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Agenda 01/26/2010 Item #17AAgenda Item No. 17A January 26, 2010 Page 1 of 11 EXECUTIVE SUMMARY Recommendation to authorize the Chairman to sign a resolution designating 4,793.5 acres in the Rural Lands Stewardship Area (RLSA) as Sunniland Family Limited Partnership SSA 12 ( "Sunniland Family SSA 12 "), approving a credit agreement for Sunniland Family SSA 12, approving an easement agreement for Sunniland Family SSA 12, approving an escrow agreement for Sunniland Family SSA 12, and establishing the number of Stewardship Credits generated by the designation of said Stewardship Sending Area in response to an application by Sunniland Family Limited Partnership, a Florida limited partnership. OBJECTIVE: The Stewardship Credit Program is the foundation of the Rural Lands Stewardship Area Zoning Overlay District (RLSA), which has been recognized in Florida, regionally, and nationally for visionary methodology to preserve environmentally significant land, to protect agricultural land and to direct growth to suitable locations. Collier County adopted the RLSA Overlay as the implementing regulation for the Growth Management Plan amendments known broadly as the "Rural/Eastem Lands Amendments" which were developed in response to Administration Commission Final Order No. AC99 -002 which required a "Rural and Agricultural Assessment'. The Land Development Code (LDC) was amended to include Section 4.08.00 entitled, "Rural Lands Stewardship Area Zoning Overlay District Standards and Procedures." This application by Sunniland Family Limited Partnership, a Florida limited partnership, is a proactive measure to further enhance the environmental value of this area by removing land use layers and by dedicating portions of the Sunniland Family SSA 12 area for restoration activities. The removal of land use layers and the dedication of portions for restoration activities would result in the award of 14,805.1 Stewardship Credits upon approval of the SSA, and an additional 8,731.6 Stewardship Credits after restoration is completed. CONSIDERATIONS: This Designation Application (2008 -AR- 13182) proposes a Stewardship Sending Area consisting of 4,793.5 acres located in the RLSA. On all 4,793.5 acres (100.0 1/o) land use layers 1 -6 would be removed to Agriculture — Group 2 (Ag -2). SSA 12 is strategically located immediately north of and contiguous to the Big Cypress National Preserve and within the Area of Critical State Concern (ACSC). The legal descriptions have been checked and the acreage verified as correct. The permanent removal of these more intensive land use layers will protect natural resources and agricultural activities as envisioned in the RLSA Overlay, including the protection of a wide variety of endangered species, such as the Florida panther, Florida black bear, Big Cypress fox squirrel, wading birds, Florida sandhill cranes, reptiles, amphibians, and listed plant species such as air plants and various orchids occurring within SSA 12. SSA 12 provides a major benefit for Florida panther conservation simply by protecting the land and limiting future land uses to passive agricultural activities (e.g., cattle grazing) within the panther core population. The proposed Restoration Program for SSA 12 includes a restoration program that will restore and perpetually manage 2,182.9 acres for restoration of the flowway functions within the Okaloacoochee Slough via the breaching and/or partial removal of old drainage features (dikes, canals, etc.). This flowway restoration will enhance water conveyance (i.e., sheet flow) over a range of hydrologic conditions, and will also provide hydrologic benefits to offsite areas such as the Florida Panther National Wildlife Refuge and the Big Cypress National Preserve that 1 Agenda Item No. 17A January 26, 2010 currently receive less sheet flow as compared to pre - settlement conditions. The potentialP@0 dlbf 11 Land Use Layers 7 -8 land uses on 4,793.5 acres will remain. 