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08-06-1984 - Regular ~ u CITY COUNCIL OF EDGEWATER REGULAR MEETING AUGUST 6, 1984 MINUTES Mayor David Ledbetter called the meeting to order at 7:00 P.M. in the Community Center. ROLL CALL Mayor David Ledbetter Councilman Melbourne Wargo Councilwoman Gigi Bennington Councilman Neil Asting Present Present Present Present Councilman Jack Spencer City Attorney Josel Alvarez City Clerk Connie Kinsey Pol ice Chief Douglas Betts Present Present Present Present There was a silent invocation and the salute to the flag. PUBLIC HEARING - SECOND AND FINAL READING AND ACTION: Ord. #84-0-10 - Mayor Ledbetter opened the publ ic hearing. City Attorney Alvarez read the ordinance. Ord. 84-0-10 - AN ORDINANCE AMENDING CHAPTER 13, ARTICLE I I, SECTION 13-21 OF THE EDGEWATER CODE OF ORDINANCES OF THE CITY OF EDGEWATER, FLORIDA, BY REMOVING ALL DEPARTMENT HEADS FROM THE MERIT ORDINANCE; CONTAINING A REPEALER PROVISION; A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE. There were no comments from the audience. Councilman Spencer moved to close the Publ ic Hearing. Councilwoman Bennington seconded the motion. Motion CARRIED 5-0. Councilman Wargo moved to adopt the ordinance on its second reading. Councilwoman Bennington seconded the motion. Motion CARRIED 5-0. APPROVAL OF MINUTES Councilman Spencer stated that he was not present during any of the three meetings for which the minutes were submitted and he will abstain from voting. Special Meeting of July 12, 1984 - Councilwoman Bennington moved to approve the minutes. Councilman Wargo seconded the motion. Motion CARRIED 4-0. Councilman Spencer abstained from voting. Special Meeting and Workshop of July 12, 1984 - Councilwoman Bennington moved to approve these minutes. Councilman Asting seconded the motion. Councilman Wargo questioned a statement held made at an interview with Chief Betts which was not included in these minutes and City Clerk Kinsey clarified that he was referring to the July 6th meeting. Motion CARRIED 4-0. Councilman Spencer abstained from voting. Regular Meeting of July 16, 1984 - Councilman Asting moved to adopt these minutes. Councilwoman Bennington seconded the motion for discussion, and she noted that on page 3, the second paragraph should be corrected to read Mr. Schofield rather than Mr. Siburn, and also on page 6, the seventh paragraph, the same correction of names should be made. Councilman Wargo amended the motion to be minutes to be accepted as corrected. Councilwoman Bennington seconded the amendment. Amended motion CARRIED 4-0. Councilman Spencer abstained from voting. Original motion CARRIED 3-1. Mayor Ledbetter voted NO due to absence and Councilman Spencer abstained from voting. BILLS AND ACCOUNTS Councilwoman seconded the $300. had to of the dogs. Bennington moved to approve the bills and accounts. Councilman Wargo motion. Councilwoman Bennington asked if the Humane Society payment of be paid in full for this past month since it was closed due to a disease City Clerk Kinsey repl ied yes. Motion CARRIED 5-0. o o BILLS AND ACCOUNTS (Continued)- City Clerk Kinsey noted that there are two supplemental bills, and one is for the Fire Department for the repair of three Scott air packs which were sent for repair May 24th and no purchase order was requested until July 9th. Councilman Spencer said the Fire Department should be notified that the request for a purchase order comes first and he moved that the Council pay the supplemental bill in the amount of $967.10 for the Scott air packs. Councilwoman Bennington seconded the motion for discussion. Councilman Wargo pointed out that if they continue 1 ike this, Council won't get cooperation from any of the departments. Councilwoman Bennington noted that they continually have problems with the Fire Department on this and they don1t abide by the purchasing pro~edure. She suggested a memo be sent that if they don't abide by the purchasing procedure from this point on, they'll have to pay for it themselves. Councilman Spencer pointed out that the Fire Chief changes each year and that might contribute to the problem, and he suggested the City Clerk talk to the next set of officers to review this thoroughly. Motion CARRIED 4-1. Councilman Wargo voted NO. City Clerk Kinsey said the appl ications for the new EVER building for water and sewer require a deposit of $980. and this amount will come out of the EVER budget, under line item 49. Councilman Asting moved that the fee be paid from the budqeted item. Councilman Spencer seconded the motion. Motion CARRIED 5-0. MISCELLANEOUS John Gross asked Councilman Spencer if he would look at the Canal with him as when he looked at it what he saw was an optical illusion. Councilman Spencer agreed that he will look at it with him. COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES City Council Reports - Councilman Asting noted that in a previous meeting he raised the question of putting the question of road paving on the primary ballot for November and it was tabled for a full Council to be present. He then moved that the question of road paving for Florida Shores be placed on the primary ballot for the people to decide if they want it or not and he would direct the City Attorney to prepare a draft question and submit it to the Council for their consideration. Councilman Spencer seconded the motion for discussion, and then asked how this would be paid for. Councilman Asting stated that it would be the 1/3, 1/3 and 1/3 as with the previous program with money for the residents' share to be borrowed from surplus funds and paid back by assessments. Councilman Astinq added that this question was defeated on the ballot in 1978 and he wants the people to reconsider. Councilwoman Bennington questioned how this could be a true representation. Councilman Asting stated that only the people in Florida Shores would vote on it. Councilman Wargo said he feels it should be on the water bill for all the people who don1t have paved roads as he didn't see how they could lock out the people in an election. Councilman Spencer said he agrees with Councilman Wargo if it only appl ies to one segment of the City. Councilman Asting reviewed how it was handled in 1978 when only Florida Shores was polled and only those residents voted on it. City Attorney Alvarez noted that held 1 ike more information on the previous ballot. Councilman Asting added that there were different booths for the primary election and the paving question. Councilman Wargo questioned how they could lock out some of the people