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04-03-2006 - Regular CITY COUNCIL OF EDGEWATER REGULAR MEETING APRIL 3, 2006 7:00 P.M. COMMUNITY CENTER MINUTES 1. CALL TO ORDER Mayor Thomas called the Regular Meeting to order at 7:00 p.m. in the Community Center. ROLL CALL Mayor Michael Thomas Present Councilwoman Debra Rogers Present Councilman Dennis Vincenzi Excused Councilwoman Harriet Rhodes Present Councilwoman Judith Lichter Present City Manager Kenneth Hooper Present City Attorney Paul Rosenthal Present City Clerk Susan Wadsworth Present INVOCATION, PLEDGE OF ALLEGIANCE There was a silent invocation and pledge of allegiance to the Flag. 2. APPROVAL OF MINUTES A. Regular Meeting of March 6, 2006 Councilwoman Rhodes moved to approve the March 6, 2006 minutes, second by Councilwoman Lichter . The MOTION CARRIED 4-0 . 3. PRESENTATIONS/PROCLAMATIONS/PLAQUES/CERTIFICATES/DON ATIONS A. Mayor Thomas proclaiming April 2006 as Water Conservation Month Mayor Thomas called Brenda Loring-Smith and Katelyn Sanford to the podium and congratulated Ms. Sanford for being one Page 1 of 31 Council Regular Meeting April 3, 2006 of the top twenty winners in the 2006 Water Authority of Volusia Water Conservation Month Poster Contest. Mayor Thomas read a proclamation declaring April 2006 as Water Conservation Month and presented it to Deborah Green, Water Conservation Coordinator for the Water Authority of Volusia. Deborah Green stated it is pleasure to be in Edgewater trying to continue the water conservation effort. She commented on Edgewater doing a lot. She informed Council Menard Park has been entered into a competition through the Florida Native Plant Society. She also commented on a class she was going to be teaching at Menard Park on April th 27 at 6:00 p.m. Ms. Green commented on a new toilet handle that will be available to save water. 4. CITY COUNCIL REPORTS Councilwoman Rhodes had nothing at this time. Councilwoman Lichter reported on the Indian River Cleanup held on Saturday. They had 140 people from Edgewater that participated so we won the prize for having the most people participate. She further commented on the most unusual items found. It was a very successful cleanup. Councilwoman Lichter stated Edgewater has always been involved in water conservation. She mentioned a new president of WAV being elected this week, County Councilman Jack Hayman. She has been asked to be secretary. She informed Council they would have two Edgewater representatives on the Executive Board. Councilwoman Lichter commented on being called for a couple of Code Enforcement problems. She mentioned people dumping stuff on the side of the railroad tracks. She suggested writing a letter to the railroad and maybe they could put some signs up. She mentioned being called to go down Flagler Avenue where the railroad tracks are and there are a lot of large items being dumped. Councilwoman Lichter mentioned receiving a call regarding golf carts. The City has to okay the use of golf carts on a public road if it is in a development and a sign has to Page 2 of 31 Council Regular Meeting April 3, 2006 be posted letting people know the golf carts are in there. She stated they will take a look at it and she will bring it up at a different meeting. She then mentioned when you live on a private road, she thought they could make their own decisions. They are looking into that too. Councilwoman Lichter feels if the conditions warrant it, she doesn’t think it is a bad idea to allow golf carts in senior parks. They are going to look into this also. Councilwoman Rogers reported that the MPO Board is in the process of planning where they are going to be spending some funds they have for the next fiscal year. She plans to sit down with the City Manager within the next couple of weeks and list some short and long-term goals for the City. She mentioned the possibility of sidewalks in a few areas or a few streets in the Florida Shores area. She has a road project in mind but has to speak to the City Manager to find out if it is something possible at this point. Mayor Thomas called upon Megan Frazier to come forward. Megan Frazier, Spruce Creek High School, introduced herself and their government class was holding a student government day in Port Orange and she was elected Mayor of their class. Mayor Thomas called upon Anastasia Lucignagy, Spruce Creek High School, who was appointed as City Manager. Mayor Thomas recognized County Councilman Jack Hayman who was in the audience. 5. CITIZEN COMMENTS The following citizens spoke: John Cordeiro , 1515 Pine Tree Drive, commented on going back to Pembroke Pines for the first time last week since he moved here four years ago. He spoke of it being solid concrete from West Palm Beach to Miami and traffic and people. He feels if everybody on the Council drove down there to see what it is like, he feels some of the people wouldn’t okay all of the developments to ruin this place. He doesn’t want to see Edgewater and this area turn into that mess. Page 3 of 31 Council Regular Meeting April 3, 2006 Pat Card , 3019 Willow Oak Drive, thanked Fire Chief Barlow. He had the opportunity last week to utilize the services of the emergency response people. It was less than three minutes when they got there. He also complimented the people that responded. Whenever he has seen them provide service to him or his family it has been excellent. Mike Visconti , 316 Pine Breeze Drive, asked about charging out-of-towners or tourists who get into an accident. Mayor Thomas informed him they would be discussing that later on the agenda. Dominic Capria , 606 Topside Circle, requested copies of all ordinances related to retention ponds. Mr. Capria stated the City Council gets reports before meetings a day or two in advance. During the last election it was suggested before the election that the public be able to get those reports before City Council meetings. He requested that they do this. City Manager Hooper questioned them being available on line and asked City Clerk Wadsworth if they were available if someone wanted to get a copy when the Council gets theirs. City Clerk Wadsworth informed him the agendas are put online, not the backup but they are working on it. City Manager Hooper questioned if once this becomes available if that will be online also. City Clerk Wadsworth informed him it would. Dot Carlson , 1714 Edgewater Drive, asked City Attorney Rosenthal if he or his firm has done any work for Professional Engineering Consultants. City Attorney Rosenthal informed him no. Ms. Carlson commented on a drain that was put in at the end of Edgewater drive because of the wall behind the motel. She asked how much it cost the City to put the drain in. City Manager Hooper informed her Director of Environmental Services Terry Wadsworth would get that information for her. 6. PUBLIC HEARINGS, ORDINANCES AND RESOLUTIONS Page 4 of 31 Council Regular Meeting April 3, 2006 A. Public Hearing, Edgewater Harbor, LLC is requesting an amendment to the Planned Unit Development Agreement (PUD) for Edgewater Harbor City Manager Hooper made a staff presentation regarding this history of this property. He then commented on the amendment to the PUD agreement. He informed Council all conditions with Boston Whaler stay in place. He also informed Council the developer and his attorney were present. Staff recommends approval. Mayor Thomas commented on this being approved by the last Council and it being less restrictive than it is now. He asked why they have to do it if they want less units and they want to be more restrictive then what the previous Council approved. City Manager Hooper explained the old agreement expires in a couple of months. The new agreement will have a continuation. They