BCC Minutes 10/26/1994 S (800 Mhz System)Naples, Florida, October 26, 1994
LET IT BE REMEMBERED, that the Board of County Commissioners in
and for the County of Collier, and also acting as the Board of Zoning
Appeals and as the governing board(s) of such special districts as
have been created according to law and having conducted business
hereln, met on this date at 5:05 P.M. In SPECIAL SESSION in Building
"F" of the Government Complex, East Naples, Florida, with the
following members present:
CHAIRMAN: Timothy J. Constantine
VICE-CHAIRMAN: Bettye J. Matthews
John C. Norris
Michael J. Volpe
Burr L. Saunders
ALSO PRESENT: Sue Barbirettt, Deputy Clerk; Neil Dotrill, County
Manager; BIll Hargett, Assistant County Manager; Ken Cuyler, County
Attorney; David Welgel, Ramiro Manalich, Tom Palmet and Marjorie
Student, Assistant County Attorneys; Wayne Arnold, Acting Site Plan
Review Director; Steve Camell, Purchasing Director; Norris Ijams,
Emergency Services Administrator; Robert Mu]here, Acting Current
Planning Manager; Dick Clark, Interim Community Deve]opment Services
Administrator; David Weeks, Planner; and Deputy Dennis Huff, Collier
County Shertff's Office.
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October 26, 1994
Tape #1
(038)
Item #4A
PURCHASE AGREEMENT FOR THE 800 MHZ SYSTEM - APPROVED
County Manager Dorrlll reported that this item will be heard as an
addition to the agenda due to the consideration that was continued as
a result of the Federal Judge's temporary restraining order that was
issued during yesterday's re~ru]ar meeting. He announced that this
will be one additional item concerning the approval of the purchase
agreement for the 800 MHz System in response to Collier County RFP
94-2201.
County Attorney Cuyler remarked that this is not a new add on item
as it was continued from yesterday's agenda to today's meeting at 5:05
P.M0
In response to Commissioner Norris, Steve Camell, Purchasing
Director, replied that he had a conversation with some members of the
Sheriff's Staff regarding the fact that the implementation plan would
fully address the coverage issues. He said that the concerns have
been addressed and the Sheriff's Staff has been informed of that.
County Attorney Cuyler requested that Mr. Dudley Goodlette state
for the record that his firm has been in contact with the Federal
Judge and the Federal Judge's Clerk has Indicated that the temporary
restraining order has been removed.
Mr. Goodlette, of Cummings and Lockwood, recalled that at yester-
day's meeting the Board was informed by Assistant County Attorney
Bryant that the Federal Court had entered a temporary restraining
order based upon communication that they had received from counsel for
E. F. Johnson. He stated that his firm together with the County
Attorney's Office filed a motion to dissolve that temporary
restraining order and was advised by the Federal Court this afternoon
that the Judge had dissolved the restraining order and that a written
order to that effect would be forthcoming tomorrow but authorized the
Board to proceed and take whatever action this evening that was con-
tinued from yesterday' s meeting.
Page 2
October 26, 1994
Mr. Camell explained that this item is a request to obtain Board
authorization to approve the contract for the design and Installation
of a County wide 800 MHz radio communication system for public safety.
He said that this item is a follow-up to a September 20, 1994, deci-
sion of the Board to establish the rankings of the three proposing
firms in the following order: Ericsson General Electric, Motorola
Communications and E. F. Johnson. He said that direction was given to
Staff to negotiate a contract with Ericsson G. E. that was compliant
with the requirements of the County RFP.
Hr. Camell announced that agreement has been reached between the
two parties. He said that a document representing the directire of
the Board has been executed by Ericsson G. E. He indicated that a
short £orm of the agreement is included in the Executive Summary.
Mr. Camell referenced a number of issues that have been
addressed. He said that Ericsson G. E. has agreed, per the require-
ments of the RFP, to provide a system that furnishes gS~ County wide
coverage.
In response to Commissioner Constantine, Mr. Camel] replied that
the agreement with Ericsson G. E. is in compliance with what the RFP
initially asked for and actually exceeds the minimum requirement for
areas 1 and 2.
