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Agenda 02/11/2014 Item # 10B 2/11/2014 10.B. IL/ 1WLV iJ .7.U. EXECUTIVE SUMMARY 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. OBJECTIVE: To help provide a financing mechanism through the imposition of special assessments to fund needed seawall improvements for the La Peninsula community. CONSIDERATIONS: This item is a result of an October 8, 2013 Public Petition from attorney Anthony Pires, representing the La Peninsula Condominium Association. The Public Petition sought the creation of an MSBU to repair and/or replace the seawall at La Peninsula located on the Isles of Capri. A copy of the transcript of the Board discussion is attached. The project requires obtaining appropriate financing. The Finance Committee met on October 25th to discuss this matter. Representatives of La Peninsula were invited to and did attend this meeting. It was decided that the firm Nabors, Giblin & Nickerson, who is the County's primary bond counsel, would draft the necessary legal documents, whose fees would ultimately be paid by the MSBU. The first document is a 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. By statute, this Resolution was duly advertised for four consecutive weeks. Approval of this Resolution would authorize the collection of the special assessments through the annual ad valorem tax bill. To get this on next year's tax bill, by statute, a copy of this Resolution must be sent to the property appraiser, the tax collector, and the Department of Revenue by January 10 (or if the property appraiser, tax collector, and local government agree to an extension, March 10), so that absent such an extension, this is the final Board meeting which this can occur. The proposed Ordinance has no such deadline, however, counsel for the La Peninsula Condominium Association has requested that both items be heard at this meeting. It should be noted that as a condition of financing, Collier County may be required to obtain an ownership interest in the seawall. The likely interest would be an easement encumbering the seawall over the term of the loan,which our best guess is ten years. Approving the Resolution and MSBU today will not bind the Board should this issue come up in the future. FISCAL IMPACT: None to the County. All costs will be borne by the MSBU. Packet Page-255- Packet Page-149- 2/11/2014 10.B. IL/ Iww I..I a.u. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This proposed Resolution and Ordinance have been reviewed by the County Attorney, and are approved as to both form and legality. Majority vote is needed to both adopt the Resolution and the Ordinance. —JAK 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. Prepared by: Jeffrey A. Klatzkow, County Attorney, Attachments: Proposed Resolution, Proposed Ordinance, Transcript of Public Petition, Proof of Advertising. 2 Packet Page-256- Packet Page-150- 2/11/2014 10.B. RESOLUTION 2013 - A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ELECTING TO USE THE UNIFORM METHOD OF COLLECTING NON-AD VALOREM SPECIAL ASSESSMENTS LEVIED WITHIN CERTAIN PORTIONS OF THE UNINCORPORATED AREA OF THE COUNTY DESCRIBED HEREIN; STATING A NEED FOR SUCH LEVY; PROVIDING FOR THE MAILING OF THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners (the "Board") of Collier County, Florida (the "County") is contemplating the imposition of special assessments over a number of years to fund the cost of providing seawalls and other waterway improvements; and WHEREAS, the Board intends to use the uniform method for collecting non-ad valorem special assessments imposed over a number of years for the cost of providing such services and facilities to property within the County described herein, as authorized by Section 197.3632, Florida Statutes, as amended, because this method will allow such special assessments to be collected annually commencing in November 2014, in the same manner as provided for ad valorem taxes; and WHEREAS,the Board held a duly advertised public hearing prior to the adoption of this resolution ("Resolution"), proof of publication of such hearing being attached hereto as EXHIBIT A; and BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA: 1. Commencing with the Fiscal Year beginning on October 1, 2014, and with the tax statement mailed for such Fiscal Year, the Board intends to use the uniform method of collecting non-ad valorem assessments authorized in Section 197.3632, Florida Statutes, as amended, to collect special assessments imposed over a number of years to fund the cost of providing seawalls and other waterway improvements. Such non-ad valorem assessments may be levied within a portion of the unincorporated area of the County. A legal description of such area that may be subject to the imposition of such special assessment is attached hereto as EXHIBIT B and incorporated herein by reference. Packet Page -258- Packet Page-151- 2/11/2014 10.B. 1 L/ I VILV I V V.0 . 2. The Board hereby determines that the levy of such non-ad valorem assessments is needed to fund the cost of providing seawalls and other waterway improvements within the area described in EXHIBIT B hereto. 3. Upon adoption, the Clerk of the Circuit Court as Clerk to the Board, is hereby directed to send a copy of this Resolution by United States mail to the Florida Department of Revenue, the Collier County Tax Collector, and the Collier County Property Appraiser by January 10, 2014. 4. This Resolution shall take effect immediately upon its adoption THIS RESOLUTION ADOPTED, after motion, second and majority vote on this the 10th day of December,2013. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY By: By: Deputy Clerk GEORGIA A. HILLER, ESQ. CHAIRWOMAN Approved as to form and legality: Jeffrey A. Klatzkow County Attorney 2 Packet Page -259- Packet Page-152- 2/11/2014 10.B. IL, IV/LI IV V.tom. EXHIBIT A PROOF OF PUBLICATION OF NOTICE OF HEARING Packet Page-260- Packet Page-153- 2/11/2014 10.B. EXHIBIT B LEGAL DESCRIPTION The proposed assessment area would be located in the following potential area (known locally as "La Peninsula"): BEGINNING AT THE NORTHEAST CORNER OF SECTION 6, TOWNSHIP 52 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA, RUN SOUTH 1 DEGREE 11 MINUTES 25 SECONDS WEST FOR 30.0 FEET; THENCE RUN NORTH 88 DEGREES 48 MINUTES 27 SECONDS WEST FOR 380.00 FEET; THENCE RUN SOUTH 1 DEGREE 11 MINUTES 33 SECONDS WEST FOR 90.00 FEET; THENCE RUN SOUTH 20 DEGREES 32 MINUTES 44 SECONDS EAST FOR 272.34 FEET, TO A POINT ON A CERTAIN BULKHEAD LINE AS RECORDED IN BULKHEAD LINE PLAT BOOK 1, PAGE 8, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA; THENCE RUN THE FOLLOWING COURSES, ALONG THE SAID BULKHEAD LINE: SOUTH 69 DEGREES 27 MINUTES 16 SECONDS WEST FOR 443.05 FEET; THENCE RUN SOUTH 74 DEGREES 20 MINUTES 53 SECONDS WEST FOR 900.00 FEET, TO A POINT OF CURVATURE; THENCE RUN 496.98 FEET ALONG THE ARC OF A CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 185.00 FEET, AND SUBTENDED BY A CHORD HAVING A BEARING OF NORTH 28 DEGREES 41 MINUTES 32.5 SECONDS WEST AND A LENGTH OF 360.46 FEET, TO A POINT OF TANGENCY; THENCE NORTH 48 DEGREES 16 MINUTES 02 SECONDS EAST, FOR 712.63 FEET, TO THE END OF THE BULKHEAD LINE; THENCE RUN SOUTH 88 DEGREES 48 MINUTES 27 SECONDS EAST, ALONG THE NORTH LINE OF SAID SECTION 6, 1209.85 FEET, TO THE POINT OF BEGINNING; CONTAINING 17.81 ACRES, MORE OR LESS. Packet Page-261- Packet Page-154- 2/11/2014 10.B. I L/ V/LL I■J .U. ORDINANCE NO.2013- AND ORDINANCE CREATING THE LA PENINSULA SEAWALL MUNICIPAL SERVICE BENEFIT UNIT; PROVIDING A PURPOSE AND GOVERNING BODY; PROVIDING FOR FUNDING; PROVIDING FOR CREATION OF THE LA PENINSULA SEAWALL ADVISORY COMMITTEE; PROVIDING FOR THE DUTIES OF THE COUNTY MANAGER; PROVIDING FOR CONFLICT AND SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, recently the Board of County Commissioners (the "Board") of Collier County. Florida (the "County") was informed that certain property owners in the geographic area known locally as `La Peninsula" have requested the Board to coordinate the construction and funding of seawalls and other waterway improvements to benefit the property owners in such area: and WHEREAS, the Board has determined that the creation of a municipal service benefit unit is the best method for implementing and funding seawalls and other waterway improvements located therein. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA: SECTION 1. AUTHORITY. This Ordinance is adopted pursuant to the provisions of Chapter 125, Florida Statutes,and other applicable law. SECTION 2. CREATION OF THE MUNICIPAL SERVICE BENEFIT UNIT. There is hereby created and established the La Peninsula Seawall Municipal Service Benefit Unit (the "MSBU"). The boundaries of the MSBU shall initially be as set forth in 1N}11141 1 A attached hereto and incorporated herein by reference. SECTION 3. PURPOSE AND GOVERNING BODY. The MSBU is created for the purpose of coordinating the repair/replacement/construction and funding of seawalls and other waterway improvements to benefit the property owners within the MSBU. The governing body of the MSBU shall be the Board. SECTION 4. FUNDING. For the purpose of providing funds to carry out the purpose of the MSBU, the Board shall consider imposition of special assessments in accordance with Chapter 122, Article 77, of the Code of Laws and Ordinances of Collier County. Florida and other applicable law. Packet Page-262- Packet Page-155- 2/11/2014 10.B. ILI 1V/LV I U . SECTION 5. CREATION OF THE LA PENINSULA SEAWALL ADVISORY COMMITTEE. • A. Concurrent with the passage of the Ordinance, a five (5) member advisory board to he known as the La Peninsula Seawall Municipal Service Benefit Unit Advisory Committee (the "Advisory Committee) is hereby established in accordance with Collier County Ordinance 2001-55. B. Members of the Advisory Committee shall be permanent residents owning real property within the MSBU and electors of Collier County. C. Advisory Committee shall make recommendations to the Board of County Commissioners concerning the following matters and subjects: 1. the selection and retention of professional engineer(s) to prepare reports, studies and analysis concerning the scope, size, nature, design and extent of the seawall repair or replacement project and assessment methodologies relating to the funding of the implementation of the project, including the financing thereof. 2. the size, cost and manner of financing the seawall repair or replacement project, including the assessment methodologies relating to the funding of the implementation of the project. 3. the preparation of bid documents, the selection of contractors and award of contract to perform the seawall repair or replacement project. 4. the annual budget of the MSBU. The Advisory Committee shall report to and advise the Board on matters related to the MSBU. The Board shall have the final authority as to any recommendation. The Advisory Committee shall adopt procedures by which it shall operate and elect officers as it deems necessary. All members of the Advisory Committee shall serve without compensation. SECTION 6. DUTIES OF THE COUNTY MANAGER. The duties of the County Manager or his or her designee shall be: (a) to administer the activities of the MSBU in accordance with established policies of the board and guidelines adopted by the Advisory Committee; (b) to coordinate the imposition of special assessments to provide funding for the MSBV in accordance with the guidance provided by the Board and the Advisory Committee; and (c) to attend all Advisory Committee meetings. SECTION 7. CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other Ordinance of the County or other applicable law, the more restrictive shall apply. If any court of competent jurisdiction holds any phrase or portion of the Ordinance invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION 8. EFFECTIVE DATE. This Ordinance shall take effect upon filing with the Florida Department of State. Packet Page-263- Packet Page-156- 2/11/2014 10.B. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County. Florida, this day of , 2013. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK. Clerk COLLIER COUNTY, FLORIDA I3\ : By: , Deputy Clerk GEORGIA A. HILLER, ESQ. CHAIRWOMAN Approleo}Ea5 to form and-legality: Jeffrey A. Klatzkow County' ttorney 3 Packet Page -264- Packet Page-157- 2/11/2014 10.B. COLLIER COUNTY Board of County Commissioners Item Number: 10.10.8. Item Summary: 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. Meeting Date: 2/11/2014 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office 2/3/2014 1:15:46 PM Submitted by Title: Executive Secretary to County Manager, County Managers Office Name: BrockMaryJo 2/3/2014 1:15:47 PM Approved By Name: OchsLeo Title: County Manager, County Managers Office Date: 2/4/2014 4:58:58 PM Packet Page-158- 2/11/2014 10.B. OFFICE OF THE COUNTY ATTORNEY MEMORANDUM TO: Commissioner Tom Henning, Chairman, District 3 Commissioner Tim Nance,Vice-Chairman,District 5 Commissioner Donna Fiala, District 1 Commissioner Georgia Hiller, District 2 Commissioner Fred W. Coyle, District 4 COPY TO: Leo Ochs, County Manager 11 I FROM: Jeffrey A. Klatzkow, County Attorney 1 it DATE: January 30, 2014 RE: La Peninsula Background At the January 14, 2014 BCC meeting, Mr. Jared Grifoni, representing the Libertarian Party of Collier County, petitioned the Board with a request that the Board rescind the recently enacted Ordinance No. 2013-70, which established the La Peninsula Seawall Municipal Service Benefit Unit (MSBU), and rescind Resolution No. 2013-292, which established a special assessment for funding seawall improvements. During the discussion of this Public Petition, the Board requested that the County Attorney provide a legal memorandum in support of the Board's legal authority to enact this Ordinance and Resolution. A copy of the transcript of this item is attached as back-up to this item. Based on the discussion, it is my understanding that the Libertarian Party's primary concern centers on Art. VII, Sec. 10 of the Florida Constitution. This is an entirely fair issue for discussion. To assist the Board and further the public discussion, I have attached as back-up Art. VII, Sec. 10 with annotations to all relevant case law and AGO decisions as reported by Lexis. I have also attached a copy of Nabors & Giblin's opinion on this matter, together with an e-mail stream I had with them on the subject of a bond validation proceeding. Nabors & Giblin is recognized throughout Florida for their expertise in local government law and public financing and have served for many years as the County's primary bond counsel. For the sake of brevity, I will not repeat the arguments set forth in their memo but instead supplement their memo with my additional thoughts on this matter. Packet Page-159- 2/11/2014 10.B. Discussion Fla. Const. Art. VII, § 10(2013)provides as follows: § 10. Pledging credit Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; but this shall not prohibit laws authorizing: (a) the investment of public trust funds; (b) the investment of other public funds in obligations of, or insured by, the United States or any of its instrumentalities; (c) the issuance and sale by any county, municipality, special district or other local governmental body of (1) revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or(2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States, when, in either case, the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated by any private corporation, association, partnership or person pursuant to contract or lease with the issuing body, the property interest created by such contract or lease shall be subject to taxation to the same extent as other privately owned property. (d) a municipality, county, special district, or agency of any of them, being a joint owner of, giving, or lending or using its taxing power or credit for the joint ownership, construction and operation of electrical energy generating or transmission facilities with any corporation, association, partnership or person. ********************************************************************* Article VII, Sec. 10, Florida Constitution, prohibits the state and its subdivisions from using their taxing power or pledging public credit to aid any private person or entity. The purpose of this constitutional provision is "to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefitted." Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971). However, if the expenditure primarily or substantially serves a public purpose, the fact that the expenditure may also incidentally benefit private individuals does not violate Article VII, Sec. 10. See Poe v. Hillsborough County, 695 So. 2d 672 (1997) The central issue then is whether the proposed project is for a public purpose. There is both a legal and a factual component to this analysis. 2 Packet Page-160- 2/11/2014 10.B. The legal component rests with Florida Statutes Sec. 170.01, which provides as follows: 170.01 Authority for providing improvements and levying and collecting special assessments against property benefited.— (1) Any municipality of this state may, by its governing authority: (f) Provide for the construction or reconstruction of seawalls. Implicit in this statute is the Legislative finding that"the construction or reconstruction of seawalls" in and of itself serves a public purpose, which is a prerequisite for the expenditure of public funds. Although the statute is limited to municipalities, it strikes me that a public purpose is a public purpose, no matter whom the governing body is. The engineering reports previously submitted to the Board would support that finding that the work required falls within the "reconstruction" of a seawall, rather than routine repairs and maintenance. This matter could be further explored during the reconsideration hearing, and is a factual issue for the engineers to opine on and for the Board to make a determination. A separate and factual component of this analysis is whether the Board finds that the contemplated work serves a public purpose (and better yet, that the benefit to La Peninsula is "incidental"). The Attorney General, in AGO 1990-37, opined that the "City of West Palm Beach may lawfully expend municipal funds to construct a seawall on private property if the city commission determines that such a project satisfies a public purpose." This does not mean that the Board's decision can be based on thin air; if challenged, there must be something in the record that supports the finding. If anything in the record supports the determination, Courts are loath to second guess the legislative determination. The fact that this is an MSBU, with the local residents paying for this benefit, is also relevant to this issue. The Attorney General opined, in AGO 2002-48, that although county funds may not be used to maintain or repair privately-owned roads and related infrastructure or privately-owned water and sewer systems in private communities, the county, however, may furnish such services if provision is made for payment of all actual costs by the owner or owners of the private road or water or sewer system to the county, and it is determined that such a program serves a public purpose. Accordingly, for the reasons set forth above and in the accompanying Nabors Giblin opinion, I believe that the Board was within its legislative authority in establishing the La Peninsula Seawall Municipal Service Benefit Unit. With that said, this particular MSBU has raised sufficient opposition to warrant a bond validation proceeding. The proceeding is specifically designed to determine the very issues raised here and would bring the matter to finality, as the judicial determination as to whether the bond is lawful forever resolves the issue. See Lipford v. Harris, 212 So. 2d 766 (Fla. 1968) It is the County Attorney's belief that since the estimated costs of the bond validation proceeding is approximately one-half of one percent of the estimated costs of the project, such a proceeding, viewed as a form of insurance, is the prudent course of action. The proceeding would be ripe to commence if and when financing is secured. 3 Packet Page-161- 2/11/2014 10.B. CONSTITUTION OF THE STATE OF FLORIDA REVISED IN 1968 AND SUBSEQUENTLY AMENDED ARTICLE VII. FINANCE AND TAXATION Fla. Const. Art. VII, § 10(2013) § 10. Pledging credit Neither the state nor any county, school district,municipality, special district,or agency of any of them, shall become a joint owner with,or stockholder of,or give, lend or use its taxing power or credit to aid any corporation, association,partnership or person;but this shall not prohibit laws authorizing: (a)the investment of public trust funds; (b)the investment of other public funds in obligations of,or insured by,the United States or any of its instrumentalities; (c)the issuance and sale by any county, municipality, special district or other local governmental body of(1)revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or(2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States,when, in either case,the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated by any private corporation,association,partnership or person pursuant to contract or lease with the issuing body,the property interest created by such contract or lease shall be subject to taxation to the same extent as other privately owned property. (d)a municipality,county, special district, or agency of any of them,being a joint owner of,giving,or lending or using its taxing power or credit for the joint ownership,construction and operation of electrical energy generating or transmission facilities with any corporation, association,partnership or person. Caselaw: 1. An agreement for a private commercial development company's long-term use of vacant land owned by an airport authority did not violate the constitutional prohibition against joint ownership.Although an option to ground lease required the authority to construct a road extension, it had already been planned and budgeted, so the authority was not using public funds to create a prohibited joint ownership;the authority's obligation to provide land for wetlands mitigation did not make the parties to the agreement joint owners; and the agreement did not meet all of the elements of the test for a joint venture,such as sharing losses or having the ability to bind each other.Jackson-Shaw Co. v.Jacksonville Aviation Auth., 8 So. 3d 1076, 2008 Fla.LEXIS 2398(Fla. 2008). 2. Supreme Court of Florida does not agree that the term "joint owner" in Fla. Const.art.VII, § 10 Packet Page-162- 2/11/2014 10.B. necessarily equates to the term "joint venturer" or the term "partner."Jackson-Shaw Co.v.Jacksonville Aviation Auth., 8 So. 3d 1076,2008 Fla. LEXIS 2398(Fla.2008). 3.Where plaintiff developer sued defendant local aviation authority, alleging the authority's development agreement/lease with the developer's competitor violated Fla. Const.art.VII, § 10,because the authority would become a"joint owner"and would require a pledge of public credit to aid the competitor, because the issues depended on unsettled state law, it was prudent to certify the questions presented to the Florida Supreme Court under Fla. Const.art. V, § 3(b)(6).Jackson-Shaw Co. v.Jacksonville Aviation Auth., 508 F.3d 653, 2007 U.S. App.LEXIS 27240(11th Cir.2007). 4.The purchase of the property by a water management district from the purpose of Everglades restoration serves the public purposes of furthering Everglades restoration and the management of water resources and,therefore, satisfies the requirements of Art. VII, § 10,Fla.Const.Miccosukee Tribe v. S. Fla. Water Mgmt. Dist.,48 So. 3d 811,2010 Fla. LEXIS 1975 (Fla. 2010). 5. Because revenue bonds issued pursuant to the Florida Development Finance Corporation Act of 1993, Fla. Stat. § 288.9602 et seq., did not pledge public credit or taxing power,the bonds did not violate Fla. Const. art. VII, § 10. State v.Florida Dev. Fin. Corp.,650 So. 2d 14, 1995 Fla.LEXIS 205 (Fla. 1995). 6. Florida Const. art.VII, § 10 provides that the prohibition on the pledge of public credit shall not apply to the investment of public trust funds. State v. Florida Dev. Fin.Corp., 650 So. 2d 14, 1995 Fla. LEXIS 205 (Fla. 1995). 7.The use of bond funds to complete secondary road projects, the bond issue having been validated and no appeal having been prosecuted from the validation,was for a public purpose even though the properties to be benefited by the roads were owned and held by private persons;the expenditure, therefore, was not a violation of the state constitution.Lipford v.Harris,212 So.2d 766, 1968 Fla. LEXIS 2182(Fla. 1968). 8. Purchase of all of the capital stock of private transportation corporations was not in the nature of a pledge or loan of the credit of the state which was condemned by Fla. Const.(1885)art. IX, § 10 (now Fla. Const.art. VII, § 10), because after the sale the county was the sole owner of the transportation system. State v. Dade County, 142 So.2d 79, 1962 Fla. LEXIS 2892 (Fla. 1962). 9. Lease by a public entity to a private entity is not per se invalid under Fla. Const.art. VII, § 10. Because such arrangements are not per se invalid,a public entity thus does not become a joint owner with a private entity merely by entering into a lease. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 2008 Fla. LEXIS 2398(Fla.2008). 10. Fla. Const. (1885)art. IX, § 10(now Fla. Const.art. VII, § 10)does not prevent a county board of public instruction from accepting a bid for liability insurance from a mutual insurance company, where the insured becomes a member of the company and is entitled to vote at all meetings, but where the only interest obtained by the insured other than protection is the availability of any rebates, and where the insurance contract prohibits assessment if a deficit occurs. Dade County,Bd.of Public Instruction v. Michigan Mut.Liability Co., 174 So. 2d 3, 1965 Fla. LEXIS 3412(Fla. 1965). Packet Page-163- 2/11/2014 10.B. 11. Leases involving properties financed by revenue bonds, which were created prior to the effective date of Fla.Const. art.VII, § 10(c),were not subject to ad valorem taxes under that provision because it was prospective in its application, as spelled out in the schedule found at Fla. Const. art.XII, § 7. Dade County v. Pan American World Airways, Inc., 275 So. 2d 505, 1973 Fla.LEXIS 4695 (Fla. 1973). 12. Citizens'group challenged a 99-year lease of public land by a municipality to a nonprofit corporation, contending it was prohibited by Fla. Const.(1885)art. IX, § 10(now Fla. Const. art.VII, § 10);the city's lease of public land to establish a public horticultural library was proper because the group received no pecuniary gain from its activities and because the lease contained restrictions prohibiting private gain. Raney v.Lakeland, 88 So.2d 148, 1956 Fla. LEXIS 3779(Fla. 1956). 13.Neither Fla. Const. art.VII, § 10 nor Fla.Const.art.VIII, §2(c)prohibits the legislature from enacting the Industrial Development Financing Act,Fla. Stat. § 159.25 et seq.,which authorizes any municipality to issue revenue bonds to finance a manufacturing plant located within or without the municipal limits or without regard to municipal boundaries. State v. Riviera Beach,397 So.2d 685, 1981 Fla. LEXIS 2637 (Fla. 1981). 14. Citizens'group challenged a 99-year lease of public land by a municipality to a nonprofit corporation, contending it was prohibited by Fla.Const. (1885)art. IX, § 10(now Fla. Const. art. VII, § 10); the city's lease of public land to establish a public horticultural library was proper because the group received no pecuniary gain from its activities and because the lease contained restrictions prohibiting private gain. Raney v.Lakeland, 88 So. 2d 148, 1956 Fla. LEXIS 3779(Fla. 1956). 15. Order validating bonds relating to an underlying beach restoration project was proper because, inter alia,the county was authorized by law to issue bonds to fund a project to restore and renourish the state's beaches,and the bonds were funded by revenue from the tourist development tax and special assessments on the properties within the Municipal Service Benefit Unit(MSBU); in turn,the property subject to the assessment derived a"special benefit" and the assessment was properly apportioned among the specially benefitting properties.The proposed beach renourishment project served the necessary governmental responsibility of addressing a serious menace to the economy and general welfare of the people of the state. The proposed beach renourishment project served the necessary governmental responsibility of addressing a serious menace to the economy and general welfare of the people of the state. Donovan v. Okaloosa County, 82 So. 3d 801, 2012 Fla.LEXIS 20 (Fla.2012). 16. An agreement for a private commercial development company's long-term use of vacant land owned by an airport authority did not violate the constitutional prohibition against joint ownership.Although an option to ground lease required the authority to construct a road extension, it had already been planned and budgeted, so the authority was not using public funds to create a prohibited joint ownership;the authority's obligation to provide land for wetlands mitigation did not make the parties to the agreement joint owners;and the agreement did not meet all of the elements of the test for a joint venture,such as sharing losses or having the ability to bind each other.Jackson-Shaw Co.v.Jacksonville Aviation Auth., 8 So. 3d 1076, 2008 Fla. LEXIS 2398(Fla. 2008). 17. Supreme Court of Florida does not agree that the term "joint owner" in Fla. Const. art.VII, § 10 Packet Page-164- 2/11/2014 10.B. necessarily equates to the term "joint venturer" or the term "partner."Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 2008 Fla.LEXIS 2398 (Fla.2008). 18. Lease by a public entity to a private entity is not per se invalid under Fla.Const. art.VII, § 10. Because such arrangements are not per se invalid,a public entity thus does not become a joint owner with a private entity merely by entering into a lease. Jackson-Shaw Co. v.Jacksonville Aviation Auth., 8 So. 3d 1076, 2008 Fla. LEXIS 2398(Fla. 2008). 19. When an airport authority agreed to lease vacant land to a private commercial development company, the authority was not impermissibly pledging its credit to aid the company. The authority had not given, lent, or used its credit to aid the company;accordingly, the transaction needed only to serve a public purpose,which was fulfilled to the extent that the revenue might ultimately provide tax relief.Jackson- Shaw Co. v. Jacksonville Aviation Auth.,8 So.3d 1076,2008 Fla. LEXIS 2398 (Fla. 2008). 20.Jacksonville Aviation Authority's(JAA)transaction with a commercial developer did not run afoul of Fla. Const.art.VII, § 10. While JAA and the developer might have had a community of interest in the performance of a common purpose--the success of a commercial development--they did not have a joint proprietary interest in the subject matter such that they had joint control or right of control in the development; further,the extension of a road into the development served a public purpose:JAA had previously budgeted the road improvement as a planned capital project, in accordance with its powers, and it would retain ownership of the public road.Jackson-Shaw Co. v.Jacksonville Aviation Auth.,510 F. Supp.2d 691,2007 U.S. Dist. LEXIS 844 (M.D. Fla. 2007),affirmed by 562 F.3d 1166,2009 U.S. App. LEXIS 6163,21 Fla.L.Weekly Fed. C 1647(11th Cir. Fla.2009). 21. Fla. Stat. § 159.01 et seq. contains a legislative determination that private economic development serves a public purpose and that it is in the public interest to facilitate the financing of capital projects such as a headquarters facility by the issuance of non-recourse revenue bonds;this legislative determination is entitled to great weight,particularly since it is consistent with the implicit recognition in Fla. Const. art. VII, § 10(c),that the public interest is served by facilitating private economic development. Linscott v.Orange County Industrial Dev. Authority,443 So. 2d 97, 1983 Fla.LEXIS 3204 (Fla. 1983). 