want to renew that original agreement so there isn’t an expiration and this allows them to phase in their development. There was a discussion regarding the difference in the number of boat slips in the previous agreement and the amended agreement and modifying something and having to go back through the process. Permits are only good for a finite period of time. Councilwoman Lichter felt the other project was exquisite and it being a plus that certain areas being open to the public. She feels this fits in better with the desire. City Manager Hooper went over the architectural portion of this project. City Attorney Rosenthal commented on the revised black-line they passed out right before the meeting. He explained the only change is the black-line in the agenda packet struck the reference to multi-story and condominiums and it inserted town homes. They put it back to the original language through various places in the document. It still says multi-story residential condominiums as opposed to town home residential dwellings. Councilwoman Rhodes stated she knows since this has to be redone it’s not only what they want but it’s what the Page 5 of 31 Council Regular Meeting April 3, 2006 Council wants too. When this was originally written she had a problem with the City paying one third of the Boston Whaler air stuff. She still has a problem with it and feels it is the developer and Boston Whaler’s problem and she doesn’t know why they can’t work something out where they don’t have to be involved with that. She then asked if when this was redone if anybody informed them we didn’t want to be involved. City Manager Hooper explained they have negotiated and struck an arrangement with Whaler in which Whaler is comfortable as a partner with the City and with the developer. He commented on the agreement being extended twice and the source of money to help out with the problem. He spoke of having a three-way public/private partnership. Councilwoman Rhodes again stated she didn’t feel it was the City’s responsibility. She asked if Whaler would re-nig on their acceptance with this with the covenants and deeds if the City weren’t a part of this. City Manager Hooper feels the only way Whaler would not have an objection to that is if the City were to back out and the developer would put up the City’s portion. Councilwoman Rhodes stated that is exactly what she is saying. She asked if they could renegotiate that. Councilwoman Rogers thanked the developer for sending out the packet of information to each of the Council. In the letter it indicates the building heights will be less than 45 feet. On the site data they are indicating a maximum height of fifty feet. In some of the newspaper articles, she recalled reading thirty-five feet in height. She then mentioned in Section 3 where it talks about development uses permitted it says the City of Edgewater’s current Land Development Code. She doesn’t see this being a problem with what they are doing right now with the Land Development Code changes. The different heights concern her. City Manager Hooper informed her it is what is included in the agreement. Councilwoman Rogers mentioned if Boston Whaler were to annex into the City they would then pay one-third. Councilwoman Rogers confirmed they would have to annex to pay the one-third. City Manager Hooper stated nobody pays if they don’t annex. The only way that triggers were if Whaler were to annex and describe their mechanism to cure the odor problem. Page 6 of 31 Council Regular Meeting April 3, 2006 Councilwoman Rogers asked how many dry slips were included in the old agreement. City Manager Hooper informed her three hundred. Councilwoman Rogers expressed concern with changing the square footage that would be designated for the retention area. Since they have lowered it and increasing the buildings on this property will they have engineering to back that up to indicate that can be done. City Manager Hooper informed her that is part of the permitting process. City Manager Hooper commented on the master plan and it being schematic in nature. They are seeing the maximum numbers in the PUD document because they haven’t finished the permitting. These are subject to some change. They can’t exceed what they have and the Council will probably see some of this go down. These ponds can be schematically sized right now and they appear to work but by the time the District, the City or the engineers ask the questions some of that will change. It can’t get any larger but it can go smaller. Mayor Thomas opened the public hearing. Hawk McMillan, Managing Member, Edgewater Harbor, was available to answer any questions. Councilwoman Lichter stated she thought it fit in with the general requirements or desires of the present City Council she is sitting on. She felt the situation with Boston Whaler was very touchy. She felt the compromise that was worked out was not harmful to the City and she has no problem with the project. She commented on the permitting process not being easy and taking so long. Councilwoman Rhodes stated she likes the project as well. She liked it the first time but likes it better this time. She feels it is good for the City but doesn’t feel the City should be paying one-third. She asked Mr. McMillan if he was averse to taking the City out of that part of the agreement. If they annex in, the agreement would be between the developer and Boston Whaler. Mr. McMillan stated he was averse to paying a 1/3 in the beginning. He fought with attorneys for a long time and felt it was Boston Whaler’s cost. They should do that for their own factory. He finally acquiesced to paying a Page 7 of 31 Council Regular Meeting April 3, 2006 third. It his opinion he doesn’t feel Boston Whaler is going to go forward anyway. His sub-position it doesn’t look like they are. Councilwoman Rhodes mentioned Boston Whaler being a big supplier of jobs in our town and they have been here a long time and they deserve consideration. In her opinion, more consideration than the developer deserves at this point in time. When the developer becomes a part of our City, they are entitled to the same consideration. Mr. McMillan informed her they are annexed into the City. Councilwoman Rhodes agreed that Boston Whaler probably won’t annex into the City and she felt it wouldn’t hurt to take the City out of this agreement. Mr. McMillan stated they have already annexed into the City and Boston Whaler hasn’t. Councilwoman Rhodes stated she isn’t trying to protect them as much as she is trying to protect the City. She doesn’t want to spend taxpayer dollars so the developer can build a development in the City if it comes to that. Mr. McMillan stated he would have to defer that to his investors and they are having a meeting on Thursday and he would have to see if that is something they would do. They fought very hard and they didn’t want to pay one-third and they did acquiesce to paying one-third. Councilwoman Rogers stated her question pertains to the approved zoning. Under the commercial previously it was twenty acres and now it’s twelve. The residential, previously forty, now forty-eight. She is thinking of tax dollars. More commercial alleviates the residential. To continue, the number of units now is 450 residential. What was listed in the letter was that they have approximately planned 394 units. She suggested they try to keep it at 400 units and bump up the commercial again as they are going through the final stages of planning. Councilwoman Rogers asked if they have researched the possibility of getting any kind of governmental dollars to help with the odor problem. City Manager Hooper stated the City researched that and it’s not available for a private entity. There have been some efforts