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BCC Minutes 10/26/1994 S (800 Mhz System)Naples, Florida, October 26, 1994 LET IT BE REMEMBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business hereln, met on this date at 5:05 P.M. In SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Timothy J. Constantine VICE-CHAIRMAN: Bettye J. Matthews John C. Norris Michael J. Volpe Burr L. Saunders ALSO PRESENT: Sue Barbirettt, Deputy Clerk; Neil Dotrill, County Manager; BIll Hargett, Assistant County Manager; Ken Cuyler, County Attorney; David Welgel, Ramiro Manalich, Tom Palmet and Marjorie Student, Assistant County Attorneys; Wayne Arnold, Acting Site Plan Review Director; Steve Camell, Purchasing Director; Norris Ijams, Emergency Services Administrator; Robert Mu]here, Acting Current Planning Manager; Dick Clark, Interim Community Deve]opment Services Administrator; David Weeks, Planner; and Deputy Dennis Huff, Collier County Shertff's Office. O1 Page 1 October 26, 1994 Tape #1 (038) Item #4A PURCHASE AGREEMENT FOR THE 800 MHZ SYSTEM - APPROVED County Manager Dorrlll reported that this item will be heard as an addition to the agenda due to the consideration that was continued as a result of the Federal Judge's temporary restraining order that was issued during yesterday's re~ru]ar meeting. He announced that this will be one additional item concerning the approval of the purchase agreement for the 800 MHz System in response to Collier County RFP 94-2201. County Attorney Cuyler remarked that this is not a new add on item as it was continued from yesterday's agenda to today's meeting at 5:05 P.M0 In response to Commissioner Norris, Steve Camell, Purchasing Director, replied that he had a conversation with some members of the Sheriff's Staff regarding the fact that the implementation plan would fully address the coverage issues. He said that the concerns have been addressed and the Sheriff's Staff has been informed of that. County Attorney Cuyler requested that Mr. Dudley Goodlette state for the record that his firm has been in contact with the Federal Judge and the Federal Judge's Clerk has Indicated that the temporary restraining order has been removed. Mr. Goodlette, of Cummings and Lockwood, recalled that at yester- day's meeting the Board was informed by Assistant County Attorney Bryant that the Federal Court had entered a temporary restraining order based upon communication that they had received from counsel for E. F. Johnson. He stated that his firm together with the County Attorney's Office filed a motion to dissolve that temporary restraining order and was advised by the Federal Court this afternoon that the Judge had dissolved the restraining order and that a written order to that effect would be forthcoming tomorrow but authorized the Board to proceed and take whatever action this evening that was con- tinued from yesterday' s meeting. Page 2 October 26, 1994 Mr. Camell explained that this item is a request to obtain Board authorization to approve the contract for the design and Installation of a County wide 800 MHz radio communication system for public safety. He said that this item is a follow-up to a September 20, 1994, deci- sion of the Board to establish the rankings of the three proposing firms in the following order: Ericsson General Electric, Motorola Communications and E. F. Johnson. He said that direction was given to Staff to negotiate a contract with Ericsson G. E. that was compliant with the requirements of the County RFP. Hr. Camell announced that agreement has been reached between the two parties. He said that a document representing the directire of the Board has been executed by Ericsson G. E. He indicated that a short £orm of the agreement is included in the Executive Summary. Mr. Camell referenced a number of issues that have been addressed. He said that Ericsson G. E. has agreed, per the require- ments of the RFP, to provide a system that furnishes gS~ County wide coverage. In response to Commissioner Constantine, Mr. Camel] replied that the agreement with Ericsson G. E. is in compliance with what the RFP initially asked for and actually exceeds the minimum requirement for areas 1 and 2. Mr. Camell stated that the second issue that has been addressed by Ericsson G. E. pertains to the construction and erection of new towers and the proper assessment and suitability of existing towers that will be used in the existing design. He said that Ericsson G. E. has accepted the language of the RFP with regard to taking respon- sibility for seeing that the towers are suitable and available to the County for when the system ls Implemented. He said that Ericsson G. E. has provided an engineering study performed by a licensed, Florida engineer that does harp a comprehensive r~vlPw of sites proposed by Erlcsson G. E. He explained that the seventh site is one that Ericsson G. E. had recognized in advance that needed to be changed