22. Where a project was defined in the bond inducement resolution as a capital project for an industrial or manufacturing plant,within the meaning of Fla.Const. art.VII, § 10(c),and a"project" within the meaning of Fla. Stat. § 159.27(5), Fla. Stat. ch. 159,part II(as amended by 1980 Fla. Laws ch. 80-287), and the project served a paramount public purpose and there was no direct or indirect undertaking by the state or any other public body to pay the bonds from public funds,even if the project was not an industrial or manufacturing plant within the meaning of art.VII, § 10(c),the legislature was authorized by the Florida Constitution to provide for the financing of the project by the issuance of industrial development revenue bonds. State v. Orange County Industrial Development Authority, 417 So.2d 959, 1982 Fla. LEXIS 2474(Fla. 1982). 23. Revenue bonds for the construction of a nursing home health care facility were properly validated because the facility served a paramount public purpose and provided only an incidental benefit to a Packet Page-165- 2/11/2014 10.B. private corporation under Fla. Const. art. VII, § 10(c). State v. Leon County, 400 So.2d 949, 1981 Fla. LEXIS 2738(Fla. 1981). 24.Neither Fla. Const. art. VII, § 10 nor Fla. Const.art. VIII, §2(c)prohibits the legislature from enacting the Industrial Development Financing Act,Fla. Stat. § 159.25 et seq.,which authorizes any municipality to issue revenue bonds to finance a manufacturing plant located within or without the municipal Iimits or without regard to municipal boundaries. State v. Riviera Beach,397 So. 2d 685, 1981 Fla. LEXIS 2637(Fla. 1981). 25.Fla.Const. (1885)art. IX, § 10(now Fla. Const.art. VII, § 10)precluded a county from issuing revenue anticipation bonds to finance the construction of an industrial plant on public land to be leased to a private corporation,although the income from the lease was the identical amount needed to pay all the principal and interest on the bonds. State v. Clay County Development Authority, 140 So. 2d 576, 1962 Fla. LEXIS 2866(Fla. 1962). 26. Trial court properly refused to validate a municipal civic center special obligation bond issue to erect on one site in the general neighborhood of the city's main business district a combined recreation center, civic auditorium, parking facility, and marina,where a portion of the issue was to be used to erect marine shops at the slipside of the marina; such use of bond funds violated the restriction under Fla. Const. (1885)art. IX, § 10 (now Fla. Const. art.VII, § 10)on a municipality subsidizing private enterprise with public money. West Palm Beach v. State, 113 So. 2d 374, 1959 Fla. LEXIS 1503 (Fla. 1959). 27.Agreement for the equal exchange of properties between a city and a railroad under the doctrine of "compensation by substitution" did not violate the constitutional provision of Fla.Const. (1885)art. IX, § 10(now Fla. Const. art. VII, § 10)prohibiting any city from pledging credit to any corporation, association,partnership or person.Herr v. St. Petersburg, 114 So. 2d 171, 1959 Fla. LEXIS 1592(Fla. 1959). 28.Jacksonville Aviation Authority's(JAA)transaction with a commercial developer did not run afoul of Fla. Const. art.VII, § 10. While JAA and the developer might have had a community of interest in the performance of a common purpose--the success of a commercial development--they did not have a joint proprietary interest in the subject matter such that they had joint control or right of control in the development; further,the extension of a road into the development served a public purpose: JAA had previously budgeted the road improvement as a planned capital project, in accordance with its powers, and it would retain ownership of the public road.Jackson-Shaw Co. v.Jacksonville Aviation Auth., 510 F. Supp.2d 691,2007 U.S.Dist. LEXIS 844 (M.D. Fla. 2007),affirmed by 562 F.3d 1166, 2009 U.S. App. LEXIS 6163,21 Fla. L. Weekly Fed. C 1647(11th Cir. Fla.2009). 29. A municipality's lease of public lands to a private corporation,for which the primary purpose was to permit high-rise construction and multi-family dwellings,resulted in benefits to private interests that were more than incidental, and was therefore invalid pursuant to Fla. Const. art. VII, § 10. Williams v. Turrentine, 266 So. 2d 81, 1972 Fla.App. LEXIS 6245 (Fla. 4th DCA 1972),reversed by 291 So.2d 572, 1974 Fla.LEXIS 4370(Fla. 1974). Packet Page-166- 2/11/2014 10.B. 30. Certificates proposed to be issued by the Suwannee County Development Authority should not have been validated by the trial court because the proposed use of the certificates violated Fla. Const. (1885) art. IX, § 10(now Fla.Const. art.VII, § 10) in that the only plan or program envisioned by the authority at the time of the proceedings in the trial court was the purchase of land and construction thereon of a building or buildings for lease to a private industry,which the authority hoped to bring into the county. State v. Suwannee County Development Authority, 122 So.2d 190, 1960 Fla. LEXIS 2196(Fla. 1960), dismissed by 132 So. 2d 289, 1961 Fla. LEXIS 2282(Fla. 1961). 31. Leases involving properties financed by revenue bonds,which were created prior to the effective date of Fla. Const.art. VII, § 10(c),were not subject to ad valorem taxes under that provision because it was prospective in its application,as spelled out in the schedule found at Fla. Const. art. XII, § 7.Dade County v. Pan American World Airways,Inc.,275 So. 2d 505, 1973 Fla.LEXIS 4695 (Fla. 1973). 32. Order validating bonds relating to an underlying beach restoration project was proper because, inter alia,the county was authorized by law to issue bonds to fund a project to restore and renourish the state's beaches,and the bonds were funded by revenue from the tourist development tax and special assessments on the properties within the Municipal Service Benefit Unit(MSBU); in turn,the property subject to the assessment derived a "special benefit"and the assessment was properly apportioned among the specially benefitting properties.The proposed beach renourishment project served the necessary governmental responsibility of addressing a serious menace to the economy and general welfare of the people of the state. The proposed beach renourishment project served the necessary governmental responsibility of addressing a serious menace to the economy and general welfare of the people of the state.Donovan v. Okaloosa County, 82 So.3d 801,2012 Fla,LEXIS 20 (Fla.2012). 33. Because the construction and improvements at a county hospital did not fall within the specifically enumerated exceptions contained in Fla. Const.art.VII, § 10(c), the tax-exempt status of the bonds was irrelevant to the issue of their validity. Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763, 1978 Fla. LEXIS 4893 (Fla. 1978). 34. Florida Industrial Development Financing Act, Fla. Stat. § 159.25 to Fla. Stat. § 159.43,was enacted pursuant to Fla. Const. art. VII, § 10,which created an exception to prior case law invalidating bonds that were secured in part by a mortgage on a project.As set out in Fla. Stat. § 159.30(1),the Act permitted a project mortgage where the direct beneficiary of the project was a private institution or individual; under Fla. Stat. § 159.33 and Fla. Stat. § 159.35,the mortgaging provisions do not directly or indirectly pledge the credit of the State of Florida or its political subdivisions. State v. Putnam County Dev. Authority, 249 So. 2d 6, 1971 Fla. LEXIS 3581 (Fla. 1971). 35. State agency's construction of a cultural trade center did not violate Fla. Const. (1885)art. IX, § 10 (now Fla. Const. art. VII, § 10)because the trade center was intended to strengthen cultural relations among the countries of the Western Hemisphere and provide means to display the industrial, commercial, agricultural,and other products of the state,which was in all respects for the benefit of the people of the state and could not be said to amount to a pledge or loan of the credit of the state to any individual, company, corporation or association. State v.Inter-American Center Authority, 84 So.2d 9, 1955 Fla. LEXIS 4080(Fla. 1955). Packet Page-167- 2/11/2014 10.B. 36. Water control and improvement bonds proposed by the Northern Palm Beach Water Control District which included roadway improvements to provide access to water management facilities and aid in the development of reclaimed land did not violate Fla. Const.art.VII, § 10,because the proposed bond issue did not involve the district using its taxing power or pledging public credit to aid a private person or entity and a public purpose was involved.Northern Palm Beach County Water Control Dist.v. State,604 So.2d 440, 1992 Fla. LEXIS 1112(Fla. 1992). 37. The purchase of the property by a water management district from the purpose of Everglades restoration serves the public purposes of furthering Everglades restoration and the management of water resources and,therefore,satisfies the requirements of Art.VII, § 10,Fla.Const.Miccosukee Tribe v. S. Fla. Water Mgmt.Dist.,48 So. 3d 811,2010 Fla.LEXIS 1975 (Fla. 2010). 38. Trial court erred in invalidating the bond ordinance levying a surtax that would finance a new stadium because the bond issue did not violate Fla.Const. art.VII, § 10(c)as the two million dollar private benefit to the football team was incidental to the greater public purpose of increased trade and recreation to the citizens of the district. Poe v. Hillsborough County, 695 So.2d 672, 1997 Fla.LEXIS 686(Fla. 1997). 39. If an undertaking is for public purposes, Fla. Const. (1885)art. IX, § 10(now Fla.Const. art. VII, § 10)is not violated even though some private parties may incidentally benefit.Poe v.Hillsborough County, 695 So. 2d 672, 1997 Fla.LEXIS 686(Fla. 1997). 40. Because revenue bonds issued pursuant to the Florida Development Finance Corporation Act of 1993, Fla. Stat. § 288.9602 et seq., did not pledge public credit or taxing power,the bonds did not violate Fla. Const. art. VII, § 10. State v. Florida Dev. Fin. Corp., 650 So. 2d 14, 1995 Fla.LEXIS 205 (Fla. 1995). 41. Florida Const. art.VII, § 10 provides that the prohibition on the pledge of public credit shall not apply to the investment of public trust funds. State v. Florida Dev. Fin. Corp., 650 So.2d 14, 1995 Fla.LEXIS 205 (Fla. 1995). 42. Because the construction and improvements at a county hospital did not fall within the specifically enumerated exceptions contained in Fla. Const.art. VII, § 10(c),the tax-exempt status of the bonds was irrelevant to the issue of their validity. Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763, 1978 Fla. LEXIS 4893 (Fla. 1978). 43. Food distribution center and a laundry facility were both "industrial plants" within the meaning of Fla. Const. art. VII, § 10(c)and Fla. Stat. § 159.27(5),thus they qualified for the issuance of Industrial Development Revenue Bonds. State v.Jacksonville Port Authority,305 So. 2d 166, 1974 Fla. LEXIS 4038 (Fla. 1974). 44. Agreement by state agency to issue bonds to enable a railroad company to construct railroad facilities did not violate Fla. Const.(1885)art. IX, § 10 (now Fla.Const.art.VII, § 10)because the bonds were issued for a public purpose;the issuance facilitated the acquisition of railroad right of ways in order to construct a public expressway. State v.Tampa-Hillsborough County Expressway Authority,216 So.2d Packet Page-168- 2/11/2014 10.B. 455, 1968 Fla.LEXIS 2040(Fla. 1968). 45. Florida municipal port authority was authorized under Fla. Const.(1885)art.IX, § 10(now Fla. Const. art. VII, § 10)to issue special fund certificates to fund the construction and rent of facilities to be used to improve the service of a local airport because the facilities would primarily serve a public purpose. State v. Okaloosa County Airport&Industrial Authority, 168 So. 2d 745, 1964 Fla.LEXIS 2450 (Fla. 1964). 46. Purchase of all of the capital stock of private transportation corporations was not in the nature of a pledge or loan of the credit of the state which was condemned by Fla. Const. (1885)art. IX, § 10(now Fla. Const. art.VII, § 10), because after the sale the county was the sole owner of the transportation system. State v. Dade County, 142 So. 2d 79, 1962 Fla. LEXIS 2892 (Fla. 1962). 47. City's exchange of land agreement with a property owner did not violate Fla.Const.(1885)art. IX, § 10(now Fla. Const.art.VII, § 10),which prohibited any city to obtain money for or to loan its credit to any corporation,association,or individual,because the compensation by substitution was for a recognized public purpose and did not amount to a gratuitous aiding of a private entity. State v.Tampa, 113 So. 2d 844, 1959 Fla. LEXIS 1549(Fla. 1959). 48. Issuance of the$2,900,000 revenue bonds was in aid of a valid public purpose and did not violate Fla. Const. (1885)art. IX, § 10(now Fla. Const. art.VII, § 10). State v. Daytona Beach Racing& Recreational Facilities Dist., 89 So. 2d 34, 1956 Fla.LEXIS 4075 (Fla. 1956). 49. City's plan to acquire and establish off-street parking facilities and to issue bonds payable solely from a pledge of net revenues to be derived from such facilities,as well as the pledge of the gross revenues to be derived from its on-street parking meters as additional security,did not violate Fla. Const.(1885)art. IX, § 10(now Fla. Const.art.VII, § 10)because the plan was for a valid public purpose,the exercise of the city's police power in regulating and controlling traffic. Gate City Garage,Inc.v.Jacksonville, 66 So. 2d 653, 1953 Fla. LEXIS 1585 (Fla. 1953). 50. State universities were not in the same taxable category as companies, and therefore an appropriation of funds to students enrolled in the first approved and accredited medical school established in the state did not violate Fla.Const.(1885)art. IX, § 7(now Fla. Const. art.VII, § 10)which prohibited the levy of a tax for any chartered company in the state or the pledging or loaning of the credit of the state to any individual company, corporation or association. Overman v. State Board of Control, 62 So. 2d 696, 1952 Fla. LEXIS 1928 (Fla. 1952). 51. City's plan to acquire and establish off-street parking facilities and to issue bonds payable solely from a pledge of net revenues to be derived from such facilities,as well as the pledge of the gross revenues to be derived from its on-street parking meters as additional security,did not violate Fla. Const.(1885)art. IX, § 10(now Fla. Const. art.VII, § 10)because the plan was for a valid public purpose,the exercise of the city's police power in regulating and controlling traffic. Gate City Garage, Inc. v. Jacksonville, 66 So. 2d 653, 1953 Fla. LEXIS 1585 (Fla. 1953). Packet Page-169- 2/11/2014 10.B. 52. Redevelopment authority with a stated public purpose of acting to plan and develop a county was given the power to purchase and lease land and that power extended to private enterprises without violating Fla. Const.(1885)art.IX, § 10(now Fla. Const.art. VII, § 10). State ex rel. Ervin v.Cotney, 104 So. 2d 346, 1958 Fla.LEXIS 1463 (Fla. 1958),limited by State v. Clay County Development Authority, 140 So. 2d 576, 1962 Fla. LEXIS 2866(Fla. 1962). 53. Certificates proposed to be issued by the Suwannee County Development Authority should not have been validated by the trial court because the proposed use of the certificates violated Fla. Const.(1885) art. IX, § 10(now Fla.Const.art. VII, § 10)in that the only plan or program envisioned by the authority at the time of the proceedings in the trial court was the purchase of land and construction thereon of a building or buildings for lease to a private industry,which the authority hoped to bring into the county. State v. Suwannee County Development Authority, 122 So. 2d 190, 1960 Fla.LEXIS 2196(Fla. 1960), dismissed by 132 So. 2d 289, 1961 Fla. LEXIS 2282(Fla. 1961). 54. State universities were not in the same taxable category as companies,and therefore an appropriation of funds to students enrolled in the first approved and accredited medical school established in the state did not violate Fla. Const. (1885)art. IX, § 7(now Fla. Const. art.VII, § 10)which prohibited the levy of a tax for any chartered company in the state or the pledging or loaning of the credit of the state to any individual company, corporation or association.Overman v. State Board of Control,62 So. 2d 696, 1952 Fla. LEXIS 1928(Fla. 1952). If Opinions Of Attorney General: 1. The partnership between a wholly-owned,not-for-profit subsidiary of a hospital district and a private for-profit medical provider would appear to constitute a joint ownership in violation of Fla. Const.Art. VII§ 10,thereby precluding the leasing of district property to such partnership.AGO 2010-08,2010 Fla. AG Lexis 8. 