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09/02/1993 CITY COMMISSION MEETING September 2, 1993 The City Commission of the City of Clearwater met in regular session at City Hall, Thursday, September 2, 1993 at 6:02 p.m., with the following members present: Rita Garvey Mayor/Commissioner Arthur X. Deegan, II Vice-Mayor/Commissioner Richard Fitzgerald Commissioner Sue A. Berfield Commissioner Fred A. Thomas Commissioner Also present: Michael J. Wright City Manager M.A. Galbraith, Jr. City Attorney Terry Jennings Chief Engineer James Polatty, Jr. Planning and Development Director Cynthia E. Goudeau City Clerk Susan Stephenson Deputy City Clerk The Mayor called the meeting to order and led the Pledge of Allegiance. The invocation was offered by Commissioner Deegan. In order to provide continuity for research, the items will be listed in agenda order although not necessarily discussed in that order. ITEM #3 - Service Awards - None. ITEM #4 - Introductions and Awards - None. ITEM #5 - Presentations Howard Groth, Clearwater Housing Authority (CHA), stated CHA has received a Housing Achievement Award from HUD in the form of a Certificate of High Performance for the past two years. ITEM #6 - Minutes of the Regular Meeting of August 19, 1993 - None. ITEM #6a - (Cont. from 8/30/93) Sun Bank Building - No item. PUBLIC HEARINGS ITEM #7 - Public Hearing & First Reading Ord. #5451-93 - Vacating north 10 feet of south 20 foot drainage & utility easement lying along south side of Lot 5, Chateau Wood Sub. less westerly & easterly 5 feet (Stanganelli V93-09)(PW) The applicant has a pool structure which encroaches approximately 2.6 feet into the existing 20 foot easement and the pool decking another 7.3 feet. The City has no existing utilities within this easement. This request has been reviewed by the various city departments and divisions concerned with vacations and there are no objections. Florida Power, General Telephone and Vision Cable have reviewed this request and have no objections. This pool was constructed prior to the current review process whereby impending encroachments are more readily discovered and precluded. Commissioner Thomas moved to approve the vacation of the north 10 feet of the south 20 foot drainage and utility easement lying along the south side of Lots 5, Chateau Wood Subdivision less the westerly and the easterly 5.0 feet. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5451-93 for first reading and read it by title only. Commissioner Fitzgerald moved to pass Ordinance #5451-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #8 - Public Hearing - Vacating 10 foot east/west alley lying south of Block 12, Turners Sub. No. 3 and lying north of Block 3, Starr & Savery Sub. (Episcopal Church of the Ascension V93-08)(PW) The applicant requested this item be continued. Commissioner Berfield moved to continue this item to the scheduled meeting of September 16, 1993. The motion was duly seconded and carried unanimously. ITEM #9 - Public Hearing & First Reading Ord. #5453-93 - Vacating 30 foot ingress/egress in Section 12-29-15, M&B 12.01 (City V93-07)(PW) The City purchased a tract of land from Campbell Paving Company on November 16, 1984. The deed also conveyed a non-exclusive easement for ingress and egress over a strip of land, 30 feet wide, lying immediately south of the portion of land deeded to the City. The Engineering Division has now found that, due to problems associated with the easement, it is of no benefit to retain the easement. The Commission passed and adopted Resolution #93-49 on August 19, 1993, dedicating a new 45 foot ingress and egress easement immediately north of the subject 30 foot easement. The new 45 foot easement is better suited for the new access road to the Solid Waste Facility. This request has been reviewed by the various city departments and divisions concerned with vacations and there are no objections. Florida Power, General Telephone and Vision Cable have reviewed this request and have no objections. Commissioner Fitzgerald moved to approve the vacation of the 30 foot ingress/egress in Section 12-29-15, lying in M&B 12.01. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5453-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5453-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #10 - Alcoholic Beverage Separation Distance Variance for property (Fazio's Lily Pond Restaurant) located at 2550 McMullen Booth Road, Northwood Plaza, Section 28-28-16, M&B 33.02 (John Hancock Realty Investors, Inc. AB93-10) The applicant is requesting a variance of 200 feet to permit a 2-COP alcoholic beverage establishment to be located zero feet from similarly licensed establishments within the Northwood Plaza shopping center. The subject property is a restaurant to be known as "Fazio's Lily Pond Restaurant". The distance separation variance is required because the subject establishment is proposed to be located on the same property as several existing consumption on premises establishments. The property is within the area now zoned CC and OL district. No additional parking facilities are needed. The applicant intends to share the existing parking spaces at Northwood Plaza. The Police Department has no objection to this use. On August 3, 1993, the Planning and Zoning Board approved the conditional use permit for the 2-COP alcoholic beverage license with the following conditions: 1) the requisite occupational license shall be obtained within six months of the date of this public hearing; 2) the sale of alcoholic beverages shall be limited to consumption on premises with no package sales; 3) there shall be no outdoor seats or speakers; and 4) the applicant shall obtain the necessary separation variance from the Commission. There are seven alcoholic beverage establishments within 300 feet of the proposed use. Staff has determined there is not an over-concentration situation at this location since the area is predominately commercial in nature and the proposed 15% gross floor area "cap" on alcoholic beverage uses within a shopping center has not been reached. Mayor Garvey requested clarification regarding how this application would fit into amendments to the code which are under consideration. Mr. Polatty indicated this use would be a permitted use under the proposed amendments. Commissioner Deegan questioned if the applicant was aware of the condition that no package sales would be allowed. Joseph Fazio indicated he was aware of and in agreement with all of the conditions. Commissioner Fitzgerald moved to approve a variance of 200 feet to permit an alcoholic beverage sales establishment zero feet from similarly licensed establishments for Section 28-28-16, M&B 33.02 since the applicant has met all standards for variance approval. The motion was duly seconded and carried unanimously. ITEM #11 - 1993/94 Budget The City Manager reported this is the third year the budget has been presented with no increase in the millage rate. He stated the major new initiatives in next year's budget are community outreach, in which video and cable will be used to provide information to the public, a major economic development direction for the entire City, in addition to the Community Redevelopment Agency and downtown initiatives; going to privatization for some services and a major market driven initiative for expansion of the gas division. The Mayor requested that he review the sources of expenditures. Mr. Wright indicated that 35% of the General Fund budget is for the police department, 17% for the fire department, 21% for leisure and 12% for general governmental. Mayor Garvey questioned what percentage of revenues are from ad valorem taxes and Tina Wilson, Budget Manager, indicated one third of the revenues come from ad valorem taxes. The City Manager indicated that the number one source of revenue is the ad valorem taxes, the second greatest is the utility tax and the third is interfund transfers. Ms. Wilson reviewed the changes that have been made to the proposed budget. These changes are the result of meetings with the City Commission regarding the City Manager's recommended budget and are as outlined in Exhibit A to these minutes. Commissioner Deegan requested an explanation of the changes in the non-resident fees for Parks and Recreation Facilities. Ms. Wilson indicated the proposal is to charge $10 per each youth program and $20 for each adult program for non-residents. There would still be available an annual card that would allow participation in all events. In addition, a $100 fee from each of the shuffle board, horseshoe and lawn bowling clubs would be required to compensate for non-resident members of those clubs. The rationale for this fee, rather than charging each non-resident, is that each club contributes to and maintains their facility. The City Manager referenced the non-departmental expenditures stating there are 7 Parks and Recreation events and funding for various organizations. He reminded the Commission that the Florida Orchestra had requested additional funding. Commissioner Deegan questioned the Pinellas Economic Development Council contribution and the Mayor indicated this group had been blended with the Tampa Bay Partnership. He questioned for what the $15,000 contribution would be used and the City Manager indicated this had not been determined at this time. The Mayor indicated they would be coming forward for funding. Commissioner Deegan expressed