Board of County Commissioners Meeting Agenda 06/23/09
BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA
C O M M I S S I O N A G E N D A
TUESDAY, JUNE 23, 2009 - 9:00 A.M.
County Commission Chamber Indian River County Administration Complex 1801 27th Street, Building A Vero Beach, Florida, 32960-3388 www.ircgov.com
COUNTY COMMISSIONERS
Wesley S. Davis, Chairman District 1 Joseph A. Baird, County Administrator Joseph E. Flescher, Vice Chairman District 2 William G. Collins II, County Attorney Gary C. Wheeler District 3 Jeffrey K. Barton, Clerk to the Board Peter D. O’Bryan District 4 Bob Solari District 5
1. CALL TO ORDER 9:00 A.M. PAGE
2. INVOCATION Rabbi Michael Birnholz, Temple Beth Shalom
3. PLEDGE OF ALLEGIANCE Commissioner Peter D. O’Bryan
4. ADDITIONS/DELETIONS TO THE AGENDA / EMERGENCY ITEMS
5. PROCLAMATIONS and PRESENTATIONS Presentation of Proclamation Honoring Sebastian Police Chief Jim Davis on A. His Retirement Effective June 24, 2009 1
Presentation of Youth Guidance Mentoring & Activities Program by Barbara B. Schlitt Ford, Executive Director
C. Presentation of Status of Storm Preparedness in the Upper St. Johns River by Maurice Sterling, Director of Project Management, St. Johns River Water Management District
June 23, 2009 Page 1 of 7
5. PROCLAMATIONS and PRESENTATIONS PAGE Presentation of Hurricane Preparedness by John King, Director of Indian D. River County Emergency Services
6. APPROVAL OF MINUTES A. Regular Meeting of June 2, 2009
7. INFORMATIONAL ITEMS FROM STAFF OR COMMISSIONERS NOT REQUIRING BOARD ACTION
A. Resignation of Interested in Tourist Development Appointee to the Tourist Development Council (memorandum dated June 17, 2009) 2-3
B. Resignation of Resident of the Enterprise Zone Appointee to the Enterprise Zone Development Agency (memorandum dated June 15, 2009) 4-5
8. CONSENT AGENDA A. Approval of Warrants and Wires June 5, 2009 thru June 11, 2009 (memorandum dated June 11, 2009) 6-13
B. Approval to Authorize Direct Purchase of Sod and Fumigation Services in Conjunction with the Renovation and Re-grassing of Greens at Sand Ridge Golf Course (memorandum dated June 15, 2009) 14-27
C. Miscellaneous Budget Amendment 015 (memorandum dated June 17, 2009) 28-30
rd th D. Oslo Road Widening from 43 Avenue to east of 27 Avenue, Phase 2, Engineering Services, Kimley-Horn and Associates, Inc. Amendment No. 3 (memorandum dated June 15, 2009) 31-44
E. F.D.O.T. Local Agency Program (LAP) Agreement – FPN No. 426383-1- 58-01 and Resolution Authorizing the Chairman’s Signature, Landscaping on 58th Avenue from Oslo Road (9th Street S.W.) to 16th Street, IRC Project No. 0916 (memorandum dated June 16, 2009) 45-70
F. Amendment No. 3 to Professional Architectural and Engineering Services Agreement with Edlund, Dritenbas, Binkley Architects and Associates, P.A. – IRC Project No. 0701, IRC Parks Maintenance Complex (memorandum dated June 9, 2009) 71-75
June 23, 2009 Page 2 of 7 8. CONSENT AGENDA PAGE
G. Supplement No. 3 to Work Order No. 1 with Carter Associates, Inc. Professional Civil Engineering Services Agreement, Indian River County Parks Maintenance Complex, IRC Project No. 0701 (memorandum dated June 10, 2009) 76-83
H. Acceptance of Change Order #1 to Phase I Energy Performance Contract with FPL Energy Services and Revised Energy Savings Guarantee (memorandum dated June 15, 2009) 84-108
th th I. Right-of-Way Acquisition, 66 Avenue Project # 0370, 6630 49 Street, Vero Beach, Fl 32967 (Located on the north side of 49th Street west of 66th Avenue), Owner: Richard L. Gallagher, Jr. (memorandum dated June 15, 2009) 109-121
J. Miscellaneous Budget Amendment 016 (memorandum dated June 17, 2009) 122-124
K. Request Permission to Advertise for a Public Hearing to amend sections 305.13 and 305.14 of The Code (memorandum dated June 17, 2009) 125-126
L. Permission to Advertise for Public Hearing on July 14, 2009, to adopt Ordinance to amend Chapter 105 of The Code to implement Local Bidding Preference (memorandum dated June 17, 2009) 127
9. CONSTITUTIONAL OFFICERS and GOVERNMENTAL AGENCIES
A. Deryl Loar, Indian River County Sheriff U.S. Department of Justice, Bureau of Justice Assistance Bulletproof Vest Partnership Program Grant Application (letter dated June 8, 2009) 128-131
10. PUBLIC ITEMS
A. PUBLIC HEARINGS
1. William Gregory Construction Inc’s Request to Amend the Future Land Use Map to Redesignate ±.32 Acres, Located at the Northwest Corner of Indian River Boulevard and 37th Street, From M-1, Medium-Density Residential-1 (up to 8 units/acre), to C/I,
Commercial Industrial District; and to Rezone that ±.32 Acres From Rm-8, Multiple-Family Residentail-1 District (up to 8 units/acre), to OCR, Office, Commercial, Residential District (memorandum dated June 2, 2009) 132-166 Legislative
June 23, 2009 Page 3 of 7 10. PUBLIC ITEMS PAGE
A. PUBLIC HEARINGS
2. Proposed Ordinance Amending Section 207.05 of the Indian River County Code to Change the Beginning Sale Date of Business Tax
Receipts from August 1 to July 1 of Each Year (memorandum dated June 3, 2009) 167-171 Legislative
B. PUBLIC DISCUSSION ITEMS
Please give your name and address, and then give your remarks. Please try to limit your remarks to three minutes. Request to Speak from Mark C. Foster, Foster I.R.C., LLC 1. Regarding Huntington Place Lot Fill 172
C. PUBLIC NOTICE ITEMS None
11. COUNTY ADMINISTRATOR MATTERS
A. Dollars for Scholars Request for Use of Equipment (memorandum dated June 15, 2009 173-174
12. DEPARTMENTAL MATTERS
A. Community Development 1. Consideration of PSAC’s (Professional Services Advisory Committee) Recommendation to Amend the Land Development Regulations (LDRs) to Provide for Permanent Exceptions to the LDRs for Individual Development Projects (memorandum dated June 12, 2009) 175-217
B. Emergency Services None
C. General Services None
D. Human Resources None
June 23, 2009 Page 4 of 7
12. DEPARTMENTAL MATTERS PAGE
E. Human Services None
F. Leisure Services None
G. Office of Management and Budget None
H. Recreation None
I. Public Works None
J. Utilities Services None
13. COUNTY ATTORNEY MATTERS
A. Extension to Contract for Lot Fill relating to Huntington Place Subdivision (memorandum dated June 16, 2009) 218-227
B. Florida Association of Counties’ Inquiry of Interest in Joining Suit to Challenge House Bill 227 – Impact Fees (memorandum dated June 16, 2009) 228-234
C. Florida Association of Counties’ Inquiry of Interest in Joining Suit to Challenge Senate Bill 216 – Local Government Campaign Finance (memorandum dated June 16, 2009) 235-241
th D. Acquisition of Right-of-Way and Property Exchange Along 66 Avenue, Parcel 107, Glen C. Besancon, 6725 66th Avenue (memorandum dated June 17, 2009) 242-263
June 23, 2009 Page 5 of 7
14. COMMISSIONERS ITEMS PAGE
A. Commissioner Wesley S. Davis, Chairman 1. Consideration of Submitted Applications for the Citizen-At Large Appointee on the Historic Resources Advisory Committee (HRAC) (memorandum dated June 23, 2009) 264
B. Commissioner Joseph E. Flescher, Vice Chairman None
C. Commissioner Gary C. Wheeler None
D. Commissioner Peter D. O’Bryan None
E. Commissioner Bob Solari None
15. SPECIAL DISTRICTS AND BOARDS
A. Emergency Services District None
B. Solid Waste Disposal District None
C. Environmental Control Board None
16. ADJOURNMENT
Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal will be based.
Anyone who needs a special accommodation for this meeting may contact the County’s Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 (TDD # 772-770-5215) at least 48 hours in advance of meeting.
The full agenda is available on line at the Indian River County Website at www.ircgov.com The full
June 23, 2009 Page 6 of 7 agenda is also available for review in the Board of County Commission Office, the Indian River County Main Library, the IRC Courthouse Law Library, and the North County Library.
Commission Meeting may be broadcast live by Comcast Cable Channel 27 Rebroadcasts continuously with the following proposed schedule: Tuesday at 6:00 p.m. until Wednesday at 6:00 a.m., Wednesday at 9:00 a.m. until 5:00 p.m., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m.
June 23, 2009 Page 7 of 7 fROCLAMATION
Honoring Sebastian Police Chief Jim Davis On His Retirement Effective June 24, 2009
WHEREAS, Chief Jim Davis moved to Indian River County in 1990 from Beverly Hills, Michigan, retiring after nearly 31 years of service; and
WHEREAS, his background included working as a rookie officer advancing to the head of the Beverly Hills Public Safety Department; and
WHEREAS, Chief Davis was hired three days after his retirement 'to work for Indian River Shores as they were converting from its traditional fire and police departments into a single public safety department, in which officers perform police, fire and emergency medical duties; and
WHEREAS, in 1993, Chief Davis moved to the county to work under then Sheriff Gary Wheeler as the head of the uniform division and was later promoted to undersheriffwhere he helped set up the community policing program. Under the program, substations were established in places like Gifford and Vero Beach Highlands; and
WHEREAS, in 2001, he was selected by new Sheriff Roy Raymond to fill Sebastian's need for an interim police chief That summer he was permanently placed in the position where over the past eight years has overseen the creation of marine, motorcycle and K-9 units, a special response team, and implementation of a Sebastian 911 system; and
WHEREAS, the accomplishments and successes of the organizations Chief Davis has served are a direct result of his dedication in addition to his innumerable benevolent contributions to the office and the community:
NOW, THEREFORE BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that the Board extends to Chief Jim Davis thanks for a job well done and its heartfelt wishes for a happy and prosperous retirement.
Adopted this 23rd day of June, 2009.
!er b.d3 Peter D. O'Bryan - ~~,o0~ Bokiari 7A
JUNE 23, 2009 INFORMATIONAL ITEMS
INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS
INTER-OFFICE MEMORANDUM
To: Members of the Board of County Commissioners
Date: June 17, 2009
Subject: Resignation of Interested in Tourist Development Appointee to the Tourist Development Council
From: Misty L. Horton, Commissioner Assistant District 1
Mr. Ervin G. Roberts, Interested in Tourist Development Appointee, has tendered his resignation from the Tourist Development Council. His term would expire in 2010.
Attachment: Letter of Resignation
2 June 6, 2009
Indian River County JUN 1 1 2009 Tourist Development Council Wesley S. Davis, Chairman 1801 21'11 Street, Building A Vero Beach, Fl. 32960
Dear Sir;
It is with regret I feel I must resign as a member ofthe "Tourist Development Council". The work has been most interesting and the Council serves an important function. My schedule of other commitments seemingly conflict with to many of the Council meetings. I can not do the Council membership justice with sporadic attendance.
Thank you for the opportunity to have served.
Ervin Roberts 1340 Jonathan's Trail Vero Beach, Fl. 32963 772 234-9444 [email protected]
3 7B
JUNE 23, 2009 INFORMATIONAL ITEMS
INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS
INTER-OFFICE MEMORANDUM
To: Members of the Board of County Commissioners
Date: June 15, 2009
Subject: Resignation of Resident of the Enterprise Zone Appointee to the Enterprise Zone Development Agency
From: Maria Resto, Commissioner Assistant District 2
Mr. William Shelly, Resident of the Enterprise Zone Appointee to the Enterprise Zone Development Agency (EZDA) submitted his resignation on June 11, 2009. He term would expired in 2012.
Anyone interested in serving on the EZDA will need to submit an application and resume to Maria Resto at the Board of County Commissioners Office, County Administration Building A, 1801 2th Street, Vero Beach, FL 32960.
F:\BCC\Agenda ltems\2009\Appointments & Resignations\EZDA Shelly Resignation.doc 4 June 11, 2009
William D. Shelly 4630 32nd Avenue Gifford, Fl 32967
Board of County Commissioners/ Enterprise Zone Development Agency 1801 27th Street, Building A Vero Beach, Fl 32960
To Whom it may concern:
I William D. Shelly respectfully submit to;you this letter of my resignation as ammember of the EZDA. IR recent mobbhs my obligations to the Gifford Community has taken a new direction, therefore I am no longer avail able to participate as a member of this panel. Thereby as of June 11, 2009 I resign as a member of the EZDA.
Sincerely Yours
5 2A
CLERK OF CIRCUIT COURT
INTEROFFICE MEMORANDUM
TO: HONORABLE BOARD OF COUNTY COMMISSIONERS
DATE: June 11, 2009
SUBJECT: APPROVAL OF WARRANTS AND WIRES June 5, 2009 THRU June 11, 2009
FROM: DIANE BERNARDO- FINANCE DIRECTOR
In compliance with Chapter 136.06, Florida Statutes, all warrants issued by the Board of County Commissioners are to be recorded in the Board minutes.