since they will all be paying for it. Councilman Asting suggested some of the streets in the older part of the City be added if they aren't paved. City Attorney Alvarez noted the separate booth would be for purposes of tallying the votes, but if the question is for using a portion of the general funds then all the residents need to have input. Councilman Asting stated that it would be financed from unappropriated funds. City Attorney Alvarez said the auditor could possibly earmark the funds and according to the source of the funds, the people have to have input. He added that he can talk with Katherine Odham for additional information. Councilman Asting asked that this information be ready by the next meeting, and he withdrew his motion pending the information to be presented to the Council by the City Attorney at the next regular meeting. City Attorney Alvarez said each poll ing place could have a separate booth for this polling. Councilwoman Bennington asked why they'd need a separate booth as it could be put on the regular slate. Councilman Spencer withdrew his second to the motion. -2- Council Regular Meeting Minutes August 6, 1984 o Q COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued) City Council Reports (continued) - Councilman Wargo moved that the City Clerk send out notices to all those people as she indicated to them on the sample sl ip at the last meeting. Councilman Asting asked if that would be on the water bills and Council- man Wargo rep1 ied yes. Councilman Asting pointed out that it's quite a research project when the cards come in because they have to analyze whether the person 1 ives on an unpaved street or not. Councilwoman Bennington noted that the question on the water bill is "if your street is unpaved, would you be willing to pay 1/3 of the assessment to have it paved?", and only people on unpaved streets would answer this. Councilwoman Bennington seconded the motion. Robert Christy, from the audience, called a point of question and asked about the 40% of the one-half cent the State collects for paving. Mayor Ledbetter noted that it's in the Pub1 ic Works Department. Mr. Christy said they should incorporate the whole City instead of discriminating. Councilwoman Bennington suggested they do it both ways. Norman Billups, 1860 Pine Tree Drive, said they'11 run into the same problem as before when they put it on a ballot as there's an ongoing conf1 ict between old Edgewater and Florida Shores and each doesn't want to pay for something for the other area. He suggested they do a taxpayer1s survey to determine who pays the most of the taxes, old Edgewater or Florida Shores, or take a vote between members of Council to pave the streets. Councilman Asting stated that Councilman Wargo objects that the 1/3 that the City has to pay is part of his tax money. Councilman Wargo called a point of order. Councilman Asting stated that the people in Florida Shores also put their money in the streets the City would pave and the bulk of the money would be from Florida Shores' residents. Councilman Wargo said held 1 ike a poll taken as cheaply as possible on paving roads regardless of where it is, and they shou1dn't start paving if the people don't want it. He added that the people in old Edgewater need resurfacing done and that should also be done under a paving program, plus seal ing and capping. Councilman Asting stated that the $24,000. in the budget for road paving would be for the streets already paved. Mayor Ledbetter noted that the paving done in old Edgewater was done with road and bridge taxes. Councilman Spencer pointed out that there are 8.4 miles of paved streets in dire need of resurfacing and 75 miles of shell road that need paved and the City isn't in a financial position to do all this work at one time, and held I ike people to voluntarily say they want it and are will ing to pay for 1/3 of the cost. Councilman Asting stated the paving can be done over a period of years with the City appropriating so much money each year to do the paving, and the question before that the people turned down was for water, sewer, and paving. Robert State, in the Christy, from the audience, asked how much was received from the 40% from the as the 1~ tax was for paving. City Clerk Kinsey noted that it will be $60,000. Pub1 ic Works Department but it hasn't arrived yet. Councilman Asting noted that the City paid half on the Mango Tree Drive paving and it isn't in the Florida Shores area. Councilwoman Bennington said she has the feel ing from people she's talked with that they are will ing to pay the 1/3 to get their roads paved but if the question is to be on the ballot the Council needs to come up with a 5-year plan and determine the streets that will be paved. She added that the water bill replies will give them an answer first and then go to the primary. Councilman Asting suggested they have a drawing to determine which streets to be paved. Councilwoman Bennington disagreed with his suggestion. Mayor Ledbetter suggested they skip every other street until they get it done. Councilman Asting said he's opposed to the question on the water bill because it will take so much of a clerk's time to do this. Councilwoman Bennington pointed out that the bills don1t come in all at one time and the clerks can just use a check 1 ist. City Clerk Kinsey noted that this will take a month to complete. Motion CARRIED 4-1. Councilman Asting voted NO and asked if the Attorney wi.11 research the questions as requested and Mayor Ledbetter said he would. Councilwoman Bennington and Councilman Wargo agreed to the research. -3- Council Regular Meeting Minutes August 6, 1984 ~ o (.) COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued) City Council Reports - Councilwoman Bennington noted the Florida League of Cities Annual Convention is coming up October 11th to 13th and she moved that they authorize any Council member to go to it. Councilman Wargo seconded the motion. Motion CARRIED 5-0. Councilman Spencer noted that theyld received a packet of job descriptions for City employees and he requested that the Mayor call a workshop session to review these before the end of August. Councilman Asting stated that he didnlt receive the packet. City Attorney Reports - City Attorney Alvarez stated that the City is in 1 itigation regarding a piece of property to the north end of town from a deed executed in 1959 by the then Mayor Fuller. He said there are two points that are significant, one is an opinion from the Attorney General in a letter dated November 24, 1971 to the then City