by Whaler to the State and the Feds on their own and they haven’t had any luck with that. Councilwoman Rogers stated how about the fact it was the pre-stressed concrete and the fact that he is taking it and dealing with it, is there any possibility or deed some of the property back to the City and then the Page 8 of 31 Council Regular Meeting April 3, 2006 City could apply for these grants. City Manager Hooper didn’t think there was grant opportunity for that. Mr. McMillan addressed the unit density. It is presently planned at 394 units and that is with ten acres, two five- acre lakes. That is going to be about the maximum amount. If Ms. Gierok could figure this out with St. Johns and they could get a few more units, that is why they put a higher cap just in case they can but they don’t expect to get there. What they have now is what they think is their maximum layout. Mr. McMillan explained they expect their units to be about forty-four or forty-five feet. They left room for adornment on some of the buildings to make them look better. He further commented on what the units will look like. These units will be much more affordable than the condominiums they had in the mid-rise. They are dropping from eight stories to three stories and they are going from a maximum of 588 to a maximum of 450, which they don’t think they can obtain. Councilwoman Rogers stated she didn’t like the project that was previously approved but she does like this one much better. She asked about the hardyboard siding. Mr. McMillan elaborated. Councilwoman Rogers asked about it being a material that can withstand hurricane winds. Mr. McMillan stated everything has to meet all of the codes. Councilwoman Rogers agreed with the units being more affordable. Mr. McMillan commented on being able to phase the development and having rotating bank loans. He spoke of using three local banks that can go up to $10 million very easily. When you go above $10 million, then you have to deal with very large investors and they have tremendous requirements on bonding and insurance. That is one of the major things that made them rethink this and come back in front of Council. They have spent over $2 million on the design group for the condominiums they had and on the engineering. They are walking away from that $2 million for this knowing this is a much better project. He believes most of their buyers are going to be second home buyers and won’t be able to get the homestead and he thinks they will find they will get more tax revenue with more of the residential units. Page 9 of 31 Council Regular Meeting April 3, 2006 Councilwoman Rogers asked Mr. McMillan if he has spoken to any of the local banks in Edgewater to see if they could help him with the financing for the people buying those units so we can have that money in our economy. Mr. McMillan stated with the unit financing the buyer can go wherever they want. They are going to try and have finance in place. Councilwoman Rogers felt if he spoke to a few of local banks, maybe they would have someone onsite that would also help bring business into those banks so they are being financed here locally. Mr. McMillan stated he is going to try to have the person onsite that gives the best mortgage to the buyers. Mayor Thomas asked City Manager Hooper to bring him back to how this started. City Manager Hooper stated the City bought it with the intent of selling it to a developer. It was never envision it was going to be a public project. At the same time, they had an option to purchase from the County and they advertised an RFP. This particular group was selected as the best plan, which was the site previously. The property closed and was deeded into their name, Edgewater Harbor, and that pretty much ended our relationship by way of the RFP. Mayor Thomas stated he doesn’t like any of it. He feels this is a better package than the last package. He wanted the people that supported him know where he stood on that. The following citizens spoke: Pat Card , 3019 Willow Oak Drive, read a prepared statement. He presented reasons why he felt the developer wanted to change the project. He strongly opposed any residential property next to Boston Whaler. He also feels this is a bad place for this development and feels it will not be compatible with the surrounding area. He mentioned the City walking away from $1 million a year in revenues when they failed to approve the sixteen stories, walked away from the voluntary impact fees to the tune of $200,000, they added an attorney for all their meetings. They will have $500,000 or more to complete the City’s portion of the Whaler deal to eliminate the smells. They agree as a goal to rehabilitate this municipal complex on the river for upwards of a million and a half and now the property the City sold for a pittance of what it was worth, comes with a Page 10 of 31 Council Regular Meeting April 3, 2006 smaller development that will generate less tax revenue. Before long the Council will be talking about real money. He encouraged the Council to tell them to build what they bought the rights to build and when June rolls around and they haven’t started constructions, void the RPUD according to its terms. Dominic Capria , 606 Topside Circle, asked if he heard correctly that the City will not have to pay the $500,000 and it will be picked up by the developer. Councilwoman Rhodes stated not yet anyway. Mr. Capria stated he thought they were leaning that way. Councilwoman Rhodes stated they might be. Mr. Capria asked about the smokestack that will have less order. The last contract had in it that the buyer would have to sign the contract that they would not complain about odors. He questioned if that still exists. Councilwoman Rhodes informed him yes. Mr. Capria then asked if this would be a gated community with public roads. City Manager Hooper stated the only public roads would go to the commercial. The gated community or the others are private roads. Mr. Capria stated he understood the contract would expire in June and this being one of the reasons the amendment was submitted. He asked how long that contract would go for. City Manager Hooper stated this contract has a one-year effective from the date of agreement so it adds another year from approval. Ferd Heeb , 115 N. Riverside Drive, stated the previous Council when this was an issue was quite enamored with having a single project that would produce a half a million dollars a year in tax revenue. A lot of the discussion centered around the attitude that would be one year’s taxes for our one-third. He spoke of going to lesser construction and therefore lesser value. He was never in favor and is still not in favor of this project. One of the questions that was raised when this project was presented was the fact that it was a bargain sale. The property was sold for a little less than $50,000 an acre, prime waterfront property. He asked how much was being charged for the industrial park right now. City Manager Hooper informed him $100,000 plus. Page 11 of 31 Council Regular Meeting April 3, 2006 Mr. Heeb stated there was question, he thought he raised and asked what happens if the developer does not develop the development the Council approved to sell him this property for $3 million. If he recalled correctly, the answer was the City would buy it back. He recommended the Council buy it back in a heartbeat. Councilwoman Rhodes stated when they did that deal, they didn’t buy the property and hold onto it and sell it. There was a quick turnover and the City never really held that property. Mr. Heeb stated the understanding was the City put out an RFP for a developer to come in and present the City with a package the City would approve and they would sell it to