and a new tower Installed. He confirmed that they have agreed 04 Page 3 October 26, 1994 to do that. He explained that five of the six sites has passed the tower analysis. He said that the sixth site, which Is the Colony Cablevision site, will need some structural upgrade and additional support added to the structure. He stated that it will also require removal of some antenna. He said that the contractor is aware of this and prepared to take the necessary steps to complete the work. Mr. Camel1 explained that the other issues pertained to the per- mitting process for the new tower that needs to be constructed. HP stated that Ericsson G. E. has recognized its' responsibility to apply, obtain and marshal the permitting that will be required to construct the tower. He said that Ericsson G. E. has acknowledged its' lead role In negotiating the leases for access and use of each of the sites. Hr. Camel1 confirmed that the total agreement includes the RFP, the specifications from the RFP and the contractor's proposal. He said that Staff has modified the RFP to clearly state that Ericsson G. E. is accepting the terms of the document. He said that there were issues pertaining to indemnification of the County and the provision of consequential and liquidated damages. He said that Staff has reached compromise language with Ericsson G. E. that should adequately protect the County. He said that In addition radio inventory has been updated to the number of approximately 1,580 radios. In response to Commissioner Constantine, Mr. Camel] explained that the number of radios has increased by approximately 300 radios from the RFP but they represent those fadlos that must be replaced. Commissioner Matthews remarked that the permit requirements from the FCC require 27 channels with 70~ availability. She said that she has determined that the County will be short by 310. She asked how soon that will be accommodated? Mr. Cameli reported that issue has not yet been specifically addressed because the FCC directire of one year ago did not get into the Issue of full loadlng. He said that what Commissioner Natthews is referring to is a standard operating requirement that will not have to Page 4 October 26, 1994 be met before 1996. Mr. Camell stated that the total contract price ts $8,000,233.23. He pointed out that this is a firm figure with the exception of user inventory, which is a 3.8 million dollar component. He called atten- tion to the fact that the system has still not been designed at the present time and still do not know how many of the radios will have each of the various features that are available. He explained that an average pricing method had been used. He said that the intent is that when the final design has been completed and we know what our order inventory will be the contract will be adjusted to reflect the changes. He said that he hoped that this will result in a savings to the County. In response to Commissioner Matthews, Mr. Camel] replied that Ericsson G. E. will first go through the design phase, the manufac- turing phase, Including testing and ~ud]tjng. He said that they will then deliver the hardware followed by a rigorous testing process. He said that the County will be withholding retainage on all payables as we proceed. He said that each ma3or phase of the contract has a value to it therefore Ericsson G. E. will not be able to obtain all their funds until the work is finally accepted and the retainage released. County Manager Dotrill emphasized that the County has the right to retain an independent testing laboratory to assist in the cer- tification process. He said that the cost of the testing lab will be absorbed by Ericsson G. E. Mr. Camell explained that we will try to limit their role on site. Me said that the balance of the consultant or technical engi- neers assistance would be to review reports. He said that Ericsson G. E. will be reimbursing the County for those costs. He stated that there is a limit of $10,O00.00 on that. He said that they are a]~o responsible for army rete~ting. In th. event that Ericsson G. E. fails to pass any test they will be responsible for any fetesting costs as well. In response to Commissioner Matthews, Mr. Carne]l referred to the Page 5 October 26° 1994 pricing summary page. He explained that the original proposal from Ericsson G. S. was an analog system with digital backbone. He said that one item is an upgrade of approximately $100,000.00 for the Digital Dispatch Upgrade. He stated that this will enable the com- munications center to operate fully digital. He explained that what will not be digital is the user equipment itself. He said what we would like to do Is apply the proposed savings, after design comple- tion, to purchasing radios to be placed strategically in some of the users hands. In answer to Commissioner Matthews, Mr. Camell replied that a funding plan has not been finaltzed. He said that Staff