4.08.06 BA.b Land Use Matrix (P--Permitted; A= Accessory; CU= Conditional Use) aver 1 a erg ) (Layer 3)1 Layer 4) (Laver 5 (Layer 6) (Layer 7) (Layer 8 Residential General Earth Mining Agriculture Agriculture Agriculture Conservation, Land Uses Conditional and Recreational Group 7 - Support Uses Group 2 Restoration and Natural to residential Uses Processing Uses species (P) and non- processing of farm facilities and their Resources development centers Uses iative species (CU) products produced related modes of Single - family Family care Excavator, Goff courses Crop raising; Fan labor housing Unimproved pasture Wildlife management dwelling, ind. faclifies (P) extraction or and/or guff horticulture; fruit (A) and grazing, fimsby plant and wildlife mobile home (P earthmining and driving ranges and nut (P) ooreervarxies, refuges community related processing (CU) production; operations, such as and sanctuaries (P) center building and production graves; nurseries; but not limited to and tennis (CU) improved pasture airboats, swamp facilities, parks, (P) buggies, horses and Mobile Mmes Collection and Asphaltic and Sports Animal breeding Retail sale of fresh, Ranching; livestock Water management [(P) in MH transfer sites for concrete batch Instructional (other than Unprocessed raising (P) groundwater recharge (P) Overlay; (A) as resource recovery making plants (CU) schools and livestock), raising agricultural products; temporary use] (CU) camps (CU) training, stabling grown primary on Excavation and Boardwalks, nature trails A) aviary, botanical production, raising or e related processing (P) garden, or other kenneling (P) property (A) incidental to Ag(A) Private Veterinary clinic Sporting and Dairying, Retail plant nurseries Hunfirg cabins (CU) Restoration, mitigation (P) boathouses and (CU) Recreational beekeeping; (CU) Natural resources not docks on lake, other places of ramps (CU) poultry and egg otherwise listed (P) canal or worship (CU) production; milk waterway lots production (P) A and venomous(CU) Recreabonal Child care centers Aquacu ure for Packinghouse or Culture[, educational, Water supply, well fields facilities integral and adult day alive similar agricultural or recreational (P); oil and gas to residential nre species (P) and non- processing of farm facilities and their exploration (P) development centers iative species (CU) products produced related modes of e.g., gaff on transporting nurse, the property (A) Participants, viewers clubhouse, or patrons; tour community operations, such as center building but not limited to and tennis airboats, swamp facilities, parks, buggies, horses and playgrounds similar modes of and transportation (CU) I Ids A Guesthouses Zoo, aquarium, The commercial Sawmills (CU) Excavation and Boardwalks, nature trails A) aviary, botanical production, raising or related processing (P) garden, or other breeding or exotic incidental to Ag(A) similar uses (CU) animals (CU) Churches and Wholesale reptile Natural resources not other places of breeding and raising otherwise listed (P) worship (CU) nonaenomous (P) and venomous(CU) Communications Essential services (P and towers (P)(CU) CU) Social and Oil and gas field Fraternal development and organizations production (CU) CU Private lending strips for general aviation C Cemeteries (CU) Schools (CU) oup care acilibes, ALF CU Agenda Item No. 17A January 26, 2010 The removal of land use layers yields Stewardship credits measured on a per acre 1B $011 calculated as follows: Natural Resource Index Value x (times) a factor representing all layers removed. The removal of Land Use Layers 1 -6 yields a factor of 0.9. The cumulative table of all base credits generated in SSA 12 is shown in Exhibit F of the Credit Agreement and summarized below. Staff has reviewed and agrees with the calculation of credits generated by the removal of these land use layers and the Natural Resource Index values supporting them. Table 1 [of SSA 12 application] Acres Credits Ag 2 4.793.5 8.972.5 Totals 4,793.5 8,972.5 Early Entry Bonus credits were established to encourage participation in the Stewardship Credit program. Early Entry Bonus credits are awarded in the amount of 0.5 credits per Habitat Stewardship Area (HSA) acre located within the Area of Critical State Concern (ACSC) and 1.0 credits per HSA acre located outside the ACSC. The application for SSA 12 was submitted on April 10, 2008 and the deadline for eligibility for the early entry bonus was January 30, 2009. Based on the type and location of HSA acreage within SSA 12, the applicant would be entitled to a total of 1,466.8 Early Entry Bonus credits. A summary of these credits is shown below. Staff has reviewed and agrees with these figures. Table 7 [of SSA 12 application] EARLY ENTRY BONUS CALCULATIONS 2,933.6 HSA Acres inside the ACSC x 0.5 Early Entry Bonus Credits per Acre inside the ACSC 1,466.8 Early Entry Bonus Credits (inside ACSA) 0 HSA Acres outside ACSA x 1.0 Early Entry Bonus Credits per Acre outside ACSC 0 Early Entry Bonus Credits (outside ACSA) 1,466.8 Total Early Entry Bonus Credits Restoration Stewardship credits are awarded at the rate of two (2) credits per acre for land "dedicated for restoration activities within the Okaloacoochee Slough, contiguous HSAs, or those portions of the Restoration Zone depicted on the RLSA Overlay Map that are contiguous to the Okaloachoochee Slough" [LDC Subsection 4.08.06 B.3.