically there was a question about the pollution control or, excuse
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February 11, 2014
me, the pollution liability limits on the Turbo Services lease
agreement.
I went back and took a quick look at that, and last September
there was an amendment, third amendment to the lease agreement
with Turbo Services that the board approved that effectively lowered
that limit from 5 million to 1 million based on a survey that was done
by the risk management director, and the board then subsequently
amended that lease agreement to lower that limit to a million dollars
per occurrence, and that coverage has been obtained by Turbo
Services, and we have the certificate of insurance properly on record
with risk management.
So that particular insurance issue is resolved and has been since
the board had approved that revision to the lease agreement.
Other than that, that's all I have right now, commissioners.
CHAIRMAN HENNING: County Attorney?
MR. KLATZKOW: Nothing, sir.
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: Yeah, I have only one thing. At
our last meeting we agreed that the chair would send a letter to the
inspector general of HUD, forwarding the audit by the clerk of John
Barlow and his HOME organization. I don't know if that's gone out
yet, but what I would like to do is ask the board to at least take the
time to listen to the other side of the story, because it can get very
embarrassing if we send something to the inspector general that proves
to be false.
And I think we've all learned in the past that when audit reports
are accompanied by two hours of bloviation and hyperbole they tend
to get misinterpreted and paint an inaccurate picture.
So I would like to ask that you hold off a week or two weeks
until you can hear from the other side, and then you will have a more
accurate picture of the situation and can then forward the audit report
without causing, hopefully, too much embarrassment to the Board of
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County Commissioners.
CHAIRMAN HENNING: Are you asking for a reconsideration
on the item?
COMMISSIONER COYLE: No, no, no. Only -- I'm asking
only that you be willing to consider, sometime in the next couple of
weeks or the next two meetings, listening to the other side of the story
before you make a final decision.
CHAIRMAN HENNING: We have already made a final
decision.
COMMISSIONER COYLE: No, but before you send the letter,
okay.
CHAIRMAN HENNING: That's a reconsideration.
COMMISSIONER COYLE: No, it's not.
CHAIRMAN HENNING: County Attorney? That was --
COMMISSIONER COYLE: You were authorized --
CHAIRMAN HENNING: -- was the motion, right?
COMMISSIONER COYLE: You were authorized to send a
letter. I'm merely saying, before you send the letter, listen to the other
side. That's all I'm saying. If you have the letter, I just suggest you
delay it until you hear the other side.
CHAIRMAN HENNING: Okay. Well, I think you made the
motion. Do you recall the motion?
COMMISSIONER HILLER: I do. The motion, basically, was
to direct you to work with the clerk to send the letter out.
CHAIRMAN HENNING: To the auditor for HUD.
COMMISSIONER HILLER: Right.
CHAIRMAN HENNING: Okay.
COMMISSIONER COYLE: Inspector general.
COMMISSIONER HILLER: To the inspector general.
COMMISSIONER COYLE: And that's not being changed at all.
COMMISSIONER HILLER: No. You're asking for us to hold
off on sending that lender -- letter pending the presentation by Mr.
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Barlow?
COMMISSIONER COYLE: Yes.
COMMISSIONER HILLER: Is that basically it?
COMMISSIONER COYLE: Yes.
COMMISSIONER HILLER: I think that would probably require
an additional motion, because we -- or like, Commissioner Henning
said, a reconsideration, because we're now looking at changing the
timing of that letter and making it conditioned upon us hearing what
Mr. Barlow has to say first.
COMMISSIONER COYLE: Well, let me say this.
COMMISSIONER HILLER: But let me suggest that -- I
understand where you're coming from, Commissioner Coyle. And,
really, what we can do, if-- and Commissioner Henning is the one
who we delegated this responsibility to.
If the clerk and Commissioner Henning send the letter stating
exactly what we directed them to state and if for some reason it turns
out that whatever information ought to be amended after we hear from
Mr. Barlow, we can always send a second letter to the inspector
general saying, you know, based on the evidence presented by Mr.
Barlow, we would like to make, you know, the following change or
amend it any way that would be appropriate.
So I still think we can, you know, appropriately respond. I mean,
I think what you're addressing is what the external auditors have
provided --
COMMISSIONER COYLE: No.
COMMISSIONER HILLER: -- and presenting what -- their
findings; is that not correct, Commissioner?
COMMISSIONER COYLE: No. I'm addressing what the clerk
has provided.
COMMISSIONER HILLER: Well, I think --
COMMISSIONER COYLE: And I think there is a chance that it
will cause considerable embarrassment. But, nevertheless --
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February 11, 2014
COMMISSIONER HILLER: Well, let me ask --
COMMISSIONER COYLE: No, let me respond to that --
COMMISSIONER HILLER: Sure, go ahead.
COMMISSIONER COYLE: -- because some things are being
misrepresented here.
We're not asking for any change to the decision that was made --
COMMISSIONER HILLER: Right.
CHAIRMAN HENNING: Except for the timing of it.
COMMISSIONER COYLE: We did not direct a specific date
for that letter to be prepared. We merely authorized you to send a
letter forwarding the audit to the inspector general of HUD. I am
suggesting to you that before you do that --
COMMISSIONER HILLER: Can somebody please turn their
cell phone off. Thank you. Yeah.
COMMISSIONER COYLE: I'm suggesting that before you do
that, at least take a little time to make sure you've got the whole story.
COMMISSIONER HILLER: Can I ask a question?
COMMISSIONER COYLE: But wait.
COMMISSIONER HILLER: Sure, go ahead.
COMMISSIONER COYLE: If you send it up now and you find
that there is something wrong with it later, the damage will have been
done, because I can assure you that the inspector general receiving
that report and perhaps any other information associated with the
clerk's two-hour presentation will be very negatively impressed with
Collier County, and it might result in them depriving us of some future
funding or grants that we should be able to get. It might even prompt
an unnecessary audit.
So those things -- let them happen if they're going to happen, but
at least send accurate information --
COMMISSIONER HILLER: Sure.
COMMISSIONER COYLE: -- that you feel you can defend.
COMMISSIONER HILLER: Of course.
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February 11, 2014
COMMISSIONER COYLE: There's no change in the direction
whatsoever.
COMMISSIONER HILLER: Can I ask a question,
Commissioner Coyle? Are you aware of information through Mr.
Barlow that has not been presented to date? Because the biggest
problem is that Mr. Barlow failed to provide the documents requested
in a number of instances.
And so the question I have for you is, have you seen documents
that the county has not been privy to see that would change the story?
And if so, then Mr. Barlow needs to come forward with that evidence
because, you know, he's withheld documentary evidence related to
what seems like, you know, tens if not hundreds of thousands of
dollars. And, you know, to the extent that maybe you know
something we don't know, if you could share that with us, you know,
it could shed a completely different light on the situation.
CHAIRMAN HENNING: Yeah. I'd reconsider the action
myself. I'd be happy to send the county manager a reconsideration on
it if it's evidence to the contrary.
COMMISSIONER HILLER: Yeah, but only if it's evidence to
the contrary.
COMMISSIONER COYLE: But you're not going to know
whether there's evidence to the contrary until you hear the other side
of the story.
COMMISSIONER HILLER: But I just want to know, have you
seen evidence that the county has not seen? Is there documentary
evidence that has -- that will be forthcoming that hasn't been
forthcoming?
And, you know, there's the other issue of this matter was on the
agenda; it was noticed Mr. Barlow was told repeatedly it was going to
be brought, you know, before the board. He was given an opportunity
to respond to the internal audit as well as the external audit. I believe
he met with both the internal and the external auditors.
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And so I'm not sure what story he's now going to present that he
should not have already presented to explain what he did or did not
do.
So I'm not sure why him speaking in front of the board would
make the difference in terms of sending that letter to HUD other than
that he may have, like, now decided to stop stonewalling the county
and the Clerk.
COMMISSIONER COYLE: Well, you see, that's the problem.
You are accepting everything that you have been told, and you have
not listened to the other side.
COMMISSIONER HILLER: But he had the opportunity to
come and speak at the board meeting.
COMMISSIONER COYLE: No, he didn't.
COMMISSIONER HILLER: Why not?
COMMISSIONER COYLE: No, he did not. Because just as we
got this big packet from the Clerk this morning at the very last minute
concerning Cirrus Pointe, we didn't have a chance to read it. We
wouldn't have a chance to respond to it. There was no advance notice
whatsoever. That's the game that is being played here.
COMMISSIONER HILLER: I think --
COMMISSIONER COYLE: Just a moment, just a moment.
Mr. Barlow, nor anyone else, had access to the Clerk's
presentation and could not come here prepared to rebut that
presentation or anything else. It was done specifically so that nobody
would have any advance information concerning that.
COMMISSIONER HILLER: Could I ask -- let's get a response
from the Clerk's Office.
COMMISSIONER COYLE: Wait -- wait just a minute.
So I am -- I am strongly recommending that you listen to all of
the evidence before you reach a final decision here. And if you
choose not to do so, it does no harm to me, but it could be extremely
embarrassing to some other people.
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So it's -- for a group of people who say that they want to have all
of the information and it all should be in the public view, I strongly
recommend that you listen to the other side of the story, and then you
make your decision.
COMMISSIONER HILLER: This -- questions have been going
on about what that entity has been doing since -- I could -- my date
may be off, but maybe 2009, 2010, maybe even earlier than that. And,
you know, in 2010 that entity dissolved, and that entity has been under
audit since that time.
I think between 2010 and now, which is about four years later,
you know, if there's any case that Mr. Barlow wanted to make in the
public eye, he had ample opportunity to present it and bring it
forward.
He has withheld evidence that has been asked of him, that he had
a contractual and, you know, very clearly an unequivocal legal
obligation to produce. It's a difficult situation. I mean, I find it hard to
believe that suddenly at the eleventh hour he's going to come in and
present a story which is different than what he has had the opportunity
to present for the past four years.
COMMISSIONER COYLE: Well, let -- okay. You're going to
make the decision you want to make, but I will say this to you: That
the Clerk did an audit in 2011 and presented it to us for this particular
situation.
He did not do anything from that point forward until such time as
I questioned his audit of the Blockers, and at that time he was so
enraged that I would ask him to at least check the bank accounts, bank
records to make sure those $540,000 were paid, that he pulled out an
email from Mr. Barlow and said, here is a 2011 email from Mr.
Barlow, two years later, and he says, I want to show you what an
audit's about because I'm going after your buddy John Barlow, okay.
So then he sends out another auditor, an independent auditor, and
then brings that auditor into these chambers, and he spends two hours
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bloviating about all of the things that he thinks are wrong.
I think on closer examination we will find that some of those
things were greatly exaggerated, but you do what you want to do. It's
not going to bother me.
COMMISSIONER HILLER: Well, I'm very concerned because
it sounds to me like you seem to have evidence that hasn't been
presented to the county, and if you have evidence that hasn't been
presented, you need to bring it forward right now.
CHAIRMAN HENNING: And you're being repetitive.
COMMISSIONER HILLER: Yeah. Forgive me.
CHAIRMAN HENNING: Do you have anything else?
COMMISSIONER COYLE: No, that's it; that's it.
COMMISSIONER HILLER: Thank you.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: No, I just want to thank
Commissioner Nance again for his comments this morning about
working cooperatively and being -- well, you know, he did say that,
and I agree with him. I like to do that myself. And not saying -- he
didn't say this, but I'm -- I took the implication that, you know, you
don't -- you don't ridicule somebody and you don't -- you're not
sarcastic to them. If we all work together and don't dredge up the past,
maybe we can move along at a nice pace, and I really appreciated that.
CHAIRMAN HENNING: Yeah. And it's so close to Valentine's
Day, too. No, seriously.
COMMISSIONER HILLER: And by the way, it was related to
the airport.
CHAIRMAN HENNING: It was all good stuff.
Commissioner Nance, kudos to you.
Do you have anything, Commissioner Nance?
COMMISSIONER NANCE: That's not on -- that's not on this --
I -- you know, if somebody wants to allow Mr. Barlow to come in and
present, I have absolutely no problem listening to him. You know, I
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February 11, 2014
have not made any accusations. I don't think the board has made any
accusations. I think they -- you know, we voted to turn it over to
somebody that can examine it and do what they want with it.
You know, I'm not pretending that I'm part of a court here to
accuse anybody of doing anything. We've got a presentation. Clerk
said this is what he was going to do. You know, I don't pretend to
know what's right or wrong in the situation. It seems like it's very
complicated to me. If somebody wants to come in and present
evidence to me to convince me otherwise, I'm sure that they can go
ahead and do that. I don't mind a bit.
COMMISSIONER HILLER: I want it now.
COMMISSIONER NANCE: But I'm -- it's not going to help me
decide, because I'm not ever going to be the decision maker on that
issue so --
CHAIRMAN HENNING: Okay. Do you have anything else? I
think Commissioner Fiala was giving you kudos for --
COMMISSIONER NANCE: No, I appreciate that. You mean on
commissioner comments?
CHAIRMAN HENNING: Yes.
COMMISSIONER NANCE: Okay. All right, yes. I have two
things. Excuse me, Mr. Chairman. I have two things.
I would like to bring one thing to the attention of the board and
see if there is a nod to do something here. I want to bring up the issue
of the Site Improvement Plan program in the Immokalee mobile home
parks. You know, we've had a very well thought-out and detailed
process for people to apply and develop an improvement plan on
mobile home parks in Immokalee.
Basically, this program expired in the Year 2003 as far as a
deadline for people to apply to get into this process. There's 77
existing mobile home parks, according to information that's been
presented to me by staff, and only 37 of those were able to avail
themselves of that process.
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Now, since 2003 we've had Hurricane Wilma, we've had an
economy that fell to pieces, and we've had many, many difficult years
in the agribusiness industry in Immokalee.
And what I'm asking the board to consider is to see if we have the
support on this board to allow staff to bring forth an item which would
be -- consist of a one-word change on the SIP program, and that would
be to replace the expiration date of 2003 with 2020 to allow people
that want to participate to start working with staff again, to start
moving this process forward, to get these mobile homes with a plan to
improve themselves and start moving forward.
They have been going backwards, because since people have not
been able to qualify for the plan, they have felt reluctant to invest
money further for fear that they would lose their businesses or they
would fall out of compliance or be in code violation or otherwise.
And I would just like to ask the board to consider allowing staff
to bring forth an item that would make a single-word change to get us
started again and allow staff to start working with these mobile home
park owners, so --
CHAIRMAN HENNING: And that could be debated at that
time.
COMMISSIONER NANCE: Yes, sir.
CHAIRMAN HENNING: Okay. I'm fine with that.
Commissioner Hiller, are you fine with that?
COMMISSIONER HILLER: I am. I think that whole SIP
program has to be reevaluated in its entirety. And, you know,
extending it pending review and streamlining is, you know, really
what ought to be proposed when you bring it forward.
COMMISSIONER NANCE: Well, you know, this is going --
you know, this is just going to be the beginning of opening that
process again to people to let them start to apply and develop
programs that are going to be meaningful out there.
COMMISSIONER HILLER: But I think what's very important
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is that we don't create a situation where people are forced to do
something now under the existing program, which we really shouldn't
-- or don't need to be requiring of them.
So I think it's very important that when you bring this
recommendation forward that it be concurrent with staffs review
along with the constituency and you as the commissioner for that
district.
COMMISSIONER NANCE: There are many people that -- I
will tell you, because of the recent last couple successful years, there
are people that are coming forward to staff and asking that they can
get going and get into compliance. So, you know, if we have enough
nods, I will ask staff to go ahead and start to work on this item.
COMMISSIONER HILLER: Well, no. You're going to put it on
the agenda --
COMMISSIONER NANCE: Yes.
COMMISSIONER HILLER: -- and bring it back for a vote for
us to direct staff to get that done.
COMMISSIONER NANCE: Yes.
CHAIRMAN HENNING: No, that isn't what he's asking.
COMMISSIONER HILLER: He's saying yes.
COMMISSIONER NANCE: I'm asking to let staff bring forth an
item that's going to -- for consideration from the board.
But basically what they're asking right now is to start by making
a -- by approving, basically, a one-word change that's going to open
up this process so people can begin to talk to staff in earnest.
CHAIRMAN HENNING: Commissioner Fiala, are you in favor
of that?
COMMISSIONER FIALA: I certainly am, especially because
the public-health unit cannot go in and help in any way other than in
farmworker migrant housing. That's the only place they can even
enter in. So I think that's a great idea to try and work with them to the
betterment of the people in that community.
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February 11, 2014
CHAIRMAN HENNING: Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I think you mentioned
something about fully staffing this issue rather than having the staff
just come back and give you what you just said. I think the intent is to
talk with all of the stakeholders.
COMMISSIONER NANCE: Yes, sir.
COMMISSIONER COYLE: Okay.
COMMISSIONER NANCE: Absolutely.
COMMISSIONER COYLE: And staff it thoroughly through the
county staffs and/or advisory boards if appropriate.
COMMISSIONER NANCE: Yes, sir.
COMMISSIONER COYLE: Okay.
COMMISSIONER NANCE: I'm definitely looking for that
support to get this thing jump started again and get it going.
COMMISSIONER COYLE: I'm perfectly happy with that.
CHAIRMAN HENNING: Okay. So it will be on a future
agenda.
Anything else?
COMMISSIONER NANCE: Yes, sir. I would just like to make
a couple of comments to the board, since I'm kind of the liaison in
some ways to agribusiness, just to give you a little bit of a back story
on citrus greening disease that you may or may not be aware of. I just
wanted to just give you a few updates on things that have recently
happened.
There's a great deal of concern about the disease. Of course, it
was first identified in Florida in 2005. And from 2005 through 2011,
that disease has spread so fast; we're to the point now where we've got
somewhere between 60 and 75 percent of our citrus growth within the
state of Florida are infected with citrus greening disease.
Citrus is still a $9 billion compound industry in the state of
Florida, and in Southwest Florida it's $2 billion plus in compound
interest.
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February 11, 2014
During the last five years, the industry has lost, as a result of this
disease, approximately $4.5 billion in revenue and somewhere in
excess of 8,000 jobs in Florida.
The industry itself has dedicated monies through associations and
professional groups, nearly $70 million, to fund research on the
disease.
Some of the programming at the Southwest Florida Research and
Education Center has been structured to citrus greening, and that is
part of the basis for the request for expanding the station and
reinvigorating it with an injection of money to fund staff, research,
and students, et cetera.
It has been opined by some of the best and brightest that if a
high-tech solution is not found, that the citrus industry, as we know it
today, may be significantly on its way to extinction by the year 2020.
The news is not all bad, however. In response to this and in
response to the fact that citrus greening has moved into Texas,
Arizona, and California in the early stages, this year's federal budget
has included $20 million in research money for Florida, and it has also
included a five-year, $125 million budget item within the farm bill to
support research on citrus greening disease. That is nothing but good
news.
The best news, perhaps, is the fact that a University of Florida
plant pathologist named Dean Gabriel -- Dr. Gabriel and his team of
scientists have very recently declared that they have, in fact,
completely mapped the genetic code of the disease organism as well
as the genetic code of the disease organism on a similar strain of the
disease in Brazil, and they are looking for a solution to this disease
and resistance on the genetic level using these sorts of tools.
So good things are happening. It's very severe. It's very, very
expensive for these people.
As it relates to Collier County business itself, the 500,000 acres
of citrus that we currently have to be sprayed 12 times a year. They're
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sprayed once a month, roughly. It's very expensive. It's taken the cost
from less than $900 to over $2,200.
Some of the techniques, horticultural techniques and products, of
course, have been put forth by Murray Boyd from Felda.
From the Immokalee airport, approximately 25 percent of the
crops in southwest -- 25 percent of the citrus crops in the state are
sprayed. Steve Fletcher does in excess of 300,000 acre application of
pesticides annually to fight this disease. Very, very significant and
important.
So I just wanted to give you that little update. You know, it's
very important that we pay attention to what's going on. The
gentlemen in the companies that I gave you the little handout this
morning, each and every one of them has quite an investment in citrus
in most cases, and it's a huge economic impact to us and something
that we need to pay attention to.
So, thank you. I just wanted to give you that brief update.