Mr. Camell stated that the second issue that has been addressed
by Ericsson G. E. pertains to the construction and erection of new
towers and the proper assessment and suitability of existing towers
that will be used in the existing design. He said that Ericsson G. E.
has accepted the language of the RFP with regard to taking respon-
sibility for seeing that the towers are suitable and available to the
County for when the system ls Implemented. He said that Ericsson G.
E. has provided an engineering study performed by a licensed, Florida
engineer that does harp a comprehensive r~vlPw of
sites proposed by Erlcsson G. E. He explained that the seventh site
is one that Ericsson G. E. had recognized in advance that needed to be
changed and a new tower Installed. He confirmed that they have agreed
04
Page 3
October 26, 1994
to do that. He explained that five of the six sites has passed the
tower analysis. He said that the sixth site, which Is the Colony
Cablevision site, will need some structural upgrade and additional
support added to the structure. He stated that it will also require
removal of some antenna. He said that the contractor is aware of this
and prepared to take the necessary steps to complete the work.
Mr. Camel1 explained that the other issues pertained to the per-
mitting process for the new tower that needs to be constructed. HP
stated that Ericsson G. E. has recognized its' responsibility to
apply, obtain and marshal the permitting that will be required to
construct the tower. He said that Ericsson G. E. has acknowledged
its' lead role In negotiating the leases for access and use of each of
the sites.
Hr. Camel1 confirmed that the total agreement includes the RFP,
the specifications from the RFP and the contractor's proposal. He
said that Staff has modified the RFP to clearly state that Ericsson G.
E. is accepting the terms of the document. He said that there were
issues pertaining to indemnification of the County and the provision of
consequential and liquidated damages. He said that Staff has reached
compromise language with Ericsson G. E. that should adequately protect
the County. He said that In addition radio inventory has been updated
to the number of approximately 1,580 radios.
In response to Commissioner Constantine, Mr. Camel] explained
that the number of radios has increased by approximately 300 radios
from the RFP but they represent those fadlos that must be replaced.
Commissioner Matthews remarked that the permit requirements from
the FCC require 27 channels with 70~ availability. She said that she
has determined that the County will be short by 310. She asked how
soon that will be accommodated?
Mr. Cameli reported that issue has not yet been specifically
addressed because the FCC directire of one year ago did not get into
the Issue of full loadlng. He said that what Commissioner Natthews is
referring to is a standard operating requirement that will not have to
Page 4
October 26, 1994
be met before 1996.
Mr. Camell stated that the total contract price ts $8,000,233.23.
He pointed out that this is a firm figure with the exception of user
inventory, which is a 3.8 million dollar component. He called atten-
tion to the fact that the system has still not been designed at the
present time and still do not know how many of the radios will have
each of the various features that are available. He explained that an
average pricing method had been used. He said that the intent is that
when the final design has been completed and we know what our order
inventory will be the contract will be adjusted to reflect the
changes. He said that he hoped that this will result in a savings to
the County.
In response to Commissioner Matthews, Mr. Camel] replied that
Ericsson G. E. will first go through the design phase, the manufac-
turing phase, Including testing and ~ud]tjng. He said that they will
then deliver the hardware followed by a rigorous testing process. He
said that the County will be withholding retainage on all payables as
we proceed. He said that each ma3or phase of the contract has a value
to it therefore Ericsson G. E. will not be able to obtain all their
funds until the work is finally accepted and the retainage released.
County Manager Dotrill emphasized that the County has the right to
retain an independent testing laboratory to assist in the cer-
tification process. He said that the cost of the testing lab will be
absorbed by Ericsson G. E.
Mr. Camell explained that we will try to limit their role on
site. Me said that the balance of the consultant or technical engi-
neers assistance would be to review reports. He said that Ericsson G.
E. will be reimbursing the County for those costs. He stated that
there is a limit of $10,O00.00 on that. He said that they are a]~o
responsible for army rete~ting. In th. event that Ericsson G. E. fails
to pass any test they will be responsible for any fetesting costs as
well.
In response to Commissioner Matthews, Mr. Carne]l referred to the
Page 5
October 26° 1994
pricing summary page. He explained that the original proposal from
Ericsson G. S. was an analog system with digital backbone. He said
that one item is an upgrade of approximately $100,000.00 for the
Digital Dispatch Upgrade. He stated that this will enable the com-
munications center to operate fully digital. He explained that what
will not be digital is the user equipment itself. He said what we
would like to do Is apply the proposed savings, after design comple-
tion, to purchasing radios to be placed strategically in some of the
users hands.