£(2)]. "The actual implementation of restoration improvements is not required for the owner to receive such credits... "(LDC Subsection 4.08.06 B.313). Referred to as R -1, selected areas are made available for restoration activities based on current conditions of the property and benefits to be derived from restoration work. The applicant has submitted a Restoration Analysis and Report (Restoration Plan) as required in the application. Restoration credits are also available at the rate of four (4) credits per acre for the completion of restoration activities by the applicant (R -2). These credits are authorized at the time of SSA designation, but are not available for transfer until success criteria are met. The applicant has submitted a Restoration Plan as Exhibit G to the Credit Agreement, as required by the LDC for R -2 approval. All proposed restoration areas in SSA 12, totaling 2,182.9 acres, include both R -1 3 Agenda Item No. 17A January 26, 2010 and R -2 credits. These areas are depicted in Exhibit D to the Credit Agreement. The rest6mOdhof 11 activities will consist of hydrologic restoration improvements that will reduce physical impediments to sheet flow and functionally enhance the flowway's natural hydrologic regime; restoration improvements that will breach and/or partially remove berms to the natural grade of adjacent lands within Flowway Restoration Area 1 sufficient to reestablish a natural flow regime; ecological restoration improvements within the Flowway Restoration Area by the controlling of exotic and nuisance vegetation to levels less than 5% area coverage; and associated activities as more specifically described in the Restoration Plan labeled as Exhibit G to the Credit Agreement. Staff reviewed this Restoration Plan and conducted an extensive site visit with respect to the 2,182.9 acres proposed for R -1 and R -2 restoration. A summary of restoration credits follows: Table 6 [of SSA 12 application] ORATION CREDIT CALCULATIONS The SSA 12 credit total below shows the sum of Base Credits, Early Entry Bonus Credits and Restoration Credits: Table 8 [of SSA 12 application] TOTAL STEWARDSHIP CREDITS GENERATED Of the total credits, 14,805.1 credits would be immediately available which is calculated by totaling the 8,972.5 Base Credits, 1,466.8 Early Entry Bonus Credits and the R -1 Restoration Credits of 4,365.8. The remaining 8,731.6 credits are associated with R -2 restoration and, as such, they become available only after success criteria are met as specified in the Credit Agreement. LEGAL CONSIDERATIONS: Applicants petitioning for Stewardship Sending Areas, who will obtain SSA credits for the land so designated, must include a Credit Agreement per LDC Section 4.08.06.C.5. Sunniland Family Limited Partnership has voluntarily requested that the subject area be designated as a Stewardship Sending Area and has provided the required Credit Agreement which is also included by reference herein. LDC Section 4.08.06.C.6 requires that the SSA Credit Agreement shall be approved by a resolution of the Board of County Commissioners (BCC) at an advertised public meeting by majority vote. A resolution is submitted for the subject area, which is attached. Additionally, the LDC requires in Section 4.08.06.C.7 that, following approval by the County, an SSA memorandum shall be prepared and recorded in the public records, together with necessary portions or exhibits. 4 Agenda Item No. 17A January 26, 2010 LDC Section 4.08.06.C.8 requires that the applicant prepare and submit Stewardship EaBftof 11 Agreements in all cases except when the property is being deeded in fee simple to a "conservation/preservation agency." The Stewardship Easement Agreement is also attached. Finally, LDC Section 4.08.06.E.2 requires that, following the Board's approval of the SSA application and SSA Credit Agreement, a legal description of the land designated SSA, the SSA credits granted, and the stewardship easement applicable to such lands, shall be provided to the Collier County Property Appraiser and the applicant, and shall be recorded within 30 days by the applicant in the public records. The applicant