Attorney Charles Hall, and the second isa resolution adopted by Council in 1979, 8 years later, which declares that the deed was inval id. He noted this resolution was recorded in the publ ic records of Volusia County. He said this involved three different City Attorneys and froze the title of the property at that time. He asked Council IS authorization to engage Judson Woods as an expert witness or in some kind of consultant capacity to get to the bottom of this issue and also possibly to go to Charles Hall. He added that two attorneys have two different opinions and they may not be able to settle it at Circuit Court level. City Clerk Kinsey read the November 24, 1971 letter to Charles Hall from the Attorney General regarding conveyance of land for park purposes. City Attorney Alvarez pointed out that the deed in question was dated the last day of the term of the Mayor which presents some arguments as to when the deed was actually executed. Councilman Spencer asked how large the property is. City Attorney Alvarez said it IS a very small portion of a lot. Councilman Spencer said he didnlt want the City to pay an exorbitant amount on a small piece of property. City Attorney Alvarez said the property is in the area between Riverside Drive and the river and is approxi- mately 180 by 100. Robert Christy, from the audience, said these lots are about four blocks long and run from Rio Vista to across from Mr. Lodicols house. Councilman Spencer moved that the Council authorize the City Attorney to proceed in contacting the other attorneys to obtain additional information. Councilwoman Bennington seconded the motion. Motion CARRIED 5-0. City Clerk Reports - City Clerk Kinsey stated that Council received a copy of Earl Copelandls evaluation and based on his score and the merit pay plan, she recommended a one-step increase. Councilman Asting moved to grant the increase. Councilman Spencer seconded the. motion. Councilman Wargo asked if Mr. Copeland received the last increase for employees and City Clerk Kinsey said he did as a member of the bargaining unit at that time. Motion CARRIED 5-0. City Clerk Kinsey said the City received an update City mylar to incorporate the new City boundaries and new subdivisions and Council authorization is needed to draw up a resolution or ordinance to approve this as they are completely out of City maps. City Attorney Alvarez said held prefer an ordinance for this. Councilwoman Bennington moved to instruct the City Attorney to draw up the necessary ordinance. Councilman Wargo seconded the motion. Motion CARRIED 5-0. City Clerk Kinsey noted that there are problems with Southern Bell cables being dug up by City crews and the City has spent about $1,000. since the deregulation. Councilman Asting stated that he talked to the department heads about this problem and they fre- quently put in a call to have the phone company come down and mark where the 1 ine is and they sometimes have to wait around for 1 to 3 hours until the representative shows up. He suggested Southern Bell be billed for the time the people have to stand around waiting for them. Frances Olds, from the audience, sated that a deep hole at the corner of Marion and Riverside Drive was dug by Southern Bell and no barricade or warning put up. -4- Council Regular Meeting Minutes August 6,1984 o Q COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued) - City Clerk Reports (Continued) - Councilman Asting asked the City Attorney if the City can charge Southern Bell for the waiting time of employees and Councilwoman Bennington noted that there would probably be trouble collecting it. City Attorney Alvarez said they need to establish a legal relationship with them to the effect that upon notification they'll wait one hour and if they fail to show where the cables are and we have to proceed with the work, that's their problem. Councilwoman Bennington noted that Southern Bell is requesting authorization to put in the communications booths and perhaps that could be used for bargaining. Councilman Asting moved that the City Attorney prepare an ordinance specifying the depth that the cables will be buried and it should be 42" minimum depth, and if they can include it in the same ordinance, that if a representative is not on site when the City proposed to do some work within one hour from notification, that they be billed for the time the work crews have to wait for them. City Clerk Kinsey pointed out that there1s a 48 hour waiting time now. Councilwoman Bennington seconded the motion. Councilman Wargo suggested they set up a system of telegrams to send them before the job starts to have proof of notification. Councilman Wargo added that this should be a job for the Building Code Boards to address regarding depths of the cables on all util ities. Councilman Asting pointed out that they1re install ing the cables on City property. Councilwoman Bennington suggested notifying them that we1re drawing up an ordinance. ' John Gross, from the audience, stated the telephone company is digging up a hole that's 25 feet deep west of Riverside Drive and asked the City to have someone look into it. Councilman Spencer said held 1 ike some input from the Building Code Board or the Util ities Department head regarding the proper depth. Councilman Asting noted that other cities have ordinances covering the installation of cables on City property. Councilwoman Bennington amended the motion that along with drawing up the ordinance that they instruct the City Attorney to meet with the Building Code Board or the necessary people to come up with the right depth. Councilman Spencer seconded the motion. Amended motion CARRIED 5-0. Original motion CARRIED 5-0. Public Works Department - Opening of Bids Diesel Tractor - City Clerk Kinsey certified that bids were received from the following: Tampa Tractor Company, Case Power and Equipment, Superior Tractor Company, DeWind Machinery Company, Volusia Ford Tractor Co. Inc., Bell Rentals and Sales, Inc., Smith Feed & Seed Co., and Robinson Equipment Co., Inc. She opened the bids and read the totals: Tampa Tractor Co. - no bid; Case Power & Equipment - unable to bid; Superior Tractor Co. - $14,000.,less trade in of $2,000., for a net of $12,000., for a Massey Ferguson 250; DeWind Machinery Company - no bid; Vol usia Ford Tractor Co., Inc. - $16,200. less trade in of $8,205., for a net of $7,995. for a Ford model 2910; Bell Rentals & Sales, Inc. - $6,985. with trade in, with exception of 34 PTO horsepower at 2000 RPM, for a Massey Ferguson model 1240; Smith Feed & Seed