04-28-1986 - Special/Workshop
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CITY COUNCIL OF EDGEWATER
SPECIAL MEETING AND WORKSHOP
APRIL 28, 1986
MINUTES
Mayor Baugh called the meeting to order at 7:00 P.M. in the Community
Center. He stated the purpose of the meeting was to meet with the
Edgewater Volunteer Fire Department in regard to the lease agreement
with the City.
ROLL CALL
Mayor Earl Baugh
Councilman Louis Rotundo
Councilman Russell Prater
Councilman Neil Asting
Present
Present
Present
Present
Councilman James Inman
City Attorney Jose'Alvarez
City Clerk Connie Martinez
Chief Lawrence Schumaker
Present
Present
Present
Present
Also present were Ray Shambora, Steve Hardock, John Hendrix, and Gary Lamb
as spokesmen for the Fire Department, and several Fire members in the audience.
Mayor Baugh asked for a motion to recess the meeting and go into the Workshop.
Councilman Inman so moved. Councilman Asting seconded the motion. Motion
CARRIED 5-0.
Councilman Asting suggested they go over the lease one paragraph at a time.
Mr. Hardock asked if it's the same lease they had at the fire house and
Mr. Robert Main replied yes.
City Clerk Martinez read the first paragraph: "This Lease Agreement, is made
and entered into this day of ,1986, by and between the City of Edgewater,
an incorporated municipality, hereinafter referred to as "City" and Edgewater
Volunteer Fire Department, Inc., a Florida corporation not for profit, hereinafter
referred to as "Firefighters". Councilman Asting asked that the word "the" be
inserted before the word "Firefighters" wherever it appears as they aren't speaking
about firefighters from any other place. Mayor Baugh suggested it could be
EVFD wherever it appears. It appeared to be the consensus that it would be "the
Firefighters" throughout the agreement.
City Clerk Martinez read the second paragraph: "Whereas, City owns a parcel of
land which fronts on Mango Tree Drive in the City of Edgewater and desires to
have constructed thereon a multi-purpose community center type building, more
particularly described in Appendix "A", attached hereto, and". Councilman
Asting suggested changing it to read "Whereas, City owns a parcel of land which
fronts on Mango Tree Drive in the City of Edgewater and authorizes the
construction thereon of a multi-purpose community center type building, more
particularly described in Appendix "A", attached hereto, and".
City Clerk Martinez read the third paragraph: Whereas, the Firefighters desire
to construct a multi-purpose community center type building for their own
uses and purposes, and". There were no changes suggested.
City Clerk Martinez read the fourth paragraph: "Whereas, the Firefighters are
willing to construct the building on City land and convey title to the building
to the City by Bill of Sale, provided the Firefighters are permitted to retain
a right of use over the building for a term of years; and." Councilman Asting
suggested it read "..construct the building on this land.." rather than using
the word "City" land.
City Clerk Martinez read the fifth paragraph: "Whereas City is willing to
permit the Firefighters to construct the building on City's land, and requires
the Firefighters to convey title to the building to City by Bill of Sale, but
is willing to allow the Firefighters to retain a right of use of the building
for a term of years." Mayor Baugh suggested this also be changed to read
"...construct the building on this land...". After a brief discussion,
Councilman Asting agreed.
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City Clerk Martinez read the next paragraph:
consideration of the foregoing premises, the
described below, the parties hereto agree as
changes suggested.
City Clerk Martinez read item 1: "City agrees to lease a parcel of land
which fronts on Mango Tree Drive in the City of Edgewater to the Fire-
fighters for the purpose of the construction of a multi-purpose community
center type building open to the public at large." There were no changes
suggested.
"Now, Therefore, in
covenants and conditions
follows:" There were no
City Clerk Martinez read item 2: "During the life of the lease the Fire-
fighters shall be solely responsible for the administration of the building
and all attaining expenses and obligations, including but not limited to
insurance on the property and liability insurance." There were no changes
suggested.