requires Board direction before implementing a funding plan. In answer to Commissioner Volpe, Mr. Camell explained that the Fire Districts and the Sheriff's Office have shown interest in cost participation. He said that there is an opportunity to adjust the inventories prior to the design being finaltzed. County Manager Dotrill stated that he believes that the Fire Districts would be willing to let the Board pay for something that they would otherwise pay for. Commissioner Volpe stated that he does not wish to underwrite capital costs for the Independent Fire Control and Rescue Districts. He said that they have an independent funding source to provide for their needs. County Manager Dotrill commented that $80,000.00 to $100,000.00 is a great deal of money for some of the districts. He said that there may be the need for a mechanism to establish terms. Mr. Camell pointed out that ordering does not take place until after design. He stated that if every Fire District opted out there would still be the need to provide a system for the Sheriff, EMS and other Board dependent operations. He said that the infrastructure will still be necessary. He said that the contract has been written in such a way that Ericsson G. E. has been advised that the eight million dollar contract price is subject to adjustment. Page 6 October 26, 1994 In answer to Commissioner Volpe, Mr. Camell replied that the Consultant has finished his work for this phase. He said that $10,O00.00 has been established as a maximum cost for initial testing. He said that Ericsson G. E. would be responsible for all fetesting. In response to Commissioner Norris, Mr. Camell replied that it would be possible to simultaneously use digital handsets and analog handsets. Commissioner Constantine commented that he is wary of building a digital system. He recalled that in previous discussion it was determined that there is no local digital system in the state of Florida. He said that he does not wish for Collier County to be the groundbreaker on this issue because it could lead to problems. Commissioner Matthews asked what penalties would be imposed if the system were not operational within the 700 day clause in the contract? Mr. Camell replied that there are several penalties. He said that the County has the ability to collect retainage to apply to dama- ges that are incurred. He said that secondly we have a cover provi- sion where the contractor has the responsibility to make the system whole because of their tardiness in delivering and performing the system. He said that there is also a daily liquidated damage of $1,250.00. He said that taken collectively these are forceful provi- sions. In response to Commissioner Volpe, Assistant County Attorney Weigel confirmed that the Temporary Restraining Order that was issued in Federal Court has been lifted. He said that there ]s no constraint on the Board to hear this matter and act on it this evening. He stated that subsequent litigation is always conjectural. CommJsmJoner Vo]~,P ~t4ted that lie ]~ ct)r)c.rr~ed that if there protracted litigation involving this matter it may be necessary for the Board to engage outside counsel to represent the interest of the County. He asked if there is some provision for Indemnification of the County for expenses? Page 7 October 26, 1994 Assistant County Attorney Weige] stated that what has been under challenge has been the actions and activities of the Board and the proposed activities coming before the Board to make a decision con- cerning the award. He said that the County Attorney's Office has an ample and comprehensive indemnification provision in the contract itself which makes the vendor responsible for their acts, omissions and other problems that occur in the performance of the contract itself as well as other damages that may occur to the County in the performance of the contract once the contract relationship has been established. He said that what has been an issue in both the Federal and local court Is the process and procedure of arriving to this point of the discussion and deliberation of the Board of County Commissioners. He said that the County Attorney's Office feels that we have overcome the problem in all forms that it has been presented in. County Attorney Cuyler stated that the possibility of a lawsuit exists after the Board awards the contract. He said that in that event the case will be handled as any other lawsuit. Me said that it may be necessary to engage outside counsel. Commissioner Volpe remarked that in the unlikely event that a determination was made that the process was flawed and this contract was found to be let in error and the contractor had already incurred expenses, who would be responsible for the "damages" in that regard? Mr. Cuyler replied that if the court declares that the contract was void from its' inception, there is no contract. He said that he does not expect that to happen. Mr. Goodlette reiterated that the Court granted the 3olnt to dissolve the Restraining Order that was entered yesterday. He said the Board can take comfort ]n the know]edge that the Courts, both Federal and State, have reviewed the case and found no basis upon which a Restraining Order should be entered to prevent the Board from going forward in the customary course of business. He confirmed that there are broad indemnification provisions included in the contract ,o,, ~l)O,.'