Co. - $11,995. less. trade in of $2,800. for a net of $9,195. for a John Deere model 1250, and also an alter- nate bid of $8,683. less trade in of $2,800. fora net of $5,883. for a John Deere model 1050; and Robinson Equipment Co., Inc. - $15,986. less trade of $7,002.45 for a net of $8,983.55 for a Massey Ferguson 250. City Clerk Kinsey recommended this be tabled until the Superintendent of Publ ic Works has a chance to review it. Councilman Wargo moved to TABLE until the Superintendent looks over the bid and recommends to Council which is more feasible for the City. Councilman Spencer seconded the motion. Motion CARRIED 5-0. Repair or Replacement of City Garage roof - City Clerk Kinsey certified that a bid was received from Waynels Roofing and Sheet Metal. She opened the bid and read the total of $3,860.00. She noted that this is the second time we1ve gone for bid and none were received last time. Councilman Asting stated that the work has to be done and he moved that ~ey award the roofing for the City garage to the Wayne1s Roofing and Sheet Metal Company. Councilwoman Bennington seconded the motion. Councilman Wargo questioned if they're a qual ified and responsible contractor and City Clerk Kinsey noted that they've been in business for many years. Mayor Ledbetter asked if the money is in the budget for this expenditure and City Clerk Kinsey repl ied yes. Motion CARRIED 5-0. -5- Council Regular Meeting Minutes August 6, 1984 ~ w u COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued)- Parks and Recreation Department Repair of picnic shelter roof - City Clerk Kinsey read the July 31st memo from David Garrett, Recreational Director/Building & Maintenance Superintendent, requesting authorization to accept a proposal of $1,000. from H & C Roofing to repair the picnic shelter roof. Mayor Ledbetter questioned which shelter it is and Mr. Garrett rep1 ied that it's the one nearest the Shuffleboard Court and is 20 x 40. Councilman Spencer asked if this can be funded from the Port Authority Grant and Mr. Garrett rep1 ied yes. City Clerk Kinsey pointed out that it's refundable after the City pays it. Mayor Ledbetter asked how it could qual ify under the program that was previously presented to the Port Authority and Mr. Garrett rep1 ied that held spoken to Dan O'Brien and they just have to amend the original grant and he saw no problem with getting refunded for it. Councilman Asting moved to authorize the repair of the picnic shelter roof. Councilman Spencer seconded the motion. Motion CARRIED 5-0. Authorization to advertise for bids for new concession stand at ball park - City Clerk Kinsey read the July 31st memo from David Garrett, Recreational Director/ Building & Maintenance Superintendent, requesting authorization to advertise for bids to construct a new concession stand at the ball park. Councilwoman Bennington moved to authorize the advertising for bids. Councilman Spencer seconded the motion. Councilman Wargo stated that he understood they were going to do the work in the Parks and Recreation Department. Councilwoman Bennington noted that if they don't 1 ike the bid prices, they can do it themselves. Councilman Asting asked what the building consists of and Mr. Garrett said it's a 32 foot square concrete building with restroom faci1 ities, equipment storage, and an upstairs booth. Councilman Spencer noted that it was included in the current year's budget. Mayor Ledbetter pointed out that the building would be located on property owned by the School Board that is only leased by the City. Councilman Asting asked how long the lease is for and Mayor Ledbetter said it's for 99 years but they could break the lease and then pay for a certain portion of the work the City's done. Mayor Ledbetter added that held 1 ike an opinion from the City Attorney about erecting a structure of a permanent nature on that land. Councilman Asting asked if there are plans and specifications and Mr. Garrett rep1 ied there are some but the City Engineer has them currently and he's talking with the School Board. Councilman Asting noted that the specifications should be available for those who want to bid on it and plans should be approved by the Building Official. Councilman Spencer pointed out that the young people use that area a lot. Motion CARRIED 4-1. Councilman Wargo voted NO. Authorization to advertise for bids for additional fencing at ba11fie1ds - City Clerk Kinsey read the July 31st memo from David Garrett, Recreational Director/Building & Maintenance Superintendent, requesting authorization to advertise for bids to construct additional fencing at the ba11fie1ds. Councilman Asting suggested they advertise for materials and use City forces to install the fencing. Mr. Garrett noted that there are two or three different heights of fencing and he read the total feet required of the four foot, six foot, and eight foot fencing, and said he got an estimate of $2,600. for material and labor. Councilwoman Bennington moved to go out for bids. Councilman Wargo seconded the motion. Motion CARRIED 5-0. Authorization to advertise for bids for new and replacement l~ht poles at ba11fie1ds - City Clerk Kinsey read the July 31st memo from David Garrett, Recreational Director/ Building & Maintenance Superintendent, requesting authorization to advertise for bids on new 1 ight poles for the T-ba1 1 fields and replacement poles on other fields. Councilman Asting asked how many poles are involved and Mr. ~arrett rep1 ied there will be 11 total and they're 50 foot poles. Councilman Asting asked if they're treated poles and Mr. Garrett rep1 ied yes. Councilwoman Bennington moved to authorize adver- tising for new 1 ight poles. Councilman Wargo seconded the motion. Councilman Asting asked how they'd be erected and Mr. Garrett repl ied they may have a volunteer to set the poles for them. Motion CARRIED 5-0. Board of Adjustments appointment (Vacancy due to expiration of A1 ice Murphy's term) - Councilman Asting nominated A1 ice Murphy for reappointment to the Board of Adjustments. Councilman Wargo seconded the motion. Motion CARRIED 5-0. -6- Council Regular Meeting Minutes August 6, 1984 o o COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued)- Merit Board appointment (Tabled 7/16/84) - Councilwoman Bennington nominated Cecel ia Stevens to the Merit Board. Councilman Asting seconded the nomination. Councilman Wargo nominated Frank Opal. Mayor Ledbetter passed the gavel to Vice Mayor Bennington and seconded the nomination. Councilman Spencer moved that nominations be closed. Councilmen Asting and Wargo