serious reservations regarding this program and stated he preferred not to appropriate the $15,000 at this time. Commissioner Thomas questioned whether or not these contributions would come back to the Commission for approval if they are approved through the budget process. The City Manager indicated it would depend on the project and that if this budget were approved, certain monies would automatically go to those groups. Concerns were expressed that the Commission had not had an opportunity to discuss these contributions and back-up material was requested. It was the consensus to discuss this further at the September 14, 1993 Commission meeting. Jane Gregory spoke in opposition to the proposed salary increase for Commission members stating that the salary and benefits are not warranted for a part-time job. She stated the reason for seeking a Commission seat was to be of public service. She was opposed to the increases and the related ordinances. She stated she was also opposed to the General Accounting Office. She stated that Mayor Garvey's quote in the paper regarding the public not being upset regarding the raises was incorrect. Mayor Garvey stated the Commission members do not receive other benefits other than the salary. Commissioner Deegan indicated that some do receive health insurance. Mayor Garvey clarified the quote attributed to her in the paper indicating she did not feel the public would object to a raise but she was not in favor of this amount. Bob Wright, representing the Coalition of Homeowners, stated that since the ad valorem millage rate was remaining the same, there was no quarrel with the budget per se, however, their concern was for future years. He stated they have asked for the number of employees to be reduced. He indicated a financial forecast has not been seen for 18 months and it was suggested this be reactivated. He urged the Commission to delay the gas division expansion for one year and that the City Manager and the gas division be challenged to increase their 5% of market in their current area. Joe Evich stated the Coalition has asked for a 5% challenge to reduce the budget. He stated revenues are flattening and expenses are not. He felt the Commission did need a raise but was unsure of the reason for the referendum to effectuate it earlier than the Charter allows. He asked that any funds from sale of the Sun Bank Building be committed to the reserve balance. He challenged the Commission to reduce expenses and stated there are doing a tremendous effort. Norman Gasteau, secretary/treasurer of the horseshoe club, questioned the decision regarding the user fees. The Mayor explained regarding the $100 contribution to be made by the club to cover non-residents. Mr. Gasteau also asked regarding a proposal for patio covers over the courts and it was requested he get with the Parks and Recreation Director. Dan Moran, member of the Budget Advisory Committee, praised the Commission and staff for the budget presented and recommended it be passed. He stated he was also in favor of the pay raises as the Commission puts in long hours. Mayor Garvey questioned the request by the Florida Orchestra for additional funding and it was stated this would be discussed at the September 14th meeting. The City Manager indicated that the budget was balanced. The City Attorney explained the purpose of the roll-back rate. a) First Reading Ord. #5456-93 - Millage The City Attorney presented Ordinance #5456-93 for first reading and read it in full. Commissioner Fitzgerald moved to pass Ordinance #5456-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. b) First Reading Ord. #5457-93 - Operating budget The City Attorney presented Ordinance #5457-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5457-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. c) First Reading Ord. #5458-93 - Capital Improvement budget The City Attorney presented Ordinance #5458-93 for first reading and read it by title only. Commissioner Berfield moved to pass Ordinance #5458-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. Mayor Garvey stated she wished to stress that although there was some difference of opinion regarding what is included in the budget this was the consensus reached, therefore she voted for the budget. Commissioner Berfield stated she wished to make a statement about the salaries. She stated that so far this week, she had spent 36.5 hours on Commission business. She stated she also has a full-time job. She felt she worked hard for the money earned. She stated there are others that would serve if the compensation was increased. Commissioner Thomas indicated that each Commissioner has a different reason for voting for or against the raise. He believed it was important to establish leadership for the future of the City. He stated he felt with the increase, more people would come forward and serve. ITEM #12 - PPC Consistency Program - Clearwater Amendments - Second Reading Ords. #5296-92 & #5312-92 Due to recently received comments from the State, staff requested this item be continued. Commissioner Berfield moved to continue this item to the scheduled meeting of September 16, 1993. The motion was duly seconded and carried unanimously. ITEM #13 - Public Hearing & First Reading Ords. #5445-93, #5446-93 & #5447-93 - Annexation, Land Use Plan Amendment to Low Density Residential and RS-6 Zoning for property located at 2345 Nursery Rd., SW 1/4 Sec. 19-29-16, Pinellas Groves Sub., part of Lot 19, 0.31 acres m.o.l. (Wagner A93-18, LUP93-24)(PLD) Commissioner Thomas moved to continue this item to the scheduled meeting of September 16, 1993. The motion was duly seconded and carried unanimously. Public Hearing - Second Reading Ordinances ITEM #14 - Ord. #5411-93 - amending Sec. 42.21, to provide for reconstruction or replacement of structures occupied by nonconforming single family residential uses that are damaged or destroyed in excess of 50% of replacement cost (LDCA 93-03) Commissioner Thomas moved to amend Ordinance #5411-93 by amending Section 1 to read: Sec. 42.21. Nonconformities. (4) Nonconforming uses. Any nonconforming use of land, water or a structure may be continued subject to the following: (e) Such nonconforming use, if occupying a structure which is damaged or destroyed in excess of fifty (50) per cent of the replacement cost, shall not thereafter be reestablished; provided, however, that a structure occupied by a nonconforming single family residential use may be reconstructed or replaced without expansion, addition, or enlargement over the previously existing structure, subject to full compliance with the requirements of chapter 51, relating to flood damage prevention. The City Attorney presented Ordinance #5411-93 as amended for second reading and read it by title only. Commissioner Thomas moved to pass and adopt Ordinance #5411-93 as amended on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #15 - Ord. #5413-93 - re: allowable signage for existing commercial and industrial planned developments; providing for signage consistent with provisions of Sec. 44.51(4)(i) The City Attorney presented Ordinance #5413-93 for second reading and read it by title only. Commissioner Thomas moved to pass and adopt Ordinance #5413-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #16 - Ord. #5438-93 - Annexation for property located in Sec. 1-29-15, M&B 34.311, 0.32 acre m.o.l. (Instrument Transformers, Inc. A93-16) The City Attorney presented Ordinance #5438-93 for second reading and read it by title only. Commissioner Fitzgerald moved to pass and adopt Ordinance #5438-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #17 - Ord. #5442-93 - Annexation for property located at 1985 East Skyline Dr., Skyline Groves Sub., Lot 27, 0.15 acres m.o.l. (Invandino-Schy/Schy A93-17) The City Attorney presented Ordinance #5442-93 for second reading and read it by title only. Commissioner Deegan moved to pass and adopt Ordinance #5442-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #18 - Special presentations of widespread public interest - None. ITEM #19 - Citizens to be heard re items not on the Agenda Robert Clarke complained regarding the inefficiency and ineffectiveness of government workers. Robert Wright, representing the Coalition of Homeowners, indicated he had spoken twice before to the Commission regarding the increase in the filing fee for incorporation with concerns regarding the burden it places on smaller homeowners associations. He stated he had heard nothing regarding the Commission's actions. The City Manager indicated this was a part of the City's legislative package and that Mr. Wright should have been so notified. Staff will follow up. Joe Evich stated that in considering the incorporation fee legislation, that an income level should be specified. He spoke concerning what he considered to be an ethics issue and requested an ordinance requiring employees to be prudent in their outside dealings be adopted. He stated no city employee should be involved in an on-going relationship knowingly causing conflicts. The City Manager indicated a circumstance to which Mr. Evich eluded was that his wife is employed by First American Title, the title company that did the title search for the sellers of the Sun Bank Building. He stated this had been fully disclosed to the Commission and that his wife had no participation in that transaction. He stated the City purchases no title insurance from