2. Within the limits prescribed by the Florida Constitution,a hospital district has broad authority to enter into business arrangements with other business entities and to provide support for other business entities which provide health care services.However,this broad authority may only be exercised within the scope of the provisions of the Florida Constitution. AGO 2010-08,2010 Fla. AG Lexis 8. 3. A lease by a public entity to.a private entity is not per se invalid under Fla. Const.Art.VII§ 10.AGO 2010-08, 2010 Fla.AG Lexis 8. 4. The applicability of the prohibitions contained in Fla. Const. Art. VII § 10 are dependent in part on whether a valid public purpose is involved.AGO 2009-32,2009 Fla. AG Lexis 45. 5. The Brevard County Board of County Commissioners may advance funds to the Odyssey Charter School for the construction of school facilities with the condition that the funds be repaid from educational impact fees collected from a development that will create educational impacts mitigated by the charter school.AGO 2006-48, 2006 Fla.AG Lexis 51. Packet Page-170- 2/11/2014 10.B. 6.A town may use municipal funds to pay for special events insurance coverage for the town and for organizations and others using municipal property following a determination that this expenditure serves a municipal purpose.AGO 2006-12,2006 Fla.AG Lexis 8. 7. In order to satisfy Article VII,section 10,the expenditure of county funds must be for a public purpose. Ultimately,however,the determination of whether the expenditure of county funds fulfills a county purpose is one that the board of county commissioners, as the legislative body of the county,must make. AGO 2005-02,2005 Fla. AG LEXIS 3. 8. Donations, regardless of the source,received by the county and deposited into the county general revenue account are considered to be county funds,the expenditure of which must serve a public purpose. Such funds may be disbursed to the family of a deputy sheriff killed in the line of duty provided the county commission makes an appropriate legislative determination that such an expenditure serves a public purpose and the funds have been appropriately budgeted therefor. AGO 2004-37,2004 Fla. AG LEXIS 34. 9. Donations,regardless of the source,received by the county and deposited into the county general revenue account are county funds,the expenditure of which must serve a public purpose. Such funds may be disbursed to the family of a deputy sheriff killed in the line of duty provided the county commission makes an appropriate legislative determination that such an expenditure serves a public purpose and the funds have been appropriately budgeted therefor.AGO 2004-37,2004 Fla.AG LEXIS 83. 10. The Santa Rosa Island Authority possesses no inherent or home rule powers. Created by special law for a specific, limited purpose,the authority may exercise only those powers and authority as have been granted by law. In light of the nature of the authority and the specific powers granted by Chapter 24500, 1947 Laws of Florida, as amended,the Santa Rosa Island Authority has no authority to commit funds to assist a charter school providing educational services within the district.AGO 2004-26,2004 Fla. AG LEXIS 37. 11. Generally, county funds may not be used to maintain or repair privately-owned roads and related infrastructure or privately-owned water and sewer systems in private communities.The county,however, may furnish such services if provision is made for payment of all actual costs by the owner or owners of the private road or water or sewer system to the county and it is determined that such a program serves a county purpose. AGO 2002-48, 2002 Fla. AG LEXIS 93. 12.The Bradford County Board of County Commissioners may expend public funds to assist a county volunteer fire department that provides services within Bradford County in making payments on the purchase of a new fire truck.AGO 2002-18,2002 Fla. AG LEXIS 31. 13. The Bradford County Board of County Commissioners may donate money to a nonprofit corporation to help maintain a former school building that will be used by various community organizations,private parties,and governmental entities,provided the county commission determines that a county purpose is served by such donation and proper safeguards are implemented to assure the accomplishment of that purpose. AGO 2002-18,2002 Fla.AG LEXIS 31. Packet Page-171- 2/11/2014 10.B. 14. While the City of Belleview may operate and maintain its own gas distribution system, enter into a franchise agreement, or contract with a private entity to purchase natural gas which it would then sell to the city's residents, it may not enter into a partnership with a private corporation for the delivery of natural gas service without violating Article VII, section 10,Florida Constitution,which forbids the use of the state's taxing power for a private purpose.AGO 2002-07,2002 Fla.AG LEXIS 24. 15. A county,upon making the appropriate legislative finding that an expenditure serves a county purpose,may loan monies to a special district for the construction of a water and sewer system serving the special district and the neighboring unincorporated area of the county. AGO 2000-55,2000 Fla. AG Lexis 71. 16. Payment of bonuses to existing employees for services they have already performed and been compensated for would violate Fla. Stat. § 215.425 unless there is a preexisting employment contract making such bonuses a part of their salary or the city council has adopted a lump-sum bonus payment program to reward outstanding employees whose performance exceeds standards,provided the bonus payment is not included in the employee's regular base rate of pay or carried forward in subsequent years. AGO 2000-48,2000 Fla. AG Lexis 51. 17. It would not be a violation of Fla. Const. Art.VII § 10 for a school district to serve as a charter member of a nonprofit corporation formed in accordance with 26 U.S.C. § 501(c)(3)when the school district has no ownership interest or shareholder interest in the corporation and no school district funds are being committed to the operation of the corporation.AGO 1999-29, 1999 Fla.AG Lexis 29. 18. County funds may be paid to a nonprofit corporation to be used for the stated purpose of educating the electorate as to a proposed constitutional amendment affecting the county if the county commission makes the requisite legislative findings as to the purpose of the expenditure and the benefits accruing to the county, and if sufficient safeguards are adopted to ensure that such funds are being used for the purpose for which they are intended.AGO 1998-33, 1998 Fla.AG Lexis 33. 19. A county may expend county funds to support or oppose an issue before the electorate, provided that the county commission makes the requisite legislative findings as to the purpose of the expenditure and the benefits accruing to the county from such expenditure. Such a determination is one that the board of county commissioners, as the legislative and governing body of the county,must make; it cannot be delegated to this, or any other, office. AGO 1998-33, 1998 Fla. AG Lexis 33. 20. Water management district may purchase real property by buying a private, for-profit corporation and immediately dissolving the corporation in order to transfer fee title to the property to the district without violating Fla. Const. Art. VII § 10, if the transaction is structured such that the district assumes no liabilities of the corporation. AGO 1998-20, 1998 Fla. AG Lexis 12. 21. If the governing board of trustees of the hospital district determines the lease to be in the best interests of the district,the board may lease its unimproved real property on a long-term basis for nominal consideration to a not-for-profit corporation to be used by the corporation to construct and operate a Packet Page-172- 2/11/2014 10.B. hospice house for the benefit of district residents.AGO 1996-90, 1996 Fla.AG Lexis 90. 22. The Technology Development Board may provide funding to private,for-profit corporations,where the investment of such funds fulfills the legislatively prescribed purpose of the board and is carried out in the manner provided by law. AGO 1996-50, 1996 Fla. AG Lexis 43. 23. Accordingly,while a hospital district may enter into contracts with other not-for-profit and for-profit corporations for the provision of certain health care facilities and expend public funds therefor subject to the conditions and limitations set forth in its enabling legislation,the district would be precluded from loaning or extending its credit to a private for-profit corporation.AGO 1996-12, 1996 Fla.AG Lexis 8. 24.The determination of whether the expenditure of county funds serves a county purpose is one that the board of county commissioners,as the legislative body for the county,must make; however, granting a temporary easement of thirty days to the county would not appear to satisfy the public purpose requirement for the expenditure of public funds if the expenditure of such funds is not otherwise permissible.AGO 1994-89, 1994 Fla. AG Lexis 116. 25. The city may make industrial and economic development grants to privately owned businesses if it makes the appropriate legislative determination that such grants serve a municipal purpose.AGO 1994- 53, 1994 Fla. AG Lexis 71. 26. City of Sebastian is authorized to advance sick leave hours to city employees through utilization of an employee sick leave pool.AGO 1994-23, 1994 Fla.AG Lexis 43. 27. Port authority may enter into a land purchase contract in which funding is derived from future proceeds from the property and from non-ad valorem tax revenues without violating Fla. Const.Art.VII§ 10 and Fla. Const.Art.VII § 12 since the property would be transferred to the authority with no mortgage and the authority's only obligation would be the payment of a promissory note from non-ad valorem tax revenues and profits from the operation of the property. AGO 1993-44, 1993 Fla.AG Lexis 42. 28. The acquisition of additional port facilities by port authority would fulfill a public purpose.AGO 1993-44, 1993 Fla.AG Lexis 42. 29. While a municipality would not be precluded from taking back a mortgage on surplus municipal property,the subordination of that mortgage to a mortgage secured by the purchaser for the construction of improvements would appear to be precluded by Fla. Const. Art.VII § 10 when the primary beneficiary of such a subordination would be the purchaser,a private for profit corporation.AGO 1992-71, 1992 Fla. AG Lexis 71. 30. The expenditure by the City of Fort Myers of the proceeds of a special assessment bond issue under Ch. 170, F.S.,to reimburse the private developer of an area specifically benefited by the improvements for the cost of obtaining Development of Regional Impact approval is not authorized. AGO 1992-22, 1992 Fla.AG Lexis 9. Packet Page-173- 2/11/2014 10.B. 31. While the private party is liable for the payment of the excise tax on documents transferring property the county,the county, if it determines that such payment serves an identifiable county purpose,may pay, on behalf of the private party,such excise taxes;determination of whether such payment constitutes a county purpose in any given instance is one which must be made by the county commission.AGO 1992-07, 1992 Fla.AG Lexis 13. 32. Braden River Fire Control and Rescue District may create a system of impact fee credits for impact fees collected in advance but must collect the entire fee prior to issuing a building permit or issuing construction plan approval;District's Board of Commissioners possesses no authority to amend the district's enabling legislation by ordinance,resolution, agreement,or other document.AGO 1992-04, 1992 Fla. AG Lexis 2. 33. City of Bartow pursuant to its home rule powers may authorize the use of the municipal golf course by private persons and require payment of the charges for the greens fees for such persons at the end of each month without violating Fla. Const. Art. VII§ 10. AGO 1990-41, 1990 Fla.AG Lexis 41. 34. In Florida, a riparian property owner possessed a qualified common law right to build a dock or wharf out to navigable waters in the absence of a statute;this matter requires resolution of mixed questions of law and fact which is the province of the courts.AGO 1990-37, 1990 Fla. AG Lexis 37. 35. City of West Palm Beach is authorized by Ch. 166, Fla. Stat.,and Fla.Const. Art.VII § 2(b)to enact regulations relating to dock location and construction; however,any such regulation which results in a limitation of or complete prohibition of the exercise of the riparian right to "wharf out"to navigable waters may subject the city to liability for just compensation for the taking of such a right.AGO 1990-37, 1990 Fla.AG Lexis 37. 36. I cannot conclude that the building of a seawall by the City of West Palm Beach to facilitate the construction and maintenance of a public thoroughfare would defeat the riparian rights of an upland owner who has specifically reserved such rights in lands encumbered by a dedicated easement for such thoroughfare; City of West Palm Beach may lawfully expend municipal funds to construct a seawall on private property if the city commission determines that such a project satisfies a public purpose. AGO 1990-37, 1990 Fla. AG Lexis 37. 37. While the collection of waste,thereby eliminating a source of pollution,may well constitute a substantial benefit to the incorporated areas, such a determination involves questions of fact and mixed questions of law and fact which the county commission must address; similarly,while the provision of waste collection services constitutes a public purpose for which public funds may be expended,the legislative findings and determination as to the propriety of a particular expenditure is one which the county commission must make,and cannot be delegated to this office. AGO 1990-30, 1990 Fla.AG Lexis 30. 38. The adoption of a plan whereby customers pay impact fees in several payments,rather than one payment,with interest added does not violate Fla. Const. Art. VII § 10.AGO 1990-16, 1990 Fla.AG Lexis 5. Packet Page-174- 2/11/2014 10.B. 39. On-duty police officers may not be pre-authorized to act as the agents of a private landowner for the purpose of communicating to an alleged trespasser an order to leave the private property pursuant to Fla. Stat. § 810.09(2)(b).AGO 1990-08, 1990 Fla. AG Lexis 13. 40.A municipality may enter into a contract which requires payments from non-ad valorem taxation sources beyond the end of the fiscal year without approval by referendum and subject to the appropriation of funds, if such action is not prohibited by an ordinance or charter provision;however,obligations for a term in excess of one year and funded from ad valorem sources are subject to approval by eligible voters. AGO 1989-58, 1989 Fla.AG Lexis 67. 41.A county may expend tourist development tax revenues to finance beach cleaning and maintenance without the necessity of establishing the mean high-water line so long as such expenditure paramountly serves a public purpose,and there is compliance with the requirements of Ch. 161,F.S.,and Fla. Stat. § 253.77, where applicable.AGO 1986-68, 1986 Fla. AG LEXIS 42; 1986 Op.Atty Gen. Fla. 161. 42. The Board of County Commissioners of Lafayette County is authorized to donate revenue sharing monies(as restricted by Fla. Stat. § 218.25,)to a nonprofit senior citizens organization so that county residents who are members of the club may take field trips provided that the program is open to the public and is determined by the board of county commissioners to serve a valid public purpose and provided that proper safeguards are implemented to assure accomplishment of the public purpose. AGO 1986-44, 1986 Fla.AG LEXIS 66; 1986 Op. Atty Gen. Fla. 102. 