proposes to hold the easement in escrow and to record the easement when all permits and authorizations have been obtained for the Alico Stewardship Receiving Area, which shall occur by the 9th day of February, 2015, or the SSA Credit Agreement and Stewardship Easement Agreement are null and void. In the interim, the applicant shall record in the public records within 30 days a notice of interim restrictions. The County Attorney has concluded that this process complies with the intent of the LDC and GMP. The Resolution, Stewardship Sending Area Credit Agreement, Stewardship Easement Agreement, and Escrow Agreement have been reviewed for legal sufficiency. —HFAC FISCAL IMPACT: The applicant, Sunniland Family Limited Partnership, has paid fees totaling $9,500 for the processing and review of the application, and the development and maintenance of a Stewardship Credit System Database for the purpose of tracking credits. There are no additional fiscal impacts associated with the application. GROWTH MANAGEMENT IMPACT: The Rural Lands Stewardship Area Overlay in the Future Land Use Element (FLUE) establishes the process and requirements for establishment of SSAs, the lands qualifying for SSA designation, and the use limitations for lands once they are designated as SSAs. This land use and growth management tool is implemented through the Rural Lands Stewardship Area Zoning Overlay. The zoning overlay is based upon requirements and limitations contained in the FLUE. Therefore, inasmuch as staff's analysis indicates this petition for designation of Sunniland Family SSA 12 is in compliance with the RLSA Zoning Overlay, it may also be found to be consistent with the FLUE. The applicant of SSA #12 intends to utilize the stewardship credits from this SSA to partially enable the development of the proposed Alico Stewardship Receiving Area. Accordingly, the applicant for SSA #12 has proposed an Escrow Agreement, shown as Exhibit 4 to the Resolution, which delays the recordation of the Easement Agreement into public records until such time that all requirements in the Escrow Agreement and the SRA Credit Agreement provisions of the LDC are complied with. This proposed delay in the recordation of the Easement Agreement is not expressly authorized in the LDC; however, the County Attorney has opined that the recording of the notice of restrictions until the easement is recorded is consistent with the intent of the LDC. RECOMMENDATION: That the Board of County Commissioners adopt a resolution designating 4,793.5 acres in the Rural Lands Stewardship Area Overlay as Stewardship Sending Area 12 ( "Sunniland Family SSA 12 "); approve the Credit Agreement for Sunniland Family SSA 12 and the number of stewardship credits generated by the designation of said Stewardship Sending Area in response to an application by Sunniland Family Limited Partnership, a Florida limited partnership; approve the Easement Agreement for Sunniland Family SSA 12; approve the Escrow Agreement for Sunniland Family SSA 12; and direct the County Manager or his 5 Agenda Item No. 17A January 26, 2010 designee to prepare a SSA memorandum to be recorded in the public records together 49641kof 11 necessary portions or exhibits of the SSA Credit Agreement and Easement; direct the County Manager or his designee to provide said documents to the Collier County Property Appraiser and the applicant; and require the applicant to comply with the provisions of the Escrow Agreement made a part of its approval with respect to recordation. PREPARED BY: Mike Bosi, AICP, Manager, Comprehensive Planning Department 6 Agenda Item No. 17A January 26, 2010 Page 7 of 11 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number. 17A Item Summary: This item was odginaily scheduled and advertised for the January 26, 2010 BCC Hearing and is further continued to the February 9, 2010 BCC Hearing. This item requires that all participants be swom in and ex parts disclosure be provided by Commission members. A Resolution of the Collier County Board of County Commissioners designating 4,793.5 Acres in the Rural Lands Stewardship Area Zoning Overlay District as a Stewardship Sending Area with a designation as Sunniland Family SSA 12 pursuant to the terms set forth in the Escrow Agreement, Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12, and Stewardship Easement Agreement for Sunniland Family SSA 12; approving a Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12; approving a Stewardship Easement Agreement for Sunniland Family