CHAIRMAN HENNING: Okay. And I -- Commissioner Fiala
wasn't complete, and I apologize for --
COMMISSIONER FIALA: That's all right. It's just a simple
thing, but I think it's something maybe our -- not only our audience
but our viewers might want to hear about. There's a new little
program starting, started by teenagers from Naples High School. And
these Naples High Schoolers -- and I think there are about 12 of them
-- they decided they wanted to do something to give to the rest of the
kids in the community; they wanted to help other kids, but they didn't
know how. They figure most every one of the bases has already been
covered, and so they brainstormed, and they thought, you know,
sports, that's a thing all kids are interested in. How about if we collect
used sporting equipment that other families have had and don't use any
more, clean it all up, make it look like it's new, and give it to those
groups or clubs or organizations or churches who are in need of
sporting equipment but really have problems affording it themselves.
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And I thought that was a wonderful idea.
They were nice enough to ask me to serve on this committee, and
so I'm going to. But I just wanted you to know there's this effort going
on, and it's a very nice one. It's good to hear good things every now
and then, isn't it? That's all. If you ever have any extra equipment in
your garage, let me know.
CHAIRMAN HENNING: Absolutely.
Commissioner Hiller?
COMMISSIONER HILLER: Yes. I have several items. The
first is on Wednesday, January 29th, a bicyclist was severely injured
driving down Crayton Road. His name was Chuck Kelly. Many of
you might know him. He's a very well-reputed attorney in town. In
fact, he's partners with Representative Passidomo.
He's an outstanding cyclist. His wife is an exceptional cyclist.
She was part of the peloton at the time. There were about 25 or 30
riders heading down the road, and a truck crossed the double yellow
line, passed them at high speed, ran through the intersection, and tried
to evade the bikers and, in doing so, in that attempt actually hit Mr.
Kelly, leaving him seriously injured. It will take about 10 weeks for
Mr. Kelly to recover from those injuries.
Essentially what happened was, was that this driver was violating
state law. The law makes it very clear that you have to maintain a
distance of three feet away from any bicyclist that travels on the side
of the road, and this driver failed to do so.
There is growing concern that there is a problem as it relates to
the safety of cyclists on the roads of our cities as well as of the county.
And as a consequence, a task force was formed following this
crash to address bicycle safety in Collier County and what we could
do to promote a spirit of cooperation on roads between cyclists and
drivers.
And what I would like to do is ask the county manager to assign
a member of Mr. Casalanguida's department to join this task force and
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hear what these people are saying and find out what we can do to help
promote bicycle safety in Collier.
It's growing at all levels. I mean, it's growing at, you know, the
level of the people riding in pelotons. It's growing at the level of
retirees going out and, you know, cycling as a couple on a beautiful
sunny afternoon. And we need to make sure that somehow we
establish a culture in Collier County that allows the coexistence of
cars and bicycles on our public roads.
So I want to introduce both these articles, which were printed in
the Naples Daily News about this situation. The gentleman to contact
is Patrick Ruff, who heads up -- he's the president of the Naples
Pathways Coalition. And I know that they would really like to work
with us to develop a healthy program for the community.
The other thing is that in the spirit of promoting sports tourism,
which we are committed to, County Manager, the other thing I'd like
you to address with this group is designating certain arteries, certain
pathways within the county as cyclist friendly where these groups can
follow a trail that could be marked so it's known both to drivers and to
cyclists who want to go through the county that, you know, these are
-- this is -- these are designated trails. We could maybe pick, you
know, somewhere between five or 10 trails, and that may be one
possible way of, you know, promoting the safety and the awareness
that, you know, we know that these people will be traveling around
these marked paths and, you know, they would have designated areas.
So I'm going to introduce these, and if you could have staff work
on this project, I think it would be great.
The next thing is I was honored a few days ago to meet an
author, Diane Ketcham, and I don't know if any of you know her. She
says she knows you, Georgia. And it's -- she's a phenomenal woman.
She is a national award-winning author that has moved to Collier
County. And I encourage you all to pick up her book. It's called
Naples Paradise can be Deadly.
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And I have to read you the dedication. She said, to our
commissioner, Georgia; I hope you finding nothing deadly at the
government center. I was going to respond, I know where all the dead
bodies are buried, so don't worry.
But, anyway, the other thing that's kind of funny that she shared
with me is that it is about -- and I'm going to burst out laughing. But it
is about the chair of the Board of Collier County -- the Collier County
Commission, and her -- or his daughter -- allegedly, his daughter
getting kidnapped.
And, actually, what she said was that the chair was me, and I
said, great, I hope you libeled me, and I hope you sell millions of
books, because every time you sell a book, I'm going to make money,
so good luck.
So I really encourage you to buy this book. We have a local
famous author now, and it's a lot of fun that we have people of such
quality in our community.
And she does send her love to you, by the way.
COMMISSIONER FIALA: Oh, thanks. Her first book was
scary.
COMMISSIONER HILLER: Yeah. Well, let me tell you
something: I'm afraid to read this one, trust me. I'm afraid to find out
what I don't know about me.
So -- and the last thing I want to share with you is all of you
know that Valentine's Day is coming up, and I want to make a
public-service announcement with respect to that, and that is to tell all
the men it's on Friday. And the reason I'm sharing that with you is
very serious and very important, because once I was actually told by a
man, who I said, please don't forget me on Valentine's Day, that if I
didn't remind him he would.
So in the interest of all women in Collier County, I am making
this announcement to advise all men that Friday is Valentine's Day,
and there are no excuses. So I want to wish a Happy Valentine's Day
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with lots of love. And, guys, go shopping.
COMMISSIONER FIALA: Even though it's on Thursday.
COMMISSIONER HILLER: Oh, Thursday, forgive me. It's --
no --
CHAIRMAN HENNING: Friday.
COMMISSIONER HILLER: -- it's on Friday.
COMMISSIONER FIALA: Is it on Friday?
COMMISSIONER HILLER: It's on Friday. Do not confuse me.
Do not confuse me.
COMMISSIONER FIALA: Oh, I was.
COMMISSIONER HILLER: You were.
So, anyway. So that's -- and I'm very serious about that. There is
not a man in this county that will have an excuse. And, Naples Daily
News -- excuse me, our dear reporter, make sure you put that in the
paper, no excuses, okay. And I'm watching.
So Happy Valentine's Day, lots of love.
MR. OCHS: Very nice.
CHAIRMAN HENNING: Do you have anybody specifically
that you want to wish a Happy Valentine's Day?
COMMISSIONER HILLER: Commissioner Coyle. I love him
with all my heart. And I just want you to know --
COMMISSIONER COYLE: I wish you'd get over it. I really do.
COMMISSIONER HILLER: I can't, I can't. I mean, this is -- I
can't. You know, it's one of those things. It's -- you know, this will be
Commissioner Coyle's last Valentine's with us, and I will never have
the opportunity publicly to tell him on an upcoming Valentine's Day
just how much I adore him. I mean, he's so cute. I mean, look at that
guy. How could you not love that face?
COMMISSIONER COYLE: But I'm married. Loyal say she
(sic).
COMMISSIONER HILLER: Huh? Your wife wouldn't share?
I thought she was ready to give you up. I mean, I'm just saying, no.
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February 11, 2014
Okay, no.
CHAIRMAN HENNING: Do you --
COMMISSIONER HILLER: Do I really have something special
to say?
CHAIRMAN HENNING: Yeah, I mean, don't you have -- didn't
you put something on you want to show Commissioner Coyle on how
much you think about Valentine's Day.
COMMISSIONER HILLER: I'd rather not.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: Well, I might -- if you want -- do
you really -- do you really --
CHAIRMAN HENNING: No, I --
COMMISSIONER COYLE: Don't.
COMMISSIONER HILLER: I mean, I'm just --
CHAIRMAN HENNING: I do want to say the memo that we
recently received about TMDLs in Collier County is very concerning
to me, myself, and how important the estuaries are. And, Leo, if you
can please keep me informed --
MR. OCHS: Yes, sir.
CHAIRMAN HENNING: -- on that. I think we need to really
go after the source of that.
That's all I have. And we have a time-certain.
MR. OCHS: Yes, you do.
CHAIRMAN HENNING: So if we can go to our time-certain.
COMMISSIONER COYLE: Forty-five minutes ago.
MR. OCHS: Yes, sir.
Item #10B
THIS ITEM WAS APPROVED FOR RECONSIDERATION AT
THE JANUARY 14, 2014 BCC MEETING. RECOMMENDATION
THE BOARD OF COUNTY COMMISSIONERS (1) ADOPTS THE
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ATTACHED RESOLUTION WHICH WOULD AUTHORIZE USE
OF THE UNIFORM METHOD OF COLLECTING NON-AD
VALOREM SPECIAL ASSESSMENTS WITHIN THE LA
PENINSULA COMMUNITY TO FUND COSTS OF PROVIDING
SEAWALL IMPROVEMENTS AND OTHER WATERWAY
IMPROVEMENTS FOR THE LA PENINSULA COMMUNITY,
AND (2) TO ADOPT AN ORDINANCE TO ESTABLISH LA
PENINSULA SEAWALL MUNICIPAL SERVICE BENEFIT UNIT—
MOTION FOR THE COUNTY ATTORNEY IN COOPERATION
WITH THE CLERK'S OFFICE TO SEEK THE OPINION OF THE
ATTORNEY GENERAL'S OFFICE AS TO WHETHER OR NOT
THIS IS A LAWFUL PUBLIC PURPOSE — APPROVED;
MOTION TO RESCIND ORDINANCE 2013-70 — FAILED
Mr. Chairman, your time-certain is Item 10B on your agenda
today. It's a recommendation the Board of County Commissioners,
number one, adopts the attached resolution which would authorize the
use of a uniform method of collecting non-ad valorem special
assessments within the La Peninsula community to fund the cost of
providing seawall improvements and other waterway improvements
for the La Peninsula community and, number two, to adopt an
ordinance to establish the La Peninsula Seawall Municipal Service
Benefit Unit.
This item was previously approved for reconsideration at your
January 14, 2014, BCC meeting.
CHAIRMAN HENNING: Yeah. And that -- it is actually
whether the board is going to vote to rescind the ordinance. That's the
issue --
MR. OCHS: Yes, sir.
CHAIRMAN HENNING: -- on hand. So if we can stick to that;
however, after that there may be further action. But I think it's
important that we hear from the public speakers, unless somebody has
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a burning desire to speak now. Nope.
COMMISSIONER HILLER: The only thing, before we start
with the public speakers, is whether or not we'd like to have the
County Attorney give us, you know, the options of how to address this
situation, like what the legal opportunities might be to get the question
answered --
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: -- that has been raised.
CHAIRMAN HENNING: Well, I think the item is to vote to
rescind the ordinance or not. That's why the reconsideration is out of
there.
Subsequent, I think I agree that we're going to have some further
discussion, and I hope the County Attorney will participate because
it's really around the issue whether it's legal or not, okay.
COMMISSIONER HILLER: Absolutely.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: And that really is the issue.
CHAIRMAN HENNING: How many public speakers do we
have?
MR. MILLER: We have 17 registered public speakers,
Chairman. Two of the speakers have several minutes ceded to them.
CHAIRMAN HENNING: Okay.
MR. MILLER: Okay. Your first speaker is Jared Griffin (sic),
and he has several names that of ceded time to him. I just want to
confirm that you're here. Paul Harper.
MR. HARPER: Yes.
MR. MILLER: Okay. Jared Jones.
MR. JONES: (Raised hand.)
MR. MILLER: Elsa Martinez.
MS. MARTINEZ: (Raised hand.)
MR. MILLER: Okay. They've all ceded time to Mr. Griffin
(sic). So Mr. Griffin, you will have -- oh, one more, Joshua Yearout.
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February 11, 2014
MR. YEAROUT: Here.
MR. MILLER: So you will have fifteen minutes to speak, Mr.
Griffin.
CHAIRMAN HENNING: Well, I think it's important. I mean,
the La Peninsula community has the attorney. I would think that Tony
Pires has several --
MR. MILLER: Yeah, he has several minutes, yeah.
CHAIRMAN HENNING: So I think it's important to hear from
Mr. Pires first.
MR. MILLER: You want to hear him first?
CHAIRMAN HENNING: Yeah.
MR. MILLER: Mr. Pires has a total of five people that have
ceded time to him, giving him a total of 18 minutes to talk. Let me
confirm the names of these people.
Michelle (sic) Pierpaoli. I don't know if I'm saying that close to
right.
MR. PIERPAOLI: Michael.
MR. MILLER: Michael, I'm sorry.
MR. PIERPAOLI: (Raised hand.)
MR. MILLER: Hakon Thuve.
MR. THUVE: Here.
MR. MILLER: Thank you.
Jim Crain?
MR. CRAIN: (Raised hand.)
MR. MILLER: Bill Bruns.
MR. BRUNS: (Raised hand.)
MR. MILLER: Abe (sic) Drossner?
MS. DROSSNER: Abbe.
MR. MILLER: Abbe, sorry.
And so you, Mr. Pires, will have 18 minutes to speak.
MR. PIRES: If I may, Mr. Vice Chair, wait until the full board is
seated to begin making the presentation, if that's okay.
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COMMISSIONER NANCE: Yes, sir. We'll wait for
Commissioner Henning's return.
MR. PIRES: Thank you very kindly.
COMMISSIONER HILLER: So we're going to have Mr. --
COMMISSIONER NANCE: You can make some
general-purpose Valentine remarks, if you want to respond to
Commissioner Hiller.
MR. PIRES: I'm already on the hook, based on Commissioner
Hiller's statement.
COMMISSIONER HILLER: Damn right you are. Every man in
this goddamn county is. Pardon the goddamn, but I'm just saying.
If there is any man who does not give the significant women (sic)
in his life in this county a Valentine's acknowledgment of appropriate
proportion --
MR. PIRES: There's a scary term, "appropriate proportion," if
you like to fish and --
COMMISSIONER HILLER: Yes.
COMMISSIONER FIALA: I like that. I hope you say that a lot.
COMMISSIONER HILLER: Yes. I'm going to repeat that
wherever I go.
MR. PIRES: "Appropriate" is in the eye of the beholder or
receiver, I guess.
COMMISSIONER NANCE: I'm handing the gavel back to
Commissioner Henning.
CHAIRMAN HENNING: Oh, okay.
MR. PIRES: Thank you.
MR. MILLER: Mr. Pires, yes, you have 18 minutes.
MR. PIRES: Thank you.
Mr. Chairman, members of the board, thank you for the
opportunity to speak today. My name is Tony Pires with the law firm
of Woodward, Pires & Lombardo, and I represent the La Peninsula
Condominium Association, Inc., and I've appeared before you back on
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October 8, 2013, when the public petition was presented requesting
the establishment of the MSBU as well as on December 10, 2013,
when the MSBU was established and the resolution initiating the
assessment process was adopted by the board.
It is -- unfortunately, I was not able to speak at the January 14,
2014, meeting, but I believe you all received, prior to that date, an
email outlining some concerns and requests that the board at that time
not vote in favor of reconsideration. Regardless, we are here today,
and we're here to address these issues.
I would have thought that the more appropriate -- but I don't have
any issue with the process -- would have been for Mr. Grifoni to
appear first. He's the proponent of rescinding this ordinance, and I'm
the proponent of defending it, I guess. So unusual for the defendant or
the defense to go first, but I will take that role, relish it.
And if I may, also, of the 18 minutes, preserve three minutes for
rebuttal to anything that Mr. Grifoni states in his presentation.
First of all, as I mentioned before, on January 13, 2014, I
provided an email to the Board of County Commissioners to make
sure it was clear on the record that the board understood that the
characterization in the public may be clouded at best, I think may be
the appropriate term.
As I presented it and has it -- as it has been presented and
outlined, the cost of the design, repair and/or replacement project
under the MSBU will be paid solely by property owners within the
MSBU boundaries within La Peninsula, and the concept is for
payment through special assessments on the benefitting properties
within La Peninsula only collected by the tax collector on the Collier
County tax bill.
Only the La Peninsula property owners would pay for the repair
and/or replacement, whatever is determined, of the seawall by way of
the Collier County special assessment.
It was the property owners within La Peninsula who petitioned
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the board to create the MSBU, and the property owners who will be
paying.
To be clear, no county ad valorem tax dollars will be utilized.
No county grant funds will be utilized. No county funds other than
funds generated to the special assessment within that MSBU will be
utilized.
Additionally, as stated in that meeting, we are willing -- and my
client has authorized me -- that we would enter into an agreement with
the county to advance fund the costs associated with the initial
administrative startup costs and legal costs associated with the MSBU
to keep this revenue neutral to everybody else in Collier County. That
was a -- the polestar and the north star by which we are guided in this
particular process. And, apparently, that was lost in the process, too,
or in the translation.
The establishment of the MSBU also contemplated that the
county would issue bonds or notes to fund the entire project with the
payback of the bonds or notes to be paid, again, entirely and solely by
the property owners within the MSBU boundaries.
And, again, no individuals, residents, or property owners other
than the property owners within La Peninsula would have any
obligation or make any payments associated with this project.
We've had the opportunity to review the materials. And I
appreciate Jeff Klatzkow providing them to everyone in advance as
well as being in the agenda packet, the various materials associated
with this. And I've been authorized by my client to ask this County
Commission not to repeal or rescind either Ordinance 2013-70 or
Resolution 2013-292.
As outlined in my letter I've hand-delivered yesterday to each
board member and emailed also to each board member with some
attachments, what I think are some additional points that are helpful
for the board's consideration, because a couple of issues were tossed
out at the last board meeting in the public petition asserting that this
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isn't a valid public purpose.
I'm not going to rehash the entirety of Mr. Klatzkow's fine
opinion and that of Nabors Giblin when they stated that in their, you
know, opinion this can serve a valid public purpose.
And I think it's important to note, Nabors Giblin stated, from the
limited facts presented to us, it appears that there are a variety of
significant county public purposes in providing seawall improvements,
parentheses; i.e., safety, environmental, recreational, aesthetic, and
others.
The facts also support the proposition that the seawall facilities
constitute essential facilities. That's Page 2 of the Nabors Giblin
correspondence of January 23, 2014, that is in your agenda packet.
And Mr. Klatzkow went through a four-point analysis. And,
again, he has advised and opined, I believe, that it's legal and the
board action was legal.
I think -- in addition to what has been provided to you, I provided
some additional materials to show that the funding of seawalls on
private property serves a valid public purpose. This county has, in the
past, through the Bayshore/Gateway Triangle CRA adopted a
shoreline stabilization program. That was back in 2008 and 2009.
That -- in that instance the board obviously found that it was a
valid public purpose to provide grants up to $5,000 to individuals who
would provide shoreline stabilization, rebuilding, reconstructing, or
even building, in some instances, seawalls.
And I provided an example of one grant that was authorized by
the board, and payment was made by the county to that individual in
the amount of $5,000. The source of those monies was public funds,
county funds, the TIF, the Tax Increment Financing, which are from
ad valorem taxes. Again, public funds. The board found a public
purpose.
It's also interesting to note that in the CRA there's another
program for commercial properties that people can enhance the
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interior of the commercial structures through the grants. The people
can put mulch in their yards through grants. So that gets back to the
aesthetics and to the functioning aspect of it.
Additionally, to the point as to whether or not, you know,
seawalls and the seawall constitutes a valid public purpose, I think it's
helpful to look to other jurisdictions. In the city of Punta Gorda, I've
just sent you an excerpt from their little PDF PowerPoint as to
seawalls and why seawalls are important. And I think it's important to
have on the record that -- and I think it falls true in this case --
seawalls perform multiple functions, all of which are important to
property owners and, it says, and to the city of Punta Gorda and, I
would submit, and to Collier County.
The most important function is to protect private property from
loss of land mass into the water due to erosion from drainage and
wave action.
Seawalls also serve navigational purposes by maintaining the
proper water depth in a canal system, or this way, in a navigable body
of water.
Another function is the seawall delineates the boundary between
private property, the owner's land, and public property, the water
which governs sovereign lands of a governmental entity.
And, furthermore, seawalls also prevent soil from eroding and
property from collapsing into the navigable waterways. And, again,
so I think there's more than an adequate basis for the determination of
a valid public purpose.
What's also important, I think, in analyzing this is not to -- it's
important to know when you're listening to various statutes to get the
entire statute cited and referenced to you.
Mr. Grifoni last time cited to Section 125.01(Q), Florida Statute,
where he said establishment of MSBUs is limited to various services
and said, seawalls aren't found within that, are they?