., LT9 Page S October 26, 1994 that would indemnify the County against loss that it might incur including legal fees and all expenses associated with that. In response to Commissioner Volpe, Assistant County Attorney Wetgel confirmed that the contract has been reviewed for legal suf- ficiency and negotiated with great assistance from Staff, Sheriff and others. He said that there is no legal constraint to prevent the Board from entertaining Staff recommendation for this contract. Commissioner Norris moved to accept the contract. Seconded by Commissioner Matthews. Upon call for the question, the motion carried 4/0 (Commissioner Saunders out). (1439) Item #3A ORDINANCE 94-58 AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, TRE COLLIER COUNTY LAND DEVELOPMENT CODE - ADOPTED Legal notice having been published in the Naples Daily News on October 6, October 20 and October 23, ~994. Bob Mulhere, ActinG Current Planning Manager, announced that this is the second of two required evening public hearings for Land Development Code amendments. He said that at the previous meeting the Board accepted most of the recommended changes, although one or two were left unreso]ved. He stated that he believes that a majority of the public in attendance are here to support or oppose the Travel Trailer Recreational Vehicle (TTRVC) change. Wayne Arnold, Acting Site Development Review Director, explained that the proposed change to the TTRVC Zoning District is primarily to address the accessory ]anat structure that owners are permitted to construct. He said that the proposed changes would allow the owners to install glass windows instead of the vinyl windows that are currently permitted. He stated that it would also allow the installa- tion of air conditioning in the lanais. He said that the proposed change would also put some restrictions on the type of enclosure to insure that it looks like the trailer unit. He said that it also pla- ces further restrictions on the size of the storage area that would be ,o0, OO0-". lO Pag,: 9 October 26, 1994 part of the lanat. Commissioner Constantine Indicated that at the previous meeting the Board appeared to approve of the change. The following people spoke on the subject: Mary Guyer (spelled phonetically) Alfred Hyde (spelled pho- Carols Gtlfldder nettcally) Commissioner Matthews commented that this issue has been the sub- Ject of discussion for more than a year. Dick Clark, Acting Community Development Administrator, confirmed that Staff has worked with Board members and the public to resolve this issue. Mr. Mulhere stated that the next item for discussion is the Access Management Plan. David Weeks, Planner, stated that he would describe four items in regard to the Access Management Plan. He said that the Collier County Planning CommissIon appeal provision has been deleted from the Ordinance. He said a minor change was made to the wording in Section 2.6.38.4.4, which Identifies that there are ten activity centers that are shown to have a future grade separation. He indicated that there are three maps that have changes on them; Map No. 4 depicting the Immokalee Road and Interstate 75 shows a minor change to the type of access point to the Northbrooke Plaza PUD. He said that a minor change was made to reflect the existing conditions. He explained that Map No. 9 South was changed because the Westport Commerce Center PUD was recently approved and changes were made to reflect that action. He said that a change was made to Tollgate Plaza PUD to reflect what the PUD document provides for which is that some secondary access may be provided to some of those properties. He noted that the packet contains a total of 21 maps. He explained that some have been split or enlarged. He said that once adopted these maps will be uniform in size. Mr. Mulhere announced that the next item deals with solicitation in a public right-of-way. He stated that Mr. Mana]ich and Mr. Palmet are here to address the issue. Page 10 October 26, 1994 Assistant County Attorney Manalich recalled that at the last meeting discussion was held regarding the constitutional aspects of this matter. He said that the Board had directed Staff to proceed with a total prohibition approaah within the medians and road right-of ways. He said that sidewalks would not be included. He said that the Board had requested a report on the Lee County approach. He said that their Ordinance prohibits all types of distribution and