In answer to Commissioner Matthews, Mr. Camell replied that a
funding plan has not been finaltzed. He said that Staff requires
Board direction before implementing a funding plan.
In answer to Commissioner Volpe, Mr. Camell explained that the
Fire Districts and the Sheriff's Office have shown interest in cost
participation. He said that there is an opportunity to adjust the
inventories prior to the design being finaltzed.
County Manager Dotrill stated that he believes that the Fire
Districts would be willing to let the Board pay for something that
they would otherwise pay for.
Commissioner Volpe stated that he does not wish to underwrite
capital costs for the Independent Fire Control and Rescue Districts.
He said that they have an independent funding source to provide for
their needs.
County Manager Dotrill commented that $80,000.00 to $100,000.00
is a great deal of money for some of the districts. He said that
there may be the need for a mechanism to establish terms.
Mr. Camell pointed out that ordering does not take place until
after design. He stated that if every Fire District opted out there
would still be the need to provide a system for the Sheriff, EMS and
other Board dependent operations. He said that the infrastructure
will still be necessary. He said that the contract has been written
in such a way that Ericsson G. E. has been advised that the eight
million dollar contract price is subject to adjustment.
Page 6
October 26, 1994
In answer to Commissioner Volpe, Mr. Camell replied that the
Consultant has finished his work for this phase. He said that
$10,O00.00 has been established as a maximum cost for initial testing.
He said that Ericsson G. E. would be responsible for all fetesting.
In response to Commissioner Norris, Mr. Camell replied that it
would be possible to simultaneously use digital handsets and analog
handsets.
Commissioner Constantine commented that he is wary of building a
digital system. He recalled that in previous discussion it was
determined that there is no local digital system in the state of
Florida. He said that he does not wish for Collier County to be the
groundbreaker on this issue because it could lead to problems.
Commissioner Matthews asked what penalties would be imposed if
the system were not operational within the 700 day clause in the
contract?
Mr. Camell replied that there are several penalties. He said
that the County has the ability to collect retainage to apply to dama-
ges that are incurred. He said that secondly we have a cover provi-
sion where the contractor has the responsibility to make the system
whole because of their tardiness in delivering and performing the
system. He said that there is also a daily liquidated damage of
$1,250.00. He said that taken collectively these are forceful provi-
sions.
In response to Commissioner Volpe, Assistant County Attorney
Weigel confirmed that the Temporary Restraining Order that was issued
in Federal Court has been lifted. He said that there ]s no constraint
on the Board to hear this matter and act on it this evening. He
stated that subsequent litigation is always conjectural.
CommJsmJoner Vo]~,P ~t4ted that lie ]~ ct)r)c.rr~ed that if there
protracted litigation involving this matter it may be necessary for
the Board to engage outside counsel to represent the interest of the
County. He asked if there is some provision for Indemnification of
the County for expenses?
Page 7
October 26, 1994
Assistant County Attorney Weige] stated that what has been under
challenge has been the actions and activities of the Board and the
proposed activities coming before the Board to make a decision con-
cerning the award. He said that the County Attorney's Office has an
ample and comprehensive indemnification provision in the contract
itself which makes the vendor responsible for their acts, omissions
and other problems that occur in the performance of the contract
itself as well as other damages that may occur to the County in the
performance of the contract once the contract relationship has been
established. He said that what has been an issue in both the Federal
and local court Is the process and procedure of arriving to this point
of the discussion and deliberation of the Board of County
Commissioners. He said that the County Attorney's Office feels that
we have overcome the problem in all forms that it has been presented
in.
County Attorney Cuyler stated that the possibility of a lawsuit
exists after the Board awards the contract. He said that in that
event the case will be handled as any other lawsuit. Me said that it
may be necessary to engage outside counsel.
Commissioner Volpe remarked that in the unlikely event that a
determination was made that the process was flawed and this contract
was found to be let in error and the contractor had already incurred
expenses, who would be responsible for the "damages" in that regard?