43. Unless and until legislatively amended,the Division of Communications is not authorized to permit the cooperative use of the communications facilities by a private for profit corporation on a reciprocal, nonprofit basis; additionally,the state or any of its agencies would appear to be constitutionally prohibited by § 10,Art.VII, State Const., from entering into a joint venture with a private corporation for the joint ownership, construction and operation of communications facilities and systems.AGO 1985-49, 1985 Fla. AG LEXIS 55; 1985 Op.Atty Gen. Fla. 140. 44. Although the operations of the Parole and Probation Commission may be somewhat benefited thereby,the renting of permanent automobile parking spaces by the commission for certain employees thereof who drive their automobiles to work is primarily of personal benefit to the employees involved and is an unauthorized expenditure of public funds.AGO 1974-305, 1974 Fla.AG LEXIS 60. Packet Page-175- 2/11/2014 10.B. TAMPA FORT MYERS 2502 Rocky Point Drive 12731 World Plaza Lane Suite 1060 Suite 2 Tampa,Florida 33607 Nabors Fort Myers,Florida 33907 (813)(813)281-0129 Tel Giblin (239)288-4027 Tel (813}281-0129 Fax (239)288-4057 Fax FORT LAUDERDALE Nickerson TALLAHASSEE p,q. 1 110 East Broward Boulevard 1500 Mahan Drive Suite 1700 Suite 200 Fort Lauderdale,Florida 33301 ATTORNEYS AT LAW Tallahassee,Florida 32308 (954)315-3852 Tel (850)224-4070 Tel (850)224-4073 Fax January 23, 2014 VIA E-MAIL TO: Jeffrey A. Klatzkow, Esq., Collier County Attorney FROM: Nabors, Giblin&Nickerson, P.A. RE: Creation of MSBU for the purpose of financing seawall improvements You requested a memo regarding the legal issues associated with the establishment by the County of a municipal service benefit unit and the levy of special assessments within the MSBU to finance certain seawall capital improvements. We have been informed that the proposed improvements will be financed with the proceeds of a taxable loan or other indebtedness that will be issued by the County and secured solely by the proceeds of the special assessments. It is our understanding that the seawall abuts a navigable waterway within the County and currently is located on private property. We have been informed that prior to the County commencing any work associated with the improvements the private owners will grant an easement to the County to allow for the improvements to be made by the County and for ongoing maintenance. Pursuant to Section 125.01(1)(q), Florida Statutes, the County may establish a municipal service benefit unit or MSBU to provide a variety of enumerated services and facilities including "other essential facilities." Such services and facilities are authorized under this statutory provision to be funded with special assessments levied within the MSBU. It is well settled in Florida that a valid special assessment is not a tax. See Klemm v. Davenport, 129 So. 904, 907 (Fla. 1930) and Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla 1995). A county may impose a special assessment by ordinance utilizing its home rule powers as an alternative to utilizing the provisions of Chapter 170, Florida Statutes. See City of Boca Raton v. State, 595 So. 2d 25 (Fla. Packet Page-176- 2/11/2014 10.B. Jeffrey A. Klatzkow, Esq., County Attorney January 23, 2014 Page 2 1992). The Florida Supreme Court in City of Boca Raton v. State also articulated the now well established "two-prong test" to determine the validity of a special assessment. In sum, the test provides that to be a valid special assessment the property assessed must derive a special benefit from the improvement or service provided and the special assessment must be fairly and reasonably apportioned among the property owners consistent with the special benefit provided. In imposing any special assessment the County must ensure that it satisfies both prongs of the test. Under current Florida law, the findings of special benefit and proper apportionment of costs among assessed properties are considered legislative in nature and presumed correct unless the determinations are found to be arbitrary. See Donovan v. Okaloosa County, 83 So. 3d 801 (Fla. 2012). As noted, it is our understanding that the County intends to issue taxable debt to fund the seawall improvements, such debt to be payable from and secured by the special assessments to be levied. Under Florida law, when debt is issued by a governmental entity and public funds are to be used to secure and repay such debt it must be determined that the project to be financed serves a valid public purpose. See Poe v. Hillsborough County, 695 So. 2d 672 (Fla. 1997) and Donovan v. Okaloosa County. As is the case with the special assessment analysis, great deference is given to the legislative bodies in making these determinations. However, whether a particular debt issuance meets this standard depends upon the unique facts and circumstances associated with the financing. From the limited facts presented to us, it appears that there are a variety of significant County public purposes in providing seawall improvements (i.e., safety, environmental, recreational, aesthetic, and others). The facts also support the proposition that the seawall facilities constitute "essential facilities." However, we have found no debt-related Florida cases addressing these types of improvements or with facts substantially similar to those in the County's current situation. It is not possible to predict with any certainty whether a court would find that the proposed improvements meet the public purpose and essential facilities requirements in light of the current facts. Accordingly, if the County determines to move forward with these transactions we strongly advise that the County avail itself of the provisions of Chapter 75, Florida Statutes, and seek a validation of the proposed debt issue. A successful validation of the debt would provide the County with a judicial determination that the debt, the underlying special assessments and the creation of the MSBU are valid and lawful. We will be more than happy to discuss the particulars of this expedited judicial proceeding with you. Packet Page-177- 2/11/2014 10.B. KlatzkowJeff From: Miller, Steve[smiller @ngn-tampa.com] Sent: Thursday, January 09, 2014 5:03 PM To: KlatzkowJeff Cc: IsacksonMark; Traber, Chris Subject: RE: La Peninsula MSBU Jeff—Chris and I had a chance to speak with Greg this afternoon. For a straightforward, uncontested validation that doesn't get appealed we usually bill between$20,000 and $25,000. We just completed one for the City of North Port that was uncontested and I believe our bill was approximately$22,000. Greg indicated that if it were to be contested the bill could easily approach$40,000. If either the County or any intervener were to appeal the Circuit Court decision (which is directly to the State Supreme Court)there would obviously be additional cost. As far as timing goes,the validation process itself largely depends upon how quickly a hearing can be set. You can expect it to take at least 3—4 months. If the Circuit Court ruling it is appealed it could take between 12-18 months to get before the Florida Supreme Court. In addition, prior to validation the Board would have to adopt all assessment legislation and the debt instruments and have the easement in place prior to filing a complaint. I think we should probably get on the phone and discuss this at your convenience. I was always a little unsure of the cost-benefit analysis for this transaction with regard to the HOA and with these additional costs,delays and unknowns I think the analysis gets even trickier. Nabors �ll11& NIC rson,. • Steven E. Miller,Esq. Nabors,Giblin&Nickerson, P.A. 2502 Rocky Point Drive, Suite 1060 Tampa, Florida 33607 Phone 813/281-2222 Fax 813/281-0129 smi ller @ngn-tampa.com From: KlatzkowJeff[mailto:JeffKlatzkow @colliergov.net] Sent: Wednesday,January 08, 2014 11:15 AM To: Miller, Steve Cc: IsacksonMark;Traber, Chris Subject: FW: La Peninsula MSBU Steve: There is growing opposition to this MSBU. Would a bond validation proceeding be in order prior to the imposition of the assessments? If so,please provide me with your best estimate of the legal fees the County would likely incur, as well as the length these proceedings typically take. I won't hold you to them, as I understand how these things can mushroom. I need an answer no later than COB Monday, and preferably sooner, as there is.a Public Petition on this(attached below) set for next Tuesday's BCC meeting. Jeffrey A. Klatzkow County Attorney Packet Page-178- 2/11/2014 10.B. 1fCo er County Office of the County Manager MEMO Date: February 3, 2014 To: Leo E. Ochs, Jr., County Manager From: Tim Durham, Executive Manager Corporate Business Operations Subject: Proposed La Peninsula MSBU — Public Purpose Query At the January 14, 2014, BCC meeting (Item 6A), the County Manager was directed to provide the "primary public purpose" for the County's participation in the seawall repair at La Peninsula. The contemplated action by the County would include the creation of a MSBU at La Peninsula and the validation of a debt issuance to repair the seawall there. Based on research specific to La Peninsula and other similarly situated Florida communities,there are at least two possible "public" concerns arising from the failure of the seawall at La Peninsula: 1. Loss of Tax Revenue — The condominiums at La Peninsula are very close to seawall. For example, the condominiums in the 400 block are only 20 feet or so from the seawall at its closest point. The taxable value of that same block of condominiums is approximately $6.3 million. A failure of the seawall in the vicinity of the 400 block could cause structural damage devaluing those properties and thereby reducing tax revenue. 2. Public Relations Impact — If a failure like the one described above were to occur and if it were to become widely publicized or known, there could be an adverse impact on those contemplating Collier County as a place to visit, reside or conduct business. With so many attractive alternatives to choose from for those wishing to enjoy Florida, our community could be eliminated if there is a concern over the soundness and safety of our basic infrastructure. Notes: It should be noted that there appears to be no immediate public safety concern at this time. Packet Page-179- 2/11/2014 10.B. January 14, 2014 CHAIRMAN HENNING: And maybe we can provide public access to that for fishing -- COMMISSIONER HILLER: Well, let the County Manager come back and tell us what is -- based on the facts as they exist, what is the primary public purpose, not the primary private purpose but the primary public purpose of doing this. And listening to the discussion, which I think was very Nil, I would like to add one thing to the County Attorney and% at is, you know, one thing that we do whenever we issue public dettjs we have a bond validation or essentially a debt validationparing with the courts. And -- . d it would be it would be mformatrve4he Board if we could find out how that process could be applied here,before any debt would be issued through the county. MR. KLATZKOW: I've had that;- iiscussion with outside counsel previously and it will be part of my executive summary. COMMISSIONER HILLER: I'm stir ? MR. KLATZKOW: It will be part ofmy executive summary. COMMISSIONER HILLER: Fantastic. That's really great. : So I've made my moon 3And if I could have a second? CHAIRMAN-HENNING: Yeah, you already have a second by Commissioner Nanbe COMMISSIONER HILLER: Okay, thank you. CHAIN HENNING: Okay, let's -- since this is reconsideration, it's going to come back, why don't we hold any other questions or comments 'til later. Is that okay'? COMMISSIONER FIALA: Just a fast one, though. I would suggest to the La Pen people, if this seawall is providing silt into the pass, you might want to investigate that as you go forward, because that is definitely a public purpose. Thank you. CHAIRMAN HENNING: All in -- MR. OCHS: Mr. Chairman, I'm sorry, I don't want to the belabor this, but just procedurally for the public's edification, and I'd ask the Page 43 Packet Page-180- ° 2/11/2014 10.B. UUN"� Board of Collier County Commissioners Donna Fiala Georgia A. Hiller, Esq. Tom Henning Fred W. Coyle Tim Nance District 1 District 2 District 3 District 4 District 5 MEMORANDUM Date: January 14, 2014 To: Leo E. Ochs,Jr., County Manager From: Commissioner Georgia Hiller, District 2 RE: Reconsideration of Item 6A-January 14, 2014 BCC Meeting Please consider this a request for reconsideration for the January 28, 2014 BCC Meeting agenda. Request for Reconsideration of Item#6A from the January 14,2014 BCC Meeting titled: Public Petition request from Jared Grifoni representing the Libertarian Party of Collier County, requesting that the Board of County Commissioners rescind Ordinance 2013-70 which established the La Peninsula Seawall Municipal Service Benefit Unit (MSBU)and rescind Resolution 2013-292 which established a special assessment for funding the seawall improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the Board of County Commissions on December 10, 2013. Thank you. 7- t y 3299 Tamiami Trail East,Suite 303•Naples,Florida 34112-5746.239-252-8097•FAX 239-252-3602 Packet Page-181- 2/11/2014 10.B. January 14, 2014 to go. Great night club, by the way, Dusk? Love it. Very nice. CHAIRMAN HENNING: Next item? Item #6A PUBLIC PETITION FROM JARED GRIFONI REPRESENTVG THE LIBERTARIAN PARTY OF COLLIER COUNTY, REQUESTING THAT THE BOARD OF COUNTY w; COMMISSIONERS RESCIND ORDINANCE 2013- " a:; ICH ESTABLISHED THE LA PENINSULA SEAWALL, MUNICIPAL SERVICE BENEFIT UNIT (MSBU) AND REST 1 RESOLUTION 2013-292 WHICH EST agtLISHE I SPECIAL ASSESSMENT FOR FUNDING SEAWAhVIPROVEMENTS. BOTH ORDINANCE 2013-70 AND:;RESO LUTION 2013-292 WERE ADOPTED BY THE BOARD OF COUNTY COMMISSIONS ON DECEMBL 2013 - MOTION TO BRING E BACK, STAFF TO PROVII .A LEGAL OPINION AND RECOMMENDATIONS FOR FURTHER ACTION AT A FUTURE MEETING — APPROV ; RE OONSIDERATION WILL BE PROVIDED ON FEBRIIARY 11, 2014 BCC CO NSENT AGENDA MR. OCHS:: Yes, sir. We move to Item 6 on your agenda this morning, Puc Petitions. Item 6.A is a public petition request from Jared Grifoni representing the Libertarian Party of Collier County, requestig'that the Board of County Commissioners rescind Ordinance 2013-70 which established the La Peninsula Seawall Municipal Service Benefit Unit, and rescind Resolution 2013-292, which established a special assessment for funding the seawall improvements. Both ordinances were adopted by the Board of County Commissioners on December 10th, 2013. CHAIRMAN HENNING: Mr. Grifoni? Page 21 Packet Page -182- 2/11/2014 10.B. January 14, 2014 MR. GRIFONI: Good morning, Commissioners. Thank you for the opportunity to speak to you regarding this creation of the MSBU for La Peninsula, a private gated community for the purpose of repairing and replacing their seawall, their existing seawall for the benefit of the property owners in that development. Itin I know I only have 10 minutes today, so I I'm going to t nd make all this brief There's a lot of issues here. So excuse, me'`i concise. First and foremost, though, we need to touch oe Constitution. The Florida Constitution is definitive -- it's a foundatn for our source ,t of government, it's the foundation for the F1orida.Statntes, and even our county ordinances. Article 7, Section 10 deals with finance anJ taxation. And in Section 10 it specifically states that neither the state-nor the county or other entities can lend or use or give its sing power for the credit to aid any private entity. Now again, it c�aro use the taxing power to aid any private entity. ` Now, we know that tle are some exceptions to that particular portion of the constitution: Thy deal with public trust funds, obligations backedy the United States and so forth. Seawall repair: d replacement is nowhere to be found. But is the county Really usingits taxing power here? Because we're talking about MSB . Well, MSBUs are special assessments that are p aid back from the property owners within the boundaries of the created MSBUV--x Now, in AGO 85-90, Marion County faced a similar issue. They'rea non-charted county,just like Collier County is And in that AGO it" vas written that special assessments are distinguishable from taxes but they are