First American because his wife is an employee of that company. CITY MANAGER REPORTS ITEM #20 - (Cont. from 8/19/93) Allocation of city social service funds for fiscal year 1993-94 (HM) On May 20, 1993, the Commission approved the Request for Proposal format which was used to solicit proposals for funding from social service agencies and organizations. The amount of $62,000 has been requested for fiscal year 1993-94 for social services funding. The approved RFP contained a provision that requests must be for $5,000 or less. Pursuant to the RFP, a Social Services Selection Review Committee was convened on July 23, 1993. Members of the committee were: Barbara Butz, Florida Department of Health and Rehabilitative Services; James Dates, Pinellas County Department of Social Services; Elizabeth Smoot, Pinellas Technical Education Center; Cindy Soronen, CNHS; and Yolanda Goodloe, Pinellas County Office of Human Rights. The following depicts the funding requested by the applicants and the Committee recommended funding: Agency requested recommended Boys' & Girls' Clubs $ 3,300 $ 0 Co-ordinated Child Care $14,058 $5,000 Community Service Foundation $ 5,000 $ 0 Community Pride Child Care $ 4,164 $4,000 CWPD (Brownie/Girl Scouts Greenwood Troop 155) $ 2,716 $2,176 Directions for Mental Health $ 5,000 $ 0 Girls Incorporated of Pinellas $ 5,000 $ 4,000 Greenwood Panthers $ 5,000 $ 4,000 Head Start $ 5,000 $ 4,000 Homeless Emergency Project, Inc. $ 5,000 $ 4,000 Neighborly Senior Services $11,660 $ 5,000 Partners in Self-Sufficiency $ 4,000 $ 4,000 Pinellas Opportunity Council $ 5,000 $ 4,000 Quest Inn $ 5,000 $ 4,000 Red Ribbon Homestead $ 5,000 $ 0 Religious Community Services - $ 5,000 $ 4,000 Transition Housing Religious Community Services - Food Pantry $ 5,000 $ 4,000 Religious Community Services - Spouse Abuse Shelter $ 5,000 $ 0 Safe House of North Greenwood $ 5,000 $ 4,000 YWCA of Tampa Bay - Kings Kids $ 1,200 $ 1,200 RCS - Furniture Warehouse $ 5,000 $ 4,000 YWCA - Facility $ 5,000 $ 0 Eleanor Breland, Human Relations Director, indicated the City received 20 proposals in response to the RFP and 16 are recommended for funding. Mayor Garvey expressed appreciation for the efforts of the Committee. Commissioner Deegan indicated he had requested Ms. Breland prepare a spreadsheet in order to consider priorities. He expressed concern regarding no funding recommendations for Directions for Mental Health which he indicated he considered to be a priority. He recommended cutting back $1,000 from 4 other agencies in order to provide $4,000 for Directions for Mental Health. Mayor Garvey questioned his recommendation. Commissioner Deegan indicated that Directions for Mental Health received no support from others and the ICOPE study indicated that they were a priority. He recommended cutting $1,000 from the funding recommended to Community Pride Child Care, Coordinated Child Care, Greenwood Panthers and Neighborhood Senior Services. Commissioner Thomas expressed concern that some funding from the CDBG program to Community Pride Child Care was contingent on the Board of Realtors funding a project. He was afraid that the $1,000 difference could be "a killer" for Community Pride Child Care. Commissioner Thomas also expressed concerns regarding the spreadsheet used, in that, he had requested for the CDBG proposal that there be a column for the relationship of the money provided to the people served. He requested the spreadsheets be consistent in the future. Commissioner Deegan moved to approve the recommendations for allocation of City social services funds made by the Social Services Selection Review Committee with the following amendments; reduce the allocation to Coordinated Child Care from $5,000 to $4,000, reduce the allocation to Community Pride Child Care from $4,000 to $3,000, reduce the allocation to Greenwood Panthers from $4,000 to $3,000 and reduce the allocation to Neighborly Senior Services from $5,000 to $4,000 and grant an allocation of $4,000 to Directions for Mental Health. The motion was duly seconded and carried unanimously. ITEM #21 - First Reading Ord. #5454-93 - to cancel the water and sewer rate increases already scheduled for 10/1/93 (AS) In December of 1991, Camp Dresser & McKee (CDM) completed an extensive study regarding both water and sewer rates. Based on that study, the Commission approved rate increases for both water and sewer, effective February 1, 1992, October 1, 1992 and October 1, 1993. In September of 1992, the Commission approved a reduction in the 10/1/92 increase from about 6.8% water and 9.5% sewer to about 4% water and 6% sewer. At that time, no change was made to the pre-approved 10/1/93 rate increases. If no action is taken, water rates will increase by approximately 10% and sewer rates will increase by approximately 17% on 10/1/93. As a result of the City's ability to hold down water and sewer controllable expenses, a savings from the recent bond refundings, and increased water pumped from city wells, the City is now forecasting a modest cash surplus for fiscal year 1993/94 with no additional rate increases over and above those already in place. As a result, staff recommends adoption of Ordinance #5454-93 which effectively eliminates the rate increase previously scheduled for 10/1/93. It is worth noting the ordinance does allow for "pass through" increases in the City's cost of purchasing water from Pinellas County. Since there have been discussions at the County level of increases of as much as 28%, and since purchased County water accounts for a significant portion of the City's total projected expenditures, the City is facing a pass through increase of approximately 10% during the first half of fiscal year 1993/94. Staff will continue to monitor results of the Water and Sewer System on a periodic basis and will alert the Commission as soon as the need for subsequent rate adjustments becomes apparent. The Mayor reiterated that increases from the County will increase cost to customers. Commissioner Thomas moved to cancel the water and sewer rate increases already scheduled for October 1, 1993. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5454-93 for first reading and read it by title only. Commissioner Fitzgerald moved to pass Ordinance #5454-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. The meeting recessed from 7:46 p.m. to 7:57 p.m. ITEM #22 - Final Site Plan for Bayside Arbors located east of Seville Condominiums (AEL Partnership) On July 1, 1993, the Commission referred this item for review by the DRC. The DRC discussed this item on July 8, 1993, recommending Commission approval of the final site plan subject to a number of conditions. Final DRC review comments concerning this site plan are made a part of these minutes as Exhibit B. The Commission has required the applicant to conform to the requirements of the revised Tree Protection Ordinance which is scheduled for adoption on second reading. This is addressed in DRC condition #16. A separate site plan involving property to the south of the subject site has been submitted to the Commission for receipt and referral. Some minor adjustments to this final site plan involving dumpster service (the applicant is considering using a compactor for the two projects which will allow the dumpsters to be eliminated) and adjustments to the parking configuration and access drive may be approved administratively. The applicant proposes to construct a 224 dwelling unit apartment complex with two and three story buildings on a total of 21.975 acres of vacant property having a heavy concentration of native trees. Most of the upland property has a land use plan classification of medium density residential, with a zoning designation of RM-12. This property is restricted to a maximum of ten dwelling units per acre by city ordinance (#4917). The site also includes a .285 acre parcel having a land use plan classification of high density residential and a zoning designation of RM-28. There is a 19.262 acre area of submerged land located in Tampa Bay with a zoning designation of Coastal Aquatic Lands, but this area is not being counted for density purposes. The site plan data is based on the numerical and dimensional requirements of the RM-12 zoning district, the more restrictive designation. The applicant is requesting a Transfer of Development Rights from the RM-28 parcel (.285 acres) across the High Density Residential Land Use Plan classification and RM-28 zoning district boundary line, to the adjacent RM-12 property located to the east; the transfer of density rights would add eight dwelling units to this section of the site. The request meets the eligibility standards of Section 42.06(3)(c) and (d). Staff has the following comments: 1) The small size and general location of the transfer property adjacent to existing multi-family development creates a unique condition warranting the requested transfer; and 2) The site design, as proposed in the site plan, warrants the transfer due to the environmental protection afforded by the site design and by the fact that the more restrictive, lower density (RM-12) setbacks and other site development regulations have been utilized in site development. Proposed access to the site is from US19 via a shared ownership arrangement of Seville Boulevard, a private road in which the applicant has partial ownership rights. Staff recommends that as a condition of approval, the first 600 foot (approximately) section of Seville Boulevard shall be reconstructed to meet City standards and that sufficient financial security or other arrangement acceptable to the City Commission be provided by the applicant to insure that the westernmost 600 feet (approximately) of the road is repaired or reconstructed to meet specific City street construction design standards prior to building permit issuance. Staff recommends that this westernmost road section be either public or private, but that the section to the east should remain private. If this western section of the road is to continue to be private, sidewalks will not be required, but if it is to be public, it must be reconstructed to include sidewalks and all necessary right of way or easement dedications. Other properties accessed by Seville Boulevard will have associated ingress/egress easement rights allowing their use of the road. Staff recommends that any site plan approval be conditioned so that the applicant is required to maintain the private portion of Seville Boulevard in such a manner as to insure adequate, safe access for all residents. This can be through a perpetual Maintenance Agreement certified by a Florida licensed engineer. As part of this agreement, the City will obtain the ability to maintain the road and place a lien on the property if there is a default on this responsibility. The applicant has agreed to remove both existing nonconforming residential identification signs located in the westermost median of Seville Boulevard. The applicant wishes to replace a conforming sign in the same median. Regardless of whether the road is to be public or private, staff feels that the signage issue can be resolved, provided that adequate liability insurance is obtained and continued by the applicant. Staff recommends that nonconforming signage should be removed within 30 days of any building permit issuance. With regard to the City's Concurrency Management Ordinance, the City's Traffic Engineer has approved a Traffic Impact Study prepared to address the impact of anticipated trip generation rates. Ed Armstrong, representing ZOM communities, contract purchaser of the property, distributed pictures that are representative of other developments ZOM has constructed. He stated the proposal complies with all regulations of the Land Development Code. He reported the three story buildings are in the plan in order to save trees and open space. He stated Seville Boulevard, being a private road, is in deplorable condition and ZOM is willing to be a solution to that problem. They will bring the street up to City standards and then dedicate the road, from US19 to the mall entrance, to the City. ZOM will be responsible for maintaining the remainder of the private road. He stated the City can have lien authority to assure maintenance. He stated although the opposition to this project may challenge the access to the property, title insurance will be ensuring the project for $2.2 million. They would not be doing so without the proper access. He stated water retention and drainage will also be addressed and they will be taking drainage from properties other than their project. He reiterated that the project fully complies with the code. Commissioner Thomas questioned the length of time the title insurance would be good. Mr. Armstrong indicated ZOM would be named as the insured and a new title insurance policy would be required when and if the property is sold to another. He stated ZOM is acquiring fee simple title. In response to a question from Commissioner Thomas, Mr. Armstrong again indicated ZOM will be giving the west 542 feet of Seville Boulevard to the City. Commissioner Thomas questioned whether they would have a 99 year commitment to maintain Seville Boulevard. Mr. Armstrong indicated they will have an obligation to maintain it in perpetuity. Commissioner Thomas questioned what happened if the property were sold and Mr. Armstrong indicated that the road maintenance will be a covenant that runs with the land and will be assumed with the purchase. Commissioner Thomas questioned if this obligation was being created now. Mr. Armstrong indicated it has been discussed with the City Attorney and they would be willing to accept the perpetual maintenance of Seville as a condition of approval. Commissioner Thomas expressed concerns regarding trees not meant for removal being damaged during the construction and dying subsequently. He indicated King Engineering acknowledged this would happen. Mr. Armstrong stated he was familiar with the discussion and that it is a danger, but the new tree ordinance has detailed provisions for working around trees. He indicated he realized some trees may not make it. Commissioner Fitzgerald expressed concerns regarding liability on the private road. Mr. Armstrong indicated the title insurance would not cover liability however, liability insurance would be obtained by ZOM. Joseph Stanello submitted a petition in opposition to the development and a newsletter from the Trust for Public Lands, an organization that could help acquire the property. He stated he was at a loss to understand how the City could justify purchasing developed properties while letting the last piece of old Clearwater slip away. He stated it should have been designated a preservation site in order to keep this from happening. He expressed concerns regarding Seville Boulevard stating no one had approached him to purchase his share of that road. Avis Kiser, stated they objected to Mr. Albrech's development plan eight years ago and that it was defeated due to the then Traffic Engineer saying the intersection of Seville and US19 should not carry anymore traffic. She requested they keep their quiet atmosphere in Seville. She stated the Commission is responsible to do what is best for the greatest number of people. She stated ZOM is demanding to go through the Seville property but will not allow them on the ZOM property. Roger Meeks stated he had purchased in Seville a year ago because he was impressed by the trees. He stated he felt the property could be accessed in some other manner than Seville Boulevard. He said 40% of the trees would be eaten up by development. Patty Saffey, speaking on behalf of Clearwater Greens, requested that a decision be postponed on this and encouraged studies by Swiftmud and the Estuary Program regarding whether or not the property would be appropriate for water purification and stormwater run-off. She stated this is a once in a lifetime opportunity to preserve this land. Charlotte Perry requested the decision be postponed until the winter residents of Seville come back from their northern locations. Genevieve Shiffman stated they needed protection from these strangers and stated they will be creating traffic on Seville, cutting trees and blocking their access to the Bay. She stated this was an unique piece of land that deserved to be preserved. Robert Clarke expressed concerns regarding the water system not being adequate to serve the development. Marsha Daniels, a member of the Sierra Club, stated she had begun to contact State and Federal agencies on how this property had slipped through the preservation effort. She stated no one was aware of the property. She stated outside funding is available for its acquisition. She reported seeing a bald eagle roosting in a tree at the edge of the property and stated that the wildlife on the property is incredible. She was pleased to hear that the stormwater issue with Clearwater Mall has been solved and questioned whether or not all answers were available regarding Seville Boulevard ownership. Commissioner Berfield questioned the bald eagle being on the property and Ms. Daniels indicated she is not saying that a nest is there, but she has seen an eagle roost there. Bob Meenan stated he is favor of the development if all code requirements are met. He stated there are as many that favor the development as those that do not. He was pleased with the promise to pave and perpetually maintain Seville Boulevard however he expressed dissatisfaction with buses continuing to use this street. He requested that Seville be allowed to have a sign at the US19 entrance and he would like it to be indicated that Seville is not rental. He is opposed to opening up the property to the public as there are currently unwanted visitors in that area. Commissioner Thomas indicated that the bus issue could be resolved if Gayfers would cooperate. Mary Lou Dobbs indicated she was a 16 year resident of Seville and expressed concern that all of a sudden there are indian artifacts and endangered wildlife on the property. She stated the opposition, eight years ago, was in regard to density, not that there would be development on the property. She stated at that time the Commission made the decision to set the density at 10 units per acre. She stated ZOM is doing a pretty good job at building at less density than the rest of Seville. She stated there has been misleading or incomplete information reporting that there are nine separate buildings in the Seville Condominium complex and that the newspapers have only quoted the resident manager of one. She stated if the Commission agrees that the owner of the property has the right to develop it, ZOM will do as good a job as any. She stated ZOM has worked with 8 of the 9 buildings and they are listening and talking to the Seville residents. She stated that when she first moved there, she