What was left out of the presentation was this portion. In
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Chapter 125.01, subsection (1)(Q), Florida Statutes, as to counties --
that's the home rule statute. You all have home rule. The old rule in
Dillon's case, as I call it, you know, is gone. Anyone who knows
Florida Constitutional law knows that. You have a lot of home rule
power.
To the extent not inconsistent with general or special law, this
power of the county includes, but is not restricted to, the power to
establish and subsequently merge or abolish those created hereunder
municipal service taxing or benefit units for any part or all of the
unincorporated area of the county within which may be provided, and
it goes on to talk about fire protection, law enforcement, and other
essential facilities and multiple services from funds derived from
service charges, special assessments, or taxes within such unit only.
That language was conspicuously omitted from the presentation on
January 14, 2014.
What was also conspicuously omitted is, I'll call it, the home rule
catchall language in Section 125.01(W), Florida Statutes, that the
county has the ability to perform any other acts not inconsistent with
law which acts are in the common interest of the people of the county
and exercise all powers and privileges not specifically prohibited by
law. Again, home rule power.
And, again, another statute that I think is important is Section
197.3631, Florida Statutes, dealing with non-ad valorem assessments.
And it talks about another section of the Florida Statutes. It's --
Section 197.3632 is additional authority for local governments -- you
are a local government -- to impose and collect non-ad valorem
assessments supplemental to the home rule power -- so in addition to
the home rule powers -- pursuant to Sections 125.01 and 166.021 and
Chapter 170 or any other law.
So, again, you know, in my opinion, I think if Nabors Giblin's
provided that opinion, I concur with that and Mr. Klatzkow that
you-all have the ability to engage in a project and make a
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determination that there's a valid public purpose to establish the
MSBU for the repair and/or replacement of the seawall at La
Peninsula.
With regards to the current process, I suggested in my
correspondence, as opposed to the bond-validation process, waiting
until the point in time where you've gone through the whole process
and had an engineer's report and assessment methodology,
equalizations hearing, and all those that are required under the statute.
There's a suggestion to have a validation proceeding. I would suggest,
and the board of my client has authorized me to provide an alternative
mechanism, and I think a less expensive, more expedited process of
apply for and request a formal attorney general's opinion on this
particular issue. I think that would serve the public well, serve the
community well, and serve the board well in this particular instance.
And, therefore, we request that particular issue.
I'm not sure what will be brought up in the presentation by Mr.
Grifoni. I know that there are a number of issues with regards to
comments made by county staff. There are some emails that were
provided; some were not provided. But I think you go back and look
at -- there are a number of engineering reports, and you have a
situation where some say it's a 41-year-old -- this is a 2010 report. It's
a 41-year-old seawall, useful life of four years. We're in the fourth
year.
This project and the seawalls are located on a dynamic waterway
with, you know, tremendous -- we all know what waterways do as far
as scouring and other effects. And we believe that the mechanism of
the MSBU is the appropriate mechanism, and we request that the
Board of County Commissioners not rescind the ordinance, not repeal
the resolution, and proceed forward.
We're at the beginning of the process, and I've articulated that
before. I think to short-cut it now would be a disservice to the
residents and the property owners within La Peninsula. Whether or
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not at the end of the day when the board hears the report, the board
decides or the advisory committee recommends to the board to do
anything, I don't know what that answer is going to be. I don't know
what this board may be. The board may say, nope, we don't want to
do anything. That ultimately is your decision.
In our humble opinion, in my humble opinion, I think it's
premature to make those final decisions now. In essence, that's what
you would be doing by killing this mechanism that, instead, I think it's
appropriate to maintain it, keep it moving forward to provide a
mechanism to protect the property to have these valid various public
purposes implemented.
Again, I would reserve three minutes to respond to anything that
Mr. Grifoni may say or any other issues that I believe may be
appropriate, and thank you for your kind attention.
MR. MILLER: Mr. Pires has five minutes and 45 seconds left.
CHAIRMAN HENNING: Hang on. Yeah, that's up to the
chairman to recognize that. This is not -- we're not having a court
proceeding here, okay. It's just an issue whether we're going to rescind
the previous action and/or take other action, okay.
So if you want to use up your time, that's fine. But
Commissioner Hiller has a question. Do you have anything else you
want to say?
COMMISSIONER FIALA: And so do I.
MR. PIRES: As I mentioned, no. I'd like to reserve the time. I
understand what the chair has indicated. I'd still request a reservation
COMMISSIONER FIALA: But the chair was the one that
changed it around so that you couldn't speak next. You really wanted
to speak afterwards. He changed you to be first. So you should allow
him that privilege.
CHAIRMAN HENNING: And I did that out of courtesy because
this ordinance and this resolution affect his clients. So it was out of
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courtesy I did that.
COMMISSIONER FIALA: Well, then you should let him speak
afterwards.
CHAIRMAN HENNING: It's not a court of law, Commissioner
Fiala.
COMMISSIONER FIALA: It doesn't make any difference. It's
also being -- courtesy --
CHAIRMAN HENNING: You have five more minutes.
MR. PIRES: I appreciate the fact that it was unilateral courtesy
not requested; that's why I would request the reservation of additional
time after Mr. Grifoni has finished his --
CHAIRMAN HENNING: Are you complete?
MR. PIRES: I've finished my presentation for now.
CHAIRMAN HENNING: Are you complete.
COMMISSIONER FIALA: No. Mr. Chairman, he doesn't get --
Mr. Grifoni doesn't even live there, and he's going to have the benefit
of not having any rebuttal after he makes accusations after he's heard
this presentation.
CHAIRMAN HENNING: Our --
COMMISSIONER FIALA: Fairness.
CHAIRMAN HENNING: Hang on.
COMMISSIONER FIALA: I'm telling you what I think.
CHAIRMAN HENNING: I know you're a very passionate
person.
COMMISSIONER FIALA: Well, yet, but you know what,
Georgia -- and I mean this in all nice, she's been able to interrupt --
excuse me. She's been able to interrupt all day long, and nobody's
ever said anything, but now that I am --
CHAIRMAN HENNING: I need some security here.
COMMISSIONER FIALA: Oh, for goodness sake.
CHAIRMAN HENNING: This meeting is out of control. We
need control.
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February 11, 2014
COMMISSIONER FIALA: Would you like to remove me,
security?
CHAIRMAN HENNING: Okay.
COMMISSIONER COYLE: Yes.
CHAIRMAN HENNING: You need to be silent for just a
second. Can you?
COMMISSIONER FIALA: If you can.
CHAIRMAN HENNING: No. I'm trying to conduct a meeting,
and it should be civil, in a civil manner. And, again, I know this is
very passionate.
COMMISSIONER FIALA: Yes.
CHAIRMAN HENNING: We'll get to your issues, but let's look
at the board's rules, okay, can we do that, on public speakers?
COMMISSIONER FIALA: You be silent, so I'm being silent.
CHAIRMAN HENNING: Okay. County Attorney? The rules --
MR. KLATZKOW: This is not a quasijudicial proceeding, sir.
It's not. A quasijudicial proceeding I would say something different,
and he would have the opportunity to rebut. This is a legislative
hearing, and the chair gets to preserve order and conduct the meeting.
CHAIRMAN HENNING: Okay. What is our rule about public
speakers?
MR. KLATZKOW: Our rules of public speakers are three
minutes per person.
CHAIRMAN HENNING: Unless time is ceded -- exceeded (sic)
by others, the chairman may grant, right?
MR. KLATZKOW: That's right.
CHAIRMAN HENNING: I granted that, correct?
MR. KLATZKOW: Yes, sir.
CHAIRMAN HENNING: Okay. I'll ask you one more time.
Do you have anything further for the time that was succeeded (sic) to
you by other people?
MR. PIRES: Yes, I do have something further in response to
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comments, made by Mr. Grifoni, to make. I understand what the chair
has indicated, but that's what I would request, respectfully.
CHAIRMAN HENNING: Okay. Would you like to -- other
commissioners have questions or comments?
COMMISSIONER NANCE: I do.
COMMISSIONER HILLER: I do, too.
CHAIRMAN HENNING: Well, Commissioner Hiller did, and
then we have Commissioner Fiala and then Commissioner Nance.
COMMISSIONER HILLER: I actually would like to first
respond to Commissioner Fiala's comments about my comments
during the day.
You know, I prepare very diligently for the meetings. I address
issues in depth, and so I will raise those points appropriately, because
I'm here serving the public. I'm not here to sit mum and walk away.
COMMISSIONER FIALA: I didn't --
COMMISSIONER HILLER: Let me finish. I just want to make
a point.
CHAIRMAN HENNING: I don't know if this is really
appropriate.
COMMISSIONER HILLER: It is. I want -- I'm going to make
this final comment, and then I want to proceed to this.
When I make comments, I hit the button, and I'm recognized by
the chair, and I make those comments. And thank you, Mr. Chair, for
recognizing me in the manner in which you do to allow me to speak
on behalf of the constituency and their concerns and interest.
CHAIRMAN HENNING: And we're all equal.
COMMISSIONER HILLER: We are. This is a board of equals
for sure.
So to that end, I'd like to get to this issue right here. The first
thing that I would like to address -- and I need help on this. Hideaway
Beach has an MSTU which raises funds for renourishment of the
private portion, the dry sand portion of Hideaway Beach, which is not
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a publicly accessible beach.
I believe the board determined that there was a, you know,
primary public purpose to essentially renourish that beach for the
benefit of shoreline protection. And while it's not publicly accessible,
we have done that.
How were we able to -- and I'm tying this into this presentation
done by Mr. Pires. How were we able to do that?
MR. KLATZKOW: The legislature has -- by statute has made a
determination that beaches are essential to the economy of Florida,
and they've made the determination that you may use public dollars to
renourish beaches, period. It does not matter if they're public or
private.
COMMISSIONER HILLER: So either/or, whether it's public or
private, you can use tax dollars to renourish beaches?
MR. KLATZKOW: General tax money, yes.
COMMISSIONER HILLER: Okay.
MR. KLATZKOW: CDC funds, different type of conversation.
COMMISSIONER HILLER: So let me -- so to clarify -- and this
is actually very interesting to me -- you're saying we could use
General Fund dollars to renourish the private portion of a beach?
MR. KLATZKOW: Yes.
COMMISSIONER HILLER: Okay. So that's the difference
between the Hideaway Beach MSTU and the argument that's before us
today. And the argument before us today is whether or not that
seawall -- that the repair of that seawall serves a primary public
purpose; is that correct? Is that your argument, essentially? I mean,
you're saying it does.
MR. PIRES: Yeah, valid public purpose, and some people would
say primary, some paramount, but public purpose.
COMMISSIONER HILLER: Right. So, basically, it serves --
you know, if it's an essential facility that serves a primary public
purpose, and the issue there is that purpose, as being -- as serving a
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primary public purpose, would be first determined by the BCC based
on the evidence presented by staff.
MR. PIRES: That's correct, but I also believe -- and we've
mentioned before and Mr. Klatzkow mentioned it in his memorandum
-- that the legislature's also indicated, under Chapter 170, that
municipalities can fund seawall repairs and replacements.
And, again, that shows that there's a valid public purpose to local
government doing that, and that's why I referenced the other portions
of the Florida Statutes says you utilize 170; local governments can
utilize 170.
COMMISSIONER HILLER: Right.
MR. PIRES: Plus the county's home rule power.
COMMISSIONER HILLER: Well, it's interesting that that
statute has never been constitutionally challenged, the statute relating
to municipalities. So the use of public funds to restore a seawall,
obviously, has been constitutionally upheld in that it hasn't been
turned over by any court, if you want to --
MR. PIRES: No. In fact, there's an attorney general's opinion
cited by Mr. Grifoni and, I think, cited by Nabors Giblin, maybe by
Jeff-- Attorney General's Opinion 90-37 where it talked about --
Question No. 5, I believe, was can the city pay to restore or
reconstruct or repair seawalls on private property, and that's city of
Palm Beach, I believe, if I'm not mistaken.
And, at the end of the day, the Attorney General said it's up to
local government to make that determination that there's a valid public
purpose, which means that they can make that determination that it's a
valid public purpose.
COMMISSIONER HILLER: And to go further to your
discussion, you said the -- you know, the expense of what needs to be
done to that seawall, if this were to be approved, under this ordinance
-- the expense is actually determined by the BCC, not by the owners
of the unit.
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MR. PIRES: Absolutely.
COMMISSIONER HILLER: So if the BCC made the
determination that it doesn't appear that a repair to the seawall is
necessary, then it wouldn't happen.
MR. PIRES: That's the -- ultimately the board's decision sitting
ex officio of the governing board of the MSBU, yes.
COMMISSIONER HILLER: In other words, it's not the
residents that control the MSTU; it's the Board of County
Commissioners?
MR. PIRES: The Board of County Commissioners does control.
They are the ultimate determining entity, yes.
COMMISSIONER HILLER: And you said that the expense that
would be borne would only be borne by those taxpayers within MSTU
boundaries --
MR. PIRES: The property owners, yes.
COMMISSIONER HILLER: -- only to the extent that their
property would be benefited by the protection afforded by the seawall.
MR. PIRES: That's correct. As part of the assessment process,
the Board of County Commissioners would hold what's called an
assessment hearing or an equalization hearing where an assessment
methodology would be considered, and the board would then review
that assessment methodology, which would allocate the benefits to the
properties, which means allocating the dollars, and the board would
have the opportunity to hear from the property owners within MSBU
boundaries as to whether or not a particular property owner says I'm
benefited or I'm not benefited and whether the allocation is
appropriate or not.
And the board, sitting as the equalization board, would equalize
and levy and impose the special assessments.
COMMISSIONER HILLER: And then the issue of no county
funds being used. So if the decision was made to incur any obligation
or make any expenditure, it would be done -- it would be repaid or
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paid for only using funds through -- you know, collected through
special assessments against those -- those taxpayers within the MSTU
boundary?
MR. PIRES: No. The concept would be -- and at the initial
portion before any assessments were levied and collected in the tax
bill in November, would be an advanced funding agreement, or as
expenses were incurred, they'd be paid. So there would be no monies
and obligations incurred by the county from a revenue perspective.
And then, thereafter, everything would be paid for from the
special assessments levied within the MSBU.
COMMISSIONER HILLER: And if someone didn't pay an
assessment, what recourse does the county have to collect those
funds?
MR. PIRES: If the county -- which I think the county indicated
in its initial resolution -- would use the uniform method of collection,
putting it on -- it's called on roll -- it's on the tax roll, so it's on the tax
bill. And it's a separate line item when you get your notices, if you
look.
COMMISSIONER HILLER: Is it a priority lien?
MR. PIRES: It's a lien of equal dignity with all city, county, and
state, local taxes.
COMMISSIONER HILLER: But ahead of mortgages?
MR. PIRES: Yes.
COMMISSIONER HILLER: So it's a priority lien?
MR. PIRES: Yes, it's priority. Again, it has the same priority as
the county --
COMMISSIONER HILLER: No. I understand, but it's a priority
lien as against any lien like a mortgage --
MR. PIRES: That's correct.
COMMISSIONER HILLER: -- for example?
MR. PIRES: And what would happen is the tax collector -- you
can't discretely pay just your ad valorem tax and say I'm not paying
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the special assessment. Either you pay it all or you don't pay any. If
you don't pay any, a tax certificate sale is held; the tax collector gets
that money and disperses it to the local entities, including the special
assessments to the MSBU.
COMMISSIONER HILLER: So if I understand correctly, what
-- if we leave this ordinance in place, the first question that this board
would have to address as the board of the MSTU is whether or not that
seawall and the repair of that seawall would be serving a primary or
paramount public purpose?
MR. PIRES: I would submit that what the board -- respectfully,
that what would happen is that the staff with the advisory committee
would solicit requests for proposals from engineering firms following
the CCNA requirements and that those recommendations as to who --
the ranking would go back to the staff or back to the advisory
committee, and they would make recommendations to this board.
And the board would, ultimately, make the final determination as to
the ranking of professionals.
COMMISSIONER HILLER: But I want to know---the question
about the primary public purpose. I mean, the -- if this ordinance is
left in place, the first determination by this board would be that the
repair of this seawall would serve a primary public purpose.
MR. PIRES: I think, by the adoption, the board has determined
that, and I think by virtue --
COMMISSIONER HILLER: Does the wording of the ordinance
already provide that we have recognized that?
MR. KLATZKOW: No. It's based on the record.
COMMISSIONER HILLER: So we have not -- we have adopted
an ordinance to create an MSTU, but as of yet we have not made the
determination that this specific repair will serve a primary public
purpose, so that question would come back to the board for
determination? I mean, that's an evidentiary question.
MR. KLATZKOW: No. By adopting the ordinance, you found
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that there was a public purpose to this.
COMMISSIONER HILLER: Oh, did we?
CHAIRMAN HENNING: Right.
MR. KLATZKOW: Yes. You can't adopt an ordinance without
a public purpose.
COMMISSIONER HILLER: But this -- well, we can say that
the seawall serves a public purpose. But are we -- did we make the --
maybe I'm cutting it too fine. But the actual repair. So any repair to
any asset which is deemed to be essential is -- yeah, okay; I see.
So we already made the finding that the seawall provides an
essential -- that the seawall is an essential facility is what you're
saying?
MR. KLATZKOW: Yes, but this is the reconsideration.
COMMISSIONER HILLER: I understand.
So the issue, really, that we have on this reconsideration is the
question of whether or not we properly found that that -- that this
seawall serves an essential purpose. I mean, that's really the reason
why we would be rescinding it if we rescinded this.
CHAIRMAN HENNING: No, that's --
MR. KLATZKOW: That's one of the reasons.
CHAIRMAN HENNING: Yeah, but the --
COMMISSIONER HILLER: What's the other reason?
CHAIRMAN HENNING: The reason it's on the agenda, there
was a public petition. You made the motion to --
COMMISSIONER HILLER: Yeah, yeah. No, I understand.
CHAIRMAN HENNING: -- reconsider it.
COMMISSIONER HILLER: And we are.
CHAIRMAN HENNING: And the question was to rescind it
like Mr. Pires said.
COMMISSIONER HILLER: Yeah.
CHAIRMAN HENNING: So that's why it's on the agenda.
COMMISSIONER HILLER: And -- but I want to -- I want to
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make sure -- I understand why, but what I want to be sure of is that,
you know, if we rescind it, we're rescinding it for a specific reason,
and that's what the whole purpose of this discussion is. And the
reason we would rescind it is -- the first reason being that we have
now decided, for whatever reason, that the seawall is not an essential
facility and doesn't serve a primary public purpose. What's the other
reason?
MR. KLATZKOW: You could decide that you do not want to do
this.
COMMISSIONER HILLER: I mean, that's an arbitrary reason.
MR. KLATZKOW: No, it's not arbitrary, ma'am. I mean, this is
a legislative decision. I mean, just because you can do something
doesn't mean you have to do something. My job is to tell you that you
can do this if you want.
COMMISSIONER HILLER: Okay.
MR. KLATZKOW: But you don't --
COMMISSIONER HILLER: But, you know, Mr. Grifoni in his
presentations, which were very clear, raised concerns that, you know,
this was an unconstitutional act, that it was an illegal act, that the
seawall does not serve a primary public purpose, and that was why, to
me -- this being an evidentiary question, I thought it was very
important that we bring it back because, you know, if it doesn't serve a
primary public purpose, then we can't do it. If it does serve a primary
public purpose, we can.
MR. KLATZKOW: Yes.
CHAIRMAN HENNING: Do you have any more questions for
Mr. Pires?
(No response.)
CHAIRMAN HENNING: Look, I'm going to cut to the chase,
okay. Mr. Pires sent us an email asking for an AGO. I'm okay with
that; however, we can ask all the questions we want, provide the
public record that it is today, today right now, but you have another
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party involved in this. You have your other client, the Clerk of the
Courts, on whether he's going to deposit the loan that we're going to
borrow for this seawall and whether he's going to pay the contractor,
because the payments are going to come through the county.
COMMISSIONER HILLER: And it has to be for a valid public
purpose.
CHAIRMAN HENNING: So if we're going to go through this
process, the direction should be direct the County Attorney to write an
AGO with the cooperation of the Clerk of Court.