Mr. Cuyler replied that if the court declares that the contract
was void from its' inception, there is no contract. He said that he
does not expect that to happen.
Mr. Goodlette reiterated that the Court granted the 3olnt
to dissolve the Restraining Order that was entered yesterday. He said
the Board can take comfort ]n the know]edge that the Courts, both
Federal and State, have reviewed the case and found no basis upon
which a Restraining Order should be entered to prevent the Board from
going forward in the customary course of business. He confirmed that
there are broad indemnification provisions included in the contract
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Page S
October 26, 1994
that would indemnify the County against loss that it might incur
including legal fees and all expenses associated with that.
In response to Commissioner Volpe, Assistant County Attorney
Wetgel confirmed that the contract has been reviewed for legal suf-
ficiency and negotiated with great assistance from Staff, Sheriff and
others. He said that there is no legal constraint to prevent the
Board from entertaining Staff recommendation for this contract.
Commissioner Norris moved to accept the contract. Seconded by
Commissioner Matthews.
Upon call for the question, the motion carried 4/0 (Commissioner
Saunders out).
(1439)
Item #3A
ORDINANCE 94-58 AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, TRE
COLLIER COUNTY LAND DEVELOPMENT CODE - ADOPTED
Legal notice having been published in the Naples Daily News on
October 6, October 20 and October 23, ~994.
Bob Mulhere, ActinG Current Planning Manager, announced that this
is the second of two required evening public hearings for Land
Development Code amendments. He said that at the previous meeting the
Board accepted most of the recommended changes, although one or two
were left unreso]ved. He stated that he believes that a majority of
the public in attendance are here to support or oppose the Travel
Trailer Recreational Vehicle (TTRVC) change.
Wayne Arnold, Acting Site Development Review Director, explained
that the proposed change to the TTRVC Zoning District is primarily to
address the accessory ]anat structure that owners are permitted to
construct. He said that the proposed changes would allow the owners
to install glass windows instead of the vinyl windows that are
currently permitted. He stated that it would also allow the installa-
tion of air conditioning in the lanais. He said that the proposed
change would also put some restrictions on the type of enclosure to
insure that it looks like the trailer unit. He said that it also pla-
ces further restrictions on the size of the storage area that would be
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Pag,: 9
October 26, 1994
part of the lanat.
Commissioner Constantine Indicated that at the previous meeting
the Board appeared to approve of the change.
The following people spoke on the subject:
Mary Guyer (spelled phonetically) Alfred Hyde (spelled pho-
Carols Gtlfldder nettcally)
Commissioner Matthews commented that this issue has been the sub-
Ject of discussion for more than a year.
Dick Clark, Acting Community Development Administrator, confirmed
that Staff has worked with Board members and the public to resolve
this issue.
Mr. Mulhere stated that the next item for discussion is the
Access Management Plan.
David Weeks, Planner, stated that he would describe four items in
regard to the Access Management Plan. He said that the Collier County
Planning CommissIon appeal provision has been deleted from the
Ordinance. He said a minor change was made to the wording in Section
2.6.38.4.4, which Identifies that there are ten activity centers that
are shown to have a future grade separation. He indicated that there
are three maps that have changes on them; Map No. 4 depicting the
Immokalee Road and Interstate 75 shows a minor change to the type of
access point to the Northbrooke Plaza PUD. He said that a minor
change was made to reflect the existing conditions. He explained that
Map No. 9 South was changed because the Westport Commerce Center PUD
was recently approved and changes were made to reflect that action.
He said that a change was made to Tollgate Plaza PUD to reflect what
the PUD document provides for which is that some secondary access may
be provided to some of those properties. He noted that the packet
contains a total of 21 maps. He explained that some have been split
or enlarged. He said that once adopted these maps will be uniform in
size.
Mr. Mulhere announced that the next item deals with solicitation
in a public right-of-way. He stated that Mr. Mana]ich and Mr. Palmet
are here to address the issue.
Page 10
October 26, 1994
Assistant County Attorney Manalich recalled that at the last
meeting discussion was held regarding the constitutional aspects of
this matter. He said that the Board had directed Staff to proceed
with a total prohibition approaah within the medians and road right-of
ways. He said that sidewalks would not be included. He said that the
Board had requested a report on the Lee County approach. He said that
their Ordinance prohibits all types of distribution and solicitation
in the road right-of-way, but does create an exception for annual,
charitable events. He advised that constitutionally, Collier County
will be on better ground without that distinction.