knew this property would eventually be developed. Tim Kerwin, representing AEL partnership, the sellers of the property, stated that the ZOM development is the best site plan they have seen since the property was placed on the market. In order to protect rights in the road, Ms. Laursen, a current owner, purchased the fee simple interest for the road from a bankruptcy court. He stated this does not prohibit access by the Seville residents but ZOM can restore and maintain the Boulevard. He reviewed the history of the ownership of the property. He stated there have been four contracts for purchase of this property since 1990 and all have failed. He stated ZOM's intention is to develop units at a cost of $65,000 per unit with a monthly rental rate being approximately $1,000. He stated they will invest $23 million in the project. John Residence stated there would be alot of devastation in this development and requested that they be required to replace the trees somewhere in Clearwater. Mayor Garvey clarified that the tree ordinance does require some replacement of removed trees. Patricia Peters stated she is trying to protect the residents of Seville and should the Commission decide to approve this, that they inform ZOM of its liabilities regarding the maintenance of Seville. She stated others who have an ownership interest in that road will have some liability and she requested ZOM provide a hold harmless and indemnification for Seville residents with some interest in the road. She stated there was something wrong when ZOM can shut Seville residents from their property but Seville must allow them through their property. Eleanor Robert spoke in opposition to the development questioning how Seville Boulevard can handle additional cars. She stated if this is approved, she will have to dispose of her apartment as there will be too much dirt. Commissioner Thomas requested the State Forester be allowed to speak. Greg Barton, the state forester assigned to Pinellas, indicated he was not speaking in opposition or support of the development but was merely presenting his opinion regarding the trees on the property. Commissioner Thomas questioned Mr. Barton regarding when trees are removed, how many more will be damaged or killed. Mr. Barton indicated that any time there is a development, construction will do damage to trees and there are times where five or ten years after the development, a tree will decline due to damage caused during the construction. Commissioner Thomas questioned if there was a way to identify a construction path to prevent this damage. Mr. Barton indicated there could be construction constraints. Commissioner Thomas questioned if there was strict enforcement of the City's new tree ordinance, was it possible not to damage other trees and Mr. Barton indicated this was probably not possible. Mayor Garvey questioned if he was saying that no development should occur and Mr. Barton indicated he was not saying that but there is always some level of damage caused by construction. He suggested if the plan were approved, staff have certain authority to make suggestions regarding how to protect trees. Commissioner Deegan questioned if Mr. Barton had some general comments about the site. Mr. Barton said it is not a pristine site but more of a disturbed site. He stated that hickory trees on the property are important. He stated its greatest value is that it is undeveloped. There are some significant trees on the property, however, most of the trees are ordinary. Edna Marshall, a realtor associate in Clearwater, expressed concerns regarding how residents of the Seville complex would be able to access the recreation facility which is on the other side of Seville Boulevard. Mr. Armstrong stated there would be an agreement with a time frame regarding improvement of the roadway. The Planning Director indicated the maintenance agreement would be worked out. Mr. Armstrong indicated there is no evidence the applicant does not meet the Land Development Code. He stated they have worked in great diligence with the city forester to protect the trees. He stated a traffic impact study has been submitted and they will be paying $350,000 in traffic impact fees. He stated there is no need to delay the decision. He stated if the City wants to bring the property into public ownership, it should exercise its eminent domain authority. Commissioner Deegan questioned a word in a memorandum from Swiftmud, page 3, paragraph 9a, and whether or not this was the "mail" area instead of the "mall" area. Gary Singleton, representing King Engineering stated it is referred to as the mail area and they will reroute the water from that area to a retention pond. Commissioner Deegan questioned if they complied with all the regulations, would they be adding 50% of the retention area above and beyond their property. Mr. Singleton indicated that a portion of Seville property sheet flows onto their property and they have agreed to capture and treat that water. Mayor Garvey expressed an opinion that the developers were going over and above requirements. She emphasized the property is privately owned and therefore they do have development rights. Commissioner Thomas questioned whether or not there would be any drainage into the bay. Mr. Singleton indicated there would be discharge to the bay after treatment. Commissioner Berfield questioned Mr. Armstrong regarding the Seville ownership issue and asked if he could state that the title is clear. Mr. Armstrong indicated there are two owners of the underlying fee title to the road, there are countless easement rights and lease hold interest in the property and those will not be disturbed. ZOM is in the position to take both 50% interests in the road to have a 100% fee title interest in the road. Commissioner Thomas stated that the road issue is being worked out in part by turning part of the road back to the City. He stated there will be no control over the middle portion of the road. Mr. Armstrong explained in greater detail regarding the ownership of the roadway stating a corporation owns an undivided 50% interest in the roadway. Mr. Gray and Mr. O'Connor control the other 50% They have contracted to sell their interest to the corporation and then the 100% interest in the roadway will be sold to ZOM. Commissioner Thomas questioned whether or not it was the plan to turn the rest of the road over to the City. Mr. Armstrong indicated that city staff has no interest in having the back portion of the road under city authority but there will be lien rights for the City to make sure that the maintenance obligation is met. Commissioner Berfield stated her understanding of the proposal is that the first approximately 500 feet of Seville Boulevard will be brought up to City standards and turned over to the City but the balance will be repaved to meet the traffic demands and will be maintained in perpetuity and the road will always be kept in decent condition. Mr. Armstrong indicated this is precisely what is proposed. Commissioner Thomas questioned the statement made earlier regarding trees having to be replaced. Alan Mayberry, the City's Urban Forester, stated the code will allow removal of up to 25% of warranted trees. Additional removal will require replacement and it is based on diameter inches, not number of trees. If they can not replace the trees on site, there is a payment into the tree bank. Commissioner Thomas questioned Mr. Mayberry regarding if they follow the tree ordinance, would more trees die. Mr. Mayberry indicated that trees will be impacted in various manners and some will have to be trimmed. He indicated however there are some trees that have a gracious amount of space and should not be impacted. He stated even with state or the art techniques, some trees will have great root loss due to the construction and some will not recover. He stated this is a difficult to assess at this point. Commissioner Thomas questioned what was the best that could be expected. Mr. Mayberry indicated that once they get to the construction phase, that city staff would spend time with individual trees. He indicated the developers have committed to hire a certified arborist. He stated at the construction phase, they will fine tune the trees that need greater protection. He stated the large majority of trees to be preserved will likely survive. Commissioner Thomas questioned the reference to the old growth hickory trees which are rare. He questioned the percentage of the number of trees. Mr. Mayberry indicated he could not tell the number as they have analyzed them based on diameter inches. He stated most of the large ones are located on the bluff and it is their number one priority to protect those. He stated a few will have to be removed. Commissioner Thomas questioned the City Attorney regarding the consequences if the Commission denied approval when the developer had followed all the rules. The City Attorney indicated it will be difficult to defend a no vote however, reasonable conditions could be applied to the approval. In response to a question by Commissioner Thomas, Mr. Armstrong indicated the purchase price of the property was in the neighborhood of $2 million but there would also be greater exposures for a no vote. To clarify his comment, Mr. Armstrong indicated there would also be potential damages from Phase II denial if Phase I is denied. Commissioner Thomas questioned the traffic vehicle