City Clerk Martinez read item 3: "City has passed a Resolution permitting
it to enter into this Lease with the Firefighters, and this Lease shall be
binding upon City, its successors and assigns!' Councilman Asting suggested
it read "..binding upon the City, its successors and assigns." City Attorney
Alvarez clarified it would have to be changed throughout if he wanted to
change it there.
City Clerk Martinez read item 4: "The Firefighters have, at a general
membership meeting, resolved to enter into this Lease with City, and this
Lease shall be binding upon the Firefighters, its successors and assigns."
There were no changes suggested.
City Clerk Martinez read item 5: "The Firefighters agree to construct at
their expense, a multi-purpose community center type building, together with
attendant grounds and parking area, substantially in conformance with the
Schematic Drawings prepared by Steve Hardock, revised November 1, 1983.
The construction shall be in conformance with the City building and zoning
codes and shall be inspected by the City as would any other commercial
building constructed within the City limits of Edgewater." Councilman
Asting suggested they insert "Mr" before Steve Hardock's name. There were
no other changes suggested.
City Clerk Martinez read item 6: "The Firefighters shall indemnify and
hold harmless City against and from any and all claims arising from the
Firefighters use of the premises or from any work done or permitted to be
done by the Firefighters in and about the building." Councilman Rotundo
asked how they'll be covered and Councilman Asting replied all they own is
the land and they don't have to be covered. Mr. Shambora stated they are
conveying title to the City so it's a contradiction. There was a discussion
about this requirement if the building belonged to the Fire Department.
Mr. Main asked if the insurance would cover them if they get hurt while
constructing the building. Mr. Robert Christy said State Statutes require
they have to be covered by insurance. City Attorney Alvarez noted that
paragraph 6 has nothing to do with workers' compensation. Councilman
Asting said the City's not building it, the Fire Department is. Mr. Main
said if he's building it and they have no insurance, he wouldn't be covered.
City Attorney Alvarez pointed out this addresses third party claims.
Mr. Lamb asked if it's for the construction and City Clerk Martinez replied
it's after construction. City Attorney Alvarez said it covers during the
construction and after the construction. and since the City owns the land,
the City has no responsibility or control. Mayor Baugh noted they're
conveying title to the City for the building. City Attorney Alvarez noted
the City doesn't determine how to use the building or regulate the events,
but the City's responsibility stops at the corner of the property during
the lease. He noted the lease came from their attorney on paragraph 4.
Mr. Lamb stated he didn't accept that lease either. City Attorney Alvarez
explained it's a hold harmless of the City, and because of ownership of the
land and title to the building, the City will be involved in the litigation
if something happens.
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April 28, 1986
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There was further discussion of item 6. Mr. Lamb asked if they were
covered when they built the fire house and City Attorney Alvarez pointed
out worker's compensation is different from third party claims or
liability claims. Mr. Shambora stated that the paragraph doesn't say
it's third party claims. Mayor Baugh asked how they'd hold the City
responsible if they have full control. There was further discussion
about the fact that the paragraph did not say it was third party claims.
City Attorney Alvarez questioned what claims the City should assume the
responsibility for. Mayor Baugh asked Mr. Lamb if the City should be
responsible for someone injured during one of their events and Mr. Lamb
said they're talking about construction of the building. Mayor Baugh
suggested it should read for construction of the building only. City
Attorney Alvarez said while they're constructing the building, which is
a volunteer activity, the question is if they would be covered by workers'
compensation. Mr. Lamb stated they're building it for the City and if
they cease to exist as an organization, it will go back to the City. He
added they'll not build it if they aren't covered. City Attorney Alvarez
suggested they check with the workers' compensation carrier to see if it
would be carried. He suggested they could put in "except injuries suffered
by Firefighters during construction" if the City agrees they should be covered
during construction. He then suggested the wording of "except workers'
compensation claims suffered by Firefighters during construction of the
building."