Commissioner Constantine asked if the Board were to follow the
course of Lee County, were challenged in court and lost, would there
be anything prohibiting complete prohibition at that time?
Assistant County Attorney Manaltch replied that a complete prohi-
bition could be effectuated at that time.
County Attorney Cuyler stated that there may be a lawsuit filed to
invalidate the Ordinance.
Commissioner Norris stated that If the Board adopts an Ordinance
similar to Lee County's which will allow the charitable organizations
to proceed that action will be acceptable until we lose a court
challenge on that action. He remarked that the net effect of losing
that court challenge would result in invalidating the Ordinance and
prohibit all types of activity. He said that in effect what would
happen if someone challenged the Ordinance successfully, they would be
responsible for the prohibition of the charities in the roadways.
Commissioner Constantine stated that is a point well made.
Commissioner Volpe indicated that the main issue ts one of safety.
He said that the Board is concerned about the safety of the people
that would be in the medtan~ and right-of-ways as well as the molorlng
public. He recalled that the Board drafted an Ordinance last year
that allowed public safety officials to occupy the right-of-way under
limited circumstances on behalf of a charitable organization. He said
that he felt that was a compromise. He said that the exemption that
Page
October 26, 1994
exists in Lee County is any charitable organization. He stated that
he is opposed to the Lee County exception that exists. He said that
he believes that it has to be all or nothing.
Commissioner Constantine suggested that the Board follow the Lee
County guideline with the extra addition that whatever the organiza-
tion may be, that it utilize public safety officers.
Commissioner Volpe said that he is comfortable with the suggestion
because it addresses the public safety issue,
Commissioner Volpe suggested that there is not one person that he
has spoken to who has not expressed their displeasure with that type
of activity occurring in busy intersections or median right-of-ways.
Assistant County Attorney Manalich remarked that the sidewalks are
not included in this prohibition.
The following people spoke on the subject:
Ken Tanner Debbie Rockwell
Natt Zaleznlck
Commissioner Constantine stated that he prefers to see a limited
permitting process.
Commissioner Volpe asked Commissioner Constantine if he intends to
include everyone in the limited permitting process?
Commissioner Constantine stated that it is his intention to
Include everyone with perhaps some limitations such as a four day
limit, one permit per year and other suggestions noted by the public.
Mr. Manaltch requested clarification. He asked Commissioner
Constantine if he intends to allow charitable organizations but not
allow commercial organizations such as newspapers?
Commissioner Constantine replied that if the newspaper wishes to
solicit once a year for four days they would be welcome to.
Assistant County Attorney Manaltch expressed concern regarding the
fact that once those typ~ f)f activities
content type or approach.
Nr. Manaltch asked if Commissioner Constantine's suggestion would
Include any group that meets the criteria as outlined?
Commissioner Constantine answered in the affirmative.
Page 12
October 26, 1994
Commissioner Volpe remarked that the Board members are struggling
to permit charitable, non-profit organizations. He said that it is a
difficult decision but he supports an absolute prohibition. He said
that the main intention is to protect the motorlog public and balance
the FIrst Amendment rights of people like the Muscular Dystrophy
Association, Naples Dally News or any other vendor. He said that we
have come to the conclusion, in the Twenty-First Century, that the
right-of-way of our highways is not a public forum.
Assistant County Attorney Manalich stated that to this date the
Courts have all stated that roads as well as medians are a traditional
public forum, however, there has been discussion of changing that view
to say that while the road is used by vehicular traffic ]t should not
be viewed as a traditional public forum. He said that has been argued
and has not been resolved yet.
Commissioner Constantine announced that this Ordinance requires
four votes to pass. He said that it appears that we will have a total
prohibition.
Mr. Mulhere referred to Page 35 of the Executive Summary. He
explained that the language has been changed to reflect Commissioner
Norris' concern regarding the language surrounding wrecking yards and
junk yards. He said that the language has been changed to clarify
that this provision shall not allow as a permanent or accessory use,
wrecking yards, Junk yards or scrap yards.