count. Mr. Polatty indicated that traffic studies have been submitted to the Traffic Engineer and as far as he knew there were no concerns regarding traffic. Commissioner Deegan questioned the transfer of development rights. Mr. Polatty indicated there was a small area zoned RM-28 from which they transferred 8 units to the RM-12 portion of the site. Commissioner Fitzgerald moved to make a finding of fact that the requested Transfer of Development Rights is acceptable due to unique site conditions and the small scale of the transfer, approve the requested Transfer of Development Rights, and approve for certification the final site plan subject to the conditions of the Development Review Committee (DRC), resolution of the improvement issues involving the westernmost 600 feet (approximately) of Seville Boulevard prior to issuance of any Phase I or Phase II building permits, execution of a perpetual Maintenance Agreement for the remainder of Seville Boulevard to provide adequate, safe access for all residents consistent with standards established by the Public Works Director, and removal of the nonconforming signage in Seville Boulevard within 30 days of any building permit issuance. The motion was duly seconded and carried unanimously. The meeting recessed from 10:07 p.m. to 10:18 p.m. ITEM #23 - Preliminary Site Plan for Bayside Arbors, Phase II located E & N of the Japanese Gardens Mobile Home Park (AEL Partnership) Phase II of the Bayside Arbors residential development is located east and north of the Japanese Gardens Mobile Home Park development. Phase II consists of 136 apartment units constructed on 18.175 acres of upland property zoned RM-12. Of this 18.175 acres, 11.635 acres is restricted to a maximum density of 10 units per acre. Regardless, the development is proposed to be constructed at a density of approximately 7.5 units per acre, considerably less than the allowable density. The Commission required Bayside Arbors, Phase I to conform to the requirements of the revised Tree Protection Ordinance which is proposed for adoption on second reading. Phase II will likewise conform to these requirements. Preliminary review of the site plan indicates the applicant has done a good job avoiding most trees on the site. A traffic impact study has been submitted and is under review by the Traffic Engineer. The site data table needs to be revised to reflect the 50 foot required setback from Tampa Bay. There is no transfer of development rights issue for the Phase II project, so the Commission may refer the plan to the DRC for final approval. Commissioner Thomas questioned the impact on the neighboring property. The City Manager indicated they would be protected by set back and other Land Development Code requirements but they could not be protected from all impacts. Commissioner Deegan moved to receive the preliminary site plan for Bayside Arbors, Phase II, and authorize the DRC to approve a final site plan subject to the following preliminary conditions: 1) Signs and fencing/walls are subject to separate review and permitting processes; 2) The requisite building permits must be procured within 1 year from the date of certification of the final site plan and all requisite certificates of occupancy must be obtained within 3 years of the date of certification of the site plan; 3) A Unity of Title shall be recorded prior to certification of the site plan; 4) Prior to certification, the Dumpster Requirement Form must be completed and returned to the City Sanitation Department; 5) Prior to certification, a copy of the SWFWMD permit application is to be provided to Engineering Site Plan Review; 6) Prior to the issuance of a building permit, a copy of the approved SWFWMD permit is to be provided to Engineering Site Plan Review; 7) Prior to certification, the final site plan must be signed and sealed by a Professional Engineer registered in the State of Florida; 8) Handicap spaces must be adjusted to meet government standards; 9) Prior to certification, all required perimeter landscape buffers shall be delineated by shading and/or cross-hatching in accordance with the current code requirement; and 10) Prior to Environmental approval of the final site plan, applicant shall express total paved vehicular use area calculations and total interior landscape area calculations in square feet and as a percentage of the overall site in the site plan data block. The motion was duly seconded and carried unanimously. ITEM #24 - Other Pending Matters a) (Cont. from 8/30/93) C.O.#2 and Final to Elevated Storage Tank Rehabilitation Project to Damon Construction, Inc., Tarpon Springs, FL, increasing scope of work & value of contract by $6,982.40 for a new total of $405,266.40 (PW) The City Manager requested this item be continued in order to respond to questions raised at the August 30, 1993 meeting. Commissioner Berfield moved to continue this item to the scheduled meeting of September 16, 1993. The motion was duly seconded and carried unanimously. CITY ATTORNEY REPORTS First Reading Ordinances ITEM #25 - Ord. #5455-93 - amending Sec. 47.051 to adopt the 1992 edition of the National Fuel Gas Code, the 1992 edition of The Standard for the Storage and Handling of Liquified Petroleum Gases and the 1993 edition of The National Electrical Code The City Attorney presented Ordinance #5455-93 for first reading and read it by title only. Commissioner Fitzgerald moved to pass Ordinance #5455-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #26 - Ord. #5470-93 - Amending Sec. 2.04, City Charter, to allow establishment of salaries for the Commission effective 1/1/94; providing for a special election to be held on 11/2/93, in order to submit the charter amendment to the voters Commissioner Berfield expressed concerns that the way in which the ballot is worded leads people to believe they are approving the increase rather than just the earlier effective date. The City Attorney recommended that the ballot question be amended to include after the words January 1, 1994, "rather than April 6, 1995". Consensus was to do so. Laura Dunn Kaye stated she has lived in Clearwater for 35 years and has seen changes not for the better. She stated the City is dying on its feet. She stated there needs to be something other than bickering among the officials and there is nothing for which young people to come here. She felt the citizens should have some say regarding the amount of increase. Commissioner Berfield stated the citizens could request that the Charter Review Committee (CRC) consider this and the CRC would be appointed in January. Ms. Kaye indicated she could understand the need for a raise, however, she was concerned regarding the enormous amount. She stated she is trying to understand the decision. She questioned acres being available for City Hall and the decision to build it on the current site for a more expensive amount. She questioned what has happened to horse sense. The City Attorney presented Ordinance #5470-93 for first reading and read it by title only. Commissioner Berfield moved to pass Ordinance #5470-93 on first reading. The motion was duly seconded. Commissioner Thomas stated he wished to express his support for putting the issue on the ballot is for the public to endorse or reject the idea of the increase. Upon roll call, the vote was: "Ayes": Berfield, Deegan, Thomas and Garvey. "Nays": Fitzgerald. Motion carried. ITEM #27 - Ord. #5471-93 - Amending Sec. 2.263(1), Code of Ordinances, to increase the annual salaries for the Commission to $25,000 for each Commissioner and $30,000 for the Mayor The City Attorney presented Ordinance #5471-93 for first reading and read it by title only. The Mayor indicated that people speaking to her felt there should be more of a differential between the Mayor's salary and the Commission's salary. She proposed $20,000 for the Commission and $30,000 for the Mayor. Commissioner Deegan indicated his recommendation was based on maintaining the same ratio and increasing both salaries 2 1/2 times their current amount. He stated that in three or four of the other cities surveyed, the Commissioners and the Mayor got the same amount. Commissioner Thomas indicated that a 20% differential between the two salaries has been maintained. Commissioner Deegan moved to pass Ordinance #5471-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Berfield, Deegan and Thomas. "Nays": Fitzgerald and Garvey. Motion carried. Resolutions ITEM #28 - Res. #93-53 - Assessing owners of property the costs of having owners' lots mowed or cleared The City Attorney presented Resolution #93-53 and read it by title only. Commissioner Thomas moved to pass and adopt Resolution #93-53 and authorize the appropriate officials to execute same. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #29 - Other City Attorney Items a) Authorization to hire outside counsel re: Crouch v. City The City Attorney is requesting authorization to employ James B. Thompson as outside counsel in the case of Crouch v. City of Clearwater, Robert P. Milliron and Sid Klein. Mr. Thompson would represent the City and Chief Klein. This is a civil rights case alleging unlawful deadly force and other claims as a result of a shooting by Officer Milliron of John Crouch on August 16, 1991. The recommendation for outside counsel is based upon the fact that the defense of the case is going to create an extraordinary demand of the time of any attorney defending the lawsuit. Moreover, the city's exposure of liability is substantial. At this time no conflict of interest is seen between the City and Chief Klein. Assistant City Attorney Rob Surette is familiar with Mr. Thompson's expertise in handling federal civil rights actions and highly recommends him. Commissioner Berfield moved to authorize the hiring of James B. Thompson as outside counsel in the case of Crouch v. the City of Clearwater, Robert P. Milliron and Sid Klein. The motion was duly seconded. Commissioner Deegan expressed concern that in looking at the resume of the firm, the cases handled mostly dealt with insurance claims and there was no civil rights experience. The City Attorney indicated that Mr. Surette recommends this attorney and has indicated that he has done civil rights type cases. Commissioner Thomas stated he has checked out Mr. Thompson's credentials and finds him to be outstanding. Commissioner Deegan again questioned what types of cases Mr. Thompson had handled. The City Attorney indicated he could provide more details on Friday. Commissioner Thomas questioned whether or not Chief Klein was satisfied. It was indicated he was. Commissioner Deegan questioned the recommendation for outside counsel being due to extraordinary amounts of time required and the City Attorney indicated this case would require more time than Mr. Surette has available. Commissioner Deegan indicated the City Attorney had indicated this case would be coming up in this year and had estimated $50,000 for outside counsel. He questioned on what time that was based. The City Attorney indicated that Mr. Thompson's billing rate was low and felt that it had been attached to the item and was embarrassed that it was not. Commissioner Deegan questioned how soon Mr. Thompson would start and the City Attorney indicated he would begin tomorrow. Upon the vote being taken; Commissioners Fitzgerald, Berfield, Thomas and Mayor Garvey voted "Aye", Commissioner Deegan voted "Nay". Motion carried. ITEM #30 - City Manager Verbal Reports - None. ITEM #31 - Commission Discussion Items a) Purchase proposal by Jim Davis re: 512-530 Cleveland Street Mr. Davis has submitted an appraisal to see if the City would be interested in purchasing property located at 512-530 Cleveland Street. The City Manager indicated this property is immediately west of the blood bank property and questioned if the Commission was interested or if they wished to be passed on to the CRA. Commissioner Thomas indicated that the focus of the CRA was to help in redeveloping downtown and felt they should focus on the program proposed by Judy Hackett and a Main Street project. He did not support buying the property but supported rehabilitation in other downtown redevelopment efforts. Mayor Garvey questioned whether or not it was something that should be given to the CRA. The City Manager indicated this was a half acre of land with no parking. Commissioner Deegan indicated this property had been allowed to be used for an art colony and the owner has attempted to be cooperative, however, he would not want to get involved in purchase of this type of property at this time. Commissioner Fitzgerald agreed with Commissioner Thomas but felt that the information might be of interest to the new CRA Executive Director and requested that a copy be made available to that individual. The City Manager indicated he had spoken to the head of the Osteopathic College and explained to him the situation regarding the Maas Brothers Building and the annex site. He stated he has tentatively set discussion regarding this item for September 16, 1993. Commissioner Berfield questioned whether or not they were interested in any other site. Commissioner Thomas said he would also like the Maas Brothers item regarding the Haralson report agendaed for next meeting. He felt this was a valuable alternative point of view. It was the consensus to schedule these items together. Commissioner Deegan questioned the entry in the letter from the Osteopathic College indicating interest in properties of 50,000 square feet or more. The City Manager indicated that in speaking to Dr. Webster he had been told the annex property was too small. Mayor Garvey indicated that when she talked to Dr. Webster, he had indicated interest only in the Maas site. Commissioner Thomas requested a Dunn & Bradstreet report and some research on the individual. The City Manager indicated that he understood financial arrangements would be through education bonds and Commissioner Berfield indicated the information from him included his proposal. Commissioner Deegan questioned the need for additional information in that in the proposal he had indicated what was planned. The Commission requested a letter be drafted to SWFWMD opposing the tax increment financing. Two versions had been presented, a long and a short version. Consensus was to go with the long version. ITEM #32 - Other Commission Action a) (Cont. from 8/30/93) Hildebrandt Inc. - Letter of Agreement The City Manager indicated he has faxed the objectives contained in the Fogarty report to the Hildebrandt people and is awaiting information from them regarding if they can do this and what the new price would be. This will be discussed at the next Commission meeting. b) Request for an Attorney General Opinion re: process used in purchasing Sun Bank (Atrium) Building Commissioner Thomas has requested approval from the Commission to submit a request for an Attorney General opinion regarding the process used to acquire the Sun Bank (Atrium) Building. Mayor Garvey stated she would not vote for this as there are points in the letter with which she disagrees and that some points are not completely accurate. Commissioner Thomas stated his only purpose is to determine if the process was right or wrong and if wrong, what should be followed in the future. Commissioner Berfield moved to send the request for the Attorney General opinion in the name of the City Commission. The motion was duly seconded. Commissioner Fitzgerald read into the record a letter stating that after review of the request, it does not meet the standard purpose for an Attorney General opinion. He stated an Attorney General opinion is not binding and is not a substitute for the advise and council of the City's legal representative. He stated it should not be used to settle political disputes. He stated these are questions relating to the power of the board and must be requested by the majority of the members. He stated a memorandum of law is to accompany the request and he questioned since the City Attorney is the legal counsel for the City, did he write the request. The City Attorney indicated he had not. Commissioner Fitzgerald questioned who had prepared the request. Commissioner Thomas indicated an attorney that works for him had done so. Commissioner Fitzgerald questioned which attorney and Commissioner Thomas indicated it was attorney Hooker of the firm of Glen, Rasmussen & Fogarty. Commissioner Fitzgerald questioned who paid for the request and Commissioner Thomas indicated that he had. Commissioner Berfield expressed her opinion that it does ask for an opinion of law of the Florida Statutes. Commissioner Fitzgerald indicated he would stand on what he had said for the record. He stated if the Commission approves this, they will be allowing other counsel to act as counsel for the City. Commissioner Berfield stated she felt it would be difficult for the City Attorney to make the request. Commissioner Fitzgerald stated that an outside person might conclude that he had requested it. Commissioner Berfield stated it could be put in the letter that the City Attorney was not making the request. Commissioner Fitzgerald indicated he had a problem with the whole issue. Mayor Garvey felt that Commissioner Fitzgerald had made some good points. Upon the vote being taken; Commissioners Berfield, Deegan and Thomas voted "Aye", Commissioner Fitzgerald and Mayor Garvey voted "Nay". Motion carried. Commissioner Deegan referenced a memorandum from the City Attorney regarding the Sunshine Law and an attached letter from an Attorney General Opinion regarding negotiations and that it was not a violation for a City Commissioner to meet with a contractor if just fact finding. He asked for an interpretation that if the board were trying to hire someone, could one member simply find out what it would take to hire and bring back that information to the group but with no decision making. The City Attorney indicated this would be allowed. Commissioner Deegan questioned whether or not he should be allowed to communicate with the person they are trying to hire as Executive Director of the CRA. The City Attorney indicated it would depend on the authority given by the remainder of the Commission. Commissioner Deegan stated it was a question of the terminology of "negotiate" or "working out an agreement". He questioned whether it would be allowed as long as they were continuing the exchange in order to gather information. The City Attorney indicated this would be okay. Commissioner Deegan indicated that if this was the case, he would follow this course in contacting the next candidate for the CRA Executive Director. The City Attorney reiterated it had a great deal to do with the authority and interaction between the candidate and the Commissioner. He stated if the person simply presents a proposal and the delegated Commissioner brings that back, that is no problem. He