City Clerk Martinez read item 7: "The Firefighters covenant and agree that
it has no power to incur any indebtedness giving a right to a lien of any
kind or character upon the right, title and interest of the City in and to
the subject premises, and that no person shall ever be entitled to any lien
directly or indirectly derived through or under the Firefighters or its
agents or servants on account of any act or omission of the Firefighters,
which shall be superior to the rights of City." City Attorney Alvarez noted
they can't go to the bank to get a mortgage on the property. Mr. Lamb
agreed they couldn't borrow any more money on that property. Mr. Hardock
indicated he was satisfied with that.
City Clerk Martinez read item 8: "In no event shall City be responsible
to the Firefighters for any loss incurred as a result of any casualty to
the improvements constructed by the Firefighters. The Firefighters agree
to obtain and maintain its own hazard insurance on the premises during the
entire period of the tenancy; and shall maintain premises liability in an
amount of at least $300,000.00 for the benefit of City, and shall provide
City with a copy of the applicable policy therefore." City Attorney Alvarez
said this is coverage for something such as when.a lady who falls during
Bingo. Mr. Hardock questioned why the amount has to be filled in and City
Attorney Alvarez said he took it from the language in the agreement drawn
up by their attorney. Councilman Asting said he agrees they could eliminate
the figure. .Mr. Lamb pointed out with $130,000 or more in materials, they
won't have a small policy. Mayor Baugh asked what amount they had in mind
and Mr. Lamb replied they hadn't discussed it yet. Councilman Asting asked
for a figure to expedite this lease and Mr. Hardock said he doesn't have one.
Mr. Shambora suggested they discuss it with the insurance agency and City
Attorney Alvarez agreed they should talk to the insurance carrier. City
Attorney Alvarez pointed out he took the language from the lease prepared
by their attorney and he thinks it will be increased to $500,000 by their
carrier. Mr. Pat DiLeva said the second contract had a figure mentioned of
$100,000 to $200,000. City Attorney Alvarez said they want to be sure they're
protected. Mr. Shambora pointed out that in 10 years the $300,000 may be out
of date and asked why an amount has to be filled in. City Attorney Alvarez
noted they'll need a figure to write the insurance, and he added that it says
a minimum amount of $300,000, which could be left until they get a recommendation
from the insurance carrier.
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April 28, 1986
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City Clerk Martinez read item 9: "City and County real property taxes,
if any, shall be paid by the Firefighters." Mr. Lamb asked if there are
any taxes and City Clerk Martinez replied they're tax exempt now but the
TRIM bill may change. Mr. Lamb stated that they're turning the Bill of
Sale over to the City, so if there are any taxes, the City owns the building
and the Fire Department shouldn't pay them. City Attorney Alvarez noted
there's a question of who gets the benefit of the building during the term
of the lease, and he suggested it might be paid by the Firefighters during
the term of lease. Mr. Lamb pointed out there won't be a profit made from
this building and what they charge for the use of the building will be for
electricity, water, maintenance, and upkeep of the building. Mayor Baugh
suggested if there are any taxes, they should be included in the fees they
charge the people. Councilman Rotundo noted the tax bill will be sent to
the City and not to the Firefighters. Mr. Lamb agreed because the City owns
the building and the property and they're only leasing it. Mayor Baugh
asked where the City would get the funds to pay the taxes if they don't
have the control. City Attorney Alvarez commented on whether the impact
fees would apply to this building if the County goes through with the fees.
Mr. Hardock said they're only interested in getting a lease, and if they
run into obstacles, they'll have to abandon it, but if there will be
property taxes later on, they don't want to do anything illegal and would
do whatever's necessary when the time comes. He added that he doesn't see
why they're putting it in by foresight and a lot of it doesn't apply.
City Attorney Alvarez explained the purpose of the lease is to try to
foresee what's coming in the future, because how could they resolve it if
not. Councilman Rotundo pointed out there will be other Councils to deal with.
City Attorney Alvarez noted that successors to each party would be covered.
Mr. Shambora said the Firefighters have to do everything, including paying
all insurance, expenses, and taxes, if any, and the City tells them to abide
by rules and regulations and the City owns the building. Councilman Prater
pointed out the Fire Department will get all the returns from the building.