Approval is requested for the attached list of warrants, issued by the Clerk to the Board, for the time period of June 5, 2009 to June 11, 2009. Attachment:
DB:MS
6 CHECKS WRITTEN
CHECKNBR CKDATE VENDOR AMOUNT 234271 6/9/2009 1 THE GUARDIAN 19,542.98 234272 6/9/2009 1 RELIANCE STANDARD LTD 6,857.35 234273 6/10/2009 ILLINOIS STATE DISBURSEMENT UNIT 142.32 234274 6/10/2009 CHAPTER13TRUSTEE 275.68 234275 6/10/2009 V B FIREFIGHTERS ASSOC 5,880.00 234276 6/10/2009 IR FEDERAL CREDIT UNION 56,401.36 234277 6/10/2009 SAN DIEGO COUNTY OFFICE OF THE 132.25 234278 6/10/2009 MISDU MICHIGAN STATE 478.85 234279 6/10/2009 PENNSYLVANIA SCDU 300.00 234280 6/10/2009 NEW JERSEY FAMILY SUPPORT CENTER 50.00 234281 6/10/2009 INDIAN RIVER CO BOCC 6,654.17 234282 6/10/2009 ADMIN FOR CHILD SUPPORT ENFORCEMENT 299.36 234283 6/10/2009 NYS CHILD SUPPORT 195.27 234284 6/10/2009 OHIO CHILD SUPPORT 235.39 234285 6/10/2009 WORLDWIDE ASSET PURCHASING LLC 240.99 234286 6/10/2009 DIVERSIFIED COLLECTION SERV 244.71 234287 6/ll/2009 EVERGLADES FARM EQUIPMENT CO INC 1,704.62 234288 6/11/2009 DAVES COMMUNICATIONS/ELECTRONIC 6.00 234289 6/11/2009 PRAXAIR DISTRIBUTION SOUTHEAST LLC 591.61 234290 6/11/2009 SUN COAST WELDING SUPPLIES INC 312.99 234291 6/11/2009 INDIAN RIVERAUTO PARTS LLC 1,109.99 234292 6/11/2009 INDIAN RIVERAUTOPARTSLLC 1,880.60 234293 6/11/2009 COLKITT SHEET METAL & A/C INC 714.00 234294 6/11/2009 COMMUNICATIONS INTERNATIONAL 54.00 234295 6/ll/2009 TEN-8 FIRE EQUIPMENT INC 498.61 234296 6/11/2009 VERO CHEMICAL DISTRIBUTORS INC 1,546.95 234297 6/11/2009 HARRISON UNIFORM CO 4,618.20 234298 6/11/2009 TOSHIBA BUSINESS SOLUTIONS FLORIDA 85.18 234299 6/11/2009 TOSHIBA BUSINESS SOLUTIONS FLORIDA 280.95 234300 6/ll/2009 IKON OFFICE SOLUTIONS 274.18 234301 6/11/2009 NORTH SOUTH SUPPLY INC 117.90 234302 6/11/2009 VELDE FORD INC 161.16 234303 6/11/2009 UNNERSAL SIGNS & ACCESSORIES 757.92 234304 6/11/2009 SAFETY PRODUCTS INC 137.00 234305 6/ll/2009 DATA FLOW SYSTEMS INC 1,503.40 234306 6/11/2009 SEWELL HARDWARE CO INC 81.61 234307 6/11/2009 BG KENN INC 640.00 234308 6/ll/2009 HELENA CHEMICAL 4,351.00 234309 6/11/2009 COLD AIR DISTRIBUTORS WAREHOUSE 149.97 234310 6/11/2009 E-Z BREW COFFEE & BOTTLE WATER SVC 113.33 234311 6/11/2009 INDIAN RIVER BATTERY 4,183.05 234312 6/11/2009 INDIAN RIVER OXYGEN INC 67.50 234313 6/11/2009 COCA COLA ENTERPRISE 30.00 234314 6/11/2009 REPUBLIC SERVICES OF FL LP 1,086.74 234315 6/11/2009 DEMCOINC 1,165.98 234316 6/11/2009 VERO LAWNMOWER CENTER INC 103.64 234317 6/11/2009 BBC AUDIOBOOKS AMERICA 299.80 234318 6/11/2009 INGRAM LIBRARY SERVICES INV 6.79 234319 6/11/2009 THE GALE GROUP 52.43 234320 6/11/2009 DAVIDSON TITLES INC 8,628.85 234321 6/11/2009 ABC-CLIO INC 53.46 234322 6/11/2009 AMERIGAS EAGLE PROPANE LP 781.50 234323 6/11/2009 MIKES GARAGE & WRECKER SERVICE INC 215.00 234324 6/11/2009 DAILY COURIER SERVICE 548.00 234325 6/11/2009 APPLE INDUSTRIAL SUPPLY CO 166.04 234326 6/ll/2009 HACH CO 1,732.38 234327 6/11/2009 LABOR FINDERS INC 802.38 234328 6/11/2009 PHYSIO CONTROL INC 177.44
1 7 CHECKNBR CK DATE VENDOR AMOUNT 234329 6/11/2009 CARDO USA INC 3,668.44 234330 6/11/2009 ALLIED ELECTRONICS INC 568.52 234331 6/11/2009 MEEKS PLUMBING INC 612.68 234332 6/11/2009 HD SUPPLY WATERWORKS, LTD 24,799.67 234333 6/11/2009 BOUNDTREE MEDICAL 241.70 234334 6/11/2009 BOUNDTREE MEDICAL 4,270.02 234335 6/11/2009 SCHULKE BITTLE & STODDARD LLC 12,070.06 234336 6/11/2009 ECOTECH CONSULTANTS INC 2,916.00 234337 6/11/2009 ALL-RITE WATER CONDITIONING 782.00 234338 6/11/2009 VERO INDUSTRIAL SUPPLY INC 31.36 234339 6/11/2009 BRODART COMPANY 146.36 234340 6/11/2009 PROFORMA IMAGING 141.75 234341 6/11/2009 FLUID SYSTEMS & CONTROLS INC 789.47 234342 6/11/2009 FLORIDA VETERINARY LEAGUE 187.00 234343 6/11/2009 ELPEXINC 2,287.06 234344 6/11/2009 FIRESTONE COMPLETE AUTO CARE 918.50 234345 6/11/2009 LYRASIS 406.31 234346 6/11/2009 BARTH CONSTRUCTION INC 549,860.50 234347 6/11/2009 CARTER AS SOCIATES INC 2,775.43 234348 6/11/2009 CHILDCARE RESOURCES OF !RC INC 21,111.11 234349 6/11/2009 ALLIED UNIVERSAL CORP 26,295.90 234350 6/11/2009 HOMELAND IRRIGATION 38.06 234351 6/11/2009 DELL INC. 16,079.66 234352 6/11/2009 R & G SOD FARMS 40.00 234353 6/11/2009 HAGEMEYER 144.46 234354 6/11/2009 XEROX CORP SUPPLIES 60.47 234355 6/11/2009 GENERAL PART INC 391.46 234356 6/11/2009 BLAKESLEE MAINTENANCE 710.00 234357 6/11/2009 BAKER & TAYLOR INC 1,147.05 234358 6/11/2009 GROVE WELDERS INC 124.10 234359 6/11/2009 MIDWEST TAPE 278.94 234360 6/11/2009 RECORDEDBOOKSLLC 1,089.40 234361 6/11/2009 ARAMARK UNIFORM SERVICES 1,450.83 234362 6/11/2009 FORT BEND SERVICES INC 2,820.00 234363 6/11/2009 LOWES CO INC 229.59 234364 6/11/2009 GRAPHX PRINTING 504.00 234365 6/11/2009 ODYSSEY MANUFACTURING CO 8,307.75 234366 6/11/2009 PAK MAIL 751.14 234367 6/11/2009 K & M ELECTRIC SUPPLY 946.48 234368 6/11/2009 WIGINTON CORP 1,945.00 234369 6/11/2009 BAKER DISTRIBUTING CO 1,243.80 234370 6/11/2009 NEC UNIFIED SOLUTIONS INC 1,030.80 234371 6/11/2009 PBS&J ANALYTICAL SERVICES 62,475.00 234372 6/11/2009 PALM TRUCK CENTERS INC 113.47 234373 6/11/2009 OFFICE PRODUCTS & SERVICES INC 359.80 234374 6/11/2009 THEPENWORTHYCOMPANY 625.38 234375 6/11/2009 RELIABLE POLY JOHN 404.70 234376 6/11/2009 DLT SOLUTIONS INC 595.00 234377 6/11/2009 HARBOR BRANCH ENVIRONMENTAL LAB INC 5,202.50 234378 6/11/2009 SUNSHINE REHABILATION CENTER OF !RC INC 135.00 234379 6/11/2009 LINDSEY GARDENS APARTMENTS 500.00 234380 6/11/2009 WOODS OF VERO BEACH 490.00 234381 6/11/2009 PING INC 158.02 234382 6/11/2009 FLORIDAFFINITY INC 869.00 234383 6/11/2009 SUMMIT CONSTRUCTION MANAGEMENT INC 260,955.00 234384 6/11/2009 CLERK OF CIRCUIT COURT 158.73 234385 6/11/2009 CITY OF VERO BEACH 177,331.01 234386 6/11/2009 CITY OF VERO BEACH 77,846.28 234387 6/11/2009 CITY OF VERO BEACH 233.87 234388 6/11/2009 CAMP DRESSER & MCKEE INC 48,854.05
2 8 CHECKNBR CKDATE VENDOR AMOUNT 234389 611112009 BIC BIS HEALTH INS-TRUST PAYROLL 97,005.00 234390 6/11/2009 APPLE MACHINE & SUPPLY CO 1,177.46 234391 611112009 AT&T 134.09 234392 6111/2009 AT&T 23,885.83 234393 611112009 AT&T 248.56 234394 6/1112009 SOUTHEAST STAFFING INC 3,122.00 234395 6/11/2009 FLORIDA EAST COAST RA!LWAY COMPANY 342.45 234396 611112009 BIC BIS OF FL ADM FEE 47,492.50 234397 6111/2009 IR C HEALTH INSURANCE - TRUST 453,955.05 234398 611112009 UNIPSYCH BENEFITS OF FL INC 5,298.75 234399 611112009 JANITORIAL DEPOT OF AMERICA INC 2,431.20 234400 611112009 TREASURE COAST HOMELESS SERVICES 20,830.4 I 234401 6/1112009 INDIAN RIVER COUNTY UTILITIES 5,580.61 234402 6/11/2009 TOTAL TRUCK.PARTS INC 232.37 234403 6111/2009 INTERNATIONAL GOLF MAINTENANCE 4,668.65 234404 6/11/2009 AQUAGENIX 371.00 234405 6111/2009 GEOSYNTEC CONSULTANTS INC 16,149.77 234406 611112009 OFFICE DEPOT BSD CUSTOMER SVC 1,384.47 234407 6/11/2009 CHAMBER OF COMMERCE 4,390.78 234408 611112009 FEDERAL EXPRESS 290.98 234409 6/1112009 FEDERAL EXPRESS 35.53 234410 611112009 FEDERAL EXPRESS 42.05 234411 611112009 FEDERAL EXPRESS 23.21 234412 611112009 DUNKELBERGER ENGINEERING & TESTING 1,154.70 234413 611112009 KMART 30.91 234414 6/1112009 MUNIS INC 131,478.00 234415 6111/2009 COMO OIL COMPANY OF FLORIDA 1,951.07 234416 611112009 KILPATRICK TURF EQUIPMENT INC 211.03 234417 6111/2009 DONNY LAWLESS 36.00 234418 6111/2009 SPRINT SPECTRUM LP 79.20 234419 611112009 SPRINT SPECTRUM LP 1,193.42 234420 6/11/2009 SPRINT SPECTRUM LP 1,233.09 234421 611112009 SPRINT SPECTRUM LP 39.02 234422 6/11/2009 SPRINT SPECTRUM LP 196.35 234423 6111/2009 SPRINT SPECTRUM LP 35.86 234424 611112009 SPRINT SPECTRUM LP 38.89 234425 6111/2009 SCRIPPS TREASURE COAST PUBLISHING LLC 1,228.72 234426 6111/2009 UNDERGROUND UTILITIES INC 97,870.90 234427 6/1112009 CORPORATION OF THE PRESIDENT 44.00 234428 6/1112009 CALLAWAY GOLF SALES COMPANY 365.21 234429 611112009 FLORIDA POWER AND LIGHT 7,752.74 234430 6/1112009 TITLEIST 1,692.26 234431 6/11/2009 ELMO GREER & SONS LLC 35,360.00 234432 6111/2009 HOLIDAY INN 85.00 234433 611112009 TAYLOR MADE 437.40 234434 6/11/2009 SEBASTIAN RIVER MEDICAL CENTER 17,833.88 234435 6/11/2009 APPLIED TECHNOLOGY & MANAGEMENT 108,015.87 234436 611112009 DERRICO CONSTRUCTION CORP 64,719.68 234437 6/11/2009 CITY OF FELLSMERE 140.62 234438 6/11/2009 PEACE RIVER ELECTRIC COOP INC 410.00 234439 611112009 GLOBAL GOLF SALES INC 154.89 234440 6111/2009 WASTE MANAGEMENT INC 1,172.09 234441 6/11/2009 LANGUAGE LINE SERVICES 346.23 234442 611112009 GARETT GUIDROZ 119.20 234443 6/11/2009 JASON E BROWN 194.15 234444 6111/2009 FLORIDA DEPT OF ENVIRONMENTAL PROTECTION 75.00 234445 6111/2009 CHATTEM 304.35 234446 6111/2009 BE SAFE SECURITY ALARMS INC 200.00 234447 611112009 GERALD A YOUNG SR 140.00 234448 6/1112009 MIZUNO USA INC 449.76
3 9 CHECKNBR CK DATE VENDOR AMOUNT 234449 6/11/2009 RANDALL GODWIN 36.00 234450 6/11/2009 NANCY PARKER 90.00 234451 6/11/2009 TOTAL PRINT INC 197.30 234452 6/11/2009 EDWARD PRIME 54.45 234453 6/11/2009 WESTSIDE REPROGRAPHICS OF VERO BEACH INC 33.54 234454 6/11/2009 LIBRARY OF CONGRESS 10.00 234455 6/11/2009 COMCAST 60.00 234456 6/11/2009 BUSCH WILDLIFE SANCTUARY 450.00 234457 6/11/2009 AIRGAS 61.22 234458 6/11/2009 LINDSEY GEIB 72.00 234459 6/11/2009 TIM GEIB 108.00 234460 6/11/2009 BRIDGE DESIGN ASSOCIATES INC 17,140.82 234461 6/11/2009 DONADIO AND ASSOCIATES ARCHITECTS 848.25 234462 6/11/2009 C & C ELECTRIC WORKS INC 3,493.00 234463 6/11/2009 ATLANTIC AUTO TRIM & GLASS INC 145.00 234464 6/11/2009 HENRY FISCHER & SONS LEASING INC 500.00 234465 6/11/2009 SYMETRA LIFE INSURANCE COMPANY 12,418.70 234466 6/11/2009 BANK OF AMERICA 375.86 234467 6/11/2009 RECHTIEN INTERNATIONAL TRUCKS 114.89 234468 6/11/2009 HABITAT FOR HUMANITY 10.91 234469 6/11/2009 JAMES, CHARITY E 6.15 234470 6/11/2009 SAL PERO 72.00 234471 6/11/2009 MICHAEL J QUIGLEY 100.00 234472 6/11/2009 CHIP LANDERS 400.00 234473 6/11/2009 BERMAGREEN 50.00 234474 6/11/2009 DAV1D HAESELER 1,076.66 234475 6/11/2009 PENINSULA HYDROLOGIC DATA 3,735.00 234476 6/11/2009 JEAN PETERS 160.00 234477 6/11/2009 CINTAS CORPORATION NO 2 262.89 234478 6/11/2009 VAN WAL INC 795.00 234479 6/11/2009 VERO MILLWORK INC 16,185.58 234480 6/11/2009 BIG BROTHERS AND BIG SISTERS 1,666.66 234481 6/11/2009 NATIONAL NOTARY ASSOCIATION 95.00 234482 6/11/2009 RANDOM HOUSE INC 201.75 234483 6/11/2009 ATLANTIC TRUCK CENTER 527.97 234484 6/11/2009 ANDREWS FILTER & SUPPLY CORP 66.48 234485 6/11/2009 COASTAL TECHNOLOGY CORPORATION 52,842.97 234486 6/11/2009 SOUTHERN JANITOR SUPPLY INC 955.85 234487 6/11/2009 PAK MAIL CENTER 284.23 234488 6/11/2009 MBV ENGINEERING 902.00 234489 6/11/2009 SUPERIOR WATER SYSTEMS CO INC 324.95 234490 6/11/2009 CENTRAL PUMP & SUPPLY INC 222.49 234491 6/11/2009 GILBARCONEEDER-ROOT 249.50 234492 6/11/2009 CAPITAL OFFICE PRODUCTS 501.07 234493 6/11/2009 MASTELLER & MOLER INC 3,340.70 234494 6/11/2009 DICKERSON FLORIDA INC 353.41 234495 6/11/2009 DICKERSON FLORIDA INC 503.27 234496 6/11/2009 IIICKS, RODNEY C & LAURA 34.70 234497 6/11/2009 GLOVER OIL COMPANY INC 33,510.82 234498 6/11/2009 WHARTON-SMITH INC 151,658.05 234499 6/11/2009 FELLSMERE ELEMENTARY SCHOOL 43.00 234500 6/11/2009 JACOB GEIB 36.00 234501 6/11/2009 MICHAEL SPINA 420.00 234502 6/11/2009 ARDAMAN & ASSOCIATES 950.00 234503 6/11/2009 WHITMORE, HOWARD J 7.21 234504 6/11/2009 METRO FIRE SPRINKLERS SERVICE INC 68.50 234505 6/11/2009 1ST FIRE & SECURITY INC 292.00 234506 6/11/2009 HINKLE & SONS SERVICES INC 230.00 234507 6/11/2009 CONSOLIDATED ELECTRICAL DISTRIBUTORS 13.65 234508 6/11/2009 KENNY CAMPBELL JR 36.00