stated however if the delegated Commissioner makes a counter proposal then they have then started the decision making process. Commissioner Deegan questioned this saying he was not rejecting or approving the provisions. He stated there would have to be some engagement in conversation. The City Attorney indicated once you start the process of negotiation, you are walking a thin line regarding the Sunshine Law. Commissioner Thomas questioned whether or not the decision making process required the entire body not an individual. He stated if the City Attorney maintained his interpretation, he recommended asking for an Attorney General opinion. Mayor Garvey stated that if in the conversation, the delegated Commissioner says yes or no that you were then into a decision making process. Commissioner Thomas felt this was simply creating an outline. Commissioner Deegan indicated in the letter from the Attorney General that if in the negotiation there was acceptance or rejection, this was not okay but just finding out terms was acceptable. The City Attorney referenced a West Palm Beach question where decision making began. If a single member is delegated the authority the Sunshine Law applies. Commissioner Deegan requested the City Attorney prepare a letter to the Attorney General asking the question of law. The City Attorney indicated the Attorney General will first ask what authority has been given by the rest of the Commission. Commissioner Deegan requested the language in the Attorney General letter "terms agreeable to both parties" be used in making the request. The City Attorney indicated he would work up a draft of the request and bring it back for approval. Commissioner Deegan indicated he would continue in the current procedure in negotiating with the CRA Executive Director. Commissioner Deegan questioned a concern regarding city employees picking up cigarette butts, etc. on downtown streets and the indication from the City Manager that this should be discussed in connection with the CRA budget. This will be followed up at the next CRA meeting. Commissioner Deegan referenced a memo from the City Attorney regarding his goals for 1993/94. He congratulated the attorney on his mission statement but stated he had some problems with some of the goals. He questioned in the goal for providing timely opinions, how the attorney would establish what is appropriate. The City Attorney indicated he would establish base line data based on current cases and the amount of time it takes to turn those around and then come up with the appropriate goal. Commissioner Deegan stated this was good. Commissioner Deegan questioned goal #5 regarding a 100% success rate in defense of the City. He was concerned there was no room for failure. The City Attorney indicated he would not want a goal that was less than 100% and his goal is always to win or settle the case although he would not be surprised if he did not meet that goal. Commissioner Deegan expressed concerns regarding establishing a goal that is not expected to be met. Commissioner Deegan referenced goal #6, to reduce by 10% claims resulting from police activities. The City Attorney indicated this was to reduce claims where there was financial liability. Commissioner Deegan again emphasized that goals should be something that can be achieved. Commissioner Deegan questioned the possibility of establishing a goal regarding some of the big items currently in progress. The City Attorney indicated he could do that and emphasized this was step one of a process he was unfamiliar with. Commissioner Deegan agreed that this was a learning experience. He referenced a situation in which the County Appraiser had a meeting regarding the recent expectation of the City to pay taxes on certain city-owned property. He stated three months ago this meeting was called and no one from the City Attorney's Office went. The City Attorney indicated there was one attempt to contact him by telephone and he was unable to attend that particular day. He stated he essentially had no notice. Commissioner Deegan expressed concern that there was no attempt to find out the results of that meeting and it appeared there was no desire to find out what was going on. The City Attorney indicated he had talked to an assistant attorney of the County. Commissioner Deegan stated his concern was the rest of the staff was totally unaware of a problem coming down the road and felt the City Attorney should have notified them. Commissioner Thomas indicated there were two sides of the law; prevention and cure. He stated prevention needs to be done by teaching staff how to keep problems from occurring. He stated the cure is litigation and he felt it was the Commission's responsibility to give the resources needed in order to litigate appropriately. He stated the City was always going to lose something. Commissioner Berfield stated she had copies of the tapes of the Downtown Development Board meeting if anyone wished to listen to them. She expressed concerns regarding the sound system stating she is again getting complaints regarding the quality of sound coming across Vision Cable and that is being recorded. The City Clerk explained the problem with the microphone stating that when people are not close enough or turn away from the microphones, they do tend to shut off. Commissioner Thomas stated the City would need to have two sets of microphones and asked the Clerk to investigate. Mayor Garvey expressed concerns that if a new City Hall was being built that she did not wish to spend a great deal of money to address this. Commissioner Fitzgerald reported on the Mayor's Council meeting and provided information to Commissioner Deegan regarding the "Stand down Tampa Bay" program which was an effort to assist homeless veterans in the area. He also stated that at the Mayor's Council, the Mayor of Bradenton and a representative of SWFWMD attended the Mayor's Council and based on their presentations he stated his opinion to oppose the increase in the SWFWMD was not altered. He also reported that the Tampa Bay National Estuary Program has mini-grants and questioned whether or not the City would apply. The Mayor indicated she felt Tom Miller, Assistant Public Works Director for Environmental was probably already working on it. Commissioner Thomas reported he sent a letter to Attorney Galbraith requesting an opinion regarding public records and electronic records. He stated they are requiring that we maintain anything on computer disks and the court recognized them as public records. The City Clerk indicated that electronic media is public record but that her statement in a previous meeting was they could not be considered the permanent record. Commissioner Thomas expressed concerns regarding a complaint from an individual who indicated he had a permit for a sign and that city staff was still telling him that he was in nonconformance with the code. The City Manager will report. Commissioner Thomas expressed concerns regarding the school board not adhering to the city's tree ordinance in that they had removed a number of trees at Plumb School. He asked the City Manager to thoroughly investigate this. He expressed concerns that everyone has to abide by the law except the school board and he felt they should be "called on the carpet" or the law should be changed that exempts them from complying with local ordinances. The City Manager indicated before he engaged in a lengthy investigation, he would first determine whether or not the City has jurisdiction. The City Attorney indicated he has started researching the state law and that while it started out simply to exempt schools from meeting local codes when they had state standards, the law has been amended several times and has become fuzzy. The City Manager indicated he would gather all the facts. Commissioner Thomas questioned when the Commission Rules would be discussed. The City Clerk indicated this has been scheduled for October 4th. Commissioner Thomas suggested everyone listen to the tapes of the DDB meeting. He stated the majority of the board did not support a mutual effort of having a responsibility assigned to it. He stated they are staunchly independent and believe they have a right to do what they want to do. He stated they have agreed to spend $20,000 to support not building city hall on the current property and they want to promote city hall being in the Sun Bank Building. He stated they endorsed Mr. Leiter's letter. He suggested all Commissioners listen to the tapes and make their own opinion of what occurred. He stated this is not an organization interested in working with the CRA and he did not like it at all. Mayor Garvey reported that in the mail packet, there is information regarding the National League of Cities Conference, which will be held in Orlando, and stated the Florida League of Cities is encouraging all City Commissioners to attend. Commissioner Berfield questioned a letter from Donnell in reference to the new city hall possibly going below the 28 foot line and requiring a referendum. Kathy Rice, Deputy City Manager, indicated a total topographical of the property needs to be done. Commissioner Berfield questioned whether or not this could be placed on the November 2 ballot. The City Clerk indicated there was not enough time to do the necessary advertising for the adoption of the ordinance. ITEM #33 - Adjournment The meeting adjourned at 12:01 a.m. (9/3/93)