And I'll tell you, I talked to the Clerk, Dwight Brock. He has a
lot of concern of this; however, if the board throws politics into the
question, you're going to lose the process.
So we can go through all these opinions through the AGO, which
is only opinion. It's not law. If you get a bond validation, that's law,
where a judge signs it whether it's lawful or not. An AGO is just an
opinion.
So if you do not include the clerk, then we're just wasting time.
MR. KLATZKOW: You're going to need a bond validation
anyway because I don't think you're going to get financing without it
at this point, okay. I don't think bond counsel's going to sign off on
this issue at this time without that.
CHAIRMAN HENNING: But Mr. Pires, through his letter -- did
you see that?
MR. KLATZKOW: Yes, I did.
CHAIRMAN HENNING: Okay. I agree with that. That could
be a first start, okay. And if we're -- you're saying, through your legal
opinion, that we need a bond validation --
MR. KLATZKOW: Yes.
CHAIRMAN HENNING: -- that's fine.
Crystal, is your understanding -- did Dwight say anything to you
about this?
MS. KINZEL: Yes, Commissioner. He said we'd be agreeable
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to that process, to get the AGO and go with the bond-validation
hearing.
CHAIRMAN HENNING: Okay.
MS. KINZEL: So we're okay with that.
CHAIRMAN HENNING: So -- hang on. To cut it to the chase,
I'm going to make a motion that we direct the County Attorney to
write, in cooperation of the Clerk of Court, a question to the Florida
Attorney General on whether this is lawful or not and use the public
record as it exists. So that's my motion. Is that okay with you --
COMMISSIONER HILLER: I second that.
CHAIRMAN HENNING: -- Tony?
MR. PIRES: Yes, sir, and to the extent that the county wishes to
have additional support from my end. I won't be representing the
Clerk in this matter.
CHAIRMAN HENNING: No, no. And --
COMMISSIONER HILLER: And I agree. I'm going to second
his motion.
CHAIRMAN HENNING: Yeah. And, you know, I don't want
you to get in trouble here, because you've got two clients.
MR. PIRES: No, sir. As I mentioned to you, I'm not going to be
representing the Clerk in that matter.
CHAIRMAN HENNING: Okay. And you're petitioning the
government to spend money to take action. That's not a part of my
motion; however, I agree with your letter, okay.
COMMISSIONER HILLER: May I ask for an amendment?
And that is that upon receiving that AGO, if the AGO confirms that
we can move forward or gives us the discretion to move forward, that
we also have, as required, based on what bond counsel is coming back
to us and stating, is a bond-validation hearing on this. Because the
bond-validation hearing basically takes all of this debate as to whether
it's legal or not to find this seawall to be an essential facility and the
expenditure of these funds to serve a primary public purpose out of
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our hands.
MR. KLATZKOW: What the bond validation will do is bring
certainty to the lender.
COMMISSIONER HILLER: Right. But it will --
MR. KLATZKOW: Once that is completed --
COMMISSIONER HILLER: But it validates whether or not
what we're doing is legally correct also.
MR. KLATZKOW: Well, no. What it really does is it gives
certainty to the lender, because once you're done, if a property owner
now doesn't want to pay the assessment and raises that it was
unconstitutional, it won't matter, all right. And you just need one
property owner there to raise that. That's why at this point in time
you're going to need the bond validation.
COMMISSIONER HILLER: Understood. But, again, it also
serves to validate whether our determination as to whether or not we
are using public funds for a paramount public purpose would be
affirmed by the court.
MR. KLATZKOW: Yes, ma'am.
COMMISSIONER HILLER: And so that's why the decision
should be deferred to the court rather than left in our hands.
CHAIRMAN HENNING: Are you okay with the motion,
Commissioner Fiala?
COMMISSIONER FIALA: Yes.
CHAIRMAN HENNING: Okay. Do you have questions of Mr.
Pires?
COMMISSIONER FIALA: No. I had to say something to
Commissioner Hiller.
COMMISSIONER HILLER: Yeah.
COMMISSIONER FIALA: And I'm sorry if I made it sound like
I was attacking you. I did not.
COMMISSIONER HILLER: Oh, that's okay.
COMMISSIONER FIALA: I was just saying that it seemed that
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it was okay for you to, but it wasn't okay for me to.
COMMISSIONER HILLER: Yeah. No, I understand.
COMMISSIONER FIALA: I didn't mean that to be cruel.
COMMISSIONER HILLER: I appreciate that. Thank you.
You're very kind to bring that up.
CHAIRMAN HENNING: Commissioner Nance, do you have
questions of Mr. Pires?
COMMISSIONER NANCE: Yes. Let me understand the
motion. Now the motion is going to be for a bond-validation hearing
or for an attorney general's --
COMMISSIONER HILLER: Both.
COMMISSIONER NANCE: For both?
COMMISSIONER HILLER: Yeah.
COMMISSIONER NANCE: Okay.
COMMISSIONER HILLER: But if the AGO --
COMMISSIONER NANCE: What is the purpose of the AGO's
opinion?
CHAIRMAN HENNING: I made the motion. Can I clarify it,
please?
COMMISSIONER HILLER: I asked for the amendment. Go
ahead.
CHAIRMAN HENNING: Okay. The motion was have the --
direct the County Attorney to write a question to the AGO with the
cooperation and assistance from the Clerk of the Court --
COMMISSIONER NANCE: Okay.
CHAIRMAN HENNING: -- okay, on whether this is lawful.
COMMISSIONER NANCE: Got it.
CHAIRMAN HENNING: Okay.
COMMISSIONER NANCE: And, further, are we going to seek
a bond validation?
CHAIRMAN HENNING: Well, I don't think this is the end of
this issue. And the County Attorney is -- this is going to be back on
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the agenda.
COMMISSIONER NANCE: Right.
CHAIRMAN HENNING: So I think at that time we can do that.
COMMISSIONER NANCE: I can support that motion, but I
will tell you right now that I am not going to support this project
unless we have a bond validation, and I'll tell you why. I don't think
that the parties in this room are ever going to come to agreement that
it's legal unless some definitive authority declares it thus.
And I think that all our MSTUs and our MSBUs and all our
determinations that we do -- and we declare things a valid public
purpose all the time. And a lot of them, frankly, in my view, are more
controversial than this one, and we do it all the time.
CHAIRMAN HENNING: Okay.
COMMISSIONER NANCE: And I think until we get a legal
determination that opines and lets us know if we have the authority to
do that, I think all these things are going to be in question. And I
regret that, because I think that our MSTU and MSBU programs have
a great deal of utility. It takes cost away from government and puts it
in the hands of the users themselves. So I support that.
So I will support the motion, but I will tell Mr. Pires, unless his
client is willing to go forth with a bond validation, that I will not
support it because I just think it's going to be an endless cycle of
misery that we're never going to get around. We're going to be in this
philosophical debate ad nauseam until we get a bond validation.
CHAIRMAN HENNING: Okay. No. Hang on, hang on. Can I
go first?
COMMISSIONER HILLER: Yeah.
CHAIRMAN HENNING: Yeah. And I would need that from
Mr. Pires from what his opinion is on a bond validation is at a later
date. So -- but I'm not done yet.
You mentioned the board has done seawall repair in the past, in
the Bayshore CRA.
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MR. PIRES: Yes.
CHAIRMAN HENNING: Have you taken a look at the law
governing the CRA's, Statute 163?
MR. PIRES: Yes. And, again, the legislature's made a
determination that it's a valid public purpose to expend money on
those seawalls.
CHAIRMAN HENNING: Do you --
MR. PIRES: And so I think, again, that shows that that
expenditure is a valid public purpose, whether it's this county, whether
it's a city, whether it's a town, village, or estate.
CHAIRMAN HENNING: Okay. Well, let me back up, because
you stated the legislators found the determination under 170.
MR. PIRES: No. What I said was 170 is an assessment process
-- excuse me; 170 deals with municipalities, and it talks about that
they can impose assessments for various purposes, including for
seawalls. And I looked at 197.3631 that talked about, you know, the
home rule powers and other various statutes.
CHAIRMAN HENNING: Okay.
MR. PIRES: And, again, 170 -- that language in 170 about the
ability to fund seawall repairs by municipalities, another indication
that it's a valid public purpose.
CHAIRMAN HENNING: Well, I was --
MR. PIRES: And, again, counties have home rule power, and --
CHAIRMAN HENNING: Hang on.
MR. PIRES: -- Commissioner Hiller's familiar with the rule in
Dillon's case, which used to be a law in Florida that counties couldn't
do squat unless they were specifically told to, and now we have home
rule power.
CHAIRMAN HENNING: You didn't quite answer the question.
I'll try again.
MR. PIRES: I'm sorry. I'm sorry.
CHAIRMAN HENNING: And I recognize 170 has the ability.
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It says to repair or replace seawalls. It doesn't say public or private.
170 is a municipality, and you stated that.
But my question was, CRA's are under a different chapter within
the Florida Statutes; is that correct?
MR. PIRES: Yes.
CHAIRMAN HENNING: Do you know what statute that is?
MR. PIRES: Not off the top of my head, but there is a different
statute.
CHAIRMAN HENNING: All right. So we don't know -- you
stated that the board has done this in the past. So we don't know if it
calls for it in Statute 163, which governs Community Redevelopment
Agencies, or whether it doesn't.
MR. PIRES: But, again, I think it's the fundamental premise that
legislature has determined a valid public purpose is the expenditure of
monies to rehabilitate blighted properties, pay for landscaping, pay for
aesthetics, and seawalls in both the CRA statute and in 170 so that the
public purpose has been determined.
CHAIRMAN HENNING: I agree it's under Statute 170 under
municipalities, so we're not going to argue that point, okay.
And you said seawalls are very important for the protection, and I
agree with that, and that's why the Board of Commissioners in 1982, I
believe -- 1985, through Ordinance 2, created a seawall ordinance.
And I will pass that out to my colleagues, and I have a copy for you,
sir.
MR. PIRES: Is that 82-2?
CHAIRMAN HENNING: Yes.
MR. PIRES: Thank you.
CHAIRMAN HENNING: That is a public nuisance -- one of the
public nuisance ordinance in case property owners fail to repair their
seawall. All right. So we recognize that it is very important.
However, the board, if they're going to continue this, needs to
decide what to do with that ordinance because it is an equal-protection
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issue, Commissioners. All right.
And, in fact, you have an email in your box -- I'm sure you do,
because I was copied on it -- that a community -- a private community
has decided to tax themselves through their homeowners' assessments
to repair their seawall. All right. So that question needs to be
answered.
But the most important question, Mr. Pires, why is -- your
homeowners' association that you represent is not deciding to assess
themselves through the HOA to do the repairs?
MR. PIRES: I think I've previously raised the issue that the --
number one, there's a determination it's a valid public purpose; number
two, that an expeditious appropriate financing mechanism is by
utilization of the MSBU where the costs are equally apportioned or
appropriately apportioned after a number of public hearings and with
the certainty of payment and repayment by virtue of the special
assessment being collected on the tax bill.
CHAIRMAN HENNING: Do you recognize that there are
several homeowners' associations that assess their members fees for
maintenance?
MR. PIRES: I'm sure that happens all the time, and I'm sure
there are a number of associations where people assess their
homeowners to maintain common elements and to also enforce
aesthetic covenants. And then, again, in the Bayshore/Gateway
Triangle CRAs --
CHAIRMAN HENNING: That's very true.
MR. PIRES: -- and other areas, the county has given grant
monies to take care of aesthetics.
So, I mean, you have a number of instances where, you know, it's
an appropriate activity for the government to, in this instance, with the
public purpose, a mechanism is available, and the property owner's
requesting that mechanism be utilized.
CHAIRMAN HENNING: Can you answer my question, please?
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February 11, 2014
MR. PIRES: And the question again is, I'm sorry?
CHAIRMAN HENNING: Why is it that your clients, the
homeowners' association, is not assessing themselves to repair or
replace the seawall?
MR. PIRES: They have been assessing themselves over a period
of time. And they have -- I think the number was indicated of
$200,000 is currently in the reserve, and that was planned on being
utilized to help reduce the cost of the financing and/or assist in the
advanced funding.
CHAIRMAN HENNING: Was that also used for the limerock or
riprap in front of their community to purchase that. Was that --
MR. PIRES: I have no idea. I was not involved at that time.
CHAIRMAN HENNING: Okay. So they're choosing not to
assess -- and this is a question. They're choosing not to assess
themselves to replace or repair the seawalls?
MR. PIRES: I believe I answered the question with the fact that
they have assessed in the past and --
CHAIRMAN HENNING: So they have the ability to do so?
MR. PIRES: If I could finish, please. They have assessed in the
past an amount, and I think it was approximately $200,000. I don't
represent them from the condominium association budgetary process.
I don't know what assessments have been levied at all for this coming
year.
CHAIRMAN HENNING: So they have the ability to do so?
You just proved that they have assessed themselves --
MR. PIRES: I never said they did not, and no one ever has.
CHAIRMAN HENNING: Okay. So they have the -- still have
the ability to do so.
Commissioner Hiller?
COMMISSIONER HILLER: Yeah, this is a very interesting
ordinance, because what this ordinance clearly shows is that seawalls
do act as an essential facility and that they do serve, primarily, a
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public purpose.
Now, the issue of whether or not this homeowners' association
adequately built up their reserves or not is really irrelevant to the
issue, and that is whether or not this wall now needs to be repaired
because there is a public health, safety, and welfare concern.
And if the determination is made that there is then, quite frankly,
we need to act, and we need to do what's necessary to protect the
public's health, safety, and welfare.
CHAIRMAN HENNING: Well, let me give you an opinion
from the chief county engineer that's stating that it does not need to be
replaced. All it needs to do is be repaired, minor repairs.
COMMISSIONER HILLER: Well -- and, again, what is the --
can the chief engineer come and speak to us, or -- can you please --
then, Mr. Casalanguida, since you represent that agency, can you
come here?
MR. PIRES: And if I may, on that point, I think what's
important, there was a prior email of March 21, 2013, where Mr.
McKenna stated, under this nuisance ordinance for seawalls, he said, I
guess by Section 22-321 this would be considered a failed seawall, as
it has moved from its original position, parenthesis, certainly this
would apply to many and so, therefore, it is a nuisance. In reading the
reports, they are taking steps towards repair and evaluating best
methods currently.
I don't think the county should get involved with the
methodologies being debated between the consultants involved.
CHAIRMAN HENNING: That was a prior email to his --
MR. PIRES: Yes, two months before. And once again, it's --
COMMISSIONER HILLER: Two months. What's the date of
that one?
MR. PIRES: March 21st, and the one you have is May 6. And
on May 21st there was another email where he says I have not been to
the site. I have read the reports from four engineering firms, each
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having a slightly different perspective and professional orientation.
Had several conversations, engage another engineer. And they've
required riprap material, they're proceeding to --
COMMISSIONER HILLER: So let me ask you a question.
What is the proposed cost of the repair?
MR. PIRES: There are a number of various estimates based
upon the engineering reports.
COMMISSIONER HILLER: Not replacement. Repair.
MR. PIRES: That's sort of factored in. Some of them talk about
partial repair, partial replacement. We're talking, you know, two to
four to six million.
COMMISSIONER HILLER: For the repair?
MR. PIRES: There's different components. If you look at the
different reports -- and that's what's difficult here. There are four
different reports. Some say the opinion of the engineers -- and this
goes back to 2002 (sic) or '11, or '12.
COMMISSIONER HILLER: What's the current opinion? I want
the most current opinion.
MR. PIRES: I don't have that with me. And, again, there's
different segments that they feel are deteriorating more than others.
COMMISSIONER HILLER: Well --
CHAIRMAN HENNING: Commissioner --
COMMISSIONER HILLER: Can I ask you a question?
CHAIRMAN HENNING: Yeah.
COMMISSIONER HILLER: You know, the -- if the question of
whether or not this serves a primary public purpose is asked, the next
question is, you know, we as the board have to make a determination
of what is a legitimate expenditure based on what the need is. And I
think there's a lot of question here as to, you know, what is -- what
really needs to be done versus, you know, what the residents want to
do, and that's up to us to decide.
CHAIRMAN HENNING: Well, I think you need to determine,
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my opinion, whether you're going to enforce this ordinance on
seawalls for other because, again, it's equal; however, what the motion
is, is to seek an AGO, so -- and at that point they might say, no, you
can't move forward with it, but it might say other things that we would
move forward with a bond validation or whatever.
So it's -- you know, I agree with Tony Pires' email, a bond
validation is expensive. Looks like we're going to go through that
anyways; however, this might be something that could be used in the
future during the process to either provide a partnership or not.
And, again, I think his recommendation is a good
recommendation.
COMMISSIONER HILLER: And as far as equal protection goes
or -- quite frankly, this would apply equally to all similarly situated
property owners.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: If the seawalls are left in disrepair,
and it obviously rises to a level of an unlawful act and public nuisance
as -- based on this ordinance already exists and has existed since 1985,
then, yes, we would take the necessary measures to get it repaired.
So I agree with you, Commissioner Henning; I think requesting
the AGO as the first step is important. It is only an opinion, so it is
nonbinding, but I think we need to do that.
CHAIRMAN HENNING: Can we go to other commissioners?
COMMISSIONER HILLER: Yeah. It's a big deal.
CHAIRMAN HENNING: Okay. And I don't know who was
first. Commissioner Coyle --
COMMISSIONER COYLE: I was, but my light got turned off
for some reason.
CHAIRMAN HENNING: No, it's on.
COMMISSIONER COYLE: Then Commissioner Nance's came
on, and I put mine on after that. But you make the call, whichever you
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CHAIRMAN HENNING: No, you go ahead.
COMMISSIONER NANCE: Commissioner Coyle.
COMMISSIONER COYLE: Okay. You know, we can take
statements from either side and use them to try to justify the decisions
we want to make, but there is a study here by Coastal Engineering
dated August 6, 2010, and it -- they make the observation that this
structure, the seawall, was constructed 41 years ago and is nearing the
end of its designed life.
Complicating the situation is the fact that the channel bottom
adjacent to the wall has significantly scoured. The large quantity of
riprap placed in front of the wall has helped stabilize the wall;
however, the channel has continued to scour.
It is recommended that the seawall be replaced within the next
four years. That would have been in 2014 that it would have been
replaced. The cost of replacing the existing concrete wall will vary
depending upon the type of material used and the geotechnical
conditions encountered.
So there is some evidence from a reputable engineering firm that
the seawall needs to be replaced.
Now, to the point whether the people have the ability to tax
themselves to replace the seawall, I think the conclusion is absolutely.
They can tax themselves to pay the seawall, and probably most of the
people couldn't afford to pay it, because you've got no way of
financing it.
You are going to get hit with a $50,000 per unit cost for doing
this, and how many of you have $50,000 lying around that you'd put
into this process? So you couldn't do it, probably.
So why do you come to government? Because we're supposed to
be here to help. And if we can help you and at the same time be fair to
everybody and lawful, why aren't we rushing to help you?
You're paying for all the costs. You're paying for administrative
costs associated with this. There's no money being transferred to any
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other property owners in the county. You're doing exactly the same
thing that dozens of homeowners are doing.
You know something, the only thing that seems to make you
stand out is that yours is a private community.
And I have this -- I have a feeling that this is more concerned
about the fact that you have a private community than whether or not
we really have the right to help you.
So I hope this works out for you. I think we should be trying to
find ways to help our residents rather than trying to find ways to throw
up roadblocks. And I'm not at all convinced by any arguments that
have been made so far by the other side. They just simply are not
true.
And I'm ready to proceed with this. And if the AGO opinion and
the subsequent bond-validation process is the way the commissioners
want to go, I'm heartily in support of that.
CHAIRMAN HENNING: Do you have any other questions for
Mr. Pires?
COMMISSIONER COYLE: That wasn't a question.
CHAIRMAN HENNING: Yeah, I know, but we're still through
public comments. You know, even that I'm at odds with Mr. Pires, I
respect him.
So do we have any questions, because I would like to get back to
the --
COMMISSIONER NANCE: I have a question of Mr. Pires.
CHAIRMAN HENNING: Okay.
COMMISSIONER NANCE: Mr. Pires, when was the La
Peninsula community built?
MR. PIRES: Well, there was a bulkhead established -- built back
in the '60s, because there was a bulkhead plat.