4 10 CHECKNBR CKDATE VENDOR AMOUNT 234509 6/11/2009 NORMAN GOODMAN 210.00 234510 6/11/2009 COVERALL CLEANING CONCEPTS 1,903.00 234511 6/11/2009 PETER OBRYAN 128.30 234512 6/11/2009 ALLEN, KIMBERLY 44.25 234513 6/11/2009 DIAL411 18.05 234514 6/11/2009 MID FLORIDA PORTABLE TOILETS, LLC 70.00 234515 6/11/2009 MARY COLLIS 130.00 234516 6/11/2009 MARK HEBERLING 72.00 234517 6/11/2009 SPACE COAST CREDIT UNION 8.16 234518 6/11/2009 TERRY TANKERSLEY 36.00 234519 6/11/2009 GLOBALSTAR USA 59.04 234520 6/11/2009 CHARLES A WALKER 108.00 234521 6/11/2009 DASH DOOR & CLOSURE SERVICE, INC. 579.00 234522 6/11/2009 MEREDITH BROWN 156.00 234523 6/11/2009 CEMEX 19,321.65 234524 6/11/2009 GL HOMES BUILDING CORP 73.58 234525 6/11/2009 LOZINAK, ROBERT F 75.32 234526 6/11/2009 GUARDIAN COMMUN!TY RESOURCE MANAGEMENT 1,400.00 234527 6/11/2009 CECILE WILLIAMS 130.50 234528 6/11/2009 PENA, JORGE ESPINOZA 28.61 234529 6/11/2009 JESMER, DAYID P 47.30 234530 6/11/2009 HILL, ROBERT B & ALLISON A 55.86 234531 6/11/2009 MENZIES, WILLIAM E 43.15 234532 6/11/2009 CLARKE-WILLIAMS, ELAINE 73.58 234533 6/11/2009 CASALINA, FRANCINE 16.58 234534 6/11/2009 GRAYES, WILLIAM ALEX 66.40 234535 6/11/2009 RENAE CHANDLER 70.00 234536 6/11/2009 BREAKWATER VILLAS LLC 31.78 234537 6/11/2009 CYNTHIA A WILSON 40.00 234538 6/11/2009 DYER CHEVROLET 166.97 234539 6/11/2009 ANDERSON, MEGHAN 20.88 234540 6/11/2009 STEVEN R SMITH 1,290.00 234541 6/11/2009 STANDARD LIFE INSURANCE 9,186.96 234542 6/11/2009 STANDARD LF OPT 11,232.95 234543 6/11/2009 L&L DISTRIBUTORS 710.00 234544 6/11/2009 PDC REALTY VENTURE Ill LLC 62.86 234545 6/11/2009 NICOLACE MARKETING INC 618.75 234546 6/11/2009 DIEFFENBACH, WILLIAM 15.00 234547 6/11/2009 KONDAUR CAPITAL CORP 90.41 234548 6/11/2009 WILLIAM BOLTON 130.00 234549 6/11/2009 TERESA PULIDO 120.00 234550 6/11/2009 WOODSIDE HOMES OF SE FLA LLC 57.06 234551 6/11/2009 DI VOSTA HOMES LP 48.74 234552 6/11/2009 HOPF, NELLIE R 76.34 234553 6/11/2009 PEMICAINC 215.00 234554 6/11/2009 SJK PRODUCTS INC 204.46 234555 6/11/2009 CCG SYSTEMS INC 24,225.00 234556 6/11/2009 CENTEX HOMES SE FLORIDA 80.69 234557 6/11/2009 GEORGE GIPSON Ill 39.00 234558 6/11/2009 CORTEZ, HELLEN 26.42 234559 6/11/2009 SANDPIPER ARCADE LLC 127.69 234560 6/11/2009 DEUTSCHE BANK 3.26 234561 6/11/2009 CHRISTIANO, COREY M 44.20 234562 6/11/2009 DORMINEY, BRADLEY S 34.04 234563 6/11/2009 BRYAN,DON 6.75 234564 6/11/2009 VIERA, TINA MARIE 32.75 234565 6/11/2009 PROGRESSIVE REAL ESTATE 39.50 234566 6/11/2009 H!LITIBRAN, MARK 29.75 234567 6/11/2009 CURTIS, KAREN 13.53 234568 6/11/2009 ACKER,JIM 76.34
5 11 CHECKNBR CKDATE VENDOR AMOUNT 234569 6/11/2009 DECKER, CHAD 32.82 234570 6/11/2009 NANCY Z PERRY 500.00 234571 6/11/2009 ROBERTMEMM 77.47 234572 6/11/2009 TRACYYOUNG 50.00 234573 6/11/2009 UCOLA BARRETT BAXTER 50.00 234574 6/11/2009 SHELLEY STUVEN 160.00 234575 6/11/2009 RICHARD MCCLAINE 14.95 234576 6/11/2009 HENRY HUGHES 35.00 234577 6/11/2009 COUNTRY BEGINNINGS 25.00 234578 6/11/2009 F G G INSURANCE 80.00 234579 6/11/2009 PHH VEHICLE MGMT SERVICES LLC 1,350.85 234580 6/11/2009 LENNAR HOMES 155.30 234581 6/11/2009 MARTHA OATES 292.02 234582 6/11/2009 BRENT GREGORY 325.00 234583 6/11/2009 BELL,RUBYM 73.58 234584 6/11/2009 LOMBARD, DIXIE L 36.80 234585 6/11/2009 FLYNT, LOURAL K 32.18 234586 6/11/2009 KING, JEFFREY D & JEAN 81.48 234587 6/11/2009 JOHNSON JR, BENJAMIN 29.04 234588 6/11/2009 KARSHNER, REGINA M 15.58 234589 6/11/2009 LEATHERWOOD, PATRICIA 10.22 234590 6/11/2009 PRICKETT, CRYSTAL 24.37 234591 6/11/2009 LAWSON, ROBERT 49.84 234592 6/11/2009 REGAN, COURTNEY 35.18 234593 6/11/2009 SAAVEDRA, STACEY 77.13 234594 6/11/2009 CHEN, DUAN & BEN 77.13 234595 6/11/2009 GUTIERREZ, LIBS 2.62 234596 6/11/2009 KOSTENBADER, ALLEN & JOAN 39.50 234597 6/11/2009 LOVATT, VERNA 70.75 234598 6/11/2009 LOCKHART, MELVIN 31.84 234599 6/11/2009 WELBY, RICHARD K 39.50 234600 6/11/2009 KUVLESKY, JOSH 26.14 234601 6/11/2009 JAROCKI, STEVEN 5.44 234602 6/11/2009 MERCEDES HOMES INC 17.81 234603 6/11/2009 ST ANDRE, DANIELE 14.81 234604 6/11/2009 WELLS FARGO BANK 31.09 234605 6/11/2009 DAYID ANTHONY INSURANCE 68.22 234606 6/11/2009 ALTIC, KELLY 48.28 234607 6/11/2009 ASSOCIATION (TRS) US BANK NATIONAL 132.62 234608 6/11/2009 WHITE, ANN MARIE S 47.91 234609 6/11/2009 GASTALDI, LIBS & NURY 7.90 234610 6/11/2009 FLORIAN, ANDREW 45.07 234611 6/11/2009 MERCEDES HOMES INC 14.59 234612 6/11/2009 DOWN,JANET 20.12 234613 6/11/2009 DYER, WILL 57.49 234614 6/11/2009 WILLIAMS, TRAVIS & HEATHER 57.49 234615 6/11/2009 GROSSO, MAY S 128.39 234616 6/11/2009 MALAVE, DENI 34.95 234617 6/11/2009 DJ VOSTA HOMES LP 126.42 234618 6/11/2009 REED,ER!KA 53.65 234619 6/11/2009 0 FARRELL, MATIAS 26.27 Grand Total: 3,025,387.35
6 12 WIRES SENT
CHECKNBR CKDATE VENDOR AMOUNT 742 6/5/2009 1 IRS-PAYROLL TAXES 9,265.21 743 6/10/2009 H & D CONSTRUCTION CO INC 534,698.84 Grand Total: 543,964.05
1 13 Consent Agenda INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Department of General Services
Date: June 15, 2009
To: The Honorable Board of County Commissioners
Thru: Joseph A. Baird, County Administrator
From: Thomas W. Frame, General Services Director -r/uu a.J-~
Subject: Approval to Authorize Direct Purchase of Sod and Fumigation Services in Conjunction with the Renovation and Re-grassing of Greens at Sand Ridge Golf Course
BACKGROUND: Currently International Golf Maintenance (I.G.M.) has a maintenance contract with Indian River County to maintain the grounds and courses at Sand Ridge Golf Course. The agreement has a provision for "additional services" which allows the County to utilize the services of I.G.M. for the renovation and re-grassing of the greens. Based on a memorandum dated April 29, 2009, from Bob Komarinetz, Director of Golf, the approximate cost of such work should be $100,000.
There are two vendors that would provide sod and fumigation services through I.G.M. The sod vendor is Champion Sod Farm, and fumigation services would be provided by Hendrix and Dale. The anticipated cost for the sod is estimated to be $50,000, and the needed fumigation would be approximately $30,000. If these services are acquired and provided via I.G.M., there will be about $4,900 in sales tax which would be passed through to the County.
If the County was to make a direct purchase of these goods and services and pay invoices billed direct to Indian River County, the County would save the resultant sales tax which would normally be charged against the work.
Since the agreement with I.G.M. is silent about direct owner purchase, it is necessary to obtain Board approval along with waiving the normal bidding procedures. This would allow the County to issue a purchase order directly to the vendors with a resulting purchase price without the assessment of sales tax.
We used direct owner purchases with the construction of the Administration Buildings, and the Utilities Department has also used the ability to make direct owner purchase for the purpose of saving sales tax costs.
FUNDING: Funding for this project in the amount of $100,000 is budgeted and available in the Golf Course Maintenance - Landscape Materials account in the Sand Ridge Golf Course Operations Fund.
Account Number 41822172-035340
RECOMMENDATION: Staff recommends that the board waive the standard bidding procedures and that the County (Sand Ridge Golf Course) be authorized to make direct owner purchases with both vendors, Champion Turf Farm and the fumigation vendor, Hendrix and Dale for the purpose of saving the applicable sales tax. Staff recommends that the Board authorize the County Administrator to sign an amendment to the existing agreement between the County and International Golf Maintenance, Inc. that provides for the direct purchase of materials and/or services after review and approval by appropriate staff and the County Attorney's office.
Approved Agenda Item Indian River County Administration County Attorne Budget Department 14 INTERNATIONAL GOLF MAINTENANCE, INC. 8390 CHAl',tIPIONSGATE BLVD. CHAMPIONSGATE, FL 33801 800-413-5500 407-589-7200 407-589-7223 (FAX)
THIS MAINTENANCE AGREEMENT (the "Agreement") is entered into by and between INTERNATIONAL GOLF MAINTENANCE, INC. ("IGM"), and Indian River County, a political subdivision of the State of Florida, the owner designated in Recital C below (the "Owner") as of the date set forth below as the effective date (the "Effective Date").
BACKGROUND FACTS
A. IGM is a service provider of agronomic, horticultural and recurring services for golf course facilities and has represented to Owner that it has the competency and experience to perform the services set forth in this agreement.
B. Owner is the owner of the golf course named Sandridge Golf Club, 5300 73rd Street, Vero Beach, Florida, (the "Course") and desires to engage IGM to provide services to the Course as more particularly described in this Agreement.