that individual and they were selected. Some of the Council were extremely enamored with the idea of the eight- story condos. The question was what if he doesn’t do it and doesn’t get the financing or can’t get it approved. Councilwoman Rhodes didn’t remember that the City would buy it back. City Manager Hooper explained they had an early clause that was in when it was an option. When the City had it under an option with the County and the City then had an option with the development group, that if something fell apart at that point, it all reverted back to City control. Once they closed on the property, and once we closed with the County, we didn’t go to the table with a check. We went with their money. It closed instantly and was turned over to them. There is no reverter clause in our contract at that closing with the developer. Councilwoman Rhodes stated if this PUD is not approved, that PUD runs out, where are you zoning wise and things of that nature at that point in time. City Attorney Rosenthal stated the property is zoned RPUD and will remain zoned RPUD, regardless of whether they approve or disapprove the amendment tonight. What they are talking about tonight is the agreement. The agreement does not automatically terminate. The agreement has a date after which the City may or may not choose to exercise a right to terminate the agreement. If they didn’t amend it tonight and decided not to elect to terminate it, they would be required to build the original project under the PUD zoning or do nothing. If they were to terminate the agreement, they would be left in a situation where they would have property zoned RPUD and they would have no agreement in place between the Page 12 of 31 Council Regular Meeting April 3, 2006 developer and the applicant. It would then re-enter the PUD negotiation. From a legal standpoint, they are better off negotiating some type of amendment to this agreement because they have better flexibility in that regard at this particular point in time. If it were to terminate and they got back into a brand new agreement, most likely at that point they would be in a quasi-judicial situation like the City is in the other case. They would be able to come up, present competent substantial evidence to support whatever their proposed project is and they would have to have the refuting evidence and they would be in that kind of situation. In this particular case, they are dealing with a contract amendment, so to the extent there is something they want to negotiate, they have a better ability to negotiate now then they would if they terminated and had no agreement in place. Councilwoman Rogers stated the fact that if the existing st agreement expires on June 21, it still is an RPUD. If he decides not to do anything with it, he could then resell it. The new owner takes it with an RPUD and could build what he presented to build in the first place. City Attorney Rosenthal informed her that was correct. If the City doesn’t amend it and they don’t terminate it, then anybody could come in and build the high rise. Once they come in and build the high rise or pull the permit, then the opportunity to terminate it goes away. Councilwoman Lichter asked if this was supposed to go to Planning and Zoning before it comes before Council. City Manager Hooper explained the Land Development Code specifically says that new RPUD agreements go through the process of zoning, amendments come directly back to the City Council. Mr. McMillan informed Council if they choose not to approve their amendment, they are going to go forward and build the st existing RPUD. He will pay the impact fees before June 21 and will start one of the buildings. It will take him a much longer period of time. There will be eight buildings that are eight stories. It will take them a lot longer to sell them and a lot longer to build them, but they will go forward and do that. They are prepared to do that. They are way too deep into this to turn back. The $500,000 issue, he couldn’t make any promises but he believed the th agreement expired on March 6, in their opinion with Boston Whaler. They don’t know how they stand on that yet but Page 13 of 31 Council Regular Meeting April 3, 2006 they have been watching it loosely. The extension they are asking for is a year from today. They don’t think it will take a year but after the hurricanes they went through two years ago and last year what happened with Katrina, they are asking for that. There is no provision to buy the property back. They have an RPUD. They put up the money and the City didn’t take any risks. They want to do this project and they certainly hope the Council will amend the project. They feel if they can have this project, they can build it to thirty to forty-two months and they can have a build out. This is something that is more controllable for them. He has received a loan before and he believes he will receive a loan again to build a high rise and that is what they will do if they have to. There was a ten-minute recess at this time. The meeting recessed at 8:00 p.m. and reconvened at 8:17 p.m. Mike Visconti , 316 Pine Breeze Drive, feels this is a good plan for Edgewater and he feels the City should go forward. It would be the beginning of building going south. Elizabeth DiMascio , 1918 S. Riverside Drive, questioned the ownership of the land. She had two names they pulled offline. Danny Michelbrink and Kenneth R. Hooper. Mayor Thomas asked Ms. DiMascio to show Mr. McMillan what she had. City Manager Hooper stated he thought what they were seeing was probably the permit application for the marina slips. Those were permitted in the name of the City and the developer. There was a discussion regarding who the current owner was. Ms. DiMascio stated Edgewater is a boating community. If you go out Saturday or Sunday morning, eighty percent of the people have boats. Edgewater needs their own marina. Mayor Thomas closed the public hearing and entertained a motion. Councilwoman Rhodes made a motion to continue this until st their May 1 meeting and ask that City Manager Hooper renegotiate our one-third part of the air cleanliness with Boston Whaler . The motion DIED due to the lack of a second . Page 14 of 31 Council Regular Meeting April 3, 2006 Mayor Thomas then entertained another motion. Councilwoman Lichter made a motion that they accept this amendment to the Planned Unit Development PUD as presented by Edgewater Harbor Development . The motion DIED due to the lack of a second . Mayor Thomas then asked if there was another motion. Due to no motion, Councilwoman Rhodes asked City Attorney Rosenthal what they do now. City Attorney Rosenthal asked what they wanted to change, if anything in the agreement. He has heard the one-third. City Attorney Rosenthal stated an alternative motion would potentially be to approve with the change Council suggested on two-thirds participation by Edgewater Harbor with the condition if that is not acceptable to them, it come back st to the May 1 meeting for further consideration. Councilwoman Rogers clarified if Boston Whaler doesn’t annex into the City, the City is off the hook. City Manager Hooper explained the way the agreement is currently structured, and he agreed with Mr. McMillan, he felt the agreement has probably expired but if it is still alive it only is active upon Whaler’s annexation into the City. City Attorney Rosenthal stated he didn’t know if Boston Whaler was the only issue. He advised Council they could move it as opposed to negotiate it and they could accept it, in which case they wouldn’t have to come back and see Council or they could reject it. st Mr. McMillan stated because of the June 21 time, it is imperative they decide tonight. He stated what he