seconded the motion simultaneously. Motion CARRIED 5-0. Vice Mayor Bennington returned the gavel to Mayor Ledbetter. Roll call on nomination of Cecel ia Stevens CARRIED 3-2. Councilman Wargo and Mayor Ledbetter voted NO. Planning and Zoning Board Resignation of Greg Stewart - Councilman Asting moved to accept the resignation. Councilman Spencer seconded the motion. Motion CARRIED 5-0. Appointment to fill vacancy Mayor Ledbetter passed the gavel to Vice Mayor Bennington and nominated Jim Poland for the position on Planning and Zoning. Councilman Asting seconded the nomination. Councilman Wargo nominated Frank Opal. There was no second to the nomination. Councilman Asting moved to close nominations. Councilman Spencer seconded the nomination. Motion CARRIED 5-0. Roll call on nomination for Jim Poland CARRIED 4-1. Councilman Wargo voted NO. The gavel was returned to Mayor Ledbetter. Recommendation to review Ord. 880 to include health clubs and churches, Sect. 606.04(b), (Tabled 7/16/84) - City Clerk Kinsey read the July 18th letters from Dr. James Davis requesting that health clubs be added to permitted uses in B-5 zoning and that churches be permitted accessory uses in B-5 zoning with Council approval. Councilman Spencer said he understood this went to Planning and Zoning and they recommended this to Council and in view of that, he moved that the ordinance be modified to include health clubs as a permitted use. Councilwoman Bennington seconded the motion. Motion CARRIED 4-1. Councilman Wargo voted NO. Mayor Ledbetter noted that they requested temporary use of the building for a church until they get funds together to build a building. Councilman Spencer stated that churches are a permitted use in B-3 and he feels it can be permitted as an accessory use in B-5 and he moved that Council approve the request. Councilwoman Bennington seconded for discussion. Councilwoman Bennington asked the City Attorney if there's a problem in putting that in an ordinance to allow it as a permitted accessory use and City Attorney Alvarez repl ied that the Planning and Zoning Board would have looked at the ramifications and there may be incompatible uses. Councilwoman Bennington noted that the question was raised about a church in a shopping center. City Attorney Alvarez pointed out that if it's a special exception it would have to go to the board for a special exception with conditions and that would allow the board to look at the location of the proposed church and the surrounding area of the neighborhood. Councilwoman Bennington pointed out that this would only be with Council approval. City Attorney Alvarez said if they want to use it for a 1 imited purpose on a temporary basis, it wouldn't then require a change in the zoning ordinance but a change allowing the churches in B-5 as a special exception if Board of Adjustments approves it. Mayor Ledbetter stated that the church wouldn't be there on a permanent basis but might be 1, 2, or 3 years until th~build a church. Dr. Davis, from the audience, stated that the church is presently meeting at the Health Center in New Smyrna Beach with approval of New Smyrna Beach but they need more room than the Health Center has. There was a discussion as to the amount of time to be permitted. Councilman Spencer withdrew his motion based on the discussion and Councilwoman Bennington withdrew her second to the motion. Councilwoman Bennington said if remodel ing takes place inside the building she wouldn't consider this a temporary situation and she's heard that they'll turn one-third of the building over to the church. Councilman Spencer suggested two years while they make plans for another location and he moved that the City Attorney draft a resolution of the City Council authorizing the health club location to be used in part, on a temporary basis not to exceed two years, for a church. City Attorney Alvarez ~id Council needs to consider the issues of time of use, impact on parking areas, and impact on traffic, and perhaps the Planning and Zoning or Building Official or administration could assist. Councilman Wargo moved to TABLE this. Councilman Spencer said the concerns could be addressed in a resolution with some restrictions that it not create a traffic or safety problem in the City. Councilman Asting seconded the motion.of Councilman Spencer. Councilman Asting moved to recess for 10 minutes at 9:22 P.M. Meeting was recessed. Meeting was called back to order at 9:35 P.M. by Mayor Ledbetter. Motion regarding the resolution for the health club request CARRIED 3-2. Councilman Wargo and Council- woman Bennington voted NO. -7- Council Regular Meeting Minutes August 6, 1984 o o COUNCIL/OFFICERS REPORTS, BOARDS AND COMMITTEES (Continued)- Fire Department - Request for reimbursement for fireman to attend school (Tabled 7/16/84) - City Clerk Kinsey stated this was for a total of $435.97 and the Fire Department has been given a letter advising them they have to obtain prior approval of Council in order to be reimbursed for the expenses incurred. Councilman Asting moved to reimburse this fireman in the amount of $435.97 for the money he spent in attending this school. Councilman Spencer seconded the motion. Mayor Ledbetter said he was told that the man didn't have time to get permission. Motion CARRIED 4-1. Councilman Wargo voted NO. COMMUNICATIONS City of Oak Hill re: renewal of 911 emergency system agreement - City Clerk Kinsey read the July 30th letter from Mayor Goodrich of Oak Hill requesting a renewal of the dispatch agreement effective October 1, 1984. Mayor Ledbetter recommended that Council table this and turn it over to the City Attorney to meet with the Oak Hill City Attorney to go over it. Councilwoman Bennington pointed out that they addressed raising the sum during the budget workshops. City Attorney Alvarez said he'd 1 ike to get input from the new Chief, and Councilman Spencer agreed the Chief should give his recommendation or disapproval. Councilwoman Bennington moved to turn this matter over to the City Attorney to use his best judgment on it and bring it back to Council with his recommendation. Councilman Asting seconded the motion. Motion CARRIED 5-0. Ferrara Engineering re: extension of agreement - 31st letter from Mr. Gerard Ferrara requesting an woman Bennington moved to extend his services for the motion. Motion CARRIED 5-0. City Clerk Kinsey read the July extension of his agreement. Council- one year. Councilman Asting seconded Tomoka Refuse re: renewal of franchise - City Clerk Kinsey read the July 26th letter from Mr. Cinell i requesting