C. IGM's and Owner's contact information and other summary information regarding this Agreement is:
OWNER: Indian River County ADDRESS: 5300 73rd Street CITY/STATE/ZIP: Vero Beach, Florida 32966 TELEPHONE: (772) 770-5003 FAX: (772) 770-5109 COURSE NAME: Sandridge Golf Club OWNER REPRESENTATIVE: Bob Komarinetz, Director OWNER'S FEDERAL I.D. NUMBER: 59-6000674 EFFECTIVE DATE: October 1, 2005
ForIGM International Golf Maintenance, Inc. BY: Scott Zakany . 8390 ChampionsGate Blvd. ChampionsGate, FL 33896 Phone: 407-589-7200
,.''l / ' .,. /,.
l 15 AGREEi.VIENT
In consideration of the mutual benefits to be derived from this agreement and other valuable consideration, the receipt and sufficiency of which is hereby acknowiedged, the parties, intending to be legally bound agree as follows:
SECTION 1 SERVICES
I. I. Background Facts. The Background Facts are agreed to be true and correct are incorporated herein by this reference.
1.2. Services. During the Term ( as hereinafter defined), IGM agrees to provide to Owner the services, including all labor, materials, uniforms and supplies required to perform such services, described in the RFP Number 7054 and IGM's Response to RFP Number 7054 attached and incorporated by reference herein attached and incorporated by reference herein as Exhibit A subject to the specific terms and conditions of this Agreement (the "Services").
1.3. Agreement Regarding Scope of Services. IGM shall not, without owner's prior written approval, be required to exceed the Services described in Exhibit A or provide any additional services. Such written approval shall not be binding on IGM until the fee for such Services is agreed in writing by Owner. Owner agrees and acknowledges that the Services do not include, without limitation: (i) payment of the costs of any utility services to the Course or in connection with the Services, (ii) the costs of any material improvements or modifications to any irrigation system present on the Course, (iii) the cost of hauling any organic waste and/or debris from the Course, (iv) the cost of any modifications or capital improvements to the Course, (v) the repair or replacement of Course facilities, including shrubbery or trees that are damaged or destroyed by severe weather, or (vi) the cost of repair or replacement of property, real or personal, which is damaged through acts of vandalism or other criminal activity, unless such vandalism or criminal activity is directly caused by the affirmative acts of IGM. IGM shall not subcontract any work under this agreement without Owner's written permission. IGM shall not assign this contract without Owner's written permission.
1.4. Compliance with Laws. IGM shall comply with all applicable laws, ordinances and regulations related in the performance of its Services hereunder. Without limitation, IGM shall not violate any federal, state or local environmental laws, statutes, ordinances, codes, rules or regulations regulating the Services.
SECTION2 TERM; EARLY TERMINATION
2.1. Term of this Agreement. This Agreement shall be effective for a period of Five (5) years from the Effective Date, (the "Term") unless earlier terminated as provided herein. The Term being from October 1, 2005 and continuing through September 30, 2010. The County shall have the option to renew this Agreement for two (2) additional five (5) year terms. Any additional services requested by the County shall be completed in accordance with applicable authorization provided by the County.
2 16 2.2. Termination without Cause. During the first six (6) months of the Term, Owner may terminate this Agreement, with or without cause, upon thirty (30) days prior written notice to IGM. In the event of such termination, IGM shall be paid for services rendered to the county's satisfaction through the date of termination. After such date, Owner may terminate only for cause as set forth below.
2.3. Termination for Cause. Either party may, at its option, terminate this Agreement as provided herein in the event of material breach by the other party of this Agreement. A breach shall be "material" within the meaning of this Agreement if the breach is (i) a breach of a monetary obligation, including non-payment of sums due from Owner to IGM, (ii) a breach of any of the obligations described in Sections 1.1 - 1.4, 4, 5, 6, 8.8, 8.11 or 8.12 of this Agreement; or (iii) a breach which would have a material adverse affect on the other party. A termination under this provision shall be effective only upon a written notice, specifically identifying the breach on which termination is based as follows: (x) thirty (30) days after written notice if the breach is of any obligation other than payment provided such breach is capable of being cured and remains uncured at the end of the thirty (30) day period, and (y) five (5) days from receipt of written notice to cure any breach of a monetary obligation, including non-payment of sums due from Owner to IGM, if at the end of such period the breach remains uncured.
2.4. Limitation on Right to Terminate. In the event of any termination hereunder, Owner must pay, on or before the effective date of termination, IGM in full for all services performed by IGM through the date of termination, unless the amount of pay or the quality of services is in dispute.
2.5. Effects of Termination on Equipment. IGM is currently using and will continue to use Owner's equipment to fulfill its obligations under this Agreement. When this equipment reaches the end of its useful life, it shall be surplused by the Owner. Beginning in Year two of this agreement, Owner will make yearly payments to IGM for the purpose of equipment purchase and replacement so IGM may continue to fulfill its obligations under this Agreement. At the end of this agreement or in the event of an early termination of this Agreement, the parties agree that the Owner shall purchase all of the Equipment from IGM (except any County owned equipment) at fair market value. If the parties cannot reach an agreement as to fair market value, the parties shall retain an independent appraiser shall be retained to establish a fair market value of the equipment and the Owner shall pay said amount., The fee charged by the appraiser eost of whleh shall be shared equally by the parties.
2.6. IGM shall be responsible for all maintenance and repair of all equipment under this agreement. .Equipment shall be repaired and maintained in accordance with manufacturers' standards or standards common to the industry.
3 17 SECTION 3 FEES AND EXPENSES
3. 1. Base Fee. For the Services rendered hereunder, Owner shall pay to IGM the following amounts as set forth in Exhibit E attached and incorporated by reference herein.:
Together with sales, service, use or other taxes that may be attributable to such sum, which sum shall be divided equally and paid as provided herein. For each year of the agreement, the salary and benefits, operating budget costs and equipment replacement amounts shall be added together and IGM shall be paid in 12 monthly installments on the first Friday of each month or if a Holiday, the first business day thereafter.
3.2. Fee for Additional Services. In the event Owner approves additional Services in accordance with Section 1.3 of this Agreement, IGM shall be entitled to charge and collect the additional sum agreed by the parties at the time such additional Service was approved by Owner together with sales, service, use or other taxes that may be attributable to such sum. In the event the additional Service is continuing in nature, in each succeeding year, the charge shall escalate as provided in Exhibit E.
3.3. Interest on Late Fees. Each installment of the Service Fees shall be paid in accordance with the Florida Prompt Payment Act, FS 218.70 et. seq.
3.4. Taxes. Owner shall pay to IGM with each installment of the Service Fees set forth in Sections 3 .1 and 3 .2, all sales, service, use or other taxes, if any, which may be applicable to said fees as of the date of this Agreement. Any increase in such tax, or any sales, use or other taxes imposed on said fees as a result of new legislation, authoritative interpretation, or regulatory activity after the date of this Agreement, shall be the responsibility of Owner and shall be included with, and be a part of, each installment of the Service Fees.
SECTION 4 INSURANCE
4.1. Insurance Requirements for IGM. IGM will maintain, at its own expense, during the performance of the work covered by this Agreement, and shall provide the COUNTY with evidence that IGM has obtained and maintains the insurance listed below
A. Minimum Scope of Insurance
4 18 I. Worker's Compensation as required by the State of Florida. Employers Liability of $100,000 each accident, $500,000 disease policy limit, and $100,000 disease each employee. 2. General Liability $1,000,000 combined single limit per accident for bodily injury and property damage. County shall be named as an additional insured. 3. Auto Liability $1,000,000 combined single limit per accident for bodily injury and property damage for owned and non-owned vehicles. County shall be named as an additional insured. B. Any deductibles or self insured retentions greater than $5,000 must be approved by the Risk Manager for fudian River County with the ultimate responsibility for same going to IGM. C. IGM'S insurance coverage shall be primary. D. All above insurance policies shall be placed with insurers with a Best's rating of no less that A+ VIL The insurer chosen shall also be licensed to do business in Florida. E. The insurance policies procured shall be per occurrence policies or as generally available on the open insurance market. F. The Insurance Carriers shall supply Certificates of Insurance evidencing such coverage to the Indian River County Risk Management Department within ten days of execution of this Contract. G. The insurance companies selected shall send written verification to the Indian River County Risk Management Department that they will provide 30 days written notice to the Indian River County Department of Risk Management of its intent to cancel or terminate said policies of insurance. H. IGM hereby agrees to indemnify Indian River County and Representatives thereof from all claims arising solely from intentional, reckless or negligent acts, errors or omissions of the IGM or IGMS' Representatives in the performance of services under this agreement and for which IGM is legally liable.
4.2. Insurance Requirements for Owner. IGM acknowledges that Owner is a political subdivision of the State of Florida and as such, is entitled to certain protection from liability under Florida law. To the extent allowed by law, the Owner hereby agrees to indemnify IGM from claims arising from the negligent acts, errors or omissions of the OWNER in the performance of the services under this agreement and for which Owner is legally liable. Additionally, the County hereby states that its improvements are adequately insured against loss whether through self insurance or excess coverage.
4.3. Disclaimer. Owner acknowledges and understands that IGM has made no representations or warranties that the insurance specified in this Agreement is adequate to protect Owner.
4.4. Notice of Claims. Owner and IGM shall give prompt notice to the other of any third party claims made against either or both of them, and shall cooperate fully with each other
5 19 and with any insurance carrier to the end that all such claims will be properly investigated, defended and adjusted.
SECTIONS OWNER RESPONSIBILITIES
5. 1. Obligations to Provide Facilities. Owner, at its sole cost and expense, shall be responsible for providing safe and adequate facilities required by IGM to perform the Services under this Agreement. These facilities shall include, without limitation, workspace and other facilities that adhere to current federal and state safety standards. Owner shall cooperate at all times with IGM to provide a safe and adequate work environment for IGM employees and others who work on or around the Course. IGM has inspected Owner's facilities and agrees that they are adequate facilities needed to perform the services under this agreement and the facilities adhere to current federal and state safety standards.
5.2. Utilities, Repairs, Modification. Additionally, Owner shall be wholly responsible for the provision of necessary utilities to the Course and work areas, for repairs and material improvements or modifications to any Course irrigation systems, for the pressure regulation valve and all pumps, systems and other facilities "upstream" from said valve, for the cost of hauling organic waste and/or any debris away from the Course, and for repairs required by any acts or omissions of third parties.
5.3. Compliance with this Agreement. During the Term, Owner will not:
(a) Within ten (10) days of the date due, fail to make or cause to be made any payment to IGM required to be made hereunder or to make any payment pursuant to any other agreement between the parties;
(b) Fail to keep, observe or perform any agreement, term or provision of this Agreement to be kept, observed or performed by it;
(c) After a casualty, fail to restore one or more golf holes, the clubhouse, maintenance building, or any material service of the Course to normal operation with six (6) months after casualty, if possible;
(d) Suffer the termination, revocation or suspension of the licenses required for the operation of the Course for a period of one-hundred eighty (180) days consecutively;
6 20 ( e) Default after any applicable grace period or notice and cure periods under any applicable debt document with respect to the Course.
5.4 Emergency Maintenance
At any time during this agreement, if the Owner determines that any portion of the golf course is in immediate jeopardy of sustaining some type of serious harm due to a maintenance failure of IGM, the Owner may utilize its own work force to go on the golf course and perform such tasks as are necessary to prevent such serious harm from taking place. The costs of such preventative maintenance shall be itemized by the County and submitted to IGM and offset against any future monies owning to IGM under this agreement.
EQUIPMENT REPURCHASE ADDENDUM
If noted here, the Equipment Repurchase Addendum attached shall be a part of this Agreement.
• The Equipment Repurchase Addendum is a part of this Agreement. • The Equipment Repurchase Addendum is not a part of this Agreement.
SECTION6 DEFAULT;REMEDIES
6.1. Default by IGM. In the event IGM is in default under the terms of this Agreement, after thirty (30) days written notice and opportunity to cure, Owner may, in addition to any right of termination provided in Section 2 of this Agreement, maintain an action for damages arising from the default.
6.2. Default by Owner. In the event that Owner is in default under the terms of this Agreement after any grace period or notice and cure period expressly provided herein, IGM may, in addition to any right of termination contained in Section 2 of this Agreement, exercise any · right or remedy available at law or equity including, without limitation, an action for damages arising out of the breach.
SECTION7 MISCELLANEOUS
7.1. Any written consent, approval or instruction issued by Owner's representation identified in Recital C of this Agreement shall be binding to the same extent as if given by Owner. Owner may ohange the desi211ated Owner's representative by written notice to IGM.
7 21 7.2. In connection with this Agreement, the parties agree to cooperate in good faith and to p(jt'fortn no a.tit, 01· nllow any c:,1ni$Bio1J., which would inhibit the t)thc,r pnrty f-rt,ttt pe!'forming its obiigations under this Agreement.
7.3. The captions and headings used in this Agreement are for convenience only and do not in any way limit, amplify, or otherwise modify the provisions of this Agreement.
7.4. This Agreement, together with the Exhibits and Response to Request for Proposal constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Owner and IGM by their respective duly authorized representatives.
7.5. Any notice which either party is required or may desire to give to the other under this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, addressed to the party at its address shown on the First Page of this Agreement. If Owner or IGM wish to change its respective address for purposes of notice under this Agreement, they may do so by giving to the other written notice of change of address.
7.6. Nothing in this Agreement shall be construed to create a partnership, a joint venture or agency relationship between the parties. Neither party shall have any authority to enter into agreements on behalf of the other, or otherwise to bind or obligate the other in any manner. The language of this Agreement shall not be construed more strongly against either party, regardless of which party is responsible for its drafting.
7.7. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
7.8. The Owner agrees that it will not, while this Agreement is in effect directly employ, hire, or engage any person who shall have been an employee, ofIGM during the term of this Agreement without express written permission from IGM. Current employees of Owner at the time of execution of this agreement are exempt from this provision.
7.9. All payments under the Agreement to IGM from Owner shall be due at IGM's offices in Osceola County, Florida. The parties further agree that any litigation arising from this Agreement shall also be brought in Indian River County Florida.