COMMISSIONER NANCE: Yes, yes. And when were the
buildings -- when was the construction started and completed and so
on and so forth?
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MR. PIRES: In the '70s, and it's been --
UNIDENTIFIED SPEAKER: 1986.
MR. PIRES: 1986, and it's been going on since then.
COMMISSIONER NANCE: It's been going on since 1986. And
wasn't -- didn't it have a serious financial period of time when there
were some buildings occupied and others under construction?
MR. PIRES: A prior developer did and left one of the buildings.
There was a --
COMMISSIONER NANCE: So this has made it pretty --
MR. PIRES: -- statement in reference to that particular building
at the time.
COMMISSIONER NANCE: This has made it pretty difficult for
people to have a functioning homeowners' association to do common
costs and replacement and reserves and so on and so forth; has it not?
MR. PIRES: It had a number of issues over the years with the
prior developers and other.
COMMISSIONER NANCE: Yes, okay.
CHAIRMAN HENNING: Okay.
COMMISSIONER NANCE: That is all.
CHAIRMAN HENNING: Thank you, Mr. Pires.
Next speaker?
MR. MILLER: Your next speaker, Jared Grifoni. I've already
called the names of the people who ceded time for him. He'll have 15
minutes.
MR. OCHS: Mr. Chairman, just to remind you, you're scheduled
for a court reporter break somewhere in the next 10 minutes.
COMMISSIONER HILLER: Maybe after he speaks.
CHAIRMAN HENNING: What?
COMMISSIONER HILLER: Maybe after he finishes speaking.
CHAIRMAN HENNING: Yeah. After Mr. Grifoni speaks,
we're going to take a break.
MR. GRIFONI: Sure. Well, good afternoon, Commissioners.
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It's been about a month since the last time we were here discussing
this issue. A lot of new information has come to light. There's been
some clarification on a lot of issues as well.
I'd like to just briefly touch on some of the prior arguments that
were discussed, just to bring everyone up to speed.
Florida Constitution, first and foremost, Article VII, Section 10,
deals with finance and taxation as well as pledging of credit. It states
specifically, neither the state nor any county shall lend, give, or use its
taxing power to aid any corporation or private entity. That is true.
The Florida Statutes say the same thing. Statute 125, county
powers are defined in 125.01, like Mr. Pires mentioned, also the
power to create MSBUs. Those powers to create MSBUs, fire
protection, law enforcement, beach erosion control, recreational
services, water, street, sidewalks, things of that nature.
Again, seawalls are not in there. Seawall repair/replacement is
not in there. There's no seawall repair/replacement in that statute. It's
not in the Florida Constitution either.
Escambia County, we talked about that before. They have a
specific policy written out that deals with MSBUs. They're restricted
to public property. They're restricted to property where the public has
equal access at all times.
In addition, they require easements and public property -- or
property dedications prior to going into any type of MSBU.
Code enforcement -- we've talked about those issues; those are all
true. We can't just brush those under the rug. Code enforcement went
down to the La Peninsula seawall multiple times over the past five or
six years, as early -- or as late as May of 2013, just a few months
before this was in front of you all, and they -- and County Engineer
Jack McKenna said that there's no public health and safety concern at
that time, that there's no danger of the seawall collapsing, that it just
needed minor repairs and maintenance.
We also talked about this ordinance here that, I guess,
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Commissioner Henning brought up in the ordinance. You know,
really the question there is who isn't doing their job?
We're talking about a 40-year life on this seawall, and now all of
a sudden in six months we need to hurry up in and, you know, create a
$4 million project out of thin air that's never been done before in the
state of Florida or in Collier County for this matter. Two hundred
thousand dollars in reserves. That was back in 2012, so I'm
wondering what's happened in the past two years.
And the ordinance itself only speaks of a $250 a day fine,
misdemeanor. It doesn't talk about an entire construction project that's
done under the auspices of the county government.
The precedent that's set here is extremely dangerous. It's never
been done before. Five hundred homeowners' associations in Collier
County alone. If they all came here looking for the same thing, we'd
be adding $2 billion to the county debt.
Now, I understand that the money is paid back specifically by the
benefited property owners, but we can't escape the fact that that
money is owed. And until it is paid in full, it is still owed. It's still
going to be on the county books.
We also know that seawalls always need to be repaired and
replaced over time. Ten to 15 years in some cases, 20 years, 30 years.
So we know that we're going to be back in this same situation, 10
years from now, 15 years from now if we encourage homeowners'
associations to be fiscally irresponsible and mismanage their funds.
Now, some of the issues that have come up since that time that
have been left out, the county manager, he did send a memo out on
February 3rd, and that was after, Commissioner Hiller, you directed
him to find the primary public purpose in the January 14th meeting.
And I think we need to let that sink in for a moment, because the
BCC passed this ordinance and resolution back in December, and
we're trying to find a public purpose at the January 14th meeting, and
that memo wasn't completed until February 3rd.
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So it's clear that this was passed on the basis of the facts as they
were understood at the time of the original passage back in December,
and it was for the benefit of the property owners of La Peninsula. It
was not for a primary public purpose to protect any of the seawalls or
waterways or anything of that nature. It hadn't even been determined
yet.
We can even see in the text of the memo itself, there are two
items listed. They are listed as possible public concerns. Possible, not
actual, concerns, not purpose. Possible public concerns arising from
the failure of the seawall. But there's also no failure of the seawall in
its current state.
It's notated at the bottom of the memo that there appears to be no
immediate public safety concerns at this time.
So what are the two items that were listed? A loss of tax revenue
due to decrease in property values and public relations concerns. So
talk about opening Pandora's box. Are we going to accept the premise
that a decline in property value is the grant of power necessary to
forego the clear and -- the clear terms of the Florida Constitution and
the Florida Statutes on this matter?
Are we going to start creating hundreds of millions of dollars in
additional debt -- in additional debt because property isn't up to the
standard of maximizing whatever taxable value it may have at any
given time?
If the primary concern -- or is the primary concern of this board
simply securing additional tax revenue rather than limiting
expenditures, debt, and not executing bad public policy?
One of the primary concerns addressed in prior meetings was
over the county having to take an ownership interest in the seawall
during the course -- or during the life of the loan. So if, ultimately,
we're basing this decision on an after-the-fact determination of taxable
value concerns, should we anticipate the county taking ownership
interest in other seawalls that are actually failing across the county
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today? I don't think -- and I'm not -- and I don't think I'm wrong when
I suggest this, but I don't think the voters are going to be happy to find
out that the county has seawall interests all over this -- all over the
county. It simply just doesn't make sense.
Now, we can debate the issues around the MSBU but, ultimately,
it's the BCC that has to make this decision. You need to determine
whether or not this is sound public policy.
Now, I'm also concerned about the issue or the characterization
of this as a failing seawall. I forwarded the BCC an email on January
23rd from county engineer, Jack McKenna. I mentioned that a
moment ago. You may recall that at the 1/14 meeting we talked about
some of the code enforcement issues at the time.
Well, back in May of 2013 -- and Mr. Pires mentioned this
briefly as well, that Dick Van Deelen, the president of the La
Peninsula Master Board, emailed the county engineering asking for
confirmation that the seawall was not -- that there was no evidence or
reason to believe that there was any imminent danger with the seawall,
any imminent safety issue with the seawall.
And the reply was, I have no reason to believe that there is
imminent danger of the wall collapsing. And he also stated that La
Peninsula was proceeding in a good and logical fashion, a good and
logical fashion in seeking riprap repairs to the wall, okay.
So we're talking about a good and logical fashion at the time, and
the good and logical fashion simply is that they were handling this
themselves. It wasn't going through the county government using
county government as a conduit.
Now, the Giblin report that was prepared since the last meeting
has some flaws as well. They state that the special assessment is not a
tax. Well, that's great. It's not a tax. A special assessment is an
exercise of the taxing power.
So AGO 85-90 from Marion County, they attempted to levy
special assessments against real property for the purpose of improving
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road and drainage improvements.
And in that AGO, it's stated, while special assessments are
distinguishable from taxes, they are levied under the taxing power and
are, in a broad sense, a peculiar species of taxes. So we know MSBUs
are special assessments. They're levied under the taxing power and,
therefore, we need to return to the Florida Constitution, Article VII,
Section 10.
They also cite Statute 170. We keep going back to 170, and that
really interests me, because 170 has to do with municipalities, cities.
Of course, 170 only applies to cities. It doesn't apply to counties.
County powers are under 125. We've discussed this earlier as well.
In the report it was notated that there was -- now, this is from the
Giblin report. It was notated that they were unable to find any cases
addressing these types of improvements or cases with substantially
similar facts. That's because this action by the board is going to set a
precedent for the entire state of Florida. Not just Collier County but
the entire state of Florida.
Now, we talked about essential facilities, municipal services.
Essential facilities, they're commonly defined as those -- the city
government provides, natural monopolies, things like utilities,
transportation facilities. Again, the plain language is clear that it
doesn't apply to seawalls, let alone private seawalls.
Now, the County Attorney, he also issued a legal opinion, and I
thank him for putting that together. He notes that the central issue is
whether or not the proposed project is for a public purpose. There's
both a legal and factual component to that analysis. So what's the
legal component to that analysis cited? We're back to Statute 170
again.
Now, there are multiple issues here that we just need to get ahold
of. Title 12 is for municipalities, cities and towns in the state of
Florida, chartered cities and towns in the state of Florida. 170 simply
doesn't apply to counties. It applies only to chartered cities. Collier
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County's, of course, not a chartered city. Isles of Capri isn't a
chartered city. La Peninsula's a private entity. So the language is
clear.
Now, what we need to remember is that we're dealing with three
separate things. We're dealing with city powers, we're dealing with
county powers, and we're dealing with MSBU authority. Now, city
powers, in 170 it does mention reconstruction of seawalls, but that's
still different from the county powers and even more different than
what can be done under an MSBU.
MSBUs are even more limited, of course, than whatever the
county can do. It's simple.
Another AGO that was cited, 2002-48, I think, again, that's being
misapplied here. 2002-48, the question that was asked to the attorney
general at the time was may the County Commission expend public
funds to provide private communities with services such as the repair
and maintenance of privately owned roads and related infrastructure.
And they give the example sidewalks, streetlighting, stormwater
systems, landscaping, and water and sewer.
Now, that list is actually from the Florida Statutes. And because
the statutes are clear on what can and can't be done, seawalls simply
just aren't there. They didn't just pull those out of a hat. They actually
just mention the ones that are specifically delineated within statute.
So counties and MSBUs can do things, but they can only do
things that they are authorized to do. Seawalls, again, are not in there.
Now, I'm not making this up. I'm -- I trust that the commission
has been able to go and look at the statutes themselves, because it's
very, very clear.
Now, he also cites, the County Attorney, 90-37, which deals with
the city of Palm Beach -- the city of Palm Beach. Now, again, that's
under 170, not 125. It refers to a -- the public purpose, however,
needing to be paramount, and we don't have that here. We don't have
a paramount public purpose.
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But one thing we can take from 90-37 is that the public purpose
is something that's determined by the legislative body; in this case, of
course the Board of County Commissioners.
So it seems that maybe there's an attitude amongst some of the
members of the BCC that we should just simply pump the issue either
to a bond-validation hearing or to an AGO. And the fact is, even if we
do seek that method, it's going to come back to your decision today.
So the responsibility is going to fall on the board. If this is a
public policy that the board wants to go forward with, then it's going
to be a board policy. It's not going to be Pam Bondi's opinion. It's not
going to be the bond-validation hearing. It's going to come back to
this decision today.
Now, two years later, there was another AGO, 92-31, and it
stated that the state constitution prohibits municipalities or other
agencies for using their taxing power to aid any private interest.
And the purpose of that provision, the constitutional provision, is
to protect public funds and resources from being exploited and
assisting or promoting private ventures when the public would only be
incidentally benefited.
It's only when there is some clearly identified and concrete public
purpose as the primary objective that the municipality may exercise its
taxing power. Again, we don't have that here.
And it also states that even though the tax may -- would only be
imposed on the property owners who primarily benefit, the fact is that
the tax -- the fact that the tax is limited does not mean that it's not an
exercise of the city's taxing power so, therefore, again, it has to fall
under the purview of the constitutional provisions.
So just very quickly I'd like to also address some of the issues
that Mr. Pires brought up -- Mr. Pires, excuse me -- with respect to the
CRA. The CRA is a completely different statute. It has nothing to do
with what we're doing here today. The CRA has a very, very specific
procedure on how those are approved. Resolutions must be passed,
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and they must have certain things in those resolutions, and also we're
talking with the CRA as a redevelopment of a slum or blighted area.
So I'm -- I don't think that La Peninsula really fits that definition,
and I certainly don't think that there's a physical or economic
condition conducive to disease, infant mortality, juvenile delinquency,
poverty, or crime because of a preponderance of-- or predominance of
buildings or improvements, whether residential or nonresidential in
that area, and then I certainly don't think it's a blighted area as well.
That was the definition of a slum in the statute.
So the goals of the CRA are completely different than what we're
talking about here with La Peninsula.
Now, as I mentioned earlier, we don't have that clearly identified
in concrete public purpose. If anything, it was after the fact, and it's
still -- it's not -- it's concrete. What we have is wishy-washy
after-the-fact maybes, ifs, buts, when's, and possibles and, to me, that
is -- that's nothing, to put it bluntly, nothing that justify what's going
on here today.
We can't pump this issue to a bond-validation hearing or to an
AGO. They all, like I said, are going to come back to the decision of
the board.
So if you vote against rescinding this, you'll be expanding
government, setting a bad precedent, opening Pandora's box,
encouraging fiscal irresponsibility and mismanagement amongst other
condo associations, homeowners' associations, knowing that this is
going to be available to them in the future, and you'll be completely
ignoring the plain language of the Florida Statutes and the Florida
Constitution, stretching them beyond anything remotely intended at
the time that they were passed.
So what is, perhaps, even more telling is not only that -- does La
Peninsula seem to be hoping for a bailout here by the county, but I'm
worried that, perhaps, County Commissioners are also hoping for a
bailout themselves, a bailout of responsibility on this issue by punting
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it to another board.
Own this decision, because this is your policy, and it's your
determination. It's going to come back here no matter what.
So I ask you to please do the right thing today, vote to rescind
this ordinance and resolution, and let's get this done and let's move on
and let's continue to fight for good government, smaller government
within the confines of our statutes and constitution.
Thank you.
CHAIRMAN HENNING: Okay. We're going to take a break.
But before we -- does anybody -- any of the commissioners have a
problem with entering in the record the county engineer's email?
COMMISSIONER HILLER: No, and I --
COMMISSIONER FIALA: No.
COMMISSIONER HILLER: -- think we should also introduce
this ordinance.
CHAIRMAN HENNING: Okay. I agree with you.
COMMISSIONER HILLER: Ordinance eighty-five two (sic)
and --
CHAIRMAN HENNING: Okay. We're on 10-minute break.
COMMISSIONER HILLER: If there are any other -- Mr.
Casalanguida?
CHAIRMAN HENNING: We're on a break.
COMMISSIONER HILLER: I know.
(A brief recess was had.)
MR. OCHS: Mr. Chairman, you have a live mic.
Ladies and gentlemen, please take your seats.
CHAIRMAN HENNING: Commissioner Hiller, you have some
questions of Mr. Grifoni?
COMMISSIONER HILLER: Thank you, yes.
The first thing -- Mr. Grifoni, thank you for your presentation.
You're a very good speaker.
MR. GRIFONI: Thank you.
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COMMISSIONER FIALA: The microphone.
COMMISSIONER HILLER: Yes, forgive me.
Mr. Grifoni, thank you for speaking. You made a very nice
presentation.
The first thing I think I would like to raise is that the issue with
respect to whether or not seawalls serve a primary public purpose
seems to have been -- to have been established by this board back
when this ordinance was passed in 1985 relating to the repair and
replacement of seawalls. I think the real question before us today is,
you know, to what extent this seawall needs to be repaired, and that's
really an evidentiary question.
And so what I've done is I've asked our county staff, Mr.
Casalanguida, to provide this board with all the emails Mr. McKenna
has written on this subject and also to provide any and all reports
prepared by any of the professionals that have submitted reports on the
repair of this seawall to the county.
And I think that information will be very important, because the
question really is, you know, should this seawall be repaired or
replaced? And, you know, what is the cost-benefit analysis between
repairing it for a shorter -- for the benefit of a shorter period of time
versus replacing it now and having, you know, a longer life ahead of
that larger expenditure.
In any event, you know, it isn't true that our determination will be
the final determination. If we go -- if we reach the point that a
determination is made by this board based on the evidence presented
to us, that this wall needs to be either repaired or replaced and that that
cost needs to be financed, then bond counsel has made it clear that
they're not going to move this forward without a bond-validation
hearing.
So your concern as to whether or not there is a valid public
purpose would be determined by the Court, because the Court could
find that the determination we made is not correct. It's not -- we don't
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have absolute discretion in that, and that is something I spoke to the
County Attorney about.
So your concern would basically be satisfied by the Court's
determination that what we are doing does or does not serve a valid
public purpose, which is your concern.
CHAIRMAN HENNING: Do you have any other questions?
COMMISSIONER HILLER: I'm very -- I want to address his
comments, because he made some very important points that I think
need to be --
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: -- discussed.
So I think, you know, you raise very good questions, and I think
those questions are properly asked and should properly be answered,
but I think, ultimately, the answer is going to come from and -- from
the courts through that bond-validation hearing.
Because, again, you know, it's nice that we can get an AG
opinion, and I think that is the first step in the process, but it is
nonbinding, as you properly pointed out.
And this is a very important issue, and it does go to the issue as
to, if you do have these homeowner associations that fail to repair
their seawalls, what action do we, as a board, have the right to take to
protect public health, safety, and welfare.
And there is no question it does appear that -- like, La Peninsula
failed to do what it should have done, which is build adequate
reserves. And I don't know enough about homeowner association law
to opine as to, you know -- you know, how they breached the law in
failing to do that
We're not rescuing them. We are upholding our responsibility to
safeguard the public's safety, and we have a legal mechanism to do
that, and this is an essential facility.
So I really want to thank you for bringing your questions forward
because you have raised a lot of very valid concerns that, I agree with
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you, have to be asked and answered. So I, you know, applaud you for
raising the issue.
But it isn't the intent to expand government. It's really our
obligation to protect the public, because I'm against big government,
as you know, as you are.
CHAIRMAN HENNING: Okay. Any other questions?
COMMISSIONER FIALA: Yes.
COMMISSIONER NANCE: Yes.
CHAIRMAN HENNING: Commissioner --
COMMISSIONER FIALA: Go ahead.
CHAIRMAN HENNING: -- Nance.
COMMISSIONER NANCE: Yes.
Mr. Grifoni, what do you think of the current MSTUs and
MSBUs we have in Collier County?
MR. GRIFONI: I don't have any problems with MSTUs or
MSBUs, currently created ones or future created ones, so long as
they're within the confines of the law and they're done with the correct
mechanisms.
This one, I think, is somewhat different simply because of the
private nature of it as well as the concern over whether or not there's a
valid public purpose, a paramount public purpose.
But I think what we've seen in other MSTUs, MSBUs across the
county is that they're different; they're different in various respects
than this one, and I think that the evidence for that simply is in the
report that we received that stated that they couldn't find any other
facts or any other cases with a similar set of facts comparable to this
one, and they said that the determination by the bond-validation
hearing couldn't be predicted, and there's a reason for that; it's because
this has never been done before in this specific type of instance.
COMMISSIONER NANCE: Do you think there are any of the
current MSTUs or MSBUs that have anything other than an incidental
public benefit?
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February 11, 2014
MR. GRIFONI: I'm unaware of any particular MSBU or MSTU
that -- where there wouldn't be a -- within the bounds of the law, that it
wasn't created under the correct statute and correct --
COMMISSIONER NANCE: There were corrected, but I think if
you'll examine carefully the existing MSTUs and MSBUs, you'll find
out that the grand majority of them have a very incidental public
benefit. They've usually been enabled by government to do something
that the applicants either want or in some cases need. But as far as a
public benefit, I think most of it is a stretch.
COMMISSIONER HILLER: Really?