a renewal of the franchise for four years with an option of one more year. Councilman Wargo moved that they turn this over to the City Attorney and consider renegotiating. Councilwoman Bennington seconded for discussion. Council- man Spencer suggested accepting proposals from other refuse collection agencies. Councilman Asting asked if Tomoka would be will ing to go with a two-year franchise and then renegotiate. Mr. Cinell i said they're asking for more time for the purpose of keeping the rates down and they haven't increased the rates for three years, but to keep the costs down due to rising costs of equipment, they need a longer agreement. Mr. Cinell i added that they'd be will ing to go with three years if that's what the City wants to do. Mayor Ledbetter pointed out that they're working on an expired franchise agreement as of August 3rd and it's 1% of the franchise. Mr. Cinell i noted that they have an exclusive contract with Volusia County at 1% and they have 5 years with an option of 5 years. City Attorney Alvarez asked when it was renegotiated and Mr. Cinell i repl ied it was April of this year and it covers the County area of Edgewater and Oak Hill plus parts of New Smyrna Beach. City Attorney Alvarez stated his concern is with possible 1 iabil ity of anti-trust action and he'll discuss it with Tomoka's attorney, and he suggested they continue the relationship on an ad hoc basis until he can come to a definite basis with Mr. Cinell i. Mr. Cinell i noted that nobody in the City is being forced to have their service and it's just an option, and there's another garbage company operating in the City. City Attorney Alvarez noted that any other company has the right to use the rights-of-way but before they renegotiate any franchise with anyone he wants to be sure they aren't running afoul of the anti-trust law. Councilman Wargo withdrew his motion and Councilwoman Bennington withdrew her second. Councilman Asting moved that the City Attorney go over this 'agreement for the reasons he stated and report back to Council. Councilman Spencer seconded the motion. Motion CARRIED 5-0. Councilwoman Bennington moved to continue the service to the residents until a new franchise can be negotiated. Councilman Wargo seconded the motion. City Attorney Alvarez clarified this would be until such time as the new franchise is in place. Motion CARRIED 5-0. -8- Council Regular Meeting Minutes August 6, 1984 o o COMMUNICATIONS (Continued) John Gross re: Moving of canal and the Strand - City Clerk Kinsey read the July 31st letter from John Gross regarding adjustments to the City boundaries by moving the Gabardy Canal and also the Strand. Mr. Gross stated that he's having trouble contacting Mr. Ferrara, the City Engineer, just as he did with contacting Mr. Alvarez, and asked the Mayor to ask Mr. Ferrara to work with him. Mr. Gross asked why the City Clerk should intervene in anyway as he was told that all other information should come from City Hall. Mr. Gross said he bought Mr. Lee's property after asking Council if they had any objections to it. He added that he gets abuse and was told they needed 40 foot easement and then it was changed to 50 foot after he talked with the City Clerk. He asked if the City Clerk is now the City Engineer. City Clerk Kinsey pointed out that the 50 foot was from Mr. Ferrarals letter. Mayor Ledbetter asked if the plans were submitted to the City Engineer and Mr. Gross rep1 ied that he called him about 14 times and wants to discuss it with him before he gets drawings done on it. Mr. Gross asked why Mr. Ferrara was hiding from him. Mayor Ledbetter pointed out that Mr. Gross was told to draw up what he wanted and submit it to the City Engineer to review. Mr. Gross stated that held come to City Hall the next day and mark his plans in red for the City Engineer. Mayor Ledbetter stated that he'11 see that the City Engineer looks it over. Mr. Gross said held 1 ike Council to see the Gabardy Canal because standing on the bridge and looking at it is an optical illusion and he intends to put the Canal back where it should be. He suggested they take a walk at low tide to see where it goes out. Mayor Ledbetter pointed out that the Council told him he should come back when the necessary permits are received from the other agencies. Mr. Gross asked what held do if they won't give him the permits until he gets Council approval, and he added that hel11 bring the out1 ine of the lots down to City Hall the next day. Mayor Ledbetter said the Council shouldn't ob1 igate themselves to allow him to move the canal without the permits from the agencies. Mr. Gross stated that a representa- tive from the Army Corps of Engineers will be by to see him. Frank Opal re: Appointment to Planning and Zoning Board - City Clerk Kinsey read the August 1st letter from Frank Opal requesting appointment to the Planning and Zoning Board. Cablevision re: Ordinance #84-0-8 - City Clerk Kinsey read the July 31st letter from Michael Lisman, Vice President of Operations of Cab1evision which requested the deletion of a sentence in Section 27 (A) regarding franchise fees which was not deleted due to a clerical error. Mayor Ledbetter asked the City Attorney if this language could be changed. City Attorney Alvarez said the language in the agreement is in the best interest of the City and there seems to be a misunderstanding about what was agreed upon but he isn't in a position to bind the City to only 5% for 15 years but it's up to Council. Mayor Ledbetter said they're asking the City to lock in the 5% even if the FCC raises it to a higher percentage. Mr. Lisman said the language specified in that sentence was included in the original document prepared by the City Attorney and he objected to it and said it had to be deleted, both orally and in writing, plus Tom Alexander wrote to the City Attorney. He said the City indicated they'd agree to 3% with an increase to 5% if it's authorized. He noted that subsequent to that time they had negotiations with the City Attorney con- cerning other matters but at no time did he ever specify to Council that the sentence was acceptable to his company as it can't be acceptable due to lenders not permitting it. He said the minutes indicate that he didn't agree to this, and his letter to the City Attorney and Tom A1exander's letter indicates that he didn1t. He stated that he didn't see the final document until one month after the final reading and he immediately pro- tested the sentence when he saw it, both to the City Attorney and the City Clerk. He added that other