7.10. In the event of acts or occurrences caused by Owner or beyond the control of IGM, including, without limitation, strikes, labor disturbances, acts of God, fire, flood, riots, hurricanes, ice storms, severe, unusual or unseasonable weather or climatological changes that prevents IGM from performing its duties under this agreement, IGM shall be excused from the
8 22 performance of affected Services under this Agreement during the period of such acts or occurrences and for reasonable times thereafter, unless IGM and Owner ca..11 agree on such other duties that cam be performed by IGM. Still, Owner shall be liable to pay the monthly fee due IGM under this Agreement less any sums that IGM can save through good faith efforts to mitigate its costs during such period. IfIGM is unable to perform its duties under this agreement for more than 15 consecutive days due to the acts or occurrences, Owner may terminate this agreement. Without limitation, the parties agree that Services to be performed by IGM hereunder are to be performed essentially in concert with nature, and that unusual or severe weather may inhibit attainment of the goals set forth in the Maintenance Guidelines. Additionally, the parties agree that the Owner shall be responsible for the repair or replacement of Course facilities, including shrubbery and trees, which may be damaged by unusual or severe weather. In the event that unusual or severe weather or conditions which cause IGM to recommend the closing of the Course to play, Owner agrees to bear the risk of any damage which results from refusal by Owner to heed such warning. ·
7.11. IGM may identify the Course as a golf course to which IGM is providing Services. It is recognized that the name "International Golf Maintenance, Inc." and the initials "IGM," together with any other names, logos or designs owned by IGM or any of its affiliates and used in connection with the Services, together with appurtenant goodwill, are the exclusive property of IGM or its affiliates (collectively, the "IGM-Owned Names"). Accordingly, Owner agrees that no right or remedy of Owner for any default on the part of IGM under this Agreement shall, nor shall any provision of this Agreement, confer upon Owner or its successors or assigns the right to use IGM-Owned Names in the operation of the Course or otherwise. In the event of any breach of this covenant by Owner, IGM, in addition to any remedies available to it under this Agreement or at law or in equity, shall have the right to injunctive relief.
7. 12. In the event of the sale or other transfer of control over the Course, Owner will assign this Agreement to the purchaser or transferee, and upon such assignment and the written assumptions by the purchaser of all the obligations of Owner to IGM hereunder, Owner shall be fully released and relieved of all obligations hereunder arising from and after the date of the assignment.
7.13. PERMITS, FEES, LICENSES. Permits, fees, licenses necessary for performance of work by IGM will not be waived by the County, and IGM shall be responsible for obtaining, and shall pay for, any such required permits, fees, and licenses.
7.14. INTEREST OF IGM. IGM covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which shall conflict with its performance, or services required to be performed, under this Agreement. IGM further covenants that, in the performance of this Agreement, no person having any such conflicting interest shall be employed by IGM.
7.15 COVENANT AGAINST CONTINGENT FEES. IGM warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for IGM, to solicit or secure this Agreement, and that it has
9 23 not paid or agreed to pay any person, company, corporation, individual or Firm, other than a bona fide employee working solely for IGM, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this section, the County shall have the right, but not the duty, to terminate this Agreement without liability, and, at its discretion, to deduct from the Agreement such price, or otherwise recover the full amount of such fee, commission, percentage, gift or other consideration.
7.16. SCHEDULE OF WORK. IGM agrees to set an initial schedule of its work, and submit that schedule for approval by the County no later than thirty (30) days prior to October 1 of each year. Subsequent changes in schedule must be approved pursuant or as provided by Exhibit "B", Scope of Services & General Requirements.
7.17. RECORDS AND AUDITS. IGM agrees to maintain all books, documents, papers, records, and accounts pertaining to work performed under this Agreement, including property, personnel, and financial records, as are deemed necessary by the County to insure proper accounting for all funds expended under this Agreement and in such a manner as will readily conform to the terms of this Agreement. Said records and materials shall be available, upon request for audit or inspection purposes to Indian River County, its authorized representatives, and its auditors at IGM's office at all reasonable times during the term of this Agreement, and for three (3) years from the date of final payment.
7.18. EQUAL OPPORTUNITY EMPLOYMENT. Firm agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, or disability, and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfers; recruitment advertising; lay-off or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
7.19. INDEPENDENT CONTRACTOR. It is agreed by the parties that, at all times and for all purposes within the scope of this Agreement, the relationship of IGM to the County is that of independent contractor, and not that of employee. No statement contained in this Agreement shall be construed to define IGM or any of its employees as an agency or employee of the County. IGM shall not be entitled to any of the rights, privileges or benefits of Indian River County agencies or employees.
7.20. SEVERABILITY. If any of the provisions contained in this Agreement are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalid, illegal,.or unenforceable provision shall not affect any other provision, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
10 24 BY SIGNING BELOW, OWNER ACKNOWLEDGES HAVING READ THE TERMS AND CONDITIONS SET FORTH HEREIN. OWNER FURTHER REPRESENTS AND WARRANTS THAT IT UNDERSTANDS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE STRICTLY BOUND THEREBY. DATED this J z,id. day of ':Jt'pft'rnb{ ,l, , 2005.
Witnesses: INTERNATIONAL GOLF MAINTENANCE, INC.
Print Name: J)f bbr € B::u,ci
Print Name: ______
BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA
BY:~S.~ Thomas S. Lowther, Chairman BCC Approved: October 4, 2005
Indian River Count
Administration
Budget Attest: Jl(t'JuA,· '4v_r:_/) 1,, . /J)p ale Co.At . Jeffrey K. Barton, Clerk o1: Court1 Risk Management
Public Works
11 25 EXHIBIT E PRICING SUM:MARY SHEET
EQUIPMENT PURCHASED (SCHEDULED A) $0.00
YEAR1 SALARY & BENEFITS $525,862 OPERATING BUDGET COSTS $470,230 EQUIPMENT REPLACEMENT $0.00 O~/D& TOTAL $996,092.00
YEAR2 SALARY & BENEFITS $536,379 OPERATING BUDGET COSTS $479,634 PERCENTAGE OF INCREASE 2% ob/1,11 EQUIPMENT REPLACEMENT $25,000 TOTAL $1,041,013.00
YEAR3 SALARY & BENEFITS $547,106 OPERATING BUDGET COSTS $489,227 PERCENTAGE OF INCREASE 2% 07/Df EQUIPMENT REPLACEMENT $50,000 TOTAL $1,086,333.00
YEAR4 SALARY & BENEFITS $558,048 OPERATING BUDGET COSTS $499,011 Dfr>/OJ PERCENTAGE OF INCREASE 2% EQUIPMENT REPLACEMENT $75,000 TOTAL $1,132,059.00
YEARS SALARY & BENEFITS $569,208 OPERATING BUDGET COSTS $508,992 01 / I iJ PERCENTAGE OF INCREASE 2% EQUIPMENT REPLACEMENT $100,000 TOTAL $1,178,200.00
26 PRICING SUMMARY SHEET
EQUIPMENT PURCHASED (SCHEDULED A) $0.00
YEARl SALARY & BENEFITS $525,862 OPERATING BUDGET COSTS $470,230 EQUIPMENT REPLACEMENT $0.00 TOTAL $996,092.00
YEAR2 SALARY & BENEFITS $536,379 OPERATING BUDGET COSTS $479,634 PERCENTAGE OF INCREASE 2% EQUIPMENT REPLACEMENT $25,000 TOTAL $1,041,013.00
YEAR3 SALARY & BENEFITS $547,106 OPERATING BUDGET COSTS $489,227 PERCENTAGE OF INCREASE 2% . EQUIPMENT REPLACEMENT $50,000 TOTAL $1,086,333.00
YEAR4 SALARY & BENEFITS $558,048 OPERATING BUDGET COSTS $499,011 PERCENTAGE OF INCREASE 2% EQUIPMENT REPLACEMENT $75,000 TOTAL $1,132,059.00
YEARS SALARY & BENEFITS $569,208 OPERATING BUDGET COSTS $508,992 PERCENTAGE OF INCREASE 2% EQUIPMENT REPLACEMENT $100,000 TOTAL $1,178,200.00
SmeadSolt Reprint Dale: Monday, June 15, 2009 - U:52:10- OfficialOocuments:3838, Attachment Id 1, Page 1 27 Consent Agenda
Indian River County Interoffice Memorandum Office of Management & Budget
To:
From: Jason E. Brown Director, Office of Man
Date: June 17, 2009
Subject: Miscellaneous Budget Amendment 015
Descriptions and Conditions
The attached budget amendment appropriates funding necessary for the following:
1. The Florida Law Enforcement Games will be held in three counties on the Treasure Coast from June 23 through June 27, 2009, with competitors from all over the State of Florida. In order to cover rental of the shooting range for these events, Tourist Development Fund cash forward will provide funding in the amount of $3,000.
2. The State Health Department & New Horizons have both received substantial reductions in state funding over the last couple years. In addition, the County has reduced funding to these two agencies in order to meet budget constraints. Both agencies have indicated that these cumulative cuts will substantially impact services they provide to our citizens. Therefore, staff is recommending a supplemental allocation for the current fiscal year in the amount of $47,269 for New Horizons and $90,393 for the State Health Department.
3. The Judges of the 19th Judicial Circuit have requested additional funding of $3,000 from the Court Innovations Fund. The amount requested is for professional dues for judges and travel for education and training for Judicial Assistants in furtherance of the circuit-wide strategic planning initiatives. The attached entry appropriates funding from the Court Innovation Fund.
Staff Recommendation
Staff recommends that the Board of Commissioners approve the attached budget resolution amending the fiscal year 2008/09 budget.
Attachments Budget Resolution Indian River Count APPROVED AGENDA ITEM: Administrator Legal
Budget
Department
Risk Management FOR June 23 2009
F:\Budget\Jasonlbudget amendments 2008091015 msc ba.doc 28 RESOLUTION NO. 2009-__
A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE FISCAL YEAR 2008-2009 BUDGET.
WHEREAS, certain appropriation and expenditure amendments to the adopted Fiscal Year 2008-2009 Budget are to be made by resolution pursuant to section 129.06(2), Florida Statutes; and
WHEREAS, the Board of County Commissioners of Indian River County desires to amend the fiscal year 2008-2009 budget, as more specifically set forth in Exhibit "A" attached hereto and by this reference made a part hereof,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Fiscal Year 2008-2009 Budget be and hereby is amended as set forth in Exhibit "A" upon adoption of this Resolution.
This Resolution was moved for adoption by Commissioner ______, and the motion was seconded by Commissioner _____ and, upon being put to a vote, the vote was as follows:
Chairman Wesley S. Davis Vice Chairman Joseph E. Flescher Commissioner Peter D. O'Bryan Commissioner Bob Solari Commissioner Gary C. Wheeler
The Chairman thereupon declared this Resolution duly passed and adopted this __ day of ______, 2009.
INDIAN RIVER COUNTY, FLORIDA Attest: J. K. Barton, Clerk Board of County Commissioners
By ______By ______Deputy Clerk Wesley S. Davis, Chairman
APPROVED AS TO FORM 'yl4~CY ~ l.,~COlJNTYORNEY F:\BudgetVason\budget amendments 200809\budget amendment resolution.doc 29 - ., it "A" Resolution No. 2009- Budget Office Approval: ~- ~ Budget Amendment: 015 Jason E. Brow , Budget Director / Entry Fund/ DepartmenUAccount Name Account Number Increase Decrease Number
1. Revenues
Tourist Development Fund/Cash Forward - 119039-389040 $3,000 $0 October 1st
M.S.T.U. Fund/Shooting Range/Range Rental 004034-347510 $907 $0
Expenses
Tourist Development Fund/Other Professional 11914572-033190 $3,000 $0 Services
M.S.T.U. Fund/Shooting Range/Overtime 00416172-011140 $747 $0
M.S.T.U. Fund/Shooting Range/Social Security 00416172-012110 $47 $0
M.S.T.U. Fund/Shooting Range/Retirement 00416172-012120 $76 $0
M.S.T.U. Fund/Shooting Range/Worker's 00416172-012140 $26 $0 Compensation M.S.T.U. Fund/Shooting Range/Medicare 00416172-012170 $11 $0 Matching
2. Revenues
General Fund/Interest Income 001037-361100 $137,662 $0
Expenses
General Fund/General Health/New Horizons 00110663-088530 $47,269 $0
General Fund/General Health/State Health 00110669-088190 $90,393 $0 Department
3. Revenues
Additional Court Costs/Non-Revenue/Cash 141039-389040 $3,000 $0 Forward -Oct 1st
Expenses
Additional Court Costs/Court Administration 14190101-088400 $3,000 $0
F:\Budget\Jason\BudgetAmendments0809\BA 015 6/17/2009 30 INDIAN RIVER COUNTY, FLORIDA BOARD MEMORANDUM .
TO: Joseph A. Baird, County Administrator
THROUGH: Jim Davis, P.E., Public Works Director/vYv AND Ad_ Christopher J. Kafer, Jr., P.E., County Eng ne'e-/r FROM: Michael D. Nixon, P.E., Roadway Production Manager 41/ SUBJECT: Oslo Road Widening from 43rd Avenue to east of 2?1h Avenue, Phase 2 Engineering Services Kimley-Horn and Associates, Inc. Amendment No.3
DATE: June 15, 2009 CONSENT AGENDA
DESCRIPTION AND CONDITIONS
Kimley-Horn and Associates, Inc. is under contract with Indian River County to provide professional engineering and surveying services for widening Oslo Road between 43rd Avenue and 2?1h Avenue. The original agreement was for $163,750.00 and there have been two Amendments for a new total of $243,700.00.
The attached Amendment No. 3 is to include modifications to include Oslo Road east of 27th Avenue for a distance of approximately 550 linear feet to tie to the 5-lane urban sections. Amendment No. 3 provides for a supplemental stormwater facility survey, roadway plan modifications, drainage design and permitting, signalization design and utility improvement plans for a Lump Sum Fee of $91,779.00. Amendment No. 3 also includes right-of-way acquisition assistance, on an hourly basis, for a not-to-exceed fee of $15,000.00. This would make the new total $350,479.00.
RECOMMENDATIONS AND FUNDING
Staff recommends approval of the attached Amendment No. 3, authorizing the above mentioned project as outlined in the attached Scope of Services, and requests the Board to authorize the Chairman to execute the attached Amendment No. 3 with Kimley-Horn and Associates, Inc. on their behalf.
Funding is budgeted and available from Traffic Impact Fees, District 3, Account No. 10215341- 066510-06018 Oslo Road/27th Avenue to 43rn Avenue in the amount of $99,479.00 and from Utility Repair & Replacement Account No'/7123536-044699-09510, Oslo Road Improvements, 27th Avenue - 43rd Avenue in the amount of $7,300.00
ATTACHMENT
Amendment No. 3 with Kimley-Horn and Associates, Inc.