Mr. Shambora said the building will not make a profit. Councilman Rotundo
said it should pay for taxes. Mr. Shambora said they just need an agreement
they can use the land and whatever they put on it will be a part of the City
if they abandon it. City Attorney Alvarez recalled the number of hours he's
spent in meetings with Gary Lamb and other members of the department and the
four different agreements that have been drawn. He noted he's been negotiating
with Gary Lamb and each agreement was taken back and turned down. He pointed
out they need to think of public interest, public responsibility, insurance and
costs, and possible taxes, so these could be resolved when the question comes up.
Mr. Shambora asked why the first page states they'll convey the title to the
City if the City won't have anything to do with it. City Attorney Alvarez
said they'll build the building on City property and they'll use it and have
no interference from the City during the term of the lease, and will convey
the building to the City with a Bill of Sale. Mr. Shambora said the Bill of
Sale was for the benefit of the City for workers' compensation and insurance.
City Attorney Alvarez noted that's a different approach. Mr. Shambora said
he won't accept giving everything to the City and then being responsible for
everything that comes along.
Mr. Hardock asked if Council read the lease before it came to the Fire house
the last time and City Attorney Alvarez said Mr. Lamb took it and he was
waiting for a reply. Mr. Hardock said he assumed Council had something to
say prior to its coming to them. City Attorney Alvarez said the agreement
was to be prepared and come back to Council with a joint lease. Mr. Hardock
said he sat in on one meeting but the verbiage was not even near what they
discussed. Mr. Lamb said it was not a lease, but a contract. City Attorney
Alvarez said it was prepared by the notes taken that day and the lease was
given to Gary Lamb. Mr. Hardock said they don't get written answers to their
questions and referred to a letter about the Community Center closing in on
them and not receiving a reply. Mr. Shambora said the last letter was written
since November. There was a brief discussion about the reverter clause
and tax exemptions.
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April 28, 1986
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City Clerk Martinez read item 10: "Water, sewer and electric service shall
be paid by the Firefighters." There were no changes suggested.
City Clerk Martinez read item 11: "The community center type building shall
perform a municipal function for the City by providing a building for
recreation, emergency and voting purposes for the City of Edgewater. Wherein
said building and premises shall be made available for said municipal functions
at different times, as reasonably requested by the City, and at the convenience
of the Firefighters so that said use will not interfere with the regular
meetings and events of the Firefighters during the course of their use of
the premises. Further, such functions shall include, but not be limited to,
the promotion of the welfare and fellowship of the citizens of the City of
Edgewater via the charitable functions performed by the Firefighters in the
community." Councilman Asting suggested they change the word "shall" in the
the first sentence to "may".
City Clerk Martinez read item 12: "This lease shall be for a term commencing
on the_day of_,1986,for_years." Mr. Lamb asked for 99 years instead
of a lease amount because if they cease to exist as an organization, it will
revert back to the City. Mayor Baugh and Councilman Asting agreed they had
no problem with this.
City Clerk Martinez read item 13: "The Firefighters covenant and agree that
they shall maintain the property, premises, accessories and improvements
thereon, and keep the same in good repair. The Firefighters shall provide
all labor necessary for maintaining said property, premises, accessories and
improvements." There were no changes suggested.
City Clerk Martinez read item 14: "In the event any of the accessories
including, but not limited to, the building, septic tanks and shrubbery are
destroyed or so damaged or injured by fire, an act of God, or other casualty
during the life of this Agreement, the insurance proceeds derived from the
insurance coverage carried by the Firefighters, along with the additional
necessary revenues shall be used to replace the said accessories. The
Firefighters further covenant and agree that in the event destruction or
damage to the said accessories or properties occur, it shall replace the said
accessories and property within a reasonable time, but said time shall not
exceed 180 days." Mr. Lamb said there shouldn't be a time because of the time
involved with insurance. Mayor Baugh and Councilman Rotundo said they had
no problem with that.