is willing to do is if the City has to pay he will indemnify and pay. He doesn’t believe the agreement is in place and he will fight the agreement with everything he has but if the money has to be paid they will pay it if they settle this tonight. If he has to do the original agreement, he st has to go at warp speed. He doesn’t have until May 1. Mr. McMillan then stated he is willing to indemnify the City if it has to be paid. He will paid the extra half a million dollars of the City if it has to be paid. But he Page 15 of 31 Council Regular Meeting April 3, 2006 informed the Council they would fight paying it. They read the agreement with a fine-tooth comb and he believed it th went out on March 6. Councilwoman Lichter asked whom they were going to fight and if it was Boston Whaler. Mr. McMillan informed her yes. They agreed to two extensions and they believe the second extension has run out and they never brought it to them. He has had his attorney and outside legal counsel look at the agreement and they both th agreed that it ran out on March 6. They haven’t annexed in and they haven’t brought them anything back. If the agreement is in place and they find against them, he will pay the City’s portion if they go ahead and settle this tonight. If not, he has to move forward with thinking he has to do the original agreement because of the time concern. Councilwoman Rogers asked City Attorney Rosenthal if they don’t approve this, he can build exactly what he is permitted to build and all he has to do between now and st June 21 is to turn the ground. City Manager Hooper explained his current status is he has building permits sitting next door that all it takes is money. He has gone through the whole process of site plan approval, building permit applications, review and permits. It’s there. All it takes is a check. Councilwoman Rogers stated if he doesn’t do it and he turns around and sells this property to somebody, that somebody could do exactly what he initially intended to do on this property. City Attorney Rosenthal stated assuming the Council has not terminated the agreement. If the Council didn’t take action tonight and he didn’t do what he told Council he was going to do, then the agreement remains in place unless the Council terminates it. Councilwoman Rogers stated and they couldn’t terminate it tonight. It st would have to be after June 21. City Attorney Rosenthal st confirmed it would have to be after June 21 if that is the date. Councilwoman Rogers stated then the property would roll back and not have an RPUD. City Attorney Rosenthal clarified it would always have an RPUD. The effect of the termination of the agreement would be that the zoning would be in place and it would not have a zoning agreement associated with it. He didn’t think that happened in the City before. If the agreement expired, there would then have to be a new agreement put together. It would certainly be a different kind of situation then they typically would find themselves in with a typical PUD. It Page 16 of 31 Council Regular Meeting April 3, 2006 could be messy. He thinks the Council is better off negotiating something in this particular agreement and negotiating an amendment to this agreement then letting it expire. Councilwoman Rogers moved to approve the Edgewater Harbor amendment to the Planned Unit Development with these conditions: the terminology of the current land use code, if it could have some information in there regarding the height . Councilwoman Rogers expressed concern with if he doesn’t build this and if a year expires then someone else could come in there because it said the current land use and build something at 100 feet in height unless they spell it out and say no higher than X ever and that it would have to abide by the land use code that is currently enforced. If this expires after a year and they change the land use code and they have a height of 35 feet and he doesn’t build what he is going to build, then whoever will take over the property will be stuck at the 35 feet. She questioned if they could do something along those lines. City Attorney Rosenthal stated he thought that would be, rather than the current Land Development Code would be in Section III the Land Development Code as it may from time to time be amended. To the extent the Council makes an amendment that would pick it up. And then also what he had indicated that he would hold the City harmless and indemnify the City from paying the one-third, which she knows isn’t going to happen because Boston Whaler isn’t going to annex into the City. That is her gut feeling. She doesn’t believe they are. For the record, she wanted it to be in the minutes that she is making this motion because they are stuck. What happened with the previous City Council, here it is. They are stuck. If they don’t do this tonight, what they are doing with his amendment and his proposed changes, he can go back and build exactly what they previously approved and this is the lesser of two evils. Councilwoman Lichter stated she is getting sick of hearing the comments concerning the last Council. Because the last Council was… Mayor Thomas banged the gavel and informed Councilwoman Lichter there was a motion on the floor. Page 17 of 31 Council Regular Meeting April 3, 2006 Councilwoman Lichter stated and all night long they break the rules. Mayor Thomas stated they will ask for discussion on that motion. Councilwoman Lichter stated the next Council will do something different than this one. The past one did something that five people agreed on and they weren’t people that did things necessarily wrong. The next group will be doing something different than you think. It has been that way since the beginning of Edgewater. She feels it is awful that every motion and every statement has to refer back to the evils of the City Council. Mayor Thomas informed her she didn’t have to take it personal. Councilwoman Lichter stated she does. Councilwoman Rogers stated that is precisely it. Mayor Thomas again banged the gavel and stated there was a motion on the floor. Mayor Thomas passed the gavel to Councilwoman Rhodes and seconded the motion. Councilwoman Rhodes informed him he couldn’t pass the gavel to her because she wasn’t the Vice Mayor. Councilwoman Rhodes agreed to second the motion as long as it adhere to the current Land Development Code that is in place at the time these PUD’s are negotiated. City Manager Hooper informed her and the indemnification . City Attorney Rosenthal stated what he has is change the reference in Section 2 to the Land Development Code as it may from time to time be amended and then in Section 10 add a provision which says the developer will assume the City obligations under the cost sharing agreement and indemnify and hold the city harmless from any and all liability there under. Councilwoman Rogers stated but in there put in parentheses specifics. Everybody has opinions. If they spell it out then nobody can construe that to be other than not higher than fifty feet. Councilwoman Rhodes asked if she could ask a question. Mayor Thomas asked if this was discussion on the motion due to having a motion and a second. Councilwoman Rhodes informed him it was. Page 18 of 31 Council Regular Meeting April 3, 2006 Councilwoman Rhodes clarified if height is specified in this PUD, it wouldn’t affect other PUD’s that come before Council. City Attorney Rosenthal stated this one has the fifty-foot height as long as it isn’t terminated and remains in place, the fifty-foot would be binding. If it were terminated, that terminates the whole agreement, which would include a provision, which says they would never build taller than whatever feet. The key is that this says fifty feet. City Attorney