mistakes were made and they were corrected in a conference. He noted that it's a good franchise fee and they've negotiated in 20 areas and canlt go to more than 5% in the future. He said he protested the fact that the sentence was in the agreement and it was an error. Mayor Ledbetter stated that they want to lock the City in to 5% for 15 years and Mr. Lisman said it's no different from any other city and 5% is of the gross and amounts to about 10%. Mr. Lisman stated the second document wasnlt before Council and they were working off the first one, and this wasn't the agreement passed by Council. Councilman Spencer stated that he had the first document and that was what was used during the meeting and includes the statement regarding the 5%, and he agreed with the City Attorney that it's not proper to enter into a franchise for 15 years that locks the City in at a maximum. -9- Council Regular Meeting Minutes August 6, 1984 . " o o COMMUNICATIONS (Continued) Cablevision re: Ordinance #84-0-8 (Continued) - Councilman Spencer added that if it's going to go back up to 10% sometime in the future he wouldn't want to be a party to prohibiting that. Mr. Lisman stated that was handled in private negotiations with City Attorney Alvarez, and he agreed on the part that it was 3% and in the event it was authorized to go to 5%,it would be agreeable, but he never went beyond that point. Mr. Lisman added that Council didn't have the replacement document, and the company made a trade-off because of Florida Shores and they advised the City Attorney that the sentence wouldn't be acceptable. Councilman Spencer asked if they had a copy of the document and Mr. Lisman said it was the original document before it was changed and that's the one they worked from during negotiations and he has his basic notes on it. Mr. Lisman added that on May 10th he forwarded a written communication to the City Attorney to delete that particular sentence. Mayor Ledbetter asked who prepared the original document. City Attorney Alvarez said it was brought to his office by Tom Alexander and still had the word "Deland" in it. City Attorney Alvarez clarified that the document they worked from was produced by Tom Alexander and it was the same one produced in Deland and some of the corrections weren't made. He added that the language in question was there then, and in refer- ence to renegotiating the agreement, the City of Deland has the option of negotiating if FCC changes the maximum.. He said they discussed the franchise agreement the first meeting they had on May 18th in City Hall and Mr. Lisman didn't want it to go over 5% but Tom Alexander said that anything over 5% is negotiable. He added that when the document was retyped it was the same language through the second reading. Mr. Lisman stated that the sample document was not produced by Tom Alexander but was produced as a sample at Cablevision Industries. He said that the Deland agreement was up for first reading now, and they requested the wording that was read by City Attorney Alvarez but it wasn't acceptable to his company. He added that numbers were increased in the document from when it was negotiated regarding insurance matters. City Attorney Alvarez noted that four other areas were questioned but he paid closest attention to the franchise fees. Councilwoman Bennington pointed out that it was adopted as is and Mayor Ledbetter recommended that it be left as it is. Councilman Spencer moved that "increases above the previous 5% shall be subject to renegotiation of this entire agreement" shall remain. Councilwoman Bennington seconded the motion. Motion CARRIED 5-0. ORDINANCES AND RESOLUTIONS There were no Ordinances or Resolutions presented at this meeting. UNFINISHED BUSINESS Larry & Cherry Hunt petition for relief re: water bill (Tabled 7/16/84) - City Clerk Kinsey stated there's a new bill for their services and it's $611.10 now. Council- woman Bennington asked if that's the entire bill and City Clerk Kinsey stated that the sewer portion is out. Councilman Asting noted that according to the letter there was enough water to fill swimming pools. Mrs. were that Mrs. Hunt said they sent a sample of their soil to the Corps of Engineers and they doubtful that the soil would absorb that much water. Mayor Ledbetter noted he had a problem a couple of years ago and they waived the sewer fee for him. Hunt stated that it was illegal pipe that was used under the slab. Councilwoman Bennington noted that the house was built in 1956 and it's impl ied that the City is partially responsible. Mrs. Hunt stated that it was a Federal code and was never legal. Councilwoman Bennington asked if they had a similar problem last year and Mrs. Hunt repl ied yes and they called the City out several times thinking there was a leak but they found none. Mrs. Hunt said then they found a leak and they'd lost 40,000 gallons but they could see it under the slab and coming up into the rooms. Mrs. Hunt said now they're talking about 400,000 gallons of water with no noise, no water, and no green grass. Councilman Asting pointed out that in the past they've granted reI ief to people who experienced the same type of problem and he thinks they should grant rel ief in this case. Mayor Ledbetter asked if the problem is corrected now and Mr. Hunt said a plumber has come in. Mrs. Hunt stated that they had the water rerouted with legal pipe so it won't happen again. Councilman Asting noted that it's $243. in addition with the plumbing bi 11. -10- Council Regular Meeting Minutes August 6, 1984 . .' Q o UNFINISHED BUSINESS (Continued) Larry & Cherry Hunt petition for reI ief re: water bill (Tabled 7/16/84) (Continued)- Councilman Wargo said they need to determine the legal ity of reI ief according to the ordinance because he doesn't want to be put in a position of misfeasance or malfeasance. He added that after 28 years, the water 1 ines in a house can go bad, and he sympathizes but he thinks they should be legally on sound ground. Councilman Asting asked if they could legally grant some kind of reI ief and City Attorney Alvarez asked what type of reI ief. City Attorney Alvarez said they may have a claim against the City if it's a result of negligence on the part of the Building Official if he allowed substandard pipe to go in, if that's the cause for the increase in the water bill. He said doing away with the charges of the water bill would bother him because it's standard throughout the country that when a facil ity is built on bonds, the covenant is that no one gets any free courtesies. He added