levied under the taxing power. So again, we do need to fall back to that Constitutional provision. We are talking about the taxing power here. Now, if we are the constitutionalists that we say we are, that Page 22 Packet Page-183- 2/11/2014 10.B. January 14, 2014 really should be the end-all and be-all of this discussion. But really there's a lot more to go over. And some people say that the Constitution's a living document, Florida Constitution or the Federal Constitution. Some people say that it's eroded over time. But the fact is, we all are here to stand up for the principles of the Constitutn. Now, the Florida Statutes are the same. Statute 125 -- Section 125, that was the authority under which the MSBU ordinv'efi was created. Now, in 125.O1.Q, that's the relevant portion. It sits that MSBUs can be created, they can be utilized, but ontfor certain teams: For things like fire protection, law enforcemeht street sidewalks, garbage and trash collection. Aga' awal1 repair and replacement is nowhere to be found in that: e; There's no seawall repair or replacement there. mom. s ;:* ''''' And the Statute's very specific. It.deals with public utilities in a sense, public things that are unrelad to private seawall construction. Now, 125 is the authors h.slthe ordinance itself And I received an email from the Ccmytcty Attorney as well, and Commissioner Hiller, we've •" .c . sed it as well, regarding Florida Statute 170. ei Now, 170, the em that I received from the County Attorney g noted it wasn't a legal brf , and I think for good reason. Because 170 doesn't apply tounties at all 170 applies to municipalities. Title 12 is for municipalities, Title 11 is for counties. So 170 doesn't apply here at ally low -- and it certainly doesn't apply for Isles of Capri, because Isles'of Capri is an unincorporated area of Collier County, it's not amunicipality. Collier County isn't a municipality. Municipalities are charted cities in the State of Florida. So-we can see whether it's under the constitution or the Florida Statutes, whether it's 125 or 170, the authority just doesn't exist. Well, what about the county ordinances? We can look at those too. 122.2043 of Collier County Ordinances deals with MSBUs. Well, in that ordinance it says that MSBUs can be created to provide Page 23 Packet Page-184- 2/11/2014 10.B. January 14, 2014 for water, sewer, streets and other essential facilities. Now, this piggybacks on 125, we're dealing with the same thing: Water, sewer, streets and other essential facilities. Essential facilities are most frequently defined as natural monopolies, things like utilities, transportation facilities, things of that nature. Again, not seawalls. Essential facilities are public facilities, not private facilities. , So we don't have the authority under the Constitution, tlrida Statute or the county ordinances anywhere for repair anlitreplacement of seawalls. 4§..- K ,a Now, there's a variety of AGOs out there, • I E ' not going to go into all of them today, but Flagler County, City o - e Isle, they've done these things as well -- they've tried tklito these 4f' ngs as well and they've all been rejected on the grounds th re's no public purpose. Now, we know that when county funds` :re expended it has to be done for a public purpose. And at the December meeting Attorney �i� Klatzkow mentioned that at the en' oe day public money must be spent for a public purpose. So what's the public i ll•ose9 Well, AGO 90.37 is actually even a little stricter. It's not jus ` • •lie purpose, it's a paramount public purpose. Now, like I mentioned, Flagler County had a similar issue. City of Belle Isle tried to cfeate an MSTU, slightly different but the same thing, it's jus how they're taxed. But an MSTU just cover the costs associated with private commonMareas. That was rejected because there wasn't a public purpose. It was again the benefit of a private agency. They fell back on the Constitution, Article 7, Section 10, same thing that we're talking about here today. Escambia County, now they're unrelated to Collier County but they are a non-chartered county in Florida, they have a very clear and concise policy on MSBUs. Their MSBU book states, quote, the funds raised are public funds and must be collected, accounted for and spent Page 24 Packet Page-185- 2/11/2014 10.B. January 14, 2014 in accordance with applicable laws regarding public funds. Only public property, only public property can be maintained and improved by an MSBU. Access must be open to all members of the public equally. In addition, adequate easements are property dedications must be provided. So again, what does Escambia County know that for some reason it seems like we don't know here in Collier County so far? 4: Code Enforcement as well. We've seen this, what hailed to Code Enforcement? Have they been, you know, got gg to sleep for five or 10 years? No, actually not. Code Enforcement has been called out They have looked at the La Peninsula sel. , 1 back in 2009. They found that there were minor cracks of no ,o em, normal wear and tear, and the seawall wasn't in any failure. Well 2009, that was four, five yews ago now. Well, what about more recently? 2013, same thing. Tent out to La Peninsula to e. inspect the seawall. August ohO 13, ju ` a couple of months before this issue was even brought beforethe Boar. Well, County Engineer Jack McKenna, he made a:determination that it's not a health and safety situation, that the sews needs some minor repairs, that there's no violation at this time, and that a permit wasn't even required to make these repairs bause they're so minor. So what ecactly is going on here? Well, we know in August of 2012 La Peninsuhaoted down 4-3 spending $4,000 for an engineer's report for.13 .P, $18,000 for a building permit that would have been good for five years. We know that they had approximately $200,000 it seaall reserves at that time. We know that there was an ongoing legal dispute between La Peninsula and the former owners of the seawall`over whether or not the seawall was turned over in proper condition. That lawsuit happened to be voluntarily dismissed in 2013. And I don't want to speculate, but again, do we really have all the facts? Now, the issue here too is precedent. Precedent's a big one. Page 25 Packet Page-186- 2/11/2014 10.B. January 14, 2014 Precedent that's going to be set here is very dangerous. We have over 500 homeowners associations in Collier County. And if they all came looking for the same bailout, because that's what this is, it's a bailout for mismanagement, you're looking at $2 billion added to coty debt. Because this money does get added to county debt, even though it's paid back by the MSBU. ., Does Collier County really want to get into that situation? Again, never happened before in the State of Florida, it's new happened before in Collier County. Now, we don't even know how it's going to_ ,- financed. It's like Nancy Pelosi came down to the Collier County B 6 d d and said well, you've which got to pass this ordinance toViod out w'it's in it We don't know what's in it. Commissioner Hiller, even at the December meeting you asked, you know, how is this going to be financed, who's incurring this debt? And the answer from Attorney.Klkow is we don't have financing plans in place yet and I cannQ WRswer that question. Well, that doesn't really le with a lot of confidence, to be honest. And I think really it's jusa lack of having the information in front of us. The ordinance itself;*gain it says that hey, if there are conflicting ordinances in etence, if there's conflicting laws, the more strict law shall apply. So again, we see this -- if you look at the whole picture, there's a lot f issues here. Now,I Lippe I've been able to express a lot of these issues in a clear and concise manner in the short amount of time that we had here. And I believe that the Commission here is a good one and I believe that you've all been proceeding in a manner that you believe to be best, not only for the Board of County Commissioners but for La Peninsula, as well as Collier County residents, and I think that this new information really deserves more than 10 minutes of, you know, rushed conversation here to really be delved into and to look at Page 26 Packet Page-187- 2/11/2014 10.B. January 14, 2014 properly,just so it has the proper justice here. Now, we can argue back and forth about the condition of the seawall, whether or not this Board owner said this or that Board owner said that. But it's secondary to the legal and Constitutional authority that simply doesn't exist. Now, in summary, the county ordinances don't support WI Code Enforcement doesn't support this, the AGOs don't support thisrida Statutes don't support it, and ultimately and most impotly, the Florida Constitution doesn't support this either. t : Now, we have a variety of unanswered que dos here. And it's incumbent upon this Board to exercise the propert li ence on this MSBU going forward. We certainly don't want to,: into another situation where there's another lawsuit that is unnecessary that doesn't need to happen. We need to review al these facts before we go forward and make sure that this is on 'the proper legal and constitutional authority. Now we all are here because bell Fe in fiscal conservatism. We believe in the proper role_of government. And I think this Board wishes to continue to folio* those principles, to abide by those principles, and fra iy those`/Principles unite virtually all of us here in this room today. I believe that the only appropriate action that can be had today is that this Board moves to rescind the ordinance and resolution and it's brought back up.at the next meeting. I think that this needs to be done. :There's sob many issues here and it was very difficult to the get them all into the 10-minute time span here without properly explaining`them all. But as you can see, there's a lot to discuss here and I think it's incumbent that we do look at this again. Thank you. CHAIRMAN HENNING: You actually have time left. (Bell sounds.) CHAIRMAN HENNING: That's the one-minute warning. You Page 27 Packet Page-188- 2/11/2014 10.B. January 14, 2014 still have one minute. MR. MILLER: Actually, that's it. CHAIRMAN HENNING: That's it? MR. MILLER: That's it. CHAIRMAN HENNING: What happened to our yellowutton? MR. MILLER: I don't know why we did not get a warning n that, sir. I'll figure that out CHAIRMAN HENNING: Yeah, fix that. 4 Commissioner Nance? COMMISSIONER HILLER: It's actually Conic ssioner Hiller. CHAIRMAN HENNING: Oh, CommissOmer Hiller. I'm sorry. COMMISSIONER HILLER: But I'll goy name. CHAIRMAN HENNING: We'll change that need to change that. COMMISSIONER COYLE: You look so much alike. COMMISSIONER HIKER Yea 'Know. COMMISSIONER N Commssioner Coyle, please. COMMISSIONER HILEE So first of all, George, you've presented very well IrtIe 10 min' inutes you brought a lot of issues forward. i,4-. .. At this stage where ve put forward a request to have this matter brought.back, I don't believe that this Board has the ability to rescind the ordinance right here and now, so I don't think that can be part of any motion. But I feel that there are enough questions being raised that this should be brought back. And I think we do need to get definitive answerson everything that you have put forward. Because we do want to act legally and we do want to respect the constitution. And so I would like to make a motion to approve your request to bring this matter back. And I don't think it should be brought back at the next meeting, because I think the County Attorney should be given time to review your questions and do the appropriate level of research Page 28 Packet Page-189- 2/11/2014 10.B. January 14, 2014 necessary to come back and inform us as to -- in a formal legal brief what his position is on all the legal points that you have raised. I mean, they're important questions. So I make a motion that we bring this back for a future hearing and that it be the first hearing in February. CHAIRMAN HENNING: I'll second that motion. Hoer, the proper forum would be to write a memo to the County Mana `g+cr� . asking for reconsideration. I'm assuming that you're g a 2_� yto do that COMMISSIONER HILLER: Well, is it really a r- ��A .ideration? Because it's not really a reconsideration of this. -.an, we approved it I mean, I can, because I did vote in the majori - t I can do a request for reconsideration. But in this c q aikahs is a petition to review legal questions related to an ordin. -,--„ d if the finding is that the law doesn't support what is being pr :posed that that ordinance be rescinded. So do we need a recons�idera! an can we just move forward in the following manner? Whichon�t-care. I'll do it whichever way. MR. KLATZKOW: Mrpreerence is to limit the number of issues. And I concur w the Chair on this, if you would draft a letter to the County Managerder the reconsideration ordinance, you are removing a potential issuer COMMISSIONER HILLER: Okay. Is that your pleasure, Commissioner Henning? Would you prefer I do it like that way? CHAIRMAN HENNING: I'm just saying the process that we set out in t te.. County`Commissioner meeting ordinance under reconsi ation a memo should -- e� o u d be sent to COMMISSIONER HILLER: Wait, a memo is not a problem. County Manager, would you kindly draft a memo that I'm going to sign and send back to you? I would really appreciate it. And we can get that done today and that way we don't fall short of what our reconsideration ordinance requires. Is that okay, County Attorney? Page 29 Packet Page-190- 2/11/2014 10.B. January 14, 2014 MR. KLATZKOW: Thank you. COMMISSIONER HILLER: Is that okay with you, Commissioner Henning? CHAIRMAN HENNING: That's fine. Commissioner Fiala, Commissioner Coyle and then Commissioner Nance. COMMISSIONER FIALA: Thank you It looks like this is going to pass, so I wanted to ask the County Attorney number one, it seems like a lot of this is interpretation, and everybody interprets everything from their own poinkf view. So as we're doing this, we have many, many, many, STUs, MSBUs and so forth. And so while we're taking this into consideration, I want to know that -- like for instance, Forest Lakes Rc adway and Drainage, we never had that before,just as we didn't hake seawalls. Does that then say that they cannot continue With theihiISTU or MSBU, whatever it is? ` And what about Peliczi n Bay, they've taken their MSBUs out for landscaping. And that's wry ndezful and they want to do that and I support that Butean, is that interpretation? I think that when it comes back, we beer find out who all can do it or is it just La Pen that can't do it but everybody else can I think that needs to be decided here for us We also have Radio Road East that's funding landscaping improvements. We also have Pine Ridge, Naples Production Park. Tese..are,all things that I think again we have to address. If we're going to',interpret one thing one way, then we better interpret all of them that way and find out who is getting it and who is not, who's allowed to keep theirs and who is not. And also, I would like to know, the County Attorney, do you have anything to add to some of this stuff? MR. KLATZKOW: No, I believe this was a lawful ordinance, it Page 30 Packet Page -191- 2/11/2014 10.B. January 14, 2014 was lawfully enacted and it falls within what the Board has done in the past with the MSTUs, MSBUs and -- COMMISSIONER FIALA: Can you talk into your mic? COMMISSIONER HILLER: Yeah, it's hard to heard. COMMISSIONER FIALA: I believe that the ordinance* lawful. It was lawfully enacted. I worked with Nabors-Giblin ois one. They're the state's leading authority in this area. Because I did know that we're pushing the boundaries'a hit on this one, to put it mildly. But I do believe that the al" • had the authority to do what it did. And if this thing's broug aback, we'll fully articulate this in executive summary, as requesad by Commissioner Hiller. ' CHAIRMAN HENNING: Commissi „ yle? COMMISSIONER COYLE: Yeah, I disagree with the County Attorney's advice that it has to be reconsidered. I don't think it's a reconsideration, but I won't belabor toint. This is a question of factr And`you have your interpretation and e we have