Rosenthal recommended since this is an agreement that would need to be signed by the developer, he should ask the developer whether those changes are acceptable and they will sign the agreement. Mayor Thomas asked Mr. McMillan if this was acceptable to him. Mr. McMillan informed him it was. The MOTION CARRIED 4-0 . Mayor Thomas informed the Council that City Attorney Rosenthal has asked to be excused. He asked if the Council has any problems with letting him go now. City Attorney Rosenthal left at 8:35 p.m. Councilwoman Rhodes suggested they put things on the agenda they think they are going to need him for early on the agenda and if they have to move things up move them up so they can get him out of there and not have to pay him. nd B.2Reading, Ord. No. 2006-O-06, Anthony and Melissa Lancellotta requesting annexation of .9+ acres of property located at 2923 Oak Trail Mayor Thomas read Ord. 2006-O-06 into the record. City Manager Hooper made a staff presentation. Mayor Thomas opened the public hearing. The following citizen spoke: Dot Carlson , 1714 Edgewater Drive, asked if this is still in the County. City Manager Hooper pointed out the property and informed her it was. Page 19 of 31 Council Regular Meeting April 3, 2006 Ms. Carlson asked about the property that surrounds it not being annexed into the City. City Manager Hooper pointed out property that has been annexed. This is contiguous and being added to it. Ms. Carlson confirmed that below Oak Trail it is not annexed. City Manager Hooper informed her that was correct. Ms. Carlson expressed concern that once that property is something else could keep jumping in. City Manager Hooper stated that could happen today because it is contiguous. Mayor Thomas closed the public hearing. Councilwoman Rhodes moved to approve Ord. 2006-O-06, Anthony and Melissa Lancellotta requesting annexation of .9+ acres of property located at 2923 Oak Trail, second by Councilwoman Rogers . The MOTION CARRIED 4-0 . st C.1 Reading, Ord. No. 2006-O-08, Anthony and Melissa Lancellotta requesting an amendment to the Comprehensive Plan Future Land Use Map to include .9+ acres of property located at 2923 Oak Trail as Low Density Transitional with Conservation Overlay Mayor Thomas read Ord. 2006-O-08 into the record. City Manager Hooper made a staff presentation. Due to there being no comments, Mayor Thomas opened and closed the public hearing. Councilwoman Rhodes moved to approve Ord. 2006-O-08, Anthony and Melissa Lancellotta requesting an amendment to the Comprehensive Plan Future Land Use Map to include .9+ acres of property located at 2923 Oak Trail as Low Density Transitional with Conservation Overlay, second by Councilwoman Rogers . The MOTION CARRIED 4-0 . st Reading, Ord. No. 2006-O-09, Anthony and D.1 Melissa Lancellotta requesting an amendment to the Official Zoning Map to include .9+ acres of Page 20 of 31 Council Regular Meeting April 3, 2006 property located at 2923 Oak Trail as RT (Rural Transitional) Mayor Thomas read Ord. 2006-O-09 into the record. City Manager Hooper made a staff presentation. Due to there being no comments, Mayor Thomas opened and closed the public hearing. Councilwoman Lichter moved to approve Ord. 2006-O-09, Anthony and Melissa Lancellotta requesting an amendment to the Official Zoning Map to include .9+ acres of property located at 2923 Oak Trail as RT (Rural Transitional), second by Councilwoman Rhodes . The MOTION CARRIED 4-0 . st Reading, Ord. No. 2006-O-07, establishing user E.1 fees to non-residents for public safety services for motor vehicle accidents, cont. from 3/20/06, Item 6D City Manager Hooper made a staff presentation. He estimated the revenue this might generate being about $30,000 to $35,000 total for Police and Fire. Staff recommends approval. Councilwoman Lichter and Councilwoman Rhodes spoke in favor of this. Councilwoman Rogers stated she would like to hear what County Councilman Jack Hayman has to say on this. At this moment, she isn’t sold on this. Councilwoman Rogers stated the figure that was quoted is a gross figure and not a net figure after the expenses, so she thinks what would come into the City’s hands is closer to $7,000 or $8,000. City Manager Hooper informed her no. It’s probably the $30,000 range. Councilwoman Rogers stated they still had to have somebody account for this. City Manager Hooper informed him they would contract with a company. They will turn over the accident information and they receive a fee for that to contact the insurance company and deduct their fair share and the rest is remitted to the City. He felt they would net about $30,000 out of that. Page 21 of 31 Council Regular Meeting April 3, 2006 Mayor Thomas questioned the Police Chief and Fire Chief being supportive of this. City Manager Hooper confirmed they were. He mentioned other cities waiting and calling to question if the City is doing this or not. They have described they haven’t. He again commented on this automatically sunsetting at eighteen months. It will go away if the Council doesn’t like it. It would come back to Council and they will have the chance to renew it or continue it. It automatically is gone after eighteen months unless the Council decides they like it. Mayor Thomas opened the public hearing. The following citizens spoke: Jack Hayman , 3003 Travelers Palm Drive, thanked City Manager Hooper and Fire Chief Barlow for allowing him some time to discuss this idea. He feels on the surface it is a great idea to charge people for using public facilities or having them reimburse the public facility for what they consume. When you are laying there at the scene of an accident and you are waiting for the paramedics and the police officers to come you don’t care who pays for it. In Florida everybody has to have insurance. They found at the county through EVAC that insurance companies after fascia get very interested in the pass ons and the charges that are passed on to them. They have also found that insurance companies, once this becomes prevalent in a large area and everybody starts doing it, he feels they will start to see some changes in the insurance rates. He mentioned the ill will this will create for those who live in the unincorporated area, Oak Hill or New Smyrna Beach or any place else. They pay taxes in their City and their ad valorem taxes take care of their police and their fire. It takes a fair share of distribution of tax to pay for a service that is generally an acceptable level throughout the region. If he has a need for police or fire services in another city and another jurisdiction, they don’t ask him if he is a resident or not because the residents of that area are paying for the annual cost to maintain that service at the level established by the Council. He has some difficulty with the idea that we are going to do it and nobody else is. He thinks it is great to say as a citizen of Edgewater if he has the accident here and he is found at fault, his ad valorem will take care of his part of it. If someone outside the City has an accident, their Page 22 of 31 Council Regular Meeting April 3, 2006 insurance company will be billed. He thinks it is naïve to say the insurance companies will pay it without any question. He feels after a fascia that is going to change. He thinks the eighteen-month trial period is a good idea if they decide to do it and come back and look at the impact. He feels the figure of $30,000 or $35,000 or even $50,000 is kind of an inconsequential number when you are looking at public safety. When he originally read this he wasn’t familiar with the numbers. The thought that crossed his mind was we are six months into the fiscal year; we are in the budget cycle. Why are we doing this? Why are we creating a user fee and what