City Clerk Martinez read item 15: "The Firefighters agree and covenant that
it will comply with all State and local laws and regulations pertaining to
this Agreement, and to the property, premises, accessories and improvements
thereon, as well as to the use thereof. The Firefighters further agree to
pay all Federal, State and local taxes which might attach to the above described
property due to the many interests that are created by this Lease Agreement."
Mr. Lamb questioned what taxes there could be and City Attorney Alvarez said
that's why they want "if any" inserted there since he can't foresee the future.
There was a discussion about the different taxes, with City Clerk Martinez
pointing out there's tangible taxes on property inside. City Attorney Alvarez
said the question is whether the firefighters or the City pays it. There
was further discussion about the licenses required. It was agreed to add the
words "if any" in the last sentence, after the words local taxes. .
City Clerk Martinez read item 16: "The Firefighters and City hereby agree that
all personal property of the Firefighters or other owners placed or moved by
the Firefighters in the premises shall be at the risk of the Firefighters, and
the City shall not be liable for any damage to said personal property arising
from any act of negligence or any occupant of the premises or any other person
whomsoever." City Attorney Alvarez explained this would be similar to when
someone loses a ring while playing Bingo. Mr. Christy asked if they could be
held liable for it and City Attorney Alvarez replied he's not a jury. Mayor
Baugh said it depends on if it's from negligence.
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April 28, 1986
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City Clerk Martinez read item 17: "The Firefighters shall not have the
right and power to assign this Lease; or sub-let the premises, or any
part thereof, except upon the written consent of City." Mr. Lamb said
they'll have complete control of the building and won't turn over the
lease to someone else, but he questioned renting the property for a
wedding. City Attorney Alvarez said they can't sublet it to someone else,
and a lease creates interest in property and a rental doesn't. Mr.
Shambora said they were wondering if they could rent it out and City
Attorney Alvarez said it's just the lease.
City Clerk Martinez read item 18: "The City and Firefighters hereby agree
that if the premises and buildings are taken by eminent domain, either
party may terminate the Lease without liability for the remainder of the
term. A condemnation award shall belong exclusively to the City as to the
land and exclusively to the Firefighters as to the improvements on the land."
City Attorney Alvarez explained how the City can condemn any property but
if future Councils wish to condemn it, they'd be protected.
City Clerk Martinez read item 19: "In the event that Firefighters cease to
exist as an organization or upon the termination of this Lease, the Fire-
fighters agree and covenant that all improvements placed on said property,
including but not limited to, buildings, lightpoles and shrubbery shall all
immediately upon the termination of this Agreement or upon the default of
the covenants contained herein, become the property of the City, absolutely
in fee simple forever." Councilman Asting asked to add after "the property
of the City", the words "for a public community center". City Attorney Alvarez
pointed out they can't bind the legislative authority of future Councils.
City Clerk Martinez read item 20: "This Lease shall be construed in accordance
with the laws of the State of Florida, and constitutes the entire understanding
and agreement between the parties hereto. This Lease may not be modified,
altered or amended in the absence of a written agreement to do so." City
Attorney Alvarez said this is standard verbiage.
Mr. Shambora suggested on the first page where they're to convey the title to
the City that they reword it if they have to pay for everything so the building
won't be given to the City. City Attorney Alvarez said he'd like the title
and take item 9 out. Councilman Asting agreed to strike #9.
Mr. Lamb said they'll insure the property against fire and anything else and
the Bill of Sale and building will belong to the City. He asked who the
insurance would be made out to and City Attorney Alvarez replied probably
both. Mr. Lamb pointed out the check for insurance will go into the General
Fund and City Clerk Martinez clarified it would be a joint check needing two
signatures. City Attorney Alvarez reviewed litigation procedures with the
two parties named, and who would cover the Firefighters.
Mr. Robert Main said there are no taxes now so they should give the City
item 8 also, as the insurance should go along with the Bill of Sale.
City Attorney Alvarez said the City then should regulate all functions
in the building for insurance purposes. Mayor Baugh suggested they leave
it alone.
Mr. Hardock referred to a truck the Fire Department bought that was turned
over to the City to pay insurance and the usage has been dictated. City
Clerk Martinez agreed it's a City vehicle under City insurance. Mr.