that if it's negl igence of City employees or officials they could have damages for the plumbing, but the question is negl igence that caused the loss and if they're legally responsible for the loss. He noted that there's a Statute of Limitations of 5 years and this is 28 years old. He stated that if the Building Official was under contract, possibly held be negl igent and not the City. He recommended that the money not be refunded because fees aren't refundable but they could consider it 1 ike any other claim. Councilman Asting suggested they grant 50% against this bill on the claim and payments to be spread out over a period of time. Mrs. Hunt displayed a piece of the pipe which was taken from under their house. Councilman Spencer sympathized but was concerned about the City's obI igation to offer reI ief because they had other people approach the Council for shoddy workmanship on a house and he doesn't feel it's the City's responsibil it~ or the taxpayers, to grant reI ief for something the City isn't responsible for. Councilman Asting said if they had a Building Inspector at the time and he inspected the property and ignored the substandard pipe being used, it could be a claim. Councilman Spencer said he didn't know the background of this but after 28 years he didn't think the City's responsible for a particular pipe. Mr. Hunt pointed out that was the main pipe going to the meter. Mayor Ledbetter stated he only uses that type of pipe for sprinklers. Councilman Asting asked if the City has granted reI ief before and Councilwoman Bennington said yes but not to that extent. Mr. Hunt stated that the meter reader's gauge was going so fast that it was spinning and he couldn't get a true number and they should have been notjfied right away about this. Councilwoman Bennington agreed that the meter reader should have notified someone right away. Councilman Asting said because of previous instances where reI ief has been granted and because it's possible that the City Inspector at the time failed to notice that sub- standard pipe is being used, he moved that they grant Mr. and Mrs. Hunt 50% reI ief from this bill of $611.10. Motion DIED for lack of second. Councilwoman Bennington said she sympathized but doesn't feel the City should grant them any other kind of reI ief except for waiving the penalty and extending the payments over a year. Mrs. Hunt asked if the $41. penalty on the current bill could be waived also and Councilwoman Bennington said yes. Councilman Wargo suggested they investigate all aspects and table this until they see the ramifications and he moved to TABLE until they find out what the ramifications are. City Clerk Kinsey pointed out that the current bill would have to be paid monthly plus a portion of the large amount. Councilwoman Bennington moved that they waive the penalties for the water leak only and grant them the reI ief for 24 months' payments to pay the outstanding balance of a leak of $611.10. Councilman Spencer seconded the motion. Councilman Asting asked if they can meet these conditions and Mr. Hunt said their water bill is always high and runs $50 to $60 a month now. Mayor Ledbetter asked that the meter be checked and City Clerk kinsey said they did that and put in a new meter. Councilman Asting asked if the meter was defective and Councilwoman Bennington said she was advised by Terry Wadsworth that the meter was all right. Councilwoman Bennington said she'd 1 ike to know if their next bill is still real high. Motion CARRIED 5-0. -11- Council Regular Meeting Minutes August 6, 1984 , .J o o , . UNFINISHED BUSINESS (Continued)- Annexation of Fong property (Tabled 7/16/84) - Attorney Jeff Clark stated that the Planning and Zoning Board recommended that the Fong property be annexed. He said they attempted voluntary annexation before but didn1t get it accompl ished. He said he has an opinion that this would not create an enclave and City Attorney Alvarez agrees, plus former City Attorneys Judson Woods, Clay Henderson, and Charles Hall agreed. He said the question of the City providing services has a moratorium of two years, and the Department Head submitted a letter that he saw no problem in the foreseeable future but they have agreed not to request services for the two-year period, but can extend beyond that unless the service is available, and it would be at the convenience of the City. He stated that the entire project is zoned R-l and it1s the best as far as density and Mr. Fong has no plans for developing the property but wants to be in the corporate 1 imits to be on the waiting 1 ist for services. Councilwoman Bennington pointed out that R~1 has a maximum density of approximately 60 homes. Councilman Spencer asked the next step and City Attorney Alvarez said they1d have to prepare an ordinance and hold a publ ic hearing and notify the County to tell them they are not increasing or changing the density. Attorney Clark said they1re going for minimal. Councilman Spencer noted that the City won1t be obI igated to provide water and sewer until the City can do it. City Attorney Alvarez pointed out that there's an agreement submitted on this. A resident from Palm Breeze Drive, from the audience, asked if they can annex it with- out their knowledge and how the util ities would get to them. Councilman Asting suggested they go on the west side of U.S.l to go on the Fong property. Mayor Ledbetter suggested they go from the Pyramid Trailer Park. Councilwoman Bennington moved that they go to the next step and draw up the necessary ordinance and start the procedure roll ing. Councilman Spencer said they'd need to schedule a publ ic hearing also and he seconded the motion. Motion CARRIED 4-1. Councilman Wargo voted NO. NEW BUSINESS Approval of Gas Lite Square Subdivision - City Clerk Kinsey stated that Mr. Ferrara, City Engineer, had requested a certification from their enginner that it's built in conformance with construction plans and that has been received. She noted that this would be a one-year maintenance period. Councilwoman Bennington moved to approve this based on the City Engineer's recommendation. Councilman Asting seconded the motion. Motion CARRIED 5-0. ADJOURN Councilman Asting moved to adjourn. Councilwoman Bennington seconded the motion. Meeting was adjourned at 11 :22 P.M. Lura Sue Koser CQf)C~~ 7JJt/kMK~~flM COU~CILMAN - Z E ONE (I , . .~ ~~~. ZONE TWO ~-Z- V ~ Minutes submitted by: qLd~ c7 ~ COUNCILMAN - ZONE THREE ~N't"F~U~ ; 1984. ATTEST: ce~?~ CITY CLERK r ArrOV)lr~aY ~ Mayor ~~ -12- Council Regular Meeting Minutes August 6, 1984