MR. GRIFONI: You very well may be right on that. And, in
fact, you know, I just don't think that's an excuse to continue doing
something wrong if-- you know, just because we've done it before in
the past. And I'm not suggesting you've done that.
COMMISSIONER NANCE: I just wondered if you were
opposing the current MSTUs and MSBUs that we have.
MR. GRIFONI: I'm not aware of any particular MSTU or
MSBU that's currently in existence in Collier County that is not done
within the purview of the statutes, whether it's landscaping, streets,
sidewalks, lighting, utilities, drainage, things of that nature. If there's
something else beyond that, I would love to know about it, but I'm not
aware of it at this time.
CHAIRMAN HENNING: No. We're going to go to
Commissioner Fiala and then back to the public speakers.
COMMISSIONER FIALA: Oh, okay, fine. Thank you.
The way I understand it --
CHAIRMAN HENNING: Oh, Commissioner Coyle.
COMMISSIONER FIALA: Okay -- with the MSBU is you
really don't know what you need to get done until you have a study; is
that correct? Because you don't know whether the wall needs to be
replaced, repaired, how far it is, if just certain segments need to be
repaired or what. Isn't that the case?
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So, of course, you don't know how much we're even talking
about until the study is done; is that correct?
UNIDENTIFIED SPEAKER: Yes.
COMMISSIONER FIALA: Okay. I just wanted to make that
clear because it seems that the numbers are being thrown out, but I
don't think that you folks even know yet what you need until you have
divers go down and take a look.
Okay, thank you. I just wanted to clear that up.
CHAIRMAN HENNING: Okay. Again, do we have any
questions or comments to Mr. Grifoni? Otherwise, we're going to get
back to public speakers.
COMMISSIONER COYLE: Yeah. I have a question for Mr.
Grifoni.
CHAIRMAN HENNING: Thank you.
COMMISSIONER COYLE: Okay. If I understood you
correctly, you said that the Constitution and Florida Statutes won't
permit us to do this; is that correct?
MR. GRIFONI: I believe that under the Florida Constitution and
the Florida Statutes, based on some of the court cases out there, as
well as the various AGO opinions, would indicate that this type of--
this type of MSBU would not be approved simply because there isn't a
primary or paramount public purpose.
COMMISSIONER COYLE: And who do you think determines
the primary public purpose?
MR. GRIFONI: The Board of County Commissioners.
COMMISSIONER COYLE: And if we determine that there was
a primary public purpose, would you argue with us?
MR. GRIFONI: I mean, sure. I mean -- well, I think that's why
I'm here is -- I mean, this was -- this was passed. This was passed by
the board back in December for some type of public purpose that
we're unaware of until February 3rd.
But, yeah, I mean, depending on what type of public purpose -- I
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mean, we could argue that there was a public purpose because you,
you know, one person decided to walk on the seawall today. I mean --
but does that -- does that encompass the paramount public purpose, the
nature? So --
COMMISSIONER COYLE: I'm --
MR. GRIFONI: I mean, it would be -- you know, a variety of
factors would have to be considered.
COMMISSIONER COYLE: So you're saying that the
Constitution or Florida Statutes won't permit us to do it unless we find
a valid public purpose?
MR. GRIFONI: Well, there needs to be a valid public purpose,
but it also needs to still be within the bounds of the law. And the law,
as it states in 125, does not indicate that seawall -- seawall
repair/replacement is allowed under the MSBU or the county powers.
But, again, you know, we've had some discussions on that earlier.
COMMISSIONER COYLE: You made the observation, I think,
that municipalities have the authority to do this. So, now, can you
explain to me how or why a state constitution would prohibit a county
government from doing something but allow a city to do the same
thing?
MR. GRIFONI: Sure. Well, I mean, just the plain language of
the statutes themselves indicate that. I believe in the January meeting
I brought that up and, I mean, I think when they were drafting the
Florida Constitution and the Florida Statutes, they specifically didn't
decide to list that power under the county government, under 125,
when they specifically did under 170. That could have been changed
in any number of times. It wasn't.
I also think that just because a city has the power to do so, it still
needs to, again, be within the public purpose, and there is no question,
really directly, of whether or not it's a public seawall or a private
seawall. The statute isn't clear on that. I would assume, based on the
rest of the statutes, that it's talking specifically about public seawalls,
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that cities can do things with public seawalls. Again, it's just a little
different than what we have here.
COMMISSIONER COYLE: You see, here's my problem. I just
can't imagine a constitution that would say you, city, have the
authority to do this, but you, county, don't have the authority to do
this.
I cannot understand the purpose of a constitutional provision that
would reach that conclusion, and I cannot understand why anyone
would interpret it that way.
MR. GRIFONI: Sure. I mean, ultimately, that's a question you'd
have to take up with the legislators why they left it in 170 and didn't
put it in 125. But, you know, I think the concern here is whether or
not -- I mean, we're looking at the law as it stands.
And we also saw in the Giblin's report that there's been no other
cases with substantially similar facts that has -- is similar to what we
have here today.
So, again, we have hundreds and hundreds and thousands of
miles of coastline in the Collier County -- I mean the state of Florida,
we have canals all through Collier County, all through the state, and
that there hasn't been one instance in 50, 60, 70 years that someone
has decided to create or use an MSBU to repair or replace a private
seawall.
I mean, otherwise, we wouldn't be here today. Just, the facts don't
exist, so that's why this is a new precedent. From what I've been able
to tell, and I think what the County Attorney has been able to find, as
well as the outside counsel report, is that this just simply hasn't been
done before.
So there's -- I think, ultimately, there has to be a reason for that.
And I think based on the facts and the discussion that I've been able to
present today and prior, there's a clear reason for that, and I think it's
simply because the law just doesn't allow it in this current state.
COMMISSIONER COYLE: I think that's probably an incorrect
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interpretation.
I think the -- what they said was that it hasn't been litigated.
They cannot find any case where something like this has been
litigated, but I understood that there were a number of places where
this had been done. As a matter of fact, I think we've done things that
are similar.
If one looks hard enough, you might find a period that is slightly
different or a comma that's in a different place, but the essential
elements are the same.
But that's -- and the other thing I would -- you indicated that the
people hadn't been doing their jobs or else they would have
accumulated enough money to do this.
I don't think it serves anybody's purpose to try to punish current
residents because people in the past might not have created a large
enough reserve to do this thing.
So that having happened -- and we cannot undo that -- I don't
think that we, as a Board of County Commissioners, should try to
punish them for letting that occur.
I think our job is to help them solve the problem and -- but that's
all I have to say, Mr. Chair.
CHAIRMAN HENNING: Okay. Can we go back to public
speakers?
COMMISSIONER HILLER: Can I address this last point made
by Mr. Grifoni and Mr. -- Commissioner Coyle, because it's
important.
CHAIRMAN HENNING: Is it going to change the outcome of
what we're going to do today?
COMMISSIONER HILLER: Well, I think it's very important to
clarify something for the record relating to Chapter 125, because I
think there is -- I don't think this very important point has been made
clearly on the record.
CHAIRMAN HENNING: That we can do -- it's not limited to
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these repairs. I understand you want to get this done.
COMMISSIONER HILLER: It's related to the comments made
by both parties.
CHAIRMAN HENNING: Go ahead.
COMMISSIONER HILLER: Mr. Grifoni, you said that 125
doesn't provide any mechanism for this seawall repair to be financed
through an MSTU.
MR. GRIFONI: It's not explicitly listed.
COMMISSIONER HILLER: Actually, what the -- what Chapter
125 makes very clear under 125.01(Q) is that after listing with
specificity, you know, a number of items, it goes on to say, and other
essential facilities and municipality services from funds derived from
services charges, special assessments, or tax within such unit only.
It is very clear, and then it goes on to say subject to the consent
by the ordinance of the governing body of the affected, you know, and
so forth.
So the point being is that it does make clear that that list is not
limited to only what is enumerated but goes on to provide that MSTUs
can be used to fund essential facilities and municipal services, so --
MR. GRIFONI: Right.
COMMISSIONER HILLER: -- this is -- the question, again,
whether or not a seawall is an essential facility is a determination that
this board has already made and has absolutely, going back to 1985,
made the determination that seawalls do serve a primary public
purpose, and it's enumerated in that ordinance, and that ordinance, as
you know, as a matter of law, is deemed to be valid until and unless
it's overturned by a court of law.
So we have law that clearly establishes the primary public
purpose of seawalls, and we have a statute that clearly provides that
we are allowed to create MSTUs for essential facilities.
MR. GRIFONI: Sure.
COMMISSIONER HILLER: So I don't think it's true that -- and
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I have to agree with Commissioner Coyle. I don't think it's true that
125 does not allow for the repair or replacement of a seawall such as
the one that's before us.
MR. GRIFONI: Yeah. I mean, the issue --
CHAIRMAN HENNING: Mr. Grifoni, I don't think it's really
going to matter.
MR. GRIFONI: Sure.
CHAIRMAN HENNING: There is a burning desire by the
majority of the commissioners to fund the seawall, okay?
COMMISSIONER HILLER: No, no.
CHAIRMAN HENNING: So let's move on to the rest of the
speakers.
COMMISSIONER HILLER: Not a burning desire.
MR. MILLER: Your next public speaker is Keith Flaugh. He'll
be followed by Peter Richter.
MR. FLAUGH: Good afternoon. My name is Keith Flaugh. I'm
one of the members of a group called the Southwest Florida Citizens
Alliance. And we've, without exception, put together a resolution that
represents the view of our hundred-plus people on this particular issue
that I would like to read into the record.
A resolution of the Southwest Florida Citizens Alliance in
support of rescinding the resolution and ordinance creating the MSBU
for La Peninsula seawall.
Whereas, the Southwest Florida Citizens Alliance is a grass-roots
coalition of citizens and groups united to advance the ideas and
principles of liberty including but not limited to individual rights, free
markets, and limited government through education outreach and
community involvement; and,
Whereas, the Southwest Florida Citizens Alliance focuses on
three areas by providing a platform for citizen -- educating the citizens
on moral foundations that support the principles and values of a free
society involving citizens in learning about, discussing, and
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February 11, 2014
influencing legislation, vetting candidates for office and then holding
them accountable for their official conduct; and,
Whereas, the Southwest Florida Citizens Alliance is currently
comprised of over 100 activist community leaders from over 30
different groups and organizations throughout the county dedicated to
the principles of limited government, economic freedom, and
individual rights, and those leaders represent and influence thousands
of voters in Collier County; and,
Whereas, the Southwest Florida Citizens Alliance has been
following closely the creation of La Peninsula MSBU as well as the
petition to rescind the ordinance and resolution; and,
Whereas, it is the petition -- position of the Southwest Florida
Citizens Alliance that there are numerous constitutional and legal
concerns with respect to the validity of La Peninsula MSBU in
addition to the concern expressed in various attorney general opinions
and reports from Collier County Code Enforcement with respect to the
condition of the seawall, and that the -- this is an important part -- and
that the creation of an MSBU violates the principles of fiscal
responsibility and limited county government.
Whereas, it is the position of Southwest Florida Citizens
Alliance, in accordance with our stated principles and platform, that
the Board of County Commissioners must vote to rescind the
Ordinance 2013-70 and Resolution 2013-292.
And now, therefore, be it resolved by the Florida Citizens
Alliance that we call upon the county Board of County
Commissioners to immediately favor -- vote in favor of rescinding
both of these ordinance and resolutions.
Be it further resolved that the county shall not further entertain
any future efforts by La Peninsula or other private entity that calls
upon the county to lend or use its taxing power to credit -- to the credit
or aid of any corporation, association, or partnership or person.
And, finally, be it further resolved that the Board of County
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Commissioners of Collier County shall draft and adopt a clear policy
on the use and creation of MSBUs with the primary purpose of
limiting the use of MSBUs to maintenance improvement and public
record property -- and benefit of public property with equal and open
access to all members of the public for the specific areas, facilities,
and items listed in the statute 125.
CHAIRMAN HENNING: Thank you, Mr. Flaugh.
Next speaker?
MR. MILLER: Your next public speaker is Peter Richter. He'll
be followed by Ray Netherwood.
MR. RICHTER: Hi, thank you. I'm not an -- I'm not an attorney,
like everyone else that's been speaking, just about, today, but so I'm
not here to argue the law. I'm here to explain something that I think a
lot of people may not realize, is that it seems like we are setting a
precedent, and it would seem to me that governments have a
responsibility to treat everyone equally and not to provide preferential
treatment to one community over another or one individual over
another.
And so I don't see what's stopping future situations like this from
coming to the board and saying, hey, you know, we didn't repair our
seawall or we didn't repair a roof; we need some help. This is, you
know, a terrible situation, and you know, where is it ever going to
stop?
I think it's -- I think it's -- it's -- we've had enough bailouts in this
country. We've had enough bailouts to last us a lifetime, and we're
looking at one right here, and we can stop it right here.
COMMISSIONER HILLER: Can I ask you a question? Why
are you calling this a bailout? We're not giving any public funds to --
CHAIRMAN HENNING: Okay. Please -- let's not interrupt --
MR. RICHTER: Well, it's interesting that you say that, because
something I heard earlier --
CHAIRMAN HENNING: -- the speakers.
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MR. RICHTER: -- it sounded like there was going to be an
advisory board created to then determine the benefit for the
community and then the benefit for the public, right?
COMMISSIONER HILLER: No.
MR. RICHTER: And so wouldn't that board, then, be able to
say, well, because the -- you've already determined that there's a
public purpose, now -- so the -- clearly the county's benefitting. Why
doesn't the county foot part of the bill, maybe half of the bill?
COMMISSIONER HILLER: No.
MR. RICHTER: You know, there's a huge incentive to come to
the county, I think, which I think is the -- really the wrong way to do
it.
I was -- I was on board -- I was the president of a board in Miami
Beach, and we had to repair our seawall. We didn't -- we didn't get
any help from the city, and it sounded like they could have done it, but
they chose not to.
In fact, at the same time they were forcing us to open up our bay
walk to the public. So they were taking away something from us, and
they were going to be using, essentially, our seawall and opening it up
to the public, and they still chose not to help us in any way.
And then when we fought them to try to keep our boardwalk
closed, they said, well, if you don't open it, you'll have a
$10,000-a-day fine.
So I think maybe, instead of-- instead of putting all of the county
at risk, maybe what you ought to do is use your power to get them to
fix it on their own.
And I still haven't heard a great argument or even a decent one
why they don't just go to the bank and do it themselves like we did.
There's no bank that had any problem giving us a loan to -- for -- a
million-dollar loan to repair our seawall. They were happy to do it.
Thank you.
CHAIRMAN HENNING: Thank you.
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Next speaker.
MR. MILLER: Your next speaker is Ray Netherwood. He'll be
followed by Victor Rios.
MR. NETHERWOOD: I'll be short and brief.
In two-and-a-half hours, almost, is this what you really want to
be doing moving forward every time a condo community has a
problem, meetings like this, studies? I think the county ordinance puts
the issue of seawall maintenance on private property owners. If these
are private property owners, then the onus is on them.
This board should not have to go through this with hundreds of
condominiums and homeowners' associations in Collier County.
Thank you.
CHAIRMAN HENNING: Thank you.
MR. MILLER: Your next speaker is Victor Rios. He'll be
followed by Jim Gault.
MR. RIOS: Will you pass this along, please, for the benefit of
the board.
Good afternoon. My name is Victor Rios. I live at 970 Cape
Marco Drive, Unit 548, Marco Island, Florida. I would like to thank
the commissioners for allowing me to speak on this issue.
Now, a little background that hasn't been mentioned here. Now,
I'm not as eloquent as my predecessors, Mr. Grifoni or Mr. Pires. I'm
not an attorney. I happen to be an engineer, so I like detail, so I got a
little information.
I took the time to go to La Peninsula and take pictures, which I've
given you. I have a little story I will explain (sic).
Okay. La Peninsula have more than 500 condo -- I mean, not La
Peninsula. The Collier County have more than 500 condo and
condominium associations. And, by the way, they are governed by
two different laws, statutes. Condominium associations, it's 718,
Florida Statute 718, and HOAs are 720, and I happen to be the director
and president of one condominium board and the director of the
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master board where I live. So I have a little bit of information, okay.
I provided you with the picture. The pictures were taken last
week on February the 7th of 2014, so that's just four days ago.
La Peninsula on Isles of Capri is not a poor area of Collier
County at all, okay. So I take issue with one of the commissioners
saying about people not having the money to repair.
I took the time to look at listings, okay. How many open listings
are in La Peninsula? There may be more, you know, but a realtor
friend of mine gave me the current listings, pricing ranging there from
450- to 700,000, okay, for sale.
In addition, Isles of Capri, there's homes for sale, okay, ranging
from 350- to $3.5 million. Hardly a blighted area, a poor area, or area
where people do not have money to afford repair on their own
buildings or facilities.
La Peninsula has 164 units, according to the information I have.
I may be wrong, but that's what I was able to obtain through realtor
information.
There are several buildings, and they have very many luxury
amenities. They have a pool, spa, fitness room, sauna, et cetera.
Monthly fees, currently, I was told they are roughly 700 a month
which, if you multiply times the number of units, they collect about
$1.4 million, okay.
And I also have read, like was mentioned here, that repairs or
rebuilding the seawall is $4 million. That seems to me a very high
price, because I've done it before. I have undertaken the repair of a
very large seawall and riprap. We added 9,000 tons of riprap to the
complex where I lived. That's a lot of riprap, okay.
And I took a walk, and you see the pictures I gave you. I find
very little deterioration. And I've seen the engineer report that was
presented proves that point, okay, and I'm sure there's some cracks and
fixing that needed to be done.
I think I have three minutes yielded to me by some other member
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that you have there, that he said yielded to me three minutes.
I feel to qualify (sic) about this, again, because I'm a director of a
condo association.
MR. MILLER: I do not have any such sheet --
CHAIRMAN HENNING: Yeah.
MR. MILLER: -- Mr. Rios.
CHAIRMAN HENNING: Mr. Rios, you need to wrap up,
because you've exceeded your --
MR. RIOS: Well, I was here when the person handed the piece
of paper granting me the extra three minutes. I don't know what
happened to it. He says -- he wrote it, and I said okay.
MR. NETHERWOOD: I thought that I was given extra time,
because I had originally ceded time to Mr. Rios.
CHAIRMAN HENNING: No. Everybody gets three minutes.
MR. RIOS: Well, since he didn't use the three minutes, can I use
his remaining time?
CHAIRMAN HENNING: He already spoke, sir.
MR. RIOS: Oh. All right. Okay.
Leaving that, the only thing I'm going to mention, the county
manager report, okay. You going to have to add in loss of tax revenue
in the likely event that buildings were damaged and the property
devalued, the time to lose the revenue (sic).
CHAIRMAN HENNING: Mr. Rios.
MR. RIOS: Yep.
CHAIRMAN HENNING: I'm sorry. You have -- your time has
expired.
MR. RIOS: Thank you very much.
CHAIRMAN HENNING: All right. I'm sorry.
MR. MILLER: Your next speaker is Jim Gault. He'll be
followed by Kathleen Bruns.
MR. GAULT: Mr. Chairman and Commissioners, I'm going to
waive my right to speak. We've talked about this for three hours.
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CHAIRMAN HENNING: Okay. Right, I agree.
MR. MILLER: Ms. Bruns?
MS. BRUNS: And I also waive my time.
MR. MILLER: Those were your final two speakers, Mr.
Chairman.
CHAIRMAN HENNING: Okay. I think Commissioner Hiller,
Commissioner Nance, then Commissioner Fiala.
COMMISSIONER HILLER: I wanted to address Mr. Richter's
comments. He had discussed advisory boards and what that advisory
board might try to do. The role of the advisory board is to give input
to the Board of County Commissioners. The Board of County
Commissioners is the only body that has the authority to make the
determination as to the extent of any expenditure, you know, how that
expenditure will be funded and, you know, what assessments will be
levied.
The advisory board has absolutely no legal authority with respect
to any of those three questions. So your concerns have no merit.
As far as the cost to repair or replace this seawall, if the
determination is made that it is -- it should be considered because the
AG comes back and says that what we have done so far is legally
correct, that will be, again, an evidentiary question that will be
decided based on evidence presented to the board by staff. We have
requested all the information they have.