SSA 12; approving an Escrow Agreement for Sunniland Family SSA 12; and establishing the number of stewardship credits generated by the designation of said Stewardship Sending Area. Meeting Date: 1/26/2010 9:00:00 AM Prepared By Mike Bosl, AICP Manager- Planning Date Community Development & Environmental Services Comprehensive Planning 1/11/2010 9:48:20 AM Approved By William D. Lorenz, Jr., P.E. Director- CDES Engineering Services Date Community Development & Environmental Services Engineering & Environmental Services 1111/2010 11:09 AM Approved By Mike Bosl, AICP Manager - Planning Date Community Development & Environmental Services Comprehensive Planning 1/11/20101:37 PM Approved By Judy Puig Operations Analyst Date Community Development & Community Development & Environmental Services Environmental Services 111112010 3:03 PM Approved By OMB Coordinator Date County Manager's Office Office of Management & Budget 1/1412010 8:58 AM Approved By Leo E. Ochs, Jr. County Manager Date County Managers Office County Managers Office 111 812010 10:31 AM Agenda Item No. 17A January 26, 2010 Page 8 of 11 RESOLUTION 2010- A Resolution of the Collier County Board of County Commissioners designating 4,793.5 Acres in the Rural Lands Stewardship Area Zoning Overlay District as a Stewardship Sending Area with a designation as "Sunniland Family SSA 12" pursuant to the terms set forth in the Escrow Agreement, Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12, and Stewardship Easement Agreement for Sunniland Family SSA 12; approving a Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12; approving a Stewardship Easement Agreement for Sunniland Family SSA 12; approving an Escrow Agreement for Sunniland Family SSA 12; and establishing the number of stewardship credits generated by the designation of said Stewardship Sending Area WHEREAS, Sunniland Family Limited Partnership, a Florida Limited Partnership, owns approximately four thousand seven hundred ninety -three and five tenths (4,793.5) acres located within the boundaries of the Rural Lands Stewardship Area Zoning Overlay District ( "RLSA District') located in Collier County, Florida; and WHEREAS, Owner has voluntarily requested that said land be designated as a Stewardship Sending Area ( "SSA") in accordance with, and pursuant to Section 4.08.06 of the Collier County Land Development Code ( "LDC") and the terms of the Escrow Agreement for Sunniland Family SSA 12 Stewardship Sending Area Credit and Stewardship Easement Agreement; and WHEREAS, Owner has submitted a SSA Designation Application ( "Application ") for the Sunniland Family SSA 12 land; and 1 Agenda Item No. 17A January 26, 2010 Page 9 of 11 WHEREAS, Collier County Staff has reviewed the Application, along with support documentation and information required by Section 4.08.06 of the LDC, and determined that the Application is legally sufficient; and WHEREAS, the Collier County Board of County Commissioners ('Board ") has determined the Escrow Agreement, Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12, and Stewardship Easement Agreement for Sunniland Family SSA 12 are in compliance with, and meet the requirements of the LDC, and provide a substantial benefit to the general public. NOW, THEREFORE, be it resolved by the Board that: Sunniland Family SSA 12, as described in attached Exhibit 1, consisting of approximately four thousand seven hundred ninety - three and five tenths (4,793.5) acres is hereby designated as a Stewardship Sending Area ( "SSA"), and will be officially designated as "Sunniland Family SSA 12 " on the Official Zoning Atlas Map pursuant to the terms of the Escrow Agreement for Sunniland Family SSA 12, Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12 and the Stewardship Easement Agreement for Sunniland Family SSA 12. 2. The Stewardship Credit Agreement for Sunniland Family SSA 12, attached hereto as Exhibit 2, meets the requirements of Section 4.08.06 of the LDC and the Board hereby approves the Stewardship Credit Agreement for Sunniland Family SSA 12. 3. The Stewardship Easement for Sunniland Family SSA 12, attached hereto as Exhibit 3, meets the requirements of Section 4.08.06 of the LDC and the Board hereby approves the Stewardship Easement Agreement for Sunniland Family SSA 12. 