Shambora said they had an agreement with the City regarding the use of
the vehicles and he'll give them a copy of the letter. Councilman Prater
asked why they want to turn it over to the City and Mr. Shambora replied
it's for the insurance.
Mr. Hardock asked why they need a Bill of Sale if this goes to the City
and City Attorney Alvarez replied he wants to reinforce that this building
is owned by the City and leased to the Firefighters, and without it they'll
own the building on City property. There was a discussion about the
default that could occur. City Attorney Alvarez stated it will be public
land and a building owned by a private organization on a public land.
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April 28, 1986
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Mr. Shambora asked why they can't do it because the lease is just to
cover the land and not the building. Councilman Rotundo noted they'll
have a full paid Fire Department in a few years. Mr. Hardock asked who
would want that if they have volunteers. Mr. Lamb stated they're getting
better response with volunteers also. There was a discussion about the
request for paid fire personnel in the last budget. Mr. Shambora noted
they had about 22 firemen last year and now they have 40, and asked why
the City can't sign a lease agreement for the property. City Attorney
Alvarez asked why they don't buy the property and Mr. Shambora said they
could, but they thought it would be easier to build the building if the
City would cooperate. He added they lease City land in New Smyrna Beach
and the organizations have full control of it. There was a discussion
about the responsibilities of the Firefighters if they have full control
of the building. Mr. Shambora pointed out they have eminent domain to
get the property back and City Attorney Alvarez said the City has to pay
for all the legal costs.
Mr. Christy referred to a Dade County case and said the original plan was
to lease the property to the Fire Department and anything the Department
owns would go back to the City. He noted the City leases land from the
School Board. He said the Fire Department would take care of the insurance
and the building and when it disbands, it would go to the City.
City Attorney asked if they're saying they don't want to convey the title
and Mr. Hardock replied that's exactly what they're saying. Mr. Shambora
said if they have to have full responsibility for it, they don't want to
address the subj ect of title, and just lease the property. Councilman Prater
referred to the costs for insurance when someone leases an automobile.
There was a discussion about how the land was donated to the City originally.
Councilman Asting said he'd like to discuss the contract if they enter into a
lease contract because the City can't be liable for any lawsuits and the
complete control will be the Fire Department's responsibility. Mayor Baugh
asked about a Bill of Sale not having to be there and Councilman Asting said
the City won't be responsible for any maintenance or operation. City
Attorney Alvarez said paying taxes on it will be a condition of ownership.
Mayor Baugh said item #9 will have to go back in.
City Clerk Martinez read the "Whereas" section involved: "Whereas, the Fire-
fighters are willing to construct the building on this land, provided the
Firefighters are permitted to retain a right of use over the building for a
term of years; and". Mr. Shambora suggested the next "Whereas" section have
part of it taken out.
It was agreed that Mr. Lamb would get information from the insurance carrier
and City Clerk Martinez would contact the workers' compensation carrier.
City Clerk Martinez asked about item #9 and it was agreed it's back in.
There was discussion about the nominal figure and it was agreed it would be
$1.00 a year. It was agreed the two items needing checked were the insurances.
Mr. Hendrix said they have to present the finished agreement to their membership
for a decision, and they can do it Thursday if it's ready.
Councilman Asting moved to go back into the Special Meeting. Councilman
Inman seconded the motion. Motion CARRIED 5-0.
Councilman Asting moved that the City Attorney draw up a draft of the lease
agreement for perusal by the Fire Department and the City Council. Councilman
Prater seconded the motion. Motion CARRIED 5-0.
Mayor Baugh requested a motion to adjourn. Councilman Prater so moved.
Councilman Inman seconded the motion. Meeting was adjourned at 8:35 P.M.
Minutes submitted by:
Lura Sue Koser
-7- Council Special Meeting & Workshop Minutes
April 28,1986
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Signature page only - City Council of Edgewater Special Meeting & Workshop
Minutes of April 28,1986.
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April 28, 1986