ours. I think we need;to`trave a discussion concerning that, and we have to have the5proof presented. I don't think it's necessary that we go through the reconsideration of this entire process. I for one have simplan't reconcile the refusal to let residents tax themselves`to' do what they want to do. I can't think of anything more democratic Than that process. It doesn't create an obligation for the rest ofp taxpayers. Any ibpriis that are to be issued concerning this are secured by a In on..a the property of the people in La Peninsula, not by any other taxpayer, -Sol can't think of anything more democratic than allowing residents to collect additional funds from themselves to do things they want to do. But I think those questions have to be answered and I think it should come back for those specific issues but not for reconsideration of the entire ordinance. But you can do them both at Page 31 Packet Page -192- 2/11/2014 10.B. January 14, 2014 the same time. CHAIRMAN HENNING: Okay, Commissioner Nance? COMMISSIONER NANCE: I agree 100 percent with Commissioner Coyle. I don't want to reconsider the resolution and the ordinance. I believe all we've done, and it was agreed at the time, to take the first step to allow people to start to gather facts. Ancrukleed we need to decide if this is legal action of the Board. And I thi ' 's the role of the County Attorney to do so. r. So I see no reason, as Commissioner Coyle discusseto go back and reconsider the resolution and the ordinance. ` ,, ather address the issues as the citizens of La Peninsula are addressi , :weir issues and bringing their proposal forward to the Bo „ At an ime in there the Board does not find it to be a lawful public- wJ•'-t'ose, then it's certainly not going to proceed. So I think we need to answer iimestions, I think a full and open discussion is in order, but I will n:°i; ilsport a reconsideration. COMMISSIONER HILLER: A' d, you know, from my perspective, I don't see tl rocedure of the reconsideration versus accepting this petition and' utg this -- these issues back on the agenda I think is s446,f one, a" if a dozen of the other. And if we go back to have the discussion and the discussion proves that the ordinance is in fact invalid, then we can make a motion to revoke the -- to revoke the ordinance -- COMMISSIONER NANCE: At that time COMMISSIONER HILLER: -- at that time COMMISSIONER NANCE: Yes, ma'am. COMMISSIONER HILLER: So it doesn't really matter. Because really, it's just the procedure I don't think is going to make a big difference. But I will amend my motion not to make it a reconsideration and merely to accept the public petitioner's request to have this matter brought before the Board and explore all the questions that have been raised in this presentation. Page 32 Packet Page-193- 2/11/2014 10.B. January 14, 2014 I would like to further amend my motion by adding one more thing and that is the primary public purpose. I think staff on the County Manager's side needs to come back and tell us what is the primary public purpose of the decision that we made. And I think that has to be defined. Because that is an important threshold ques t' n. There are a lot of the issues that are raised by this For example, we use -- going to the issue of seawalls not being addressee to give you an example, our CRA which collects ad valorem tax do° Iars from residents within the CRA uses those tax dollars to r air private seawalls. We have all voted on that. So that's a ques'$fin -- which is very different than the question here. Because e question here is can we allow for a public financing mechanism repaidhrough special assessments for the repair -- and it's not really theepair, but it really would be the enhancement of this seawall since, as you properly pointed out, it's not a repair issue, it's g �. ss a height issue or it's not high enough or something? '4" MR. GRIFONI: Yeah, there s a lot of issues. And it's going to need to be done in 10 or 15.7years again anyway. We'll be back in the same situation. ' COMMISSIO R HILLER: So again, you know, you've got the issue of, you knew, the seawall versus the debt versus, you know, what vehicle and so faith. There are a lot of-- and, you know, what is the primary public<purpose. So it's a discussion that should be had because it touches on an whole hosfdissues that we need to make sure that we're acting properly on So"I'll just amend my motion, since I don't think that the majority wants i ''as a reconsideration, and to me it has the same effect either way, it brings it back for the questions to be asked and answered. CHAIRMAN HENNING: Okay, so you're amending yours motion contrary to what the recommendation of the County Attorney said; however, you want the County Attorney to come back with a Page 33 Packet Page-194- 2/11/2014 10.B. January 14, 2014 legal finding. COMMISSIONER HILLER: County Attorney, do you have a problem if we don't do it as a reconsideration? I think it can be done either way. I'm not disagreeing, I'm just thinking that it can be done either way. MR. KLATZKOW: Your issue is that if ultimately you resod this ordinance you're opening up an argument from La Penii sula that you did so contrary to your reconsideration ordinance. 4 ,,, Y ry Y �� s��ply -- it's sort of wearing above the suspenders. By simply bi h g this back and asking for reconsideration, you've remold.that potential issue from the table. COMMISSIONER HILLER: That's important consideration. COMMISSIONER NANCE: Doesn't "atop the whole process, though, sir? MR. KLATZKOW: No. COMMISSIONER NAVE ' W can they form an advisory committee if they don't have ajul, MR. KLATZKOW: Oh;4ye it will stop that process. But if it's ultimately your desire torehear this thing, it's ultimately your desire to rescind this thing. By casting this in a dual purpose that was suggested earlier, you are eliminating one of the potential issues that could be raised. COMMISSIC TER HILLER: I see. MR. KLATZKOW: I'm not saying it's a viable argument, I'm just saying'' an issue that doesn't -- COMMISSIONER HILLER: I understand. It's not that -- I understand your point. It's not that it is improper to do it the way I'm suggesting or can't be done the way I'm suggesting. What you're saying is to do it by request for reconsideration we are properly addressing that statute so it can't be alleged that it wasn't brought back under -- I'm sorry, that ordinance, that it wasn't brought back under that ordinance. Page 34 Packet Page-195- 2/11/2014 10.B. January 14, 2014 MR. KLATZKOW: Correct. COMMISSIONER HILLER: I understand. MR. KLATZKOW: So it's really you bring it back for a twofold purpose. COMMISSIONER HILLER: But the advisory board can continue until that hearing, can't it? I mean, it's not going to stop the advisory board from being formed just because we're asking fore`-, reconsideration. It doesn't stop the process. go- MR. KLATZKOW: If they want to bring it to you tl LL 're the ones who form the advisory board. ,, COMMISSIONER NANCE: The basis for a rporsideration is contemplating that it's going to be voided. So where are we going with that? MR. KLATZKOW: Exactly. COMMISSIONER HILLER: But not necessarily. CHAIRMAN HENNING it's a ni i to reconsider, rehear the motion defined what we're going 'torehea(and basically it's a legal argument. You're going tort a written legal opinion on this. MR. KLATZKOW: 'ou: ?vill get a -- my understanding from the discussions, I will provide yob an expanded legal consideration, and the County Manager will be providing you with the public purpose. CHAIRMAN HFNNING: Well, we already did the public purpose thrash the ordinance in the whereas. And it says: Funding for the seawall'and other waterway improvements is to benefit the proper owners in such area. That's a finding, the whereas part. MR KLATZKOW: I'm just -- this is the discussion, Commissioner. CHAIRMAN HENNING: I know. I know it's -- there's a lot of argument up here by the Board of Commissioners, so I think if staff wants to participate in that, that's fine. But anyways, I know it's a public petition, we can't take an action on a public petition, all we can do is give direction. Page 35 Packet Page-196- 2/11/2014 10.B. January 14, 2014 Commissioner Fiala, and then I want to speak. COMMISSIONER FIALA: Okay, I have two things: The first thing is as we're addressing this, again we all agree it's interpretation. So are we just going to target La Peninsula and let everybody,else out of this, or is this going to affect all the others'? Like for instance when Vanderbilt Beach came in and they . wanted to establish one so that they could bury their lines.and we all voted on that And we felt that they would be allowed to ciShat. Now each of these things that come forward, des this mean we're never going to accept one or only from La Pen4I think that that ought to be -- you know, because if we're just targeting one community, I think that that's illegal. But anyway, the second thing is Tony Pires,vould you come up for just a moment'? CHAIRMAN HENNING: No;pi bl 1speakers under a public petition. That's the rules anduwe,,alwa j le by those. Mr. Pires can Y Y definitely, you know, send correspondence to the commissioners. This is going to be reheard if motion passes. So that would be the time that the public in general can speak on the item. Okay, I want to address some things. Commissioner Fiala, you stated about these other -- COMMISSIONER FIALA: I was also -- CHAIRMAIIENNING: Yeah, I said I was going to speak after you. Forest Lake MSTU, their roadways, anybody can drive on their roadways. Pelican Bay, we have an ownership within the Clam Bay system, including stormwater. And again, the general public can enjoy driving down Pelican Bay Boulevard. Radio Road east was formed as an MSTU, taxing the people in the area to make improvements on county property, okay. And Pine Ridge is not a gated community. The people can go Page 36 Packet Page-197- 2/11/2014 10.B. January 14, 2014 down there. There's been many improvements, including street repaving, configuration and drainage for that road. And again, the public purpose was stated in the ordinance of benefiting the residents in La Peninsula. And in fact, back in that meeting the County Attorney stated this is the first that this has ever happened, not only in the countyt in the State of Florida. So it is setting precedence, all right? ' ° -*my And the precedence, the other precedence is what ha ens with -- S�F'. in our -- one of our ordinances it says about nuisance a- e ent and seawalls. What are we going to do for all these - , citizens that county staff has gone out there due to public com a t and said your seawall has not been -- it's in disrepair, yofneed to -ix it Are we going to create a taxing mechanism to fix all"use seawalls? Okay, that's one consideration. Besides the fact that we have so many homeowners associations in Collier County and what a w- = a! ng to the ones that have collected assessments and doh a fight thing by fixing their roofs, fixing their drainage, fixing their sidewalks. Are we going to say don't do that anymore, you can.petitiori us, as long as the majority of your residents (sic), that we cad provide that funding mechanism? I mean, "we it's a real slippery slope i go down here. Besides the fact this legal challenge. And quite frankly, we create this, we get a loan or bond, we deposit the funds, the Board approves the contract to replace this seawall. Is the Clerk of the Court going to pay the contractor to do that? That will delay what is the assumption, assumption, that this seawall needs to be replaced, contrary to some of the residents within La Peninsula because it was a residence (sic) who called in for an a anonymous complaint that the HOA said the seawall needs to be replaced. And again, our own engineer says it only needs to be repaired. So it's more than a global issue about legal issues. It's an issue is how Page 37 Packet Page-198- i 2/11/2014 10.B. January 14, 2014 much we want to increase our debt that we committed to lowering our debt. That is another issue you need to really consider. And with that, I'll turn it over to -- COMMISSIONER FIALA: Could you tell me how that affects our debt? I don't understand that. I mean, being that we don't have to hold any money up or give them any money, how does it affe ,our debt? . CHAIRMAN HENNING: Okay, there's a misconception that this is their money. It's not And in fact it says the MSBU is controlled under the governing body of the Board of Commissioners. This money will be a part of our budgeting process. If we borrow money it is the county's debt. It would be rec zed throughout. If it was just a matter of loaning them moneyand let them fix it, we wouldn't have to involve the Clerl ve wouldn'tlhave to -- the Chairman wouldn't have to si n, or . ce Chair in this case, if it goes through, wouldn't have to sigl t V?he an or the bond. It's the public's money. %_, So it's recognized and-it will - you can ask Mark Isackson if it's going to be part of the county debt. COMMISSIONER FIALA: I think we're not allowed to hear from people, you said CHAIRMAN HENNING: County staff has responded to public petitions in � past. But you can ask the budget director in the future or you can askFhim, he's standing right up there. It's yours privilege. COMMISSIONER FIALA: Go ahead. MTV. ISACKSON: Commissioners, Mark Isackson, your Director of Corporate Finance. Every -- we have debt issued for Forest Lakes, we have debt issued for Radio Road, we have CRA debt. It's all part of our portfolio. The only thing that's not part of our portfolio is what we call is conduit debt. That's debt issued through one of the Health Facilities Authority or the Industrial Development Authority, things of those Page 38 Packet Page-199- 2/11/2014 10.B. January 14, 2014 natures. The -- what I get concerned about is simply the repayment source. What's their source of repayment. And in the bond documents or in the loan documents is the county a back stop.to the debt. And those are key issues when you start looking at these little, nuances that are out there within these MSTUs. Now, every one of the MSTUs that we have, or MSTs the debt is secured either by referendum or not either throu: I ;e taxing authority or through the proceeds of the CRA, and thounty is not a back stop to that debt. Period. So those -- that's the nuances, is it p w ui ortfolio? The answer is yeah, it is, but -- ,_ CHAIRMAN HENNING: We have to.approve that every year? MR. ISACKSON: Every ye in your budget process you approve not only the operatin funks W thin the MSTUs, but if there's debt service associated with it the debt service funds. COMMISSIONER FIALA ould I just ask you, does that mean we're responsible for t debt? MR. ISACKSON n .,� Vh� you say responsible, we're talking about what's the specificfYdge and is the county a back stop to that debt. COMMI.SSfl NI R FIALA: Tell me what back stop is. MR. ISACKSON: That means if they default, we step in and pay for it. The answer is no, we don't step in and pay for it. And that's specific in the bond covenants. We make sure that you make those decisions every time you form those MSTUs or MSBUs. CHAIRMAN HENNING: Commissioner Coyle. Who was next after Commissioner Coyle? COMMISSIONER HILLER: I think then Commissioner Nance and then me. COMMISSIONER COYLE: So it's not county debt. Page 39 M . Packet Page-200- 2/11/2014 10.B. January 14, 2014 MR. ISACKSON: Commissioner, it's part of our debt portfolio. We report on it as part of our debt portfolio, we're asked about it in terms of our debt portfolio from Moody's and the investor services. So it is part of our debt portfolio. COMMISSIONER COYLE: Just like the CRA purchased the land in the mini triangle, right? MR. ISACKSON: Yeah. COMMISSIONER COYLE: They got bond and abank loan. MR. ISACKSON: That was a bank loan. - COMMISSIONER COYLE: And there was recourse to county or other taxpayers outside of that CRA. ; MR. ISACKSON: It's very specific 110e loan document, right, as to what you're talking about. .