is happening to the Police and Fire budget and if they have more instances they have to respond to. Our City is growing. Are there budget demands that need increasing as well? If so, what is the effect on the ad valorem? After speaking to Fire Chief Barlow, he understood the budget outlook was going to be pretty good. He spoke of having more revenue because of the just value increases in our real properties and the growth and annexations we have experienced as well. If the Council must do this, he recommended they sunset it at eighteen months as proposed. He suggested they disapprove this request for the reasons he has stated. He is convinced the insurance companies will respond in a negative fashion and it is going to be passed on to the consumers across the board, including the people who pay the ad valorem and are residents in the City of Edgewater. Ferd Heeb , 115 N. Riverside Drive, feels insurance companies aren’t benevolent deep pocketed companies. They are organizations in business to make a profit. The minute this becomes widespread, he guaranteed Oak Hill, New Smyrna and Port Orange as well as other municipalities would do it. He encouraged the Council to give this a lot of thought before they do this because ultimately the people are going to pay the price. Mike Visconti , 316 Pine Breeze Drive, stated he hated the idea of someone in his family or tourists getting into an accident and being charged for how many hours they spend at the accident scene. He feels it is downgrading Edgewater to do something like this to earn a few dollars on somebody else’s accident. He spoke of the insurance companies raising your premiums. He didn’t think this was feasible. Pat Card , 3019 Willow Oak Drive, suggested the Council give the Chief $30,000 above what he asked for next year and you Page 23 of 31 Council Regular Meeting April 3, 2006 don’t have a problem with it. It is going to come out of our pockets anyway. Worse than that, there is going to be 10% that is going to disappear. Mayor Thomas closed the public hearing and entertained a motion. City Manager Hooper commented on the closest unit response with the County that tracks the number of trips. When we respond in the County we charge $777 for every trip we go into the County that is more than the County comes into us. There is a format of this that already exists that is subsidized somewhat by our serving the unincorporated that doesn’t have closest unit response and needs other to come out and serve some of that. He commented on some insurance increase. They have seen some of that already because of the closest unit response. That is mandated and by June of this year everyone in the County is supposed to do that so you will see some of those costs also inflate for the unincorporated area. Councilwoman Lichter moved to approve Ord. 2006-O-07, establishing user fees to non-residents for public safety services for motor vehicle accidents for a designated period of time to try it out, eighteen months . The MOTION DIED due to lack of a second . Councilwoman Rogers moved to disapprove the first reading of Ord. 2006-O-07, establishing user fees to non-residents for public safety services for motor vehicle accidents . The MOTION DIED due to lack of a second . Councilwoman Lichter asked if they could have some discussion. Councilwoman Rhodes agreed with Mr. Heeb when he said we are gong to pay for it one way or the other. On the other hand, she sees an opportunity for a year to get it into the City even if it is only $30,000. She is torn between this. She thinks it is a good idea. If we were the only ones doing it in the State of Florida, she would be all over it. She is afraid if they do it for a year and everyone else around us will do it as well we will be right back where we started. Page 24 of 31 Council Regular Meeting April 3, 2006 Councilwoman Rhodes stated she is not convinced as much as she applauds the forward thinking of Chief Ignasiak and Chief Barlow, she didn’t think she could do this and would have to second Councilwoman Rogers’ motion . Councilwoman Rhodes feels in the long run it is going to cost us too much. Councilwoman Lichter stated the reason she would be voting for it is because she has a sincere respect for our two Chiefs and she thinks when they come up with an idea that might be workable and they don’t know the end results, she gave them the benefit of the doubt and trying it out. That is why she made her original motion and she will be voting no for this one. Councilwoman Rhodes saw Councilwoman Lichter’s point except that if you try it out and everybody else doe sit, then you can’t opt out of it and your insurance rates are going to go up and the consumers are going to pay for it. The MOTION FAILED 2-2. Councilwoman Lichter and Mayor Thomas voted NO. City Manager Hooper stated it is their first reading so they could pass it on to the second and they will have a full Council at that time. They will do no harm. They th will be able to vote as a full Council on April 17. st Councilwoman Rhodes moved to continue this to May 1 due to th the big agenda on April 17. City Manager Hooper stated he was suggesting they approve the first reading and send it to the second reading. Councilwoman Rhodes moved to approve Ord. 2006-O-07 so it could go to second reading, second by Councilwoman Lichter . The MOTION CARRIED 3-1. Councilwoman Rogers voted NO . She felt they should watch the other cities and see what they do and jump on the bandwagon later. 7. BOARD APPOINTMENTS Page 25 of 31 Council Regular Meeting April 3, 2006 A.Library Board – nomination by Councilwoman Rogers to fill the remaining term of Sandy Sammons due to her resignation Councilwoman Rogers stated she has reviewed all of the applications and the people she feels would be most suitable would be Barbaradale Gilmore. She has had a lot of experience doing library service in various areas. She is now a resident of the City. She spoke with her personally and she was very impressed with her. She loves books and she loves libraries and she feels she would be a great addition to this board. She didn’t think they would have some of the issues like they have had where they have had people leave and get reappointed. She feels she would be consistent and she feels this is what the City needs. Councilwoman Rogers moved to appoint Barbaradale Gilmore to the Library Board, second by Councilwoman Rhodes . The MOTION CARRIED 4-0 . 8. CONSENT AGENDA There were no items on the Consent Agenda to be discussed at this time. 9. OTHER BUSINESS A.ParkTowne Industrial Center Phase I – staff recommending approval of Change Order #1 to the Drainage and Utility Improvement Project in the amount of $49,439.24 with a 32-day time extension for Prime Construction Group, Inc. and authorizing the Mayor or City Manager to execute the Change Order City Manager Hooper made a staff presentation. Katie Gierok, Gierok Engineering, estimated that 30% of the ponds would be rock and her estimate was low. There was further discussion regarding the amount of rock being found in this location. Councilwoman Lichter asked what would happen in the middle of that project. City Manager Hooper explained that belongs to FIND. They have filled it with sand and that Page 26 of 31 Council Regular Meeting April 3, 2006 sand will go away over a period of time. In another seven or nine years they are going to do the same thing. Mayor Thomas entertained a motion. Councilwoman Rhodes moved to approve Change Order #1 to the Drainage and Utility Improvement Project in the amount of $49,439.24 with a 32-day time extension for Prime Construction Group, Inc. and authorizing the Mayor or City Manager to execute the Change Order, second by Councilwoman Lichter. The MOTION