solicitation in the road right-of-way, but does create an exception for annual, charitable events. He advised that constitutionally, Collier County will be on better ground without that distinction. Commissioner Constantine asked if the Board were to follow the course of Lee County, were challenged in court and lost, would there be anything prohibiting complete prohibition at that time? Assistant County Attorney Manaltch replied that a complete prohi- bition could be effectuated at that time. County Attorney Cuyler stated that there may be a lawsuit filed to invalidate the Ordinance. Commissioner Norris stated that If the Board adopts an Ordinance similar to Lee County's which will allow the charitable organizations to proceed that action will be acceptable until we lose a court challenge on that action. He remarked that the net effect of losing that court challenge would result in invalidating the Ordinance and prohibit all types of activity. He said that in effect what would happen if someone challenged the Ordinance successfully, they would be responsible for the prohibition of the charities in the roadways. Commissioner Constantine stated that is a point well made. Commissioner Volpe indicated that the main issue ts one of safety. He said that the Board is concerned about the safety of the people that would be in the medtan~ and right-of-ways as well as the molorlng public. He recalled that the Board drafted an Ordinance last year that allowed public safety officials to occupy the right-of-way under limited circumstances on behalf of a charitable organization. He said that he felt that was a compromise. He said that the exemption that Page October 26, 1994 exists in Lee County is any charitable organization. He stated that he is opposed to the Lee County exception that exists. He said that he believes that it has to be all or nothing. Commissioner Constantine suggested that the Board follow the Lee County guideline with the extra addition that whatever the organiza- tion may be, that it utilize public safety officers. Commissioner Volpe said that he is comfortable with the suggestion because it addresses the public safety issue, Commissioner Volpe suggested that there is not one person that he has spoken to who has not expressed their displeasure with that type of activity occurring in busy intersections or median right-of-ways. Assistant County Attorney Manalich remarked that the sidewalks are not included in this prohibition. The following people spoke on the subject: Ken Tanner Debbie Rockwell Natt Zaleznlck Commissioner Constantine stated that he prefers to see a limited permitting process. Commissioner Volpe asked Commissioner Constantine if he intends to include everyone in the limited permitting process? Commissioner Constantine stated that it is his intention to Include everyone with perhaps some limitations such as a four day limit, one permit per year and other suggestions noted by the public. Mr. Manaltch requested clarification. He asked Commissioner Constantine if he intends to allow charitable organizations but not allow commercial organizations such as newspapers? Commissioner Constantine replied that if the newspaper wishes to solicit once a year for four days they would be welcome to. Assistant County Attorney Manaltch expressed concern regarding the fact that once those typ~ f)f activities content type or approach. Nr. Manaltch asked if Commissioner Constantine's suggestion would Include any group that meets the criteria as outlined? Commissioner Constantine answered in the affirmative. Page 12 October 26, 1994 Commissioner Volpe remarked that the Board members are struggling to permit charitable, non-profit organizations. He said that it is a difficult decision but he supports an absolute prohibition. He said that the main intention is to protect the motorlog public and balance the FIrst Amendment rights of people like the Muscular Dystrophy Association, Naples Dally News or any other vendor. He said that we have come to the conclusion, in the Twenty-First Century, that the right-of-way of our highways is not a public forum. Assistant County Attorney Manalich stated that to this date the Courts have all stated that roads as well as medians are a traditional public forum, however, there has been discussion of changing that view to say that while the road is used by vehicular traffic ]t should not be viewed as a traditional public forum. He said that has been argued and has not been resolved yet. Commissioner Constantine announced that this Ordinance requires four votes to pass. He said that it appears that we will have a total prohibition. Mr. Mulhere referred to Page 35 of the Executive Summary. He explained that the language has been changed to reflect Commissioner Norris' concern regarding the language surrounding wrecking yards and junk yards. He said that the language has been changed to clarify that this provision shall not