DISTRIBUTION Approved Date
Brian Good, P.E., Kimley-Horn, Inc
APPROVED AGENDA ITEM
FOR: June 23. 2009 svff Mfh IL&:w,t
F:\Public Works\Capital Projects\Os!o Road\Oslo Road - 27th Ave to 43rd Ave\BCC Agenda Memo KH Amend No 3.doc 31 INDIAN RIVER COUNTY Oslo Road Widening from 43rd A venue to east of 27th A venue
AMENDMENT NO. 3 TO THE PROFESSIONAL ENGINEERING/LAND SURVEYING SERVICES AGREEMENT BETWEEN KIMLEY-HORN AND ASSOCIATES, INC. AND INDIAN RIVERCOUNTY, FLORIDA.
This is an amendment to the existing Engineering/Land Surveying Services Agreement (AGREEMENT) dated May 24th, 2005 between Kimley-Horn and Associates, Inc. (ENGINEER) and Indian River County (COUNTY). This amendment addresses changes in "Section III- Scope of Services" and "Section V - Compensation" of the AGREEMENT.
Amendment Description
This Amendment includes the following:
"SECTION III - SCOPE OF SERVICES" is being modified to incorporate the following:
The ENGINEER agrees to perform professional roadway design and related services in connection with the project as required and set forth in the following: ·
A. Supplemental Stonnwater Facility Survey: Additional topographic survey data will be required to facilitate the design and permitting of two (2) proposed stormwater facilities. The topographic survey is anticipated to include the proposed pond sites and access/ drainage easements associated with each site.
A tree survey will be conducted within the limits of the proposed stonnwater facility to locate cabbage palms 10' overall height or greater and hardwood trees 12" or larger at diameter breast height (dbh). This element will require an environmental scientist to identify the specific trees that are listed in the County's code and may be impacted by the project.
This task will also include preparation of up to 4 legal descriptions and sketches associated with parcels identified where acquisition and/or temporary construction easements are depicted within the Roadway Plans.
B. Supplemental Geotechnical Investigation: All geotechnical investigation work will be contracted under the County's General Consultant Geotechnical Contract and coordinated by the COUNTY.
C. Roadway Plan Modifications: The roadway construction plans shall be amended to include Oslo Road east of 27th Avenue for a distance of approximately 550 linear feet to tie to the 5-lane urban section
32 Indian River Connty, Amendment No. 3 Oslo Road Widening from 43"' Avenue to east of 27 th A venue
constructed within Oslo Road Phase I Improvements. A westbound right turn auxiliary lane will be included within the Oslo Road/ zih A venue intersection improvement. In addition, the roadway construction documents will be revised to establish the ultimate roadway signing and marking plan between 27th Avenue and 20th A venue.
The roadway construction plans shall be amended to delineate a 6 foot sidewalk along the south side of Oslo Road between the existing bridge i=ediately east of 43rd Avenue and the western most driveway to Oslo Road from the commercial development located in the southeast quadrant of the Oslo Road/ 43rd Avenue intersection.
D. Drainage Design and Permitting: 1. Revise the drainage investigations and analysis along Oslo Road between 43rd Avenue and 27th Avenue necessary to resubmit a design which will drain the project in accordance with the County, St Johns River Water Management District (SJRWMD), Indian River Farms Water Control District (IRFWCD) and Army Corps of Engineers (ACOE) design criteria.
In addition, the existing Oslo Road Phase I SJRWMD ERP shall be modified to include the addition of the westbound right tum auxiliary lane to the intersection.
2. The ENGINEER shall prepare stormwater permit applications for the SJRWMD, lRFWCD and ACOE for submittal by the COUNTY. This will consist of all required evaluation, design, coordination, and follow-up work necessary to support permit applications. The COUNTY will review the permit applications as necessary. The ENGINEER shall assemble and be responsible for the final submittal.
3. The Stormwater Pollution Prevention Plan (SW3P) will be revised in conjunction with this amendment. The site specific SW3P is a requirement of both the EPA National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Construction Activities, and the FDEP Generic Permit for Stormwater Discharges from Construction Activities.
4. All permit fees will be paid directly by the COUNTY and are not included in the lump sum fees. Any significant plan revisions caused by changing agency criteria after our initial design is reviewed with each appropriate agency and similar ------~fac.tors....o.utsi.~of.ENGlliEER'S control, additional meetings or coordination will be considered as Additional Services.
E. Signalization Design:
Revise the signalization design located at the Oslo Road and 27th A venue intersection to provide for the future lane additions associated with 27th A venue. The 27th A venue lane additions consist of dual left tum auxiliary lanes, two through lanes and dedicated right turn auxiliary lane in both the nortbbound and southbound approaches.
Page 2 of 5 33 Indian River County, Amendment No. 3 Oslo Road Widening from43"' Avenue to east of 27 th Avenue
F. Utility Improvement Plans:
Based upon our understanding, the COUNTY does not desire to relocate the existing force main and water main facilities from their current location, such that they would not reside under the widened Oslo Road corridor, minor water main relocations will be needed to ensure fire hydrant access will be maintained along the corridor. The relocations will provide a fire hydrant access at no less than 500 linear feet along the corridor.
The force main will be evaluated to ensure that future service connections are positioned along the corridor in anticipation of future connections and are equipped with a valve assembly such that interruption of service will not be required.
G. Right-of-Way Acquisition Assistance: The ENGINEER will coordinate with the COUNTY and/or their legal consultant regarding the necessity for right-of-way acquisition associated with the Oslo Road and 27th Avenue corridors. Additional effort is anticipated in supporting the COUNTY'S legal consultant in orders of taking and providing expert testimony to the engineering necessity associated with the 27th Avenue and Oslo Road corridors.
"SECTION V - COMPENSATION" is being modified to incorporate the following:
The COUNTY agrees to pay and the ENGINEER agrees to accept for services rendered pursuant to this Agreement fees inclusive of expenses in accordance with the following:
A. Professional Services Fee The basic compensation mutually agreed upon by the ENGINEER and the COUNTY is as follows:
Lump Sum Components Tasks Labor Fee Supplemental Stormwater Facility Survey $9,400 Roadway Plan Modifications $34,614 Drainage Design and Permitting $33,255 Signalization Design $7,210 Utility Improvement Plans $7,300 Sub-Total $91,779
Page 3 of 5 34 Indian River County, Amendment No. 3 Oslo Road Widening from 43'' Avenue to east of 271h Avenue
Hourly Not-to-Exceed Components Task Labor Fee Right-of-Way Acquisition Assistance $15,000 Sub-Total $15,000
Project Total $106,779
(THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY)
Page 4 of 5 35 Indian River County, Amendment No. 3 Oslo Road Widening from 43 rd Avenue to east of 27th Avenue
The AGREEMENT is hereby amended as specifically set forth here in. All other sections of the AGREEMENT shall remain in full force and effect and are incorporated herein.
This Amendment No. 3 to the AGREEMENT regardless of where executed, shall be governed by and construed by the laws of the State of Florida.
In witness whereof the parties have executed this Amendment this _____ day of ------~ 2009.
INDIAN RIVER COUNTY, FLORIDA Board of County Commissioners
By: ______Wesley S. Davis, Chairman Board of County Commissioners
Attest: ______Deputy Clerk of the Court
&ll)Jttciency:
W~ County Attorney
Page 5 of 5 36 summary i Project N..:ame Oslo .Road Amendment No. 3 Task Summa,/y Manhours for project '
iT8Sk Project Project EhViro Analyst Technlo1an Clerical Remafks 1 Manager Etlgfo.eer Prof. i $150 $125 $85 $90 $75 $40 : Oeslan Analvs!S: 20 8 2 a 0 2 Roadwav Plans I 16 42 0 4.8 150 0 Drainage Plans I 12 56 8 79 63 0 Permittino I 26 36 22 10 0 J$ \Jtilitv Plans 18 6 0 .8. 24 4 s1~nim1 and Ma/kll!A Plans 5 9 0 6 40 0 Sltmalizatlon Pl~ils lO 2d. d 0 40 0 Landscape Pla11s Q 0 d Q 0 0 Llohtit1n Plat1s I 0 0 0 0 0 0 Public Involvement 0 0 0 0 0 0
Total Hours = 107 177 32 159 317 25 Labor Fee"' $16,050 $22,125 $2,720 $14,310 $23,775 $l,000
Total Labor Fee = $79,980 Expenses(3%)= $2,?9.9
I · Roadway Fee.= $82;379 $7.,200 I. gal and·sketch Fee. =a $2,:200 -1•RIW A itlsitioii ""'" Assistance '""';,,, = $15,000 hourly not to exoeeq Geotechnlcal Fee = $0 Countyato provide Subsurfac · Utility Investigation = $0 1 i Tota/Fee= $106,779 i ...... ' . " . '·"' _, .... ,...... ' .' •·- - .....
Amenda03 - Manhour Est (!REV 2).xls Page 1 w -.J Design AnalySiS
Ac:tivity: DesJgn Analysis/ Rev'.rew
Task I Prof~c! PtoiS-¥l. Env1ro Arta1ys:t · Technic.11:iri Cterlcl:ll Rem8rKs i Manaaer ES:natllaer PfOt. I I T\Jh. Sectlbn O"eslon/R _...,iaw Pav.em"ant Design Me Cirandum
Qorilract Ale I' Cost EsUtj1ate I 2 4, Cost esl cor.iducted at Fina! Ptah Coordination w/ Geote'.c-h 4 Cociiillnatlon wt Surv · or 2 2 GoorPlnatlon w/ Coun · 8 2 TWO r8-Vle:w-submittals 'lo COuntv
ProJect Soecifioationsl s·uri~JG-mei'ltal SpeciOcations Quaolitv CO:mou!atiorl 2 2 8 I QC/QA 2 Proiect-Manaciement 2
Sub~otal 20 8 2 8 0 2 I
w Pa.ge-2 00 Rdwy Pl;Jqs
Activity: Roadway Plans
Tal']< Project Pr~ject EnVirO Ahaly~t Technician C1er1oat Remarks i MS:t'f:!tri~r En ! 4ubtOtal 16 42 0 48 150 0 w Pages c.o Qrainage.Plans ActMty: Drainage Plans T3:$~ Project Project E.ii.Virb - Analyst tectinlclan cr.,1c-.r Rsmar/1s _i Manfil!!>r Engtn••t P~Qf. ora1n·11u~ Afi"aly~~7 Cll;lo RoadPhaMfi 20 20 2 pond. ?Oi.lttrlijS.@- 20 hrS Per Oslo Roaq PMse I To 1b Petrilit Jl}.~_i1i0ation Pond Sttlng Report) lNo:tproJided Field ~Rev~!J 8 8 ~fe vls"fts I Stormr}a~r .\Vlanag!Olerat.Fac1~ity /j>_slo_iio,i.ill'ha~•lL 4 6 i6 12 2 ponds @' 3Q hrt per" Qsfo j=ipitd PhaiiJ I 2 4 8 8 moamCiitlon dafafis I summary: 0It1raii,Jlie iltru_ctwe$ I 5 15 .1 sh_ei:if at 2o hffi-per sheet Dralrt~g~.l!tructui~ Shellls Qiik, Road PhasiW NO.!.Q_rt;V_ided lOs!0 RDi!d Philse I Not p_rovJ~ed _I~ ..%llf!fi\'.'~_n(!_e N6t e_l'O\l!d_g_d Stormwate.r POllut~on Prev~ Pla,ns !Qsfc,_/'lo_iitf'Jii,s• t1 4 5 14 z·_sheets at 1_2. hrs/sht I Oslo AaadPhas.aJ 4 .5 1,; 2 ~hee~.alJ2.11rs/~t dd/OA I 2 PrOjeCt ·Mai"t_agerne'"ht 2 -f Su!rtotal' . 12 56 8 79 63 0 Page4 ~ 0 Activity: Permiting Tasl< Project ·Project EnVlfo. Analyst Technician Clerical Remarks / Manager Enirilliier Prof. I' i Pre,,;lrlnllcation ..M-tinas ! SJRWMD 4 4 1 ! IRFWCD 4 4 1 I ACOE i SJRWMD Leller.M$i)l!ioat1on 6 2 Oslo Road Phas.e I I Permit Pack:~me i I i SJRWMD 2 8 4 6 I IRFWCD 2 8 4 B I' ACOE Included within SJRWMD I ReauesUor !nfonniitlon I SJ.RWMD 2 8 4 4 1 ! IRFWCD .2 8 4 1 I ACOE 2 4 2 2 1 I Pror~ct Manaaerrt¢tit 2 'i ! i i' I ! Su*total ;?.6 36 '22 10 0 19 I Permits Required 1I SJRWMDERP ! IRPWCb Drainade. Connection. Permit ACOE i ...... ~ Utilities Activity: Utility Plans Tas~ P.foject Pr!,Ject Ertv_ir.o_ Arialyst Tth~hnicl311 Clerical m,marks . I Manaaer E°{laln8:8r PfOf. ' I' Coordination with Countv 12 4 i Service Extensionsl Os/a Road Phase II 2 6 8 24 1 O sheets.@ 4 hrslsht Oslo Road: Phas.al Q 0 0 0 i i I ' i' QC/QA i 2 Proiect Mananemen~ 2 ' ' ' ' Subtrtal 18 6 0 8 24 4 Page6 .,1::1,,. N) Sign & Mark Activity: Signing and Marking!Plans Tas~ Project P.t QC/QA i 2. Project Management \ 2 i I I ; Sub!<>ital 5 9 0 6 40 0 I' J:::,. w Signalization Activity: Signalization ' T~$k ! Pro/eot Project Envlro Analyst Tecfinfclan Clerical Remarks i Mttnaller i:nQiileer Prof. I Oslo Road/.27th Aven~e 4 20 40 Revlsions for deletion of 27th Ave i i ! ! ' ' QC/QA ' 4. Proiect Management ;' 2 i ' !' I ' SUl>to!'1I 10 20 0 0 40 0 ' Page8 .i:::,.. .i:::,.. INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Joseph A. Baird, County Administrator THROUGH: James W. bavis, P.E., Public Works Director ~ And / 1 Christopher J. Kafer, Jr., P.E., County Engine¥ FROM: Michael D. Nixon, P.E., Roadway Production Manager Iffl/' SUBJECT: F.D.O.T. Local Agency Program (LAP) Agreement - FPN No. 426383-1-58-01 and Resolution Authorizing the Chairman's Signature Laudscaping on 58th Avenue from Oslo Road (9th Street S.W.) to 16th Street IRC Project No. 0916 DATE: June I 6, 2009 CONSENT AGENDA DESCRIPTION AND CO_NDITIONS Each year, the MPO adopts priority lists for all modes of transportation including highways, public transportation, aviation, congestion management system, and transportation enhancements. The lists, which are adopted in September, are then forwarded to FDOT and are used to allocate the MPO's formula federal and state gas tax funds. This year, FDOT requested an additional prioritization to help it direct the expenditure of a one-time allocation of funding made available through the American Resources and Recovery Act (ARRA), more commonly known as the stimulus bill. On February 11, 2009, the Indian River County MPO, at the request ofFDOT, adopted a Highway Project and Enhancement Project priority list. While the MPO attempted to utilize the same prioritization methodology as is used in the normal prioritization cycle, a number of conditions on stimulus funding made this impossible. For example, while the regular MPO priorities are used for large scale, multi-year projects, stimulus funds could only be used on "shovel-ready" projects that could be let within 180 days of the signing of the bill. Therefore, the MPO adopted a set of priorities addressing identified deficiencies that required no or minimal design and no right of way expenditure. The proposed project, landscaping on 58th Avenue from Oslo Road (9th Street S.W.) to 16th Street, addresses a widely perceived aesthetic deficiency in a major travel corridor. Further, it was selected by FDOT from a list of candidate MPO enhancement priorities because of the cost of the project relative to .available funding. FUNDING The federal funds appropriated for this FDOT LAP Grant are in the amount of $300,000.00. The Engineering Division estimates the total cost for the construction to be around $300,000.00. No matching funds are required for this grant. F:\Public Works\ENOlNEERlNG D!VISION PROJECT$\09l6-58th Ave Landscaping-Oslo Rd to SR60\Admim\agcnda items\BCC Agenda Memo for Resolution for FOOT LAP 06-15-09.doc 45 PAGE TWO F.D.O.T. Local Agency Program (LAP) Agreement- FPN No. 426383-1-58-01 For June 23, 2009 RECOMMENDATION Staff recommends the Board of County Commissioners approve the attached Local Agency Program Agreement and Resolution and authorize the chairman to execute the same. ATTACHMENTS I. Local Agency Program Agreement FPN No. 426383-1-58-01 2. Authorizing Resolution DISTRIBUTION I. Phillip J. Matson, MPO Staff Director APPROVED AGENDA ITEM Indian River Approved Date Coun Administration Budget Le al 6-/1-o Risk Management Public Works Engineering F:\Public Works\ENGINEERJNG DIVISION PROJECTS\0916"58th Ave Landscaping-Oslo Rd to SR 60\Admirn\ogenda items\BCC Agenda Menw for Resolution for FDOT LAP 06"15-09 .doc 46 th th GRANT NAME: Landscaping on 58 Ave from Oslo Rd to 16 Street GRANT# 426383-1-58-01 AMOUNT OF GRANT: --'----'------$300,000.00 DEPARTMENT RECEIVING GRANT: _,Pc..:u:::bc::lic::.c....:W:__o::.:rc::k:c.s/cc:Eeong"'i"'ne::::e::.n:::·n,,g..:cD::.:i-'-'vi:.::s1:::·occn______ CONTACTPERSON:_~M=icilhawe~l~N~ix~o~n,______TELEPHONE: ..,22.,6,::.-1"""9'..!!.86"------ I. How long is the grant for? Through December 31, 2010 Starting Date: When executed by FOOT 2. Does the grant require you to fund this function after the grant is over? ____Yes ~X"--_No 3. Does the grant require a match? ____Yes _X21.__No Ifyes, does the grant allow the match to be In-Kind services? ----Yes ___No 4. Percentage of match to grant ----'N"-/"'A"------'-'% 6. Where are the matching funds coming from (i.e. In-Kind Services; Reserve for Contingency)? 