` COMMISSIONER COYLE: It's very t ecific in the loan document here also. r MR. ISACKSON: That's right, * COMMISSIONER COYLE: Okay, I'll get back to the point. We were discussing we would get this issue resolved, reconsideration or something Vie. It's my belie artd the County Attorney can comment on this, that if we have created an-Illegal ordinance, we have to act on it to resolve it, no, matter what the reconsideration policy says. So in my opinion, rather than confusing a lot of issues here, we should take the first step of addressing the factual issues. Is it really a debt for other taxpayers or is it a debt only for La Peninsula? Weanswer those questions and any other questions that would determine the legality of the ordinance. And if we come to the conclusion that the ordinance is illegal, then we can schedule the hearing on the ordinance itself and to withdraw it. And I think we will have pursued the proper legal process in both meetings. CHAIRMAN HENNING: Well, the problem with that is in our ordinance you have up to two meetings to reconsider an item. The Page 40 Packet Page-201- 2/11/2014 10.B. January 14, 2014 County Attorney has opined the proper way to do that. That's what the motion is. So unless the motion maker changes it, we're going to move to Mr. Nance. COMMISSIONER COYLE: Well, wait, you've just said something that isn't true. We have an obligation to reverse an jega1 ordinance at any time we find out it is illegal. You cannot imposbe. .a.,. two meeting limit on doing that. ,, COMMISSIONER NANCE: On illegality. COMMISSIONER COYLE: That's right. . e So the rehearing, reconsideration process is smy not relevant if we have done something illegal. It is incumbent,upon us to resolve that illegality as quickly as we can And if it faflls j tside of the two meeting specifications included in our reconsider. lon ordinance, then we have to act anyway. w CHAIRMAN HENNING: It on ) omes illegal when a judge finds that it's illegal. :. COMMISSIONER COYE:' r if v ydecide it's illegal. CHAIRMAN HENNG: Well, yeah, and we will through the reconsideration process. . -4,,,,, 4 Commissioner j ance9 ''. COMMISSIO R NANCE: I think the more important thing here, and the only reason I'm interested in this particular issue and that I voted to allow they to come forth with a proposal, is I think there's great value in the government providing an administrative mechanism to allow citizens to self-finance projects that have tremendous cost. I think t e government should be very happy when citizens come forward and say I will pay for something. Because if citizens don't agree to-pay for things, oftentimes it does fall to the government in the end. So I don't want to find a bunch of reasons back to the constitution unless there is a clear illegality to disallow what I think is a very good mechanism and one that quite likely in the years to come we're going to find has great utility in areas where there are Page 41 Packet Page-202- 2/11/2014 10.B. January 14, 2014 infrastructure issues of great cost that do indeed benefit private groups of citizens more than the public in general. I think our waterfront is a tremendous example of that. I think we can see that across the nation and the world. So when people come up and say we want to pay for something, I don't want to go out of my way if it is indeed legal for us to do 1* to gin up some reason to deny them the opportunity to pay, r something themselves. T . So, you know, I will support the reconsideration. 1 't really care what the mechanism is You know, we're g ,'to have to judge on its legality. Let's just move ahead and determ _ it s legal. Then we're going to have to decide as a Board i e think - as a valid public purpose or not and go forward. Andes' . don't, they don't have an opportunity. So I don't see any big cataclysic risk where life's going to end as we know it either way. : COMMISSIONER HILL o to be clear, my motion will be for a reconsideration of what ke tproved and to ask the County Attorney to come backo,us wi -- I think it needs to be more than an expanded legal consideia' ion. I think it really should be a legal opinion. If we have to golb outside counsel to get that, we probably should. And to..4sk even though it does state in the ordinance that we approved that the public purpose is the reconstruction of the seawall, for the benefit of the citizens of La Peninsula I still would like to see that validate by county staff as in fact -- you know, as really defining what is the primary public purpose of this project. The primary public, public purpose of this project. CHAIRMAN HENNING: We can always change the ordinance. COMMISSIONER HILLER: Right. CHAIRMAN HENNING: Instead of, you know, saying it's the benefit of the community, you can say it's a benefit to all. COMMISSIONER HILLER: And -- Page 42 Packet Page-203- 2/11/2014 10.B. January 14, 2014 CHAIRMAN HENNING: And maybe we can provide public access to that for fishing -- COMMISSIONER HILLER: Well, let the County Manager come back and tell us what is -- based on the facts as they exist, what is the primary public purpose, not the primary private purpose but the primary public purpose of doing this u And listening to the discussion, which I think was very mil, I would like to add one thing to the County Attorney antat is, you know, one thing that we do whenever we issue public debts we have a bond validation or essentially a debt validation ring with the courts. And it would be -- it would be informative o; he Board if we could find out how that process could be applied herebefore any debt would be issued through the county. MR. KLATZKOW: I've had thatiscussion with outside counsel previously and it will be part of my executive summary. COMMISSIONER HILLER: I'm go-my- orry? MR. KLATZKOW: It will be part of-my executive summary. COMMISSIONER HLLER: Fantastic. That's really great. So I've made my moon And if I could have a second? CHAIRMAN'HENNING: Yeah, you already have a second by Commissioner Nark '` COMMISSIONER HILLER: Okay, thank you. CHAI RMAN HENNING: Okay, let's -- since this is reconsideration, it's going to come back, why don't we hold any other questions or comments 'til later. Is that okay? COMMISSIONER FIALA: Just a fast one, though. I would suggest to the La Pen people, if this seawall is providing silt into the pass, you might want to investigate that as you go forward, because that is definitely a public purpose. Thank you. CHAIRMAN HENNING: All in -- MR. OCHS: Mr. Chairman, Pm sorry, I don't want to the belabor this, but just procedurally for the public's edification, and I'd ask the Page 43 Packet Page-204- 2/11/2014 10.B. January 14, 2014 County Attorney perhaps to weigh in here, but my understanding of your reconsideration ordinance relating to non land use and zoning matters is that it's a two-step process. So if there's an expectation that the Board will make a decision at the next meeting, I'm not sure that your ordinance allows for tiiat. Jeff, I don't know -- m MR. KLATZKOW: You would have to advertise archange in-the ordinance anyway, so the discussion could center on whet ii rpr not we want this change in the ordinance, which is in esce should we reconsider. CHAIRMAN HENNING: What would e change to the ordinance? MR. KLATZKOW: If you want to rescind ` it needs an ordinance. g'iL CHAIRMAN HENNING: You'sa.i uit has to be a change anyways within the ordinance." � ' "W MR. KLATZKOW: I'mxYif I saki that I misspoke. What I'm saying, if it's t hoard's desire to rescind or to amend the ordinance, I have tovertise it. So this is going to be a two-step process, if the Board wis =,e4to go forward. MR. OCHS: Becau `typically the first step is just a decision on whether or not you want to reconsider. And then if you do, we come back at a subsequent Board meeting with the actual -- CHAIRMAN HENNING: Yeah, put that on the consent, if the majority of the.Board wants to reconsider this '''MR. OCHS: Well, I think I'm hearing the County Attorney say you care have more discussion in this case. But we'll -- Mk. KLATZKOW: We'll work this out. MR. OCHS: Okay. COMMISSIONER HILLER: Well, can I make a suggestion? Because otherwise this is going to drag on. If you could draft that letter for me this morning, let's amend the agenda to add a vote on the Page 44 Packet Page-205- 2/11/2014 10.B. January 14, 2014 reconsideration at this meeting so it can be brought forward in the time frame that we suggested and get it done. CHAIRMAN HENNING: That isn't how our ordinances -- MR. KLATZKOW: You wanted to bring this back the first meeting in February. That means we can do the reconsideration at your next meeting on consent and then have it brought back Own you want it brought back. COMMISSIONER HILLER: Okay, that's fine tocz 'hat works just as well That's fine. CHAIRMAN HENNING: No further discu i n, all in favor of the motion, signify by saying aye COMMISSIONER FIALA: Aye. 'F,;x .N CHAIRMAN HENNING: Aye. At; COMMISSIONER HILLER: Aye. COMMISSIONER NANCE: ye. CHAIRMAN HENNING: Any`opposed? (No response.) COMMISSIONER COY{,44Aye. CHAIRMAN HEWING: 'Motion carries 4-1, Commissioner Coyle dissenting. ' 1,, We have a time certln at 10:00. Item #11A RECO11MENDATION TO ISSUE BIG CORKSCREW ISLAND FIRE AND RESCUE DISTRICT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR ADVANCED LIFE SUPPORT NON-TRANSPORT SERVICES FOR ONE YEAR AND AUTHORIZE THE CHAIR TO EXECUTE THE PERMIT AND CERTIFICATE - MOTION TO APPROVE — FAILED; MOTION FOR THE COUNTY ATTORNEY, COUNTY MANAGER AND THE FIRE DISTRICTS TO BRING BACK AN ANALYSIS OF Page 45 Packet Page-206- 21111201410.B. ,, Office of the County Manager Leo E. Ochs, Jr. SUN'S 3299 Tamiami Trail East,Suite 202•Naples Florida 34112-5746•(239)252-8383•FAX:(239)252-4010 January 2,2014 Mr.Jared Grifoni 141 Leland Way Marco Island FL 34145 Re: Public Petition request from Jared Grifoni representing the Libertarian Party of Collier County, requesting that the Board of County Commissioners rescind Ordinance 2013-70 which established the La Peninsula Seawall Municipal Service Benefit Unit(MSBU)and rescind Resolution 2013-292 which established a special assessment for funding the seawall improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the Board of County Commissions on December 10,2013. Dear Mr.Grifoni, Please be advised that you are scheduled to appear before the Collier County Board of Commissioners at the meeting of January 14,2014, regarding the above referenced subject. Your petition to the Board of County Commissioners will be limited to ten minutes. Please be advised that the Board will take no action on your petition at this meeting. However,your petition may be placed on a future agenda for consideration at the Board's discretion. If the subject matter is currently under litigation or is an on-going Code Enforcement case,the Board will hear the item but will not discuss the item after it has been presented.Therefore,your petition to the Board should be to advise them of your concern and the need for action by the Board at a future meeting. The meeting will begin at 9:00 a.m. in the Board's Chambers on the Third Floor of the W. Harmon Turner Building(Building"F")of the government complex. Please arrange to be present at this meeting and to respond to inquiries by Board members. If you require any further information or assistance, please do not hesitate to contact this office. Sind/4' d Mike Sheffield Communications and Customer Relations Manager MJS:m jb cc: Jeffrey Klatzkow,County Attorney Steve Carnell, Public Services Administrator Mark lsackson,Corporate Financial and Management Services Director Packet Page-207- 2/11/2014 10.B. BrockMaryJo From: SheffieldMichael Sent: Thursday, January 02, 2014 11:16 AM To: BrockMaryJo Cc: OchsLeo Subject: FW: Petition to rescind Ordinance 2013-70 Attachments: 2013-12-30 Submitted Petition.pdf Hi Mary-3o, Please place this public petition on the agenda for the 1/14 BCC meeting: Public petition request from Jared Grifoni representing the Libertarian Party of Collier County, requesting that the Board of County Commissioners rescind Ordinance 2013-70 which established the La Peninsula Seawall Municipal Service Benefit Unit (MSBU) and rescind Resolution 2013-292 which established a special assessment for funding the seawall improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the Board of County Commissioners on December 10, 2013. Please prepare a letter to be sent to the petitioner and Cc Jeff K, Mark I, and Steve C. Thanks, Mike From: OchsLeo Sent: Thursday, January 02, 2014 8:54 AM To: SheffieldMichael Cc: Klatzkow3eff; BrockMary3o Subject: FW: Petition to rescind Ordinance 2013-70 Mike, FYA please Leo E. Ochs, Jr. Collier County Manager 239.252.8383 Original Message From: HenningTom Sent: Wednesday, January 01, 2014 6:48 PM To: OchsLeo Subject: FW: Petition to rescind Ordinance 2013-70 please place on the 14th agenda From: tsl?.ve4 . { maiiLco,r [tslave484@gmail.com] On Behalf Of Elsa Martinez [secretary @collierlp.com] Sent: Tuesday, December 31, 2013 2:36 PM To: SheffieldMichael Cc: HenningTom; Jared Grifoni; vicechai ' olli.erlp.com; a_ctivismfa co]ljeerap com; Libertarian Party of Collier County 1 Packet Page-208- 2/11/2014 10.B. Subject: Petition to rescind Ordinance 2013-70 Good Afternoon, Attached, please find our request for public petition on the January 14th BCC meeting. If you have any questions, or need additional information, don't hesitate to email me at s Cretary(2'coi .ier1 ?.com<mai lto_e retar"y(aic .lie `cofl>. Thank you and have a great day. -Elsa Martinez Libertarian Party of Collier County Individual Liberty Limited Government Economic Freedom PO Box# 2452 Marco Island, FL 34146 Phone# (239) 777-0730 Web: htt.p://www_cofliF_,r'ip_c:oni Facebook: I tt "//ww,i.facebook..corm collier p "When the government's boot is on your throat, whether it is a left boot or a right boot is of no consequence" -Gary Lloyd Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. 2 Packet Page-209- 2/11/21014 10.B. Request to Speak under Public Petition Please print Name: Jared Grifoni Address: 141 Leland Way Marco Island, FL 34145 Phone: 239-682-6682 Date of the Board Meeting you wish to speak: January 14, 2013 Must circle yes or no: Is this subject matter under litigation at this time? Yes /(Iso, Is this subject matter an ongoing Code Enforcement case? Yes Oslo] Note: If either answer is "yes", the Board will hear the item but will have no discussion regarding the item after it is presented. Please explain in detail the reason you are requesting to speak (attach additional page if necessary): see attached Please explain in detail the action you are asking the Commission to take (attach additional page if necessary): see attached H:\DATA\FORMS\Public Petition Request Form-2013.doc Packet Page-210- 2/11/2014 10.B. Please explain in detail the reason you are requesting to speak: We, as the Libertarian Party of Collier County, speaking on behalf of the citizens of Collier County, wish to petition against Ordinance No. 2013-70 creating the La Peninsula Seawall Municipal Service Benefit Unit, and against the associated funding. There is no Constitutional authority for such funding (which is essentially a guaranteed loan from the Collier County taxpayers for this project) . La Peninsula is a private community, and this seawall and associated waterway improvements have no determinate public benefit or county use. Article VII, section 10 of the Florida Constitution prohibits the state and its subdivisions from using their taxing power or pledging public credit to aid any private persons or entities. The very language of the ordinance in Section 3 indicates that the waterway improvements only benefit "the property owners within the MSBU", making it unconstitutional and an overreach of government. The Collier County government is not a bank with which to loan monies for private projects. This ordinance sets a terrible precedent for the entire state of Florida and must not be allowed to move forward. Please explain in detail the action you are asking the Commission to take: We request that the Board of County Commissioners rescind the ordinance creating the MSBU and the resolution to fund it via special assessment, and that the Board vote not to fund the project, because it is unconstitutional and not the proper role of county government. Unless this project has public use and benefits, the expenditure of public funds is invalid. Packet Page-211-