You know, if no immediate repairs are necessary, there won't be
any assessments. If it's determined that there's no need to replace that
wall, it will not be replaced. I mean, we are not going to approve an
expenditure that is unnecessary.
And, again, it's only -- it goes to the issue of public health, safety,
and welfare. If there is no public health, safety, or welfare concern,
we're not going to do anything at all; no need.
So I just want to put your mind at rest. And I'm very sorry to
hear what happened to you down in Miami. It sounds to me that you
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had a government that took your property without fair compensation,
and I'm sorry to hear that that happened to you.
CHAIRMAN HENNING: Okay. Commissioner Nance?
COMMISSIONER NANCE: No further comments, Mr.
Chairman.
CHAIRMAN HENNING: Commissioner Fiala?
COMMISSIONER FIALA: Yes. I just wanted to make note that
we as a County Commission really try and support our members of
our community. We try and work with them. When they want to
better themselves, we want to support that effort.
We worked together to try and -- I mean, many of the
commissioners have had issues each in their own communities, and
we've tried to support them and encourage a better community and let
our citizens know that we do care about their needs.
And I wanted to also say that Tim Durham showed me something
like this. I don't know if you showed anybody else this, but would
you like to just show people this real quickly or something?
COMMISSIONER HILLER: What is it?
CHAIRMAN HENNING: It's a pretty map.
COMMISSIONER COYLE: This is for the people who don't
believe the seawall can fall in.
COMMISSIONER FIALA: You mean the seawall falling in?
COMMISSIONER COYLE: Yes, the seawall falling in.
COMMISSIONER FIALA: If that's okay. I -- you know, if
that's all right with you.
MR. DURHAM: Just, basically, I had some visuals that support
the memo that I produced, based on the commissioners' request, the
county staff come forward with the public purpose.
If I may, I'll make it very, very quick. There's only about four or
five pictures I'd like to show.
CHAIRMAN HENNING: Is there a reason why that wasn't
delivered to the board? The board asked for information. Is there a
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reason why you didn't provide that in an email?
MR. DURHAM: Yeah. I didn't get it til very late Friday,
Commissioner.
CHAIRMAN HENNING: After you wrote the memo?
MR. DURHAM: After the memo was written. There wasn't time
to put it in on the agenda.
CHAIRMAN HENNING: Is this really -- Commissioner Fiala,
does this really make a difference of what we're doing right now?
We're going for an AGO. Is there something that maybe he can email
us?
COMMISSIONER FIALA: Well, I don't know that we would be
able to see from this.
COMMISSIONER COYLE: Put it on the viewer.
COMMISSIONER FIALA: It doesn't take long.
CHAIRMAN HENNING: Okay.
COMMISSIONER FIALA: It's just interesting --
MR. DURHAM: I have them -- I can put them on the screen
there.
CHAIRMAN HENNING: By the way, that's not Tim Durham's.
Let's not confuse that.
COMMISSIONER COYLE: Okay.
COMMISSIONER FIALA: Thanks. This is interesting.
MR. DURHAM: Okay. And I'll make this very, very quick.
The information I used to base my memo on was essentially relying
on the Corps of Army Engineers out of Jacksonville.
And I don't claim to be an expert on seawalls or tidal forces or
anything like that, but I did -- that was my starting place, looking into
the history when Collier County started dredging these waterways
back in the 1930s. And my initial question was to them, given that --
the fact that this seawall was built in 1969, was did the Corps have
anything to do with it, whether it was permitting or anything else.
And one of the things that kind of I started uncovering -- and I
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asked questions about how would these things fail, and what would
that look like, et cetera. This is Collier County's coastline in 1975.
And as you see there, in front of La Peninsula, due west of it, there's a
barrier island, which was called Coconut Island. And back at the time,
you know, that afforded some of the tidal protection that would hit La
Peninsula. So -- okay. So that's 1975.
Fast forward. This is 2003. Those barrier islands are almost
gone.
Then coming forward to 2012, they're no longer there. And in --
you know, in March of 2013, the board heard testimony from Coastal
Engineering and approved an executive summary regarding Hideaway
Beach. And earlier it was described that the tidal forces in this area
are very dynamic, and that's true. The amount of sand that's shifted
and pulled from this particular area is terrific.
So what's that have to do with anything, these tidal forces? Well,
this is how a seawall will fail or can fail, and this is, again, from the
Corps of Army Engineer folks. It might only take one panel, one
panel separating from the seawall, and what happens is these tidal
forces are constant. They're an irresistible force that keeps working
morning, noon, and night.
In fact, they were telling me the biggest danger is in a storm
event, because excess water is pushed over the barrier. It's the
constant working and undermining.
So if a panel in a seawall fails, what likely happens there, it starts
taking away the earth that supports that seawall and starting to
undermine the earth around that area.
And the thing that's a little bit unique about the La Peninsula
situation -- and let's look at -- this is the 400 condominium block at La
Peninsula. They're 20 feet from the seawall. So if-- the argument
would go like this: If the seawall fails, the foundation starts to shift.
The first thing that would likely occur would be structural damage to
these buildings. They told me this would be gradual. It would be over
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a period of time.
So the likelihood of an instantaneous collapse that would dump
these into the waterway or cause human (sic) life would be very
unlikely. But the first thing you would see is an undermining of the
foundations causing structural damage to these units.
Just that one block, the 400 block, has a taxable value of 6.2
million. There's seven of those blocks in the La Peninsula area.
And that's just -- that's what I'd prepared.
CHAIRMAN HENNING: Okay.
MR. DURHAM: Thank you.
CHAIRMAN HENNING: There's a motion and a second on the
floor. All in favor of the motion, signify by saying aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
CHAIRMAN HENNING: Opposed?
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: Motion carries 4-1; Commissioner
Fiala against the motion.
Now, the issue on the agenda, let's get to that, whether to rescind
the ordinance and resolution.
Is there a motion to rescind the resolution or a motion (sic)?
(No response.)
CHAIRMAN HENNING: And I'll make a motion to do so. Is
there a second?
(No response.)
CHAIRMAN HENNING: Okay. The motion fails. So we still
need to take action on the item on the agenda.
So, again, it's the burning desire of the majority to fund this. So
you want to make the motion, Commissioner Hiller?
COMMISSIONER HILLER: No. I think it's inappropriate to
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jump to that conclusion. The opinion of the Attorney General's Office
will guide us as to whether --
CHAIRMAN HENNING: Do you want to continue this item?
COMMISSIONER HILLER: Well, we're -- there's nothing to
continue. What -- the motion to rescind this ordinance failed. If for
some reason the determination is made by the courts that funding this
doesn't serve a valid public purpose, then, you know, obviously it's not
a valid ordinance.
If the determination is made by the board after getting the
evidence from staff that there's no need for any repairs, there's not
going to be any funding even if it does serve a valid public purpose.
So, you know, I think it's premature to take any action because
we need both a -- we need -- first we need the evidence and -- as to,
you know, what we are really talking about in terms of necessary
repairs, if any at all and, secondly, we need a court opinion as well as
the AG's opinion as to whether what we are doing is legally valid.
So at this point in time, you know, leaving the ordinance as-is
doesn't mean that at some point in time it may, you know, become
moot because it's not --
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: -- either not necessary or not
legally valid.
CHAIRMAN HENNING: Let's ask our County Attorney on
reconsideration of past items. What is the process?
MR. KLATZKOW: This one's a little different because you've
got a valid ordinance that's on the books right now. If you do not want
to rescind that ordinance, it stays on the books. You don't have to do
anything right now.
COMMISSIONER HILLER: Right.
CHAIRMAN HENNING: So can we reconsider at a later time?
MR. KLATZKOW: I think when the AGO opinion comes down
Page 174
February 11, 2014
COMMISSIONER HILLER: Absolutely.
MR. KLATZKOW: -- that would be the time to do it.
COMMISSIONER HILLER: Exactly. I agree.
MR. KLATZKOW: You're the -- you're the governing body of
the MSBU, okay. You can always make the decision we're not
funding this.
COMMISSIONER HILLER: Right.
CHAIRMAN HENNING: So the action would be not fund it
instead of repealing the ordinance, or can we repeal the ordinance at a
later date?
MR. KLATZKOW: You can always repeal the ordinance; not a
problem.
CHAIRMAN HENNING: Okay.
COMMISSIONER HILLER: Always.
CHAIRMAN HENNING: So do we really need to take any
action?
MR. KLATZKOW: No, you've taken your action.
CHAIRMAN HENNING: I'll take a motion to adjourn then.
COMMISSIONER COYLE: Okay, second.
MS. KINZEL: Commissioner Henning?
CHAIRMAN HENNING: Yes. Oh, I'm sorry Crystal; go ahead.
MS. KINZEL: I apologize. I won't drag this out. But earlier in
the meeting under general comments, Commissioner Coyle put some
information on the record that I think it's important to clarify just for
the public's information.
The implication seemed to be that Mr. Barlow, in conjunction
with the HOME issue, had not had an opportunity to rebut or make
comments regarding the presentation by Clifton Larson. And I did
want to put on the record, so the public is aware, that the majority of
the members of the board of HOME as well as Mr. Barlow met with
both Clifton Larson, the internal auditors, as well as the internal
auditors of the Clerk of Court prior to any report being issued.
Page 175
February 11, 2014
Mr. Barlow also was in direct contact with Clifton Larson Allen
prior to the issue of their report.
On numerous occasions we have met with Mr. Barlow, members
of his board of directors, attempting to get information to resolve this.
So I did want the public record to reflect that opportunity. He
may not have been able to come to that meeting; he was advised of
that many months before when we did meet with his board of
directors. He was updated on the status of that report, and he knew
that it was coming forward. So that's it.
CHAIRMAN HENNING: We are adjourned.
COMMISSIONER HILLER: Thank you.
COMMISSIONER COYLE: Well, I'm going to continue talking,
because that is clearly not the case.
CHAIRMAN HENNING: We're adjourned.
(Chairman Henning left the boardroom.)
COMMISSIONER COYLE: The audit report took about 15
minutes of a two-hour time frame with the Clerk spending the rest of
the time talking about how terrible things are and how much money
was stolen from the government.
And there was no one who had any idea what the clerk's
comments were going to be and he has, on numerous occasions, in
fact, almost always, refused to provide us information concerning his
presentations before this board. So it is incorrect to say Mr. Barlow or
anybody else had sufficient time to address Mr. Brock's allegations.
But I think -- I think it's going to be addressed pretty quickly and
very, very effectively. Okay.
COMMISSIONER NANCE: Is there a motion to adjourn?
COMMISSIONER FIALA: Motion -- yes, motion to adjourn.
COMMISSIONER NANCE: Is there a second?
COMMISSIONER HILLER: I will make a second to adjourn
this meeting, but not before I say Happy Valentine's Day again. Lots
of love, you know.
Page 176
February 11, 2014
COMMISSIONER NANCE: All those in favor of adjourning,
signify by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN HENNING: (Absent.)
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: Aye.
Any opposed?
COMMISSIONER HILLER: Or as we can say in Canada, eh.
We're adjourned, eh.
*** Commissioner Hiller moved, seconded by Commissioner Nance
and carried unanimously that the following items under the Consent
and Summary Agendas be approved and/or adopted ***
Item #16A1
RELEASE OF LIEN FOR AN ACCRUED AMOUNT OF
$252,712.64 FOR A PAYMENT OF $562.64, IN THE CODE
ENFORCEMENT ACTION ENTITLED BOARD OF COUNTY
COMMISSIONERS VS. SUSAN SHROYER, CODE
ENFORCEMENT SPECIAL MAGISTRATE CASE NO. CEPM-
2009-0005325, RELATING TO PROPERTY LOCATED AT 4728
CAPRI DRIVE, COLLIER COUNTY, FLORIDA — BASED ON
1,263 DAYS OF NON-COMPLIANCE FOR VIOLATIONS
PERTAINING TO MISSING WINDOWS AND EXTERIOR WALL
AND ROOF DAMAGE BROUGHT INTO COMPLIANCE BY
NEW OWNERS IN SEPTEMBER, 2013
Item #16A2
RELEASE OF LIEN FOR THE ACCRUED AMOUNT OF
Page 177
February 11, 2014
$166,583.43 FOR A PAYMENT OF $39,583.43, IN THE CODE
ENFORCEMENT ACTION ENTITLED BOARD OF COUNTY
COMMISSIONERS VS. SENEN LUGO, CODE ENFORCEMENT
BOARD CASE NO. CESD20090019403, RELATING TO
PROPERTY AT 4287 12TH AVE NE, COLLIER COUNTY,
FLORIDA — BASED ON NON-COMPLIANCE FOR 666 DAYS
FOR VIOLATIONS INCLUDING PROPERTY IMPROVEMENTS
AND A FENCE WITH AN EXPIRED PERMIT WITH THE
PROPERTY BROUGHT INTO COMPLIANCE FEBRUARY, 2013
Item #16A3
STANDARDIZING THE CITYVIEW SOFTWARE SYSTEM
IMPLEMENTED AT GROWTH MANAGEMENT DIVISION
PLANNING & REGULATION, DECLARING CITYVIEW SOLE
SOURCE PRODUCT, WAIVING FUTURE COMPETITION,
AND AUTHORIZING FUTURE SOFTWARE ENHANCEMENTS
— VENDOR MUNICIPAL SOFTWARE CORPORATION, A
DIVISION OF N. HARRIS COMPUTER CORPORATION, IS THE
SOLE PROVIDER AND MANUFACTURER OF SOFTWARE
SPECIFICALLY MODIFIED AND INSTALLED FOR COLLIER
COUNTY; FY14 ENHANCEMENTS ARE BUDGETED AT
$200,000; TO DATE TWO (2) PURCHASE ORDERS TOTALING
$49,950 HAVE BEEN OPENED
Item #16A4
RESOLUTION 2014-28: APPROVING A POST PROJECT
MAINTENANCE AGREEMENT WITH THE FLORIDA
DEPARTMENT OF TRANSPORTATION (FDOT), FOR
MAINTENANCE OF THE TURN LANE AND INTERSECTION
IMPROVEMENTS AT AIRPORT-PULLING ROAD (CR31) AND
Page 178
February 11, 2014
NORTH HORSESHOE DR. UPON COMPLETION OF FDOT
INTERSECTION IMPROVEMENTS — PLANS INCLUDE
REPLACING EXISTING SIGNALS AND CONSTRUCTION OF
DUAL LEFT TURN LANES ONTO HORSESHOE DRIVE
Item #16A5 — Moved to Item #11C (Per Agenda Change Sheet)
Item #16A6
A PROPOSAL WITH HUMISTON & MOORE ENGINEERS
DATED JANUARY 18, 2014 FOR PROFESSIONAL SERVICES
TO DEVELOP A CONCEPTUAL PLAN FOR AN UPDATED
BEACH PROFILE DESIGN ON MARCO ISLAND UNDER
CONTRACT #09-5262-S2, PRIOR TO ITS EXPIRATION
MARCH 8, 2014, AND AUTHORIZE THE COUNTY MANAGER
OR HIS DESIGNEE TO EXECUTE THE WORK ORDER IN A
NOT TO EXCEED AMOUNT OF $9,890 AND MAKE A FINDING
THE EXPENDITURE PROMOTES TOURISM — TO DEVELOP A
CONCEPTUAL PLAN FOR AN UPDATED BEACH PROFILE
DESIGN FOR MARCO ISLAND'S PUBLIC BEACH BETWEEN
(DEP) REFERENCE MONUMENTS R-135 & R-141 TO HELP
REDUCE WATER PONDING ALONG THE UPLAND PORTION
OF THE BEACH BERM JUST SEAWARD OF THE DUNE AREA
Item #16A7 — Moved to Item #11D (Per Agenda Change Sheet)
Item #16B1
COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS
(BCC), ACTING AS THE COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY (CRA) APPROVE AMENDMENT
#01 TO AGREEMENT #4600002788 WITH SOUTH FLORIDA