7. Does the grant cover capital costs or start-up costs? ~X~ __Yes ___,No Ifno, how much do you think will be needed in capital costs or start-up costs: $ (Attach a detail listing of costs) 8. Are you adding any additional positions utilizing the grant funds? ____Yes ~Xc,,___No Ifyes, please list. (If additional space is needed, please attach a schedule.) Acct. Description Position Position Position Position Position 011.12 Regular Salaries 011.13 Other Salaries & Wages (PT) 012.11 Social Security 012.12 Retirement - Contributions 012.13 Insurance - Life & Health 012.14 Worker's Compensation 012.17 S/Sec. Medicare Matching TOTAL 9. What is the total cost of each position including benefits, capital, start-up, auto expense, travel and operating? Salary and Benefits Operating Costs Capital Total Costs 10. What is the estimated cost of the grant to the county over five years? Grant Amount Other Match Costs Not Covered Match Total First Year $ 300,000.00 $ $ $ Second Year $ $ $ $ Third Year $ $ $ $ Fourth Year $ $ $ $ Fifth Year $ $ $ $ Signature of Preparer: "-""- Date: 06/17/09 47 STATE OF FLOR(DA DEPARTMENT OF TRANSPORTATION 525-010-40 LOCAL AGENCY PROGRAM AGREEMENT PRODUCTION SUPPORT 02/09 Page 1 FPN: 426383-1-58-01 · Fund: .,_F""SSS THIS AGREEMENT, made and entered into this __ day of ____,-.,.,--=-' __ by and between the STATE _OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, hereinafter called the Department, and Indian River County hereinafter called the Agency. W I T N E S S E T H: WHEREAS, the Agency has the authority to enter into this Agreement and to undertake the project hereinafter described, and the Department has been granted the authority to function adequately in all areas of appropriate jurisdiction including the implementation of an integrated and balanced transportation system and is authorized under Section 339.12, Florida Statutes, to enter into this Agreement; NOW, THEREFORE, in consideration of the mutual covenants. promises and representations herein, the parties agree as follows: · 1.00 Purpose of Agreement: The purpose of this Agreement is to provide for the Department's participation in Landscaping on 58th Ave from Oslo Road to 16th Street and as further described in Exhibit "A" attached hereto and by this reference made a part ·hereof, hereinafter called the "project," and to provide Department financial assistance to the Agency and state the terms and conditions upon which such assistance will be provided and the understandings as to the manner in which the project will be undertaken and completed. 1.01 Attachments: Exhibit(s) A,B, 1,L, X. &Sare attached and made a part hereof. 2.01 General Requirements: The Agency shall complete the project as described in Exhibit "A" with all practical dispatch, in a sound, economical, and efficient manner, and in accordance with the provisions herein, and all applicable laws. The project will be performed in accordance with all applicable Department procedures, guidelines, manuals, standards, and directives as described in the Department's Local Agency Program Manual, which by this reference is made a part hereof as if fully set forth herein. Time is of the essence as to each and every obligation under this Agreement. A full time em.ployee of the Agency, qualified to ensure that the work being pursued is complete; accurate, and consistent with the terms, conditions, and specifications of this Agreement shall be in charge of each project. Removal of Any Unbilled Funds . If Agency fails to timely perform its obligations in submitting invoices and documents necessary for the close out of the project, and said failure results in a loss of the remaining unbilled funding either by Federal withdrawal of funds or loss of State appropriation authority (which may include both federal funds and state funds, if any state funds are on the project), Agency will be responsible for the remaining unbilled funds on the project. No other funds will be provided by the Department. Agency waives the right to contest such removal of funds by the Department, if said removal is directly related to Federal (FHWA) withdrawal of funds or loss of State appropriation authority due to Local Agency's failure or nonperformance. In addition to loss of funding, the Department will consider de-certification of said Agency for future LAP projects. Removal of All Funds 48 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02/09 Page2 If all funds are removed from the project, including amounts previously billed to the Department and reimbursed to the Agency, _and the project is off the state highway system, then the department will have to request repayment for the previously billed amounts from the Local Agency. No state funds can· be used on off-syst_em projects. 2.02· Expiration of Agreement: The Agency agrees to· complete the project on or before December 31, 2010. If the Agency does not complete the project within this time period, this Agreement will expire on the last day of the scheduled completion as provided in this paragraph unless an extension of the time period is requested by the Agency and granted in writing by the Department prior to the expiration of this Agreement. Expiration of this Agreement will be considered termination of the project. The cost of any work performed after the expiration date of this Agreement will not be reimbursed by the Department. 2.03 Pursuant to Federal, State, and Local Laws: In the event that any election, referendum, approval, permit, notice or other proceeding or authorization is requisite under applicable law to enable the Agency to enter into this Agreement or to undertake the project hereunder or to observe, assume or carry out any of the provisions of the Agreement, the Agency will initiate and consummate, as provided by law, all actions necessary with respect to any such matters so requisite. 2.04 Agency Funds: The Agency shall. initiate ·and prosecute to com.pletion all proceedings necessary, including federal-aid requirements, to enable the Agency to provide the necessary funds for completion of the project. 2.05 Submission of Proceedings, Contracts, and other Documents: The Agency shall submit to the Department such data, reports, records, contracts, and other documents relating to the project as the Department and the Federal Highway Administration (FHWA) may require. 3.00 Project Cost: 3.01 Total Cost: The total cost of the project is $ 300,000.00. This amount is based upon the schedule of funding in Exhibit "B." The Agency agrees to bear all expenses in excess of the total cost of the project and any deficits involved. The schedule of funding may be modified by mutual agreement as provided for in paragraph 4.00. 3.02 Department Participation: The Department agrees to participate, includi(lg contingencies, in the project cost to the extent provided in Exhibit "B." This amount includes federal-aid funds which are limited to the actual amount of federal- aid participation. · 3.03 Limits on Department Funds: Project costs eligible for Department participation will be allowed only from the date of this Agreement. It is understood that Department participation in eligible project costs is subject to: a) Legislative approval of the Department's appropriation request in the work program year that the project is scheduled to be committed; b) Availability offunds as stated in paragraphs 3.04 and 3.05 of this Agreement; c) Approval of ail plans, specifications, contracts or other obligating documents and all other terms of this Agreement; and d) Department approval of the project scope and budget at the time appropriation authority becomes available. 3.04 Appropriation of Funds: The Department's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. If the Department's funding for this project is in multiple fiscal years, funds approval from the Department's Comptroller must be received each fiscal year prior to costs being incurred. See Exhibit "B" for funding levels by fiscal year. Project costs utilizing these fiscal year funds are not eligible for reimbursement if incurred prior to funds approval being received. The Department will notify the Agency, in writing, when funds are available. 3.05 Multi-Year Commitment: In the event this Agreement is in excess of $25,000 and has a term for a period of more than one year, the provisions of Section 339.135(6)(a), Florida Statutes, are hereby incorporated: "(a)' The department, during any fiscal year, shall not expend money, incur any liability, or enter into any 49 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-011).40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02109 Page3 contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The department shall require a statement from the comptroller of the Department that funds are available prior to entering into any such contract or other binding· commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding 1 year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years, and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of $25,000 and which have a term for a period of more than 1 year." 3.06 Notice-to-Proceed: No cost may be incurred under this Agreement until the Agency has received a written Notice to-Proceed from the Department. 3.07 Limits on Federal Participation: Federal-aid funds shall not participate in any cost which is not incurred in conformity with applicable Federal and State laws, the regulations in 23 Code of Federal Regulations (C.F.R.) and 49 C.F.R., and policies and procedures prescribed by the Division Administrator of FHWA. Federal funds shall not be paid on account of any cost incurred prior to authorization by the FHWA to the Department to proceed with the project or part thereof involving such cost (23 C.F.R. 1.9 (a)). If FHWA or the Department determines that any amount claimed is not eligible, federal participation may be approved in the amount determined to be adequately supported and the Department shall notify the Agency in writing citing the reasons why items and amounts are not eligible for federal participation. Where correctable non-compliance with provisions of law or FHWA requirements exists, Federal funds may be withheld until compliance is obtained. Where non-compliance is not correctable, FHWA or the Department may deny participation in parcel or project costs in part or in total. For any amounts determined to be ineligible for federal reimbursement for which the Department has advanced payment, the Agency shall promptly reimburse the Department for all such amounts within 90 days of written notice. 4.00 Project Estimate and Disbursement Schedule: Prior to the execution of this Agreement, a project schedule of funding shall be prepared by the Agency and approved by the Department. The Agency shall maintain said schedule of funding, carry out the project, and shall incur obligations against and make disbursements of project funds only in conformity with the latest approved schedule of funding for the project. The schedule of funding may be revised by mutual written agreement between the Department and the Agency. If revised, a copy of the revision should be forwarded to the Department's Comptroller and to the Department's Federal-aid Program Office. No increase or decrease shall be effective unless it compUes with fund participation requirements of this Agreement and is approved by the Department's Comptroller. 5.00 Records: 5.01 Establishment and Maintenance of Accounting Records: Records of costs incurred under the terms of this Agreement shall be maintained and made available upon request to the Department at all times during the period of this Agreement and for 5 years after the final payment is made. Copies of these documents and records shall be furnished to the Department upon request. Records of costs incurred include the Agency's general accounting [ecords and the project records, together with supporting documents and records of the Agency and all subcontractors performing work on the project and all other records of the Agency and subcontractors considered necessary by the Department for a proper audit of costs. If any litigation, claim or audit is started before the expiration of the 5-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved. 5.02 Costs Incurred for Project: The Agency shall charge to the project account all eligible costs of the project except costs agreed to be borne by the Agency or its contractors and subcontractors. Costs in excess of the programmed funding or attributable to actions which have not received the required approval of the Department shall not be considered eligible costs. 5.03 Documentation of Project Costs: All costs charged to the project, including any approved services contributed by the Agency or others, shall be supported by properly executed payrolls, time records, invoices, contracts or vouchers evidencing in proper detail the nature and propriety of the charges. 5.04 Audit Reports: Recipients of federal and state funds are to have audits done annually using the following criteria: 50 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-01()-40 LOCAL AGENCY PROGRAM AGREEMENT PRODUCTION SUPPORT 02109 Paga4 Th"' administration of resources awarded by the Department to the Agency may be subject to audits and/or monitoring by the Department, as described in this section. · Monitoring: In addition to reviews of audits conducted in accordance with 0MB Circular A-133 and Section 215.97, Florida Statutes, as revised (see "Audits" below), monitoring procedures may include, but not be limited to, on-site visits by Department staff, limited scope audits as defined by 0MB Circular A-133, as revised, and/or other procedures. By entering into this Agreement, the recipienr agrees to comply and cooperate fully with any monitoring procedures/processes deemed appropriate by the Department. In the event the Department determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with any additional· instructions provided by the Department staff to .the Agency regarding such audit. The Agency further agrees to comply and cooperate with any inspections, reviews, investigations or audits deemed necessary by the FDOT's Office of Inspector General (OIG), and the Chief Financial Officer (CFO) or Auditor General. Audits Part I - Federally Funded: Recipients of federal funds (i.e., state, [ocal government or non-profit organizations as defined in 0MB Circular A-133, as revised) are to have audits done annually using the following criteria: 1. In the event that the recipient expends $500,000 or more in federal awards in its fiscal year, the recipient must have a single or program-specific audit conducted in accordance with the provisions of 0MB Circular A-133, as revised. Exhibit "1" of this Agreement indicates federal resources awarded through the Depa.rtment by this Agreement. In determining the federal awards expended in its fiscal year, the recipient.shall consider all sources of federal awards, including federal resources received from the Department. The determination of amounts of federal awards expended should be in accordance with the guidelines established by 0MB Circular A-133, as revised. An audit of the recipient conducted by the Auditor General in accordance with the provisions 0MB . Circular A-133, as revised, will meet the requirements of this part. 2. In connection with the audit requirements addressed in Part I, paragraph 1 the recipient shall fulfill. the requirements relative to auditee responsibilities as provided in Subpart C of 0MB Circular A-133, as revised. · 3. If the recipient expends less than $500,000 in federal awards in its fiscal year, an audit conducted in accordance with the provisions of 0MB Circular A-133, as revised, is not required. However, if the recipient elects to have an audit conducted in accordance with the .provisions of 0MB Circu.lar A-133, as revised, the cost of the audit must be paid from non-federal resources (i.e., the cost of such an audit must be paid from recipient resources obtained from other than federal entities}. 