Mr. Mulhere referred to Page 40 of the Executive Summary. He said
that language has been clarified so that outdoor storage yards are
permitted as a principal use of the property and any outdoor storage
yard abutting a restdentially zoned property. He said that the change
limits the use.
Mr. Mu]here referred to Page 45 of the Executive Summary. He
explained that a change will be made to paragraph 4., section
2.2.16~.2.3 to read that Access shall be in accordance with the
Collier County Access Management Policy or Plan.
In response to Commissioner Volpe, Mr. Mu]here confirmed that this
,oo O00 14
Page 13
October 26, 1994
change will be made after the adoption of the Plan.
Mr. Mulhere explained that the language change to Page 50 states
that "He shall be authorized to require examination of the site by an
accredited archaeologist where deemed appropriate".
Tape #2
Assistant County Attorney Manallch advised that if total prohibi-
tion is what the Board desires, a vote must be taken for resolution of
this issue. He stated that if the Board des]res to draft a provision
that would state that a permit would be available for every organiza-
tion for once or twice a year, the County Attorney's Office can try to
defend that. He recommended that the Board adopt Assistant County
Attorney Palmer's Findings that are outlined following the short form
indicating the basis for the Ordinance. He advised that as part of
the motion the Board should indicate that the prohibition is based on
traffic and safety reasons.
Commissioner Volpe stated that he does not want to see Collier
County medians opened up to street vendors.
Commissioner Constantine stated that his preference is that we
have a mechanism to allow charitable organizations to solicit and
limit other activity. He said that because there is no majority that
cannot be done. He said that his second preference is complete prohi-
bition. He said that the third preference would be to leave it open
to everyone. He suggested that a compromise could be developed within
the next six months. He said that he does not want to leave the door
wide open.
Commissioner Norris said that his first choice would be to allow a
mechanism of limited use by charitable organizations. He said that
his second choice would be total prohibition.
Ms. Rockwell, representing MDA, asked if it would be pc, ss|ble to
have e complete pruhJbltlorm w|t|m time stipulation that an organization
would be permitted to solicit if they could present a public safety
plan to the Board.
County Attorney Cuy]er stated that would have to be part of the
8oo,, 000,',',,- 15
Page 14
October 26, 1994
Ordinance.
Assistant County Attorney Manalich stated that the other alter-
native that Staff has offered would be that everyone would be allowed
under a permit type of approach. He said that apparently the Board
has chosen not to take that approach. He reported that even under
total prohibition these groups will not be affected as far as their
activities on the sidewalk.
Commissioner Vo]pe stated that he believes that It would be
irresponsible to leave this situation as ]t currently exists. He said
that he would like to see a situation where we could balance all of
the First Amendment rights of all people whether they are charitable
or for profit.
Commissioner Constantine closed the public hearing.
County Attorney Cuyler pointed out that all new Ordinances will
include a provision that states that this Ordinance will be incor-
porated into the new Code.
Assistant County Attorney Mana]ich will include the Findings
attached to the short form for total prohibition. He said that the
motion should include that the Findings are the basis for total prohi-
bition. He said it would be suff/ctent to state that total prohibi-
tion on the medians and the roads, not including the sidewalks, be
based on the attached Findings and based on traffic and safety
reasons.
Commiss~oner Volpe moved to amend Ordinance No. 91-102, as
amended, the Collier County Land Development Code; to incorporate all
the changes presented by Staff and the Collier County Planning
Commission, with the addition of the word "or Plan" in Section
2.2.16~.2.3.4; with respect to the solicitation in the medians and
road right-of-ways that a total prohibition will occur and that the
Findings attached and public safety are the basis upon which the
motion is made for the absolute prohibition. Seconded by Commissioner
Matthews.
Upon call for the question, the motion carried 4/0 (Comm~ssioner
Page
October 26, 1994
Saunders out), thereb~ adopting Ordinance No. 94-58 and entered into
Ordinance Book No. 68.
There being no further business for the Good of the County, the
meeting was adjourned by Order of the Chair - TAme: 6:45 P.M.
ATTeST:-
DWIGHT E. B~OCK~ CLERK
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
These minutes approved by the Board on
as present'ed / or as corrected
Page