4. The Escrow Agreement for Sunniland Family SSA 12, attached hereto as Exhibit 4, is hereby approved by the Board which provides for the delay of the recordation of the Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12 and the Stewardship Easement Agreement until such time as the proposed development project has received the necessary final and non - appealable local, state and federal permits, other than plat, site development plan and building permit, necessary to construct the development project consistent with the provisions of Section 4.08.07 of the Collier County Land Development Code. 5. The Board hereby establishes, grants and assigns fourteen thousand eight hundred and five and one tenth (14,805.1) Stewardship Credits to the Owner, which may be sold, transferred, 2 Agenda Item No. 17A January 26, 2010 Page 10 of 11 or otherwise utilized by the Owner in accordance with Section 4.08.04 of the LDC and the terms of the Escrow Agreement for Sunniland Family SSA 12; Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12 and the Stewardship Easement Agreement for Sunniland Family SSA 12. 6. The Board hereby establishes and authorizes an additional eight thousand seven hundred and thirty one and six tenths (8,731.6) Stewardship Credits to be transferred to the Owner under the terms of the Credit Agreement attached hereto as Exhibit 2. 7. The Board further approves and authorizes the acceptance of the Stewardship Easement Agreement for the Sunniland Family SSA 12 lands. 8. By its designation of the lands described in Exhibit 1 as a Stewardship Sending Area, the County shall not hereafter grant or approve any increase in the density or additional uses beyond those uses specifically authorized in the Sunniland Family SSA 12 Credit Stewardship Sending Area Credit Agreement. THIS RESOLUTION ADOPTED this day of , 2010, after a Motion, seconded, and majority vote favoring same. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA ATTEST: DWIGHT E. BROCK By: Deputy Clerk FRED COYLE, Chairman Approved as to form and legal sufficiency: By:Heidi Ashton - Cicko, Assistant County Attorney Land Use Section, Chief Naples Daily News • Suaday, January 2% 2020.25A• PUBLIC NOTICE" PUBLIC NOTICE PUBLIC NOTICE 7 uNOTCE ®fi'iNT TO CONSIDER RESOLUTION Notice is hereby given that on. Tuesday, January 26, 2010 In the County Commis- sioners Boardroom, 3rd Floor, W. Harmon Tumor Building (Bldlo. -F), Collier County i Government Center, 3301 East Tamiami Trail, Naples, Flanda the Board of County Commissioners will consider the enactment of a County Resolution. The meeting will commence at 9:00 A.M. The Title of the proposed Resolution Is as follows RESOLUTION 2010 A Resolution of the Collier County Board of County Commissioners { designating 4, 793.5 Acres In the Rural Lands Stewardship Area ion - 1 Ing Overlay District as a Stewardship Sending Area with a design= tion as "Sunniland Family SSA 12" pursuant to the terms ast forth In the Escrow Agreement, Stewardship Sending Area Credit Agreement for Sunniland Family SSA 12, and Stewardship Easement' Agreement for Sunniland Family SSA 12; approving a Stewardship Sending Area 4 Credit Agreement for Sunnitand Family SSA 12; approving a Steward- ship Easement Agreement for Sunniland Family SSA 12; approving an ! Escrow Agreement for Sunniland Family SSA 12; and establishing the number of stewardship credits generated by the designation of sold Stewardship Sending Area All interested parties are invited to appear and be heard: Copies of the proposed l Resolution are available for public inspection in the Comprehensive Planning Depart- ment. Written comments filed with the Clerk to the Board's Office prior to Tuesday, i January 26, 2010, will be read and considered at the public hearing:, C N,� ce..nlY � lTIWANWNIP !lNON� If. a person decides to appeal any decislon made by the Board of County Commis- stoners with respect to any matter-considered at such meeting or hearing, he will need a record of that proceeding, and for such purpose he 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 ere a person with a disabiltty who needs any accommodation in order to partici- pate in this proceeding, you are entitled, at no cost to you, to, the provision of certain assistance. Please contact the Collier County Facilities Management Department, lo- cated at 3301 Tamiami Trail East, Building W, Naples,. Florida 34112, (239)252- 8380. Assisted listening devices for the hearing impaired are available In the County Com,.. missioners' Office. BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA DONNA FIALA, CHAIRMAN or FRED W. COYLE, VICE - CHAIRMAN DWIGHT E. BROCK, CLERK, By: /a/ Patricia Morgan, Deputy Clerk (SEAL) No. 2311572M Agenda Item No. 17A January 26, 2010 Page 11 of 11