allow as a permanent or accessory use, wrecking yards, Junk yards or scrap yards. Mr. Mulhere referred to Page 40 of the Executive Summary. He said that language has been clarified so that outdoor storage yards are permitted as a principal use of the property and any outdoor storage yard abutting a restdentially zoned property. He said that the change limits the use. Mr. Mu]here referred to Page 45 of the Executive Summary. He explained that a change will be made to paragraph 4., section 2.2.16~.2.3 to read that Access shall be in accordance with the Collier County Access Management Policy or Plan. In response to Commissioner Volpe, Mr. Mu]here confirmed that this ,oo O00 14 Page 13 October 26, 1994 change will be made after the adoption of the Plan. Mr. Mulhere explained that the language change to Page 50 states that "He shall be authorized to require examination of the site by an accredited archaeologist where deemed appropriate". Tape #2 Assistant County Attorney Manallch advised that if total prohibi- tion is what the Board desires, a vote must be taken for resolution of this issue. He stated that if the Board des]res to draft a provision that would state that a permit would be available for every organiza- tion for once or twice a year, the County Attorney's Office can try to defend that. He recommended that the Board adopt Assistant County Attorney Palmer's Findings that are outlined following the short form indicating the basis for the Ordinance. He advised that as part of the motion the Board should indicate that the prohibition is based on traffic and safety reasons. Commissioner Volpe stated that he does not want to see Collier County medians opened up to street vendors. Commissioner Constantine stated that his preference is that we have a mechanism to allow charitable organizations to solicit and limit other activity. He said that because there is no majority that cannot be done. He said that his second preference is complete prohi- bition. He said that the third preference would be to leave it open to everyone. He suggested that a compromise could be developed within the next six months. He said that he does not want to leave the door wide open. Commissioner Norris said that his first choice would be to allow a mechanism of limited use by charitable organizations. He said that his second choice would be total prohibition. Ms. Rockwell, representing MDA, asked if it would be pc, ss|ble to have e complete pruhJbltlorm w|t|m time stipulation that an organization would be permitted to solicit if they could present a public safety plan to the Board. County Attorney Cuy]er stated that would have to be part of the 8oo,, 000,',',,- 15 Page 14 October 26, 1994 Ordinance. Assistant County Attorney Manalich stated that the other alter- native that Staff has offered would be that everyone would be allowed under a permit type of approach. He said that apparently the Board has chosen not to take that approach. He reported that even under total prohibition these groups will not be affected as far as their activities on the sidewalk. Commissioner Vo]pe stated that he believes that It would be irresponsible to leave this situation as ]t currently exists. He said that he would like to see a situation where we could balance all of the First Amendment rights of all people whether they are charitable or for profit. Commissioner Constantine closed the public hearing. County Attorney Cuyler pointed out that all new Ordinances will include a provision that states that this Ordinance will be incor- porated into the new Code. Assistant County Attorney Mana]ich will include the Findings attached to the short form for total prohibition. He said that the motion should include that the Findings are the basis for total prohi- bition. He said it would be suff/ctent to state that total prohibi- tion on the medians and the roads, not including the sidewalks, be based on the attached Findings and based on traffic and safety reasons. Commiss~oner Volpe moved to amend Ordinance No. 91-102, as amended, the Collier County Land Development Code; to incorporate all the changes presented by Staff and the Collier County Planning Commission, with the addition of the word "or Plan" in Section 2.2.16~.2.3.4; with respect to the solicitation in the medians and road right-of-ways that a total prohibition will occur and that the Findings attached and public safety are the basis upon which the motion is made for the absolute prohibition. Seconded by Commissioner Matthews. Upon call for the question, the motion carried 4/0 (Comm~ssioner Page October 26, 1994 Saunders out), thereb~ adopting Ordinance No. 94-58 and entered into Ordinance Book No. 68. There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair - TAme: 6:45 P.M. ATTeST:- DWIGHT E. B~OCK~ CLERK BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX These minutes approved by the Board on as present'ed / or as corrected Page