Page 179
February 11, 2014
WATER MANAGEMENT DISTRICT (SFWMD) FOR
IMMOKALEE DRIVE DRAINAGE IMPROVEMENTS — AS
DETAILED IN THE EXECUTIVE SUMMARY
Item #16C1
AMEND AN AGREEMENT WITH COLLECTORSOLUTIONS,
INC, FOR CREDIT CARD AND AUTOMATED CLEARING
HOUSE PROCESSING TO MEET PAYMENT CARD INDUSTRY
DATA SECURITY STANDARDS COMPLIANCE FOR UTILITY
BILLING & CUSTOMER SERVICE DEPARTMENT'S HOSTED
INTERACTIVE VOICE RESPONSE SYSTEM, AND EXTEND
SERVICES TO THE IWEB INTERNET PAYMENT SERVICE
FOR WATER/SEWER BILL PAYMENTS ON AN ANNUAL
BASIS WITH A REDUCTION IN TRANSACTION COSTS FROM
2.7 PERCENT TO 2.35 PERCENT; TERMINATING CONTRACT
#06-3972 DATED JULY 26, 2011 WITH TELEWORKS, INC. AND
ALL RELEVANT AMENDMENTS — TO REDUCE COSTS BY
CONSOLIDATING ALL CREDIT CARD PAYMENT
TRANSACTIONS AND MODIFYING THE MONTH-TO-MONTH
AGREEMENT WITH COLLECTORSOLUTIONS, INC., TO A 1-
YEAR AGREEMENT WITH THREE (3) 1-YEAR RENEWALS
Item #16C2
REQUEST FOR QUOTE #08-5011-111, "REPLACEMENT OF
PROCESS AIR BLOWERS AT SOUTH COUNTY WATER
RECLAMATION FACILITY," WITH QUALITY ENTERPRISES
USA, INC., IN THE AMOUNT OF $645,239.15, FOR SOUTH
COUNTY WATER RECLAMATION FACILITY TECHNICAL
SUPPORT PROJECT NO. 73969 — TO REPLACE TWO
APPROXIMATELY 16-YEAR OLD BLOWERS AT SCWRF
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February 11, 2014
THAT PLAY A CRITICAL ROLE IN WASTEWATER
TREATMENT PROCESSES AND IS EXPECTED TO REDUCE
ANNUAL BLOWER ENERGY CONSUMPTION BY 27 %
Item #16C3
THE COUNTY MANAGER OR HIS DESIGNEE TO ADVERTISE
AN ORDINANCE AMENDING ORDINANCE NO. 2001-73, AS
AMENDED, COLLIER COUNTY'S WATER-SEWER DISTRICT
UNIFORM BILLING, OPERATING, AND REGULATORY
STANDARDS ORDINANCE, TO MAINTAIN COMPATIBILITY
WITH THE COLLIER COUNTY CONSOLIDATED IMPACT FEE
ORDINANCE 2001-13, AS AMENDED
Item #16D1
THREE (3) MORTGAGE SATISFACTIONS FOR STATE
HOUSING INITIATIVES PARTNERSHIP (SHIP) LOANS IN THE
COMBINED AMOUNT OF $23,000 — FOR PROPERTY AT 190
JUNG BOULEVARD, 12100 SITTERLEY STREET AND 2360
14TH STREET NORTH, NAPLES, FLORIDA
Item #16D2
RELEASE OF LIEN FOR AN OWNER OCCUPIED
AFFORDABLE HOUSING DWELLING UNIT FOR WHICH
STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) HAVE
BEEN REPAID IN FULL WITH A FISCAL IMPACT OF $7,698.82
— HABITAT FOR HUMANITY PROPERTY LOCATED AT 12100
SITTERLEY STREET, NAPLES
Item #16D3
Page 181
February 11, 2014
RESOLUTION 2014-29: AMENDING RESOLUTION 2013-227,
THE COLLIER COUNTY DOMESTIC ANIMAL SERVICES FEE
POLICY, TO PROVIDE FOR THE LIMITED WAIVER OF FEES
UNDER SPECIFIC CONDITIONS
Item #16D4
USING CENTRAL FLORIDA REGIONAL TRANSPORTATION
AUTHORITY D/B/A LYNX CONTRACT #14-C-09, TO
PURCHASE BUSES FOR COLLIER AREA TRANSIT SYSTEM —
PURCHASED THROUGH THE CONTRACT BETWEEN LYNX
AND GILLIG, LLC, EFFECTIVE DECEMBER 12, 2013 THRU
DECEMBER 11, 2018 WITH THE COUNTY PAYING FLORIDA
PUBLIC TRANSIT ASSOCIATION $500 FOR EACH BUS
PURCHASED; USING THIS CONTRACT ENABLES BETTER
PURCHASING LEVERAGE AND NEGOTIATING POWER
Item #16D5
AN AFTER-THE-FACT, STANDARD CONTRACT AND
ATTESTATION STATEMENT WITH THE AREA AGENCY ON
AGING FOR SOUTHWEST FLORIDA, INC., D/B/A SENIOR
CHOICES OF SOUTHWEST FLORIDA, AND TO AUTHORIZE
ASSOCIATED BUDGET AMENDMENTS FOR THE FY14
OLDER AMERICANS ACT TITLE III PROGRAM WITH A NET
FISCAL IMPACT OF $ 21,610 — PURSUANT TO GRANT
AWARD CONTRACT #OAA 203.14 THAT WILL FUND THE
PROGRAM JANUARY 1, 2014 THRU DECEMBER 31, 2014
Item #16D6
Page 182
February 11, 2014
AN AGREEMENT WITH THE PELICAN ISLE MASTER
ASSOCIATION, INC. TO PARTIALLY FUND REPAIRS TO A
CULVERT BRIDGE AT PELICAN ISLES AND COCOHATCHEE
RIVER PARK IN THE AMOUNT OF $29,945.30 AND
AUTHORIZE THE NECESSARY BUDGET AMENDMENT —
A PORTION OF THE PERMITTED AREA FOR REPAIR FALLS
ON COUNTY OWNED COCOHATCHEE RIVER PARK
PROPERTY THEREFORE COLLIER COUNTY IS FUNDING
ONE-THIRD OF THE PROJECT THAT WILL BE PERFORMED
BY WEST COAST FLORIDA ENTERPRISES ESTIMATED FOR
COMPLETION BY JULY 15, 2014
Item #16D7
A SUBSTANTIAL AMENDMENT TO THE COMMUNITY
DEVELOPMENT BLOCK GRANT FY2013-2014 ACTION PLAN
AND A SUBRECIPIENT AGREEMENT IN THE AMOUNT OF
$385,000 WITH COLLIER COUNTY HOUSING AUTHORITY
FOR AN ELECTRICAL REWIRING PROJECT AT FARM
WORKER VILLAGE IN IMMOKALEE — AMENDED TO
REFLECT 71 UNITS THAT WILL BE REWIRED INSTEAD OF
THE 150 INITIALLY PROPOSED AND HUD LENDING
TECHNICAL ASSISTANCE AND WORKING CLOSELY WITH
CCHA FOR COMPLIANCE AND TIMELY COMPLETION
Item #16D8
AMENDMENTS TO TWO (2) SUBRECIPIENT AGREEMENTS
WITH IMMOKALEE NON-PROFIT HOUSING, INC. D/B/A
IMMOKALEE HOUSING & FAMILY SERVICES FOR FUNDING
TIMBER RIDGE COMMUNITY CENTER AND SAUNDERS
PINES PLAYGROUND UPGRADES WITH COMMUNITY
Page 183
February 11, 2014
DEVELOPMENT BLOCK GRANT (CDBG) FUNDS — EXTENDS
THE COMPLETION DATE FROM FEBRUARY 28, 2014 TO
MAY 31, 2014 DUE TO DELAYS IN COMPLETING THE
ENVIRONMENTAL REVIEW PROCESS FOR THE PROJECTS
Item #16D9
THIS ITEM WAS CONTINUED FROM THE JANUARY 28, 2014
BCC MEETING. RESOLUTION 2014-30: A RESOLUTION
SUPERSEDING RESOLUTION NO. 2013-28 ESTABLISHING
NEW BIKE LOCKER RENTAL FEES, POLICIES AND
PROCEDURES — FOR THE SIX (6) LOCKERS THAT WILL BE
AVAILABLE TO RENT AT CAT'S GOVERNMENT COMPLEX
FACILITY
Item #16D10
A ONE-TIME FACILITY USE AGREEMENT WITH VOICES
FOR KIDS OF SOUTHWEST FLORIDA FOR AFTER-HOURS
EVENT RENTAL OF THE NAPLES DEPOT MUSEUM — FOR
A FEBRUARY 22, 2014 FUND RAISING EVENT WITH
PROCEEDS BENEFITTING THE GUARDIAN AD LITEM
PROGRAM THAT INCLUDED A DONATION OF $300 TO THE
NAPLES DEPOT MUSEUM; STAFF INTENDS TO CONTRACT
WITH AN OUTSIDE FIRM TO MANAGE, COORDINATE AND
PROMOTE FUTURE EVENT RENTALS TO HELP GENERATE
REVENUE AND SUPPLEMENT THE MUSEUM'S BUDGET
Item #16E1
AUTHORIZING THE SALE OF COLLIER COUNTY SURPLUS
PROPERTY ON MARCH 29, 2014; AUTHORIZE THE COUNTY
Page 184
February 11, 2014
MANAGER OR DESIGNEE TO SIGN FOR THE TRANSFER OF
VEHICLE TITLES AND A COUNTY ATTORNEY APPROVED
NAPLES AIRPORT SPACE LEASE; AND, AUTHORIZING A
DONATION OF PREVIOUSLY LOANED RADAR EQUIPMENT
TO THE FLORIDA HIGHWAY PATROL — AS DETAILED IN
THE EXECUTIVE SUMMARY
Item #16E2
A DEED OF CONSERVATION EASEMENT TO THE FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION OVER
PRESERVE LANDS AT THE RESOURCE RECOVERY
BUSINESS PARK — COMPRISING 167.178 +/- NET ACRES OFF
OF COLLIER BOULEVARD, NORTH OF THE COUNTY
LANDFILL AND INCLUDES IMPLEMENTATION OF ON-SITE
MITIGATION TO PROTECT, MAINTAIN AND MANAGE
SELECT WETLAND & UPLAND AREAS, PANTHER HABITAT
AND LISTED SPECIES PER FDEP PERMIT #11-0285328-002
AND ARMY CORPS OF ENGINEERS PERMIT #SAJ-2011-00626
Item #16E3
ACCEPT REPORTS AND RATIFY STAFF-APPROVED
CHANGE ORDERS AND CHANGES TO WORK ORDERS — FOR
THE PERIOD DECEMBER 13, 2013 TO JANUARY 15, 2014
Item #16E4
AN ASSUMPTION AGREEMENT FOR CONTRACT #10-5513,
"SUBLET/PARTS BID FOR COLLIER COUNTY" FOR FLEET
MANAGEMENT SERVICES, REPAIR PARTS, ACCESSORIES,
AND END ITEMS FROM FLORIDA DETROIT DIESEL
Page 185
February 11, 2014
ALLISON, INC. TO STEWART & STEVENSON FDDA, LLC —
WITH THE CONTRACT END DATE SEPTEMBER 27, 2014
Item #16E5
RATIFYING PROPERTY, CASUALTY, WORKERS'
COMPENSATION AND SUBROGATION CLAIM FILES
SETTLED AND/OR CLOSED BY THE RISK MANAGEMENT
DIRECTOR PURSUANT TO RESOLUTION #2004-15 FOR THE
FIRST QUARTER OF FY 14 — AS DETAILED IN THE
EXECUTIVE SUMMARY
Item #16E6
RETROACTIVELY APPROVING CHANGE ORDERS #1 AND 2
TO CONTRACT #13-6084 FOR PELICAN BAY CROSSWALK
CONSTRUCTION PROJECT NO. 50066 WITH QUALITY
ENTERPRISES USA, INC. — CHANGE ORDER #1 WENT TO
PURCHASING STAFF DECEMBER 23, 2013 AND INCREASED
THE CONTRACT $20,384.76 FROM THE ORIGINAL AMOUNT
OF $191,638.87 AND ADDED TWENTY-ONE (21) DAYS TO
THE PROJECT COMPLETION DATE RESULTING IN A
CHANGE ORDER GREATER THAN TEN (10) PERCENT THAT
SHOULD HAVE BEEN REPORTED AND APPROVED BY THE
BOARD PRIOR TO THE WORK BEING EXECUTED; CHANGE
ORDER #2 EXTENDED THE COMPLETION DATE ANOTHER
FOURTEEN DAYS (14) GIVING THE FINAL DATE OF
JANUARY 31, 2014
Item #16E7
A SECOND AMENDMENT TO LEASE AGREEMENT WITH
Page 186
February 11, 2014
LG MERCANTILE HOLDINGS, LLC, FOR CONTINUED USE OF
WAREHOUSE/OFFICE SPACE BY THE SHERIFF'S OFFICE —
EXTENDING THE LEASE TO FEBRUARY 14, 2015, WITH FIVE
(5) ADDITIONAL ONE-YEAR RENEWALS FOR 7,000 SQUARE
FEET OF SPACE AT 4373 MERCANTILE AVENUE WITH AN
ANNUAL RENT OF $54,384 (ORIGINALLY $84,000)
Item #16E8
A PAYMENT OF $26,800 TO QUALITY ENTERPRISES USA,
INC. FOR SERVICES RENDERED TO CORRECT PARKING
CONDITIONS IN BAYVIEW PARK (PROJECT #80060) AND
WAIVE THE COMPETITIVE SOLICITATION REQUIREMENT
PURSUANT TO THE PURCHASING ORDINANCE NO. 13-69,
SECTION NINE (B)(3) — A PURCHASE ORDER WAS ISSUED
FOR WORK IN 2013 UNDER CONTRACT #12-5864 WITHOUT
REQUESTING QUOTES FROM OTHER VENDORS, WHICH IS
REQUIRED UNDER TERMS OF THE CONTRACT
Item #16E9 — Withdrawn (Per Agenda Change Sheet)
RECOMMENDATION TO AWARD BID #13-6113,
"JANITORIAL SERVICES," TO ISS FACILITY SERVICES FOR
COUNTY-WIDE JANITORIAL CLEANING AND SERVICES
Item #16F1
RESOLUTION 2014-31 : APPROVING AMENDMENTS
(APPROPRIATING GRANTS, DONATIONS, CONTRIBUTIONS
OR INSURANCE PROCEEDS) TO THE FISCAL YEAR 2013-14
ADOPTED BUDGET
Page 187
February 11, 2014
Item #16F2
A REPORT COVERING A BUDGET AMENDMENT
IMPACTING RESERVES IN AN AMOUNT UP TO AND
INCLUDING $24,000 AND BUDGET AMENDMENT MOVING
FUNDS — BA #14-205, FOR FUNDS TO PURCHASE AND
INSTALL BOAT LAUNCH METERS
Item #16G1
T-HANGAR AND TIE-DOWN AGREEMENTS FOR
EVERGLADES AIRPARK, IMMOKALEE REGIONAL AIRPORT
AND MARCO ISLAND EXECUTIVE AIRPORT AS EXECUTED
BY AIRPORT MANAGER'S AND THE COUNTY MANAGER'S
DESIGNEE — AS DETAILED IN THE EXECUTIVE SUMMARY
Item #16G2
AIRPORT AUTHORITY TO PROCEED WITH CONSTRUCTION
OF THE SOUTH TAXIWAY EXTENSION AT EVERGLADES
AIRPARK, DESPITE NOT RECEIVING FDOT GRANT FUNDS
AND AUTHORIZE NECESSARY BUDGET AMENDMENTS —
FDOT RESCINDED THEIR GRANT OFFER IN THE AMOUNT
OF $14,296 (5% OF PROJECT COSTS) BECAUSE A THIRD
PARTY AGREEMENT (CONTRACT #13-6044) WITH QUALITY
ENTERPRISES USA, INC. WAS AWARDED BEFORE THE
FDOT GRANT AGREEMENT WAS FULLY EXECUTED
Item 416G3 — Moved to Item #14A1 (Per Agenda Change Sheet)
Item #16H1
Page 188
February 11, 2014
COMMISSIONER FIALA'S REIMBURSEMENT REGARDING
ATTENDANCE AT A FUNCTION SERVING A VALID PUBLIC
PURPOSE. SHE ATTENDED LEAGUE CLUB INSPIRATION &
ANECDOTES WITH DORRIS GOODWIN FEBRUARY 7, 2014.
A SUM OF $70 TO BE PAID FROM COMMISSIONER FIALA'S
TRAVEL BUDGET — HELD AT THE GRAND LAWN PAVILION
LOCATED AT THE RITZ-CARLTON GOLF RESORT
Item #16H2
COMMISSIONER FIALA'S REIMBURSEMENT REGARDING
ATTENDANCE AT A FUNCTION SERVING A VALID PUBLIC
PURPOSE. SHE WILL ATTEND THE STARS IN THE ARTS
AWARDS LUNCHEON ON MARCH 7, 2014. A SUM OF $50 TO
BE PAID FROM COMMISSIONER FIALA'S TRAVEL BUDGET
— WILL BE HELD AT THE WALDORF ASTORIA LOCATED AT
475 SEAGATE DRIVE, NAPLES
Item #16H3
RESOLUTION 2014-32: REAPPOINTING CHARLES F. HAWKIN
TO THE OCHOPEE FIRE CONTROL DISTRICT ADVISORY
COMMITTEE TO A TERM EXPIRING DECEMBER 31, 2015 —
ADOPTED
Item #16I1
MISCELLANEOUS ITEMS TO FILE FOR RECORD WITH
ACTION AS DIRECTED
Page 189
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
February 11, 2014
1. MISCELLANEOUS ITEMS TO FILE FOR RECORD WITH ACTION AS DIRECTED:
A. MISCELLANEOUS CORRESPONDENCE:
1) Cedar Hammock Community Development District:
Meeting Agenda 04/15/13; 10/14/13
Meeting Minutes 04/15/13; 10/14/13
2) Naples Heritage Community Development District:
Meeting Agenda 11/05/13
Meeting Minutes 11/05/13
3) Heritage Greens Community Development District:
Meeting Agenda 10/21/13; 11/18/13
Meeting Minutes 10/21/13; 11/18/13
4) Port of the Islands Community Improvement District:
Meeting Agenda 11/15/13; 12/20/13
Meeting Minutes 11/15/13; 12/20/13
5) Riviera Golf Estates Homeowner's Association, Inc:
January 7, 2014 Budget Meeting Notice & Agenda
2014 Proposed Budget
February 26, 2014 Annual Membership Meeting First Notice
Annual Election Process Information
Annual Membership Meeting Supplemental Information
6) Collier County Housing Authority:
January 10, 2014 letter to Dwight E. Brock, Clerk of the Circuit Court
acknowledging the submission of reporting requirements per statute
Housing Authority 2013-2014 Scheduled Board Meetings
Audit Report of Basic Financial Statements, Supplemental Information
and Single Audit Year End September 30, 2013
February 11, 2014
Item #16J1
DISBURSEMENTS FOR THE PERIOD OF JANUARY 17, 2014
THROUGH JANUARY 23, 2014 AND FOR SUBMISSION INTO
THE OFFICIAL RECORDS OF THE BOARD
Item #16J2
DISBURSEMENTS FOR THE PERIOD OF JANUARY 24, 2014
THROUGH JANUARY 30, 2014 AND FOR SUBMISSION INTO
THE OFFICIAL RECORDS OF THE BOARD
Item #16J3
DISBURSEMENTS FOR THE PERIOD OF JANUARY 31, 2014
THROUGH FEBRUARY 5, 2014 AND FOR SUBMISSION INTO
THE OFFICIAL RECORDS OF THE BOARD
Item #16J4
PROVIDING THE BOARD OF COUNTY COMMISSIONER'S
THE CLERK OF THE CIRCUIT COURT'S AUDIT REPORT
2014-2, FEE PAYMENT ASSISTANCE PROGRAM: ADVANCED
MEDICAL CENTER, LLC (COMPANION TO ITEM #16K2)
Item #16K1
A PROPOSED SETTLEMENT AGREEMENT REACHED BY
PARTIES IN THE LAWSUIT STYLED BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, V. BAY
ELECTRIC OF COLLIER, INC. AND BENTLEY ELECTRIC
COMPANY OF NAPLES, FL, INC., CASE NO. 13-2365-CC, FILED
Page 190
February 11, 2014
IN COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA, FOR THE SUM OF
$7,382.42, AND TO AUTHORIZE THE CHAIR TO EXECUTE
THE PROPOSED SETTLEMENT AGREEMENT
Item #16K2
COUNTY ATTORNEY TO WORK WITH THE COUNTY
MANAGER, OR HIS DESIGNEE, TO NEGOTIATE WITH THE
CURRENT OWNERS OF 1250 PINE RIDGE ROAD ON THE
MATTER OF THE TERMS AND OBLIGATIONS OF THE FEE
PAYMENT ASSISTANCE AGREEMENT EXECUTED
BETWEEN COLLIER COUNTY AND ADVANCED MEDICAL
CENTER, LLC, AND IN THE EVENT A MUTUALLY AGREED
UPON SOLUTION CANNOT BE REACHED, AUTHORIZE THE
OFFICE OF THE COUNTY ATTORNEY TO INITIATE ANY
AND ALL LEGAL ACTION INCLUDING, BUT NOT LIMITED
TO LIEN FORECLOSURE (COMPANION TO ITEM #16J4)
Item #16K3
CHAIRMAN TO EXECUTE A PROPOSED COLLIER COUNTY
EMERGENCY SERVICES DEPUTY MEDICAL DIRECTOR
AGREEMENT WITH DR. DOUGLAS S. LEE — A 5-YEAR
AGREEMENT WITH AN ANNUAL SALARY OF $50,000 AND
THREE 1-YEAR RENEWALS; TO SUPPORT THE MEDICAL
DIRECTOR AND ASSUME DUTIES IN HIS ABSENCE
Item #16K4
ASSUMPTION AGREEMENT SUBSTITUTING THE LAW FIRM
FIXEL & WILLIS FOR THE FIRM FIXEL, MAGUIRE & WILLIS
Page 191
February 11, 2014
IN THE RETENTION AGREEMENT DATED APRIL 24, 2007
AND AMENDED JANUARY 25, 2011 AND JANUARY 22, 2013 —
ASSUMPTION OF EMINENT DOMAIN LEGAL SERVICES
UNDER CONTRACT #06-4047 DUE TO THE RENAMING OF
THE FIRM FOR THE PERIOD ENDING APRIL 22, 2015
Item #17A
ORDINANCE 2014-04: AMENDING CHAPTER 74 OF COLLIER
COUNTY CODE OF LAWS AND ORDINANCES, WHICH IS
THE COLLIER COUNTY CONSOLIDATED IMPACT FEE
ORDINANCE, PROVIDING FOR MODIFICATIONS DIRECTED
BY THE BOARD OF COUNTY COMMISSIONERS RELATED
TO A CHANGE IN THE TIMING OF PAYMENT OF IMPACT
FEES TO ISSUANCE OF A CERTIFICATE OF OCCUPANCY
Item #17B
ORDINANCE 2014-05: AMENDING CHAPTER 74 OF COLLIER
COUNTY CODE OF LAWS AND ORDINANCES, THE COLLIER
COUNTY CONSOLIDATED IMPACT FEE ORDINANCE, TO
INCORPORATE PROVISIONS CLARIFYING THE IMPOSITION
OF WATER AND SEWER IMPACT FEES ON GEOGRAPHIC
AREAS WITHIN THE COLLIER COUNTY WATER-SEWER
DISTRICT, BY ELIMINATING THE REQUIREMENT TO PAY
SUCH IMPACT FEES UNLESS A CONNECTION IS MADE
Item #17C — Continued to the February 25, 2014 BCC Meeting (Per
Agenda Change Sheet)
RECOMMENDATION TO ADOPT AN ORDINANCE
AMENDING ORDINANCE NO. 97-8, AS AMENDED,
Page 192
February 11, 2014
RELATING TO THE COLLIER COUNTY FALSE ALARM
ORDINANCE
*****
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 5:10 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS CONTROL
' ' I
n
TOM HENNING, CHAI ' ' AN
•
ATTEST: , -, ,
DWIGHT E. _BgOCK, CLERK
gip ,I
-. aj,tiiiccf. iT -.: . Qc_
Attest as -to
signature only.
These mynas approved by the Board on tact 2V\ I (Lci4, as presented
or as corrected .
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTING SERVICE, INC., BY TERRI LEWIS, COURT
REPORTER AND NOTARY PUBLIC.
Page 193