CARRIED 4-0 . B.Property Purchase – staff recommending acceptance of a Federal Hazard Mitigation Grant in the amount of $165,515 toward the purchase of two (2) properties repeatedly damaged from floods and authorize the Mayor or City Manager to execute the purchase contracts and appropriate documents City Manager Hooper made a staff presentation. Councilwoman Lichter asked how old the properties were. City Manager Hooper stated they were probably built in the 1960’s. Councilwoman Rhodes asked if these homes would be moved or tore down. City Manager Hooper informed they would be tore down. He commented on possibly using them for a burn practice. Councilwoman Rogers questioned the cost of $2,000 for each property. City Manager Hooper commented on this being part of what has to be turned in for the grant application. He commented on the asbestos not being completed or the demolition. Councilwoman Rogers then questioned the $57,000 coming out of stormwater and $10,000 coming out of the General fund. She also questioned how much has been taken out of the stormwater fund in the last budget year. Will we still have a beginning balance for the next fiscal year or will we have to start doing other things to build it back up? Finance Director Williams stated they will have many assets in the fund as a beginning balance. Coucnilwoman Rogers Page 27 of 31 Council Regular Meeting April 3, 2006 asked about not being in the negative. Mr. Williams informed her currently we are not. City Manager Hooper stated the Council is going to hear the auditors in a couple of weeks and they are going to tell the Council our stormwater fund is in trouble. It is the only fund that has not had some adjustments and has not been updated. Councilwoman Rogers asked about having a time limit for them to make this decision. City Manager Hooper informed her if they pass or pause this money would go to somebody else. Councilwoman Rogers asked when the time limit expires. City Manager Hooper wasn’t sure but thought it st was 90 days from March 1, which would be May. Councilwoman Rogers felt maybe they should continue this and asked if they would start looking at some budgets by the time they need to make a decision on this. City Manager Hooper informed her they would be looking but not doing anything to change it. Councilwoman Rogers doesn’t want to start spending money now and once they get into the budget, they start realizing they have some serious problems. She wants to look at the whole picture before they spend money they don’t have yet. Councilwoman Rogers confirmed that by the time they hear from the auditors, our opportunity on this will have passed. City Manager Hooper stated the opportunity here will probably go and the two owners that have signed on and committed and held their price for two years he thinks will be very frustrated. Mayor Thomas entertained a motion. Councilwoman Rhodes moved to approve acceptance of a Federal Hazard Mitigation Grant in the amount of $165,515 toward the purchase of two (2) properties repeatedly damaged from floods and authorize the Mayor or City Manager to execute the purchase contracts and appropriate documents, second by Councilwoman Lichter . The MOTION CARRIED 4-0 . C.New Position – staff recommending approval of the creation of a Deputy Police Chief position City Manager Hooper made a staff presentation. Page 28 of 31 Council Regular Meeting April 3, 2006 Councilwoman Lichter felt the salary range wasn’t overwhelming. She questioned the financial impact being because of what this person needs or because of the perks. Chief Ignasiak informed her they are trying to be fiscally prudent to try and hold our costs down but that salary would place that person above all the other supervisors. It was only right that that position be paid at a higher rate of those working underneath him. Councilwoman Lichter asked about the person being onboard now. She questioned if that position would be filled. Chief Ignasiak informed her that was his intent. If they elevate someone up, they would promote from within the department. This position is only open to sworn supervisors inside the department now. They have six. Of the six, there are two individuals who actually qualify. One of those persons would be selected then the next person on the sergeant’s list would be promoted and elevated up to that position an then they would then hire another officer to backfill the position they just vacated. He further commented on this being extra money because of the position being created. They are going from a total of 33 to 34. Councilwoman Lichter stated she thinks there probably is nothing more important in a City than police and fire services and she has to trust the judgment of whom they have in office. Councilwoman Rhodes asked Chief Ignasiak if he would be making the choice of who would be the Deputy Chief. Chief Ignasiak informed her it would be himself and City Manager Hooper. There was a brief discussion regarding the police situation in Daytona Beach. Councilwoman Rogers commented on the ratio in New Smyrna Beach being one to fifteen, where we are at one to thirty- three. We are really behind the time. City Manager Hooper commented on having a very thin staff. Councilwoman Rogers commented on this person being familiar with the department should the Chief go on vacation. Chief Ignasiak informed her yes, both candidates are very familiar. Page 29 of 31 Council Regular Meeting April 3, 2006 Mayor Thomas stated he has visited with the Police Chief and staff. In most organizations, there are too many chiefs and not enough Indians. In Edgewater that is not the case. The next line of supervision under the Chief is a sergeant. He feels there is a need for this position in the City. Councilwoman Rhodes moved to create a new position of Deputy Police Chief, second by Councilwoman Rogers . The MOTION CARRIED 4-0 . 10. OFFICER REPORTS A. City Clerk City Clerk Wadsworth had nothing at this time. B. City Attorney City Attorney Rosenthal was excused earlier in the meeting. C. City Manager City Manager Hooper stated the Council had asked at the last Council meeting that if they were to initiate a Charter amendment on their own what the last day was. He informed Council the last day is September 8, 2006, 60 days before the General Election. City Manager Hooper stated Councilwoman Rogers asked how many people we had with direct debit and how many we had with people that pay online. In round numbers, 2000 people pay direct debit or online out of about 10,000 customers. City Manager Hooper stated Councilwoman Rogers also asked about how many lots are fifty feet. He informed her there are about 2,700 sixty-foot lots and about 900 fifty-foot lots that already exist. That is out of 11,588 total lots. He informed Council he would have the maps in his office if anybody would like to look at them. Councilwoman Rogers asked if Coral Trace and Oak Leaf Preserve were included. He informed her Coral Trace was but Oak Leaf Preserve is sixty-five foot lots. 11. CITIZEN COMMENTS/CORRESPONDENCE Page 30 of 31 Council Regular Meeting April 3, 2006 The following citizen spoke: Dot Carlson , 1714 Edgewater Drive, thanked Leisure Services for having the presentation on the rain gardens. She hoped everyone would attend. She agreed with Chief that we are going to need more police and another one of him because we are getting a lot more people in. More people, more crime. A. Tentative Agenda Items There were no Tentative Agenda Items to be discussed at this time. 12. ADJOURNMENT There being no further business to discuss, Councilwoman Rhodes moved to adjourn. The meeting adjourned at 9:30 p.m. Minutes submitted by: Lisa Bloomer Page 31 of 31 Council Regular Meeting April 3, 2006