4. Federal awards are to be identified using the Catalog of Federal Domestic Assistance (CFDA) title and number, award number and year, and name of the awarding federal agency. Part II - State Funded: Recipients of state funds (i.e., a non-state entity as defined by Section 215.97(2) (I), Florida Statutes) are to have audits done annually using the following criteria: · 1. In the event that the recipient expends a total amount of state financial assistance equal to or in excess of $500,000 in ·any fiscal year of such recipient, the· recipient must have a state single or project-specific audit for such fiscal year in accordance with Section 215.97, Florida Statutes, applicable rules of the Executive Office of the Governor and the CFO, and Chapters 10.550 (local governmental entities} or 10.650 (nonprofit and for-profit organizations}, Rules of the Auditor General. Exhibit "1" to this Agreement indicates state financial assistance awarded through the Department by this Agreement. In determining the state financial assistance expended in its fiscal year, the recipient shall consider all sources of state financial assistance,.including state financial assistance received from the Department, other state agencies, and other non-state entities. State financial assistance does not include federal direct or pass-through awards and resources received by a non-state entity for federal program matching requirements. · 2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of a financial reporting package as defined by Section 215.97(2) (d}, Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General. 51 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATIOf'J 525-010-40 LOCAL AGENCY PROGRAM AGREEMENT PRODUCTION SUPPORT 02/09 Pages 3. If the recipient expends less than $500,000 in state financial assistance in its fiscal year, an auditconducted in accordance with the provisions of Section 215.97, Florida Statutes, is not required. However, if the recipient elects to have audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, the cost of the audit must be paid from the non-state entity's resources (i.e., the cost of such an audit must be paid from the recipient's resources obtained from other than Siate entities}. 4. State awards are to be identified using the Catalog of State Financial Assistance (CSFA} title and number, award number and year, and name of the state agency awarding it. Part Ill - Other Audit Requirements: The recipient shall follow up and take corrective action on audit findings. Preparation of a Summary Schedule of Prior Year Audit Findings, inciuding corrective action and current status of the audit findings is rnquired. Current year audit findings require corrective action and status of findings. Records related to unresolved audit findings, appeals or litigation shall be retained until the action is completed or the dispute is resolved. Access to project records and audit work papers shall be given to the Department, the Department of . Financial Services, and the Auditor General. This section does not limit the authority of the Department to conduct or arrange for the conduct of additional audits or evaluations of state financial assistance or limit the authority of any other state official. Part IV - Report Submission: 1. Copies of financial reporting packages for audits conducted in accordance with 0MB Circular A-133, as revised, and required by Part I of this Agreement shall be submitted, when required by Section .320 (d), 0MB Circular A- 133, as revised, by or on behalf of the recipient directly to each of the following: a) The Department at.each of the following address(es): Karen Maxon, Budget & Work Program Coordinator Florida Department of Transportation 3400 West Commercial Boulevard Fort Lauderdale, FL 33309 b) The Federal Audit Clearinghouse designated in 0MB Circular A-133, as revised (the number of copies required by Sections .320 (d)(1) and (2), 0MB Circular A-133, as revised}, at the following address: Federal Audit Clearinghouse Bureau of the Census 1201 East 10th Street Jeffersonville, IN 47132 c) Other federal agencies and pass-through entities in accordance with Sections .320 (e) and (f), 0MB Circular A-133, as revised. 2. In the event that a copy of the financial reporting package required by Part I of this Agreement and conducted in accordance with 0MB Circular A-133, as revised, is not required to be submitted to the Department for reasons pursuant to Section .320 (e}(2), 0MB Circular A-133, as revised, the recipient shall submit the required written notification pursuant to Section .320 (e)(2) and a copy of the recipient's audited Schedule of Expenditures of Federal Awards directly to each of the following: · Karen Maxon, Budget & Work Program Coordinator Florida Department of Transportation 3400 West Commercial Boulevard Fort Lauderdale, FL 33309 In addition, pursuant to Section .320 (f), 0MB Circular A-133, as revised, the recipient shall submit a copy of the financial reporting package described in Section .320 (c), 0MB Circular A-133, as revised, and any Management Letters issued by the auditor, to the Department at each of the following addresses: 52 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02/09 Page6 Karen Maxon, Budget & Work Program Coordinator Florida Department of Transportation 3400 West Commercial Boulevard Fort Lauderdale, FL 33309 3. Copies of the financial reporting package required by Part II of this Agreement shall be submitted by or on behalf of the recipient directly to each of the following: a) The Department at each of the following address(es): Karen Maxon, Budget & Work Program Coordinator Florida Department of Transportation 3400 West Commercial Boulevard Fort Lauderdale, FL 33309 b) The Auditor General's Office at the following address: Auditor General's Office Room 401, Pepper Building 111 West Madison Street Tallahassee, Florida 32399-1450 4. Copies of reports or the Management Letter required by Part Ill of this Agreement shall be submitted by or on behalf of the recipient directly to: a) The Department at each of the following address(es): Karen Maxon, Budget & Work Program Coordinator Florida Department of Transportation 3400 West Commercial Boulevard Fort Lauderdale, FL 33309 5. Any reports," Management Letters, or other information required to be submitted to the Department pursuant to this Agreement shall be submitted in a timely manner in accordance with 0MB Circular A-133, as revised, Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, as applicable. · 6. Recipients, when submitting financial reporting packages to the Department for audits done in accordance with 0MB Circular A-133, as revised, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for profit organizations), Rules of the Auditor General, should indicate the date that the financial reporting package was delivered to the recipient in_ correspondence accompanying the financial reporting package. Part V - Record Retention: The recipient shall retain sufficient records demonstrating its compliance with the terms of this Agreement for a period of at least 5 years from the date the audit report is issued an_d shall allow the Department or its designee, the state CFO or Auditor General access to such records upon request. The recipient shall ensure that the independent. audit documentation is made available to the Department, or its designee, the state- CFO or Auditor General upon request for a period of at least 5 years from the date the audit report is issued, unless extended in writing by the Department. 5.05 Inspection: The Agency shall permit, and shall require its contractors to permit, the Department's authorized representatives and authorized agents of FHWA to inspect all work, workmanship, materials, payrolls, and records and to audit the books, records, and accounts pertaining to the financing and development of the project. The Department reserves the right to unilaterally cancel this Agreement for refusal by the Agency or any contractor, sub contractor or materials vendor to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received in conjunction with this Agreement (Section 287.058(1) (c), Florida Statutes). 53 STATE OF FLOR!DA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT . 02/09 Page 7 5.06 Uniform Relocation Assistance and Real Property Statistical Report: For any project requiring additional right of-way, the Agency must submit to the Department an annual report of its real property acquisition and relocation assistance activities on the project. Activities shall be reported on a federal fiscal year basis, from October 1 through September 30. The report must be prepared using the format prescribed in 49 C.F.R. · Part 24, Appendix B, and be submitted to the Department no later than October 15 of each year. 6.00 Requisitions and Payments: Requests for reimbursement for fees or other compensation for services or expenses incurred shall be submitted in detail sufficient for a proper pre-audit and post-audit thereof (Section 287.058(1)(a}, Florida Statutes). · All recipients of funds from this Agreement, including those contracted by the Agency, must submit bills for any travel expenses, when authorized by the terms of this Agreement, in accordance with Section 112.061, Florida Statutes, and Chapter 3-"Travel" of the Department's Disbursement Operations Manual, Topic 350-030-400 (Section 287.058(1}(b), Florida Statutes). If, after project completion, any claim is made by the Department resulting from an audit or for work or services performed pursuant to this Agreement, the Department may offset such amount from payments due for work or services done under any agreement which it has with the Agency owing such amount if, upon demand, payment of the amount is not made within 60 days to the Department. Offsetting any amount pursuant to this paragraph shall not be considered a breach of contract by the Department. 7.00 Department Obligations: Subject to other provisions hereof, the Department will honor requests for reimbursement to the Agency in amounts and at times deemed by the Department to be proper to ensure the carrying out of the project and payment of the eligible costs. However, notwithstanding any other provision of this Agreement, the Department may elect by notice in writing not to make a payment if: 7.01 Misrepresentation: The Agency shall have made misrepresentation of a material nature in its application, or any supplement thereto or amendment thereof or in or with respect to any document of data furnished therewith or pursuant hereto; · 7.02 Litigation: There is then pending litigation with respect to the performance by the Agency of any of its duties or obligations which may jeopardize or adversely affect the project, the Agreement or payments to the project; 7.03 Approval· by Department: The Agency shall .have taken any action pertaining to the project which, ur1der this Agreement, requires the approval of the Department or has made related expenditure or incurred related obligations without having been advised by the Department that same are approved; · 7.04 Conflh::t of Interests: There has been any violation of the conflict of interest provisions contained here in paragraph 12.06 or 12.07. 7.05 Default: The Agency has been determined by the Department to be in default under any of the provisions of the Agreement. 7.06 Federal Participation: The Department may suspend or terminate payment for that portion of the project which the FHWA, or the Department acting in lieu of FHWA, may designate as ineligible for federal-aid. 7.07 Disallowed Costs: in determining the amount of the payment, the Department will exclude all projects costs incurred by the Agency prior .to the effective date of this Agreement or the date of authorization, costs incurred after the expiration of the Agreement, costs which are not provided for in the latest approved schedule of funding in Exhibit "B" for the project, costs agreed to be borne by the Agency or its contractors and subcontractors for not meeting the project commencement and final invoice time lines, and costs attributable to goods or services received under a contract or other arrangements which have not been approved in writing by the Department. 7.08 Final Invoices: The Agency must submit the final invoice on the project to the Department within 120 days after the completion of the project. Invoices submitted after the 120-day time period may not be paid. 8.00 Termination or Suspension of Project: 54 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION ·suPPORT LOCAL AGENCY PROGRAM AGREEMENT 02/09 Page 8 8.01 Termination or Suspension Generally: The Department may, by written notice to the Agency, suspend any o(all of its obligations under this Agreement until such tim.e as the event or condition resulting in such suspension has ceased or been corrected or the Department may terminate this Agreement in whole or in part at any time the interest of the Department requires such termination. · · (a) If the Department determines that the performance of the Agency is not satisfactory, the Department shall notify the Agency of the deficiency in writing with a requirement that the deficiency be corrected within thirty (30) days of such notice. Such notice shall provide reasonable specificity to the Agency of the deficiency that requires correction. If the deficiency is not corrected within such time period, the Department may either (1) immediately terminate the Agreement as set forth in paragraph 8.(b) below, or (2) take whatever action is deemed appropriate by the Department to correct the deficiency. In the event the Department chooses to take action and not terminate the Agreement, the Agency shall, upon demand, promptly reimburse the Departmentfor any and all costs and expenses incurred by the Department in correcting the deficiency. (b} If the Department terminates the Agreement, the Department shall notify the Agency of such termination in writing, with instructions to the effective date of termination or specify the stage of work at which the Agreement is to be terminated: (c) If the Agreement is terminated before the project is completed, the Agency shall bei paid only for the percentage of the. project satisfactorily performed for which costs can be substantiated. Such payment, however, shaU not exceed the equivalent percentage of the contract price. All work in progress will become the property of the Department and will be turned over promptly by the Agency. 8.02 Action Subsequent to Notice-of-Termination or Suspension: Upon receipt of any final termination or suspension notice under this paragraph, the Agency shall proceed promptly to carry out the actions required therein which may include any or all of the following: (a) necessary action to terminate or suspend, as the case may be, project activities and contracts and such other action as may be required or desirable to keep to a minimum the costs upon the basis of which the financing is to be computed; (b) furnish a statement of the project activities and contracts and other undertakings the cost of which are otherwise includable as project costs. The termination or suspension shall be carried out in conformity with the latest schedule, plan, ·and cost as approved by the Department or upon the basis of terms and conditions imposed by the Department upon the failure of the Agency to furnish the schedule, plan, and estimate within a reasonable time. The ciosing out of federal financial participation in the project shall not constitute a waiver of any claim which the Department may otherwise have arising out of this Agreement. 9.00 Contracts of Agency: 9.01 Third Party Agreements: Except as otherwise authorized in writing by the Department, the Agency shall not execute any contract or obligate itself in any manner requiring the disbursement of Department funds, including consultant or construction contracts or amendments thereto, with any third party with respect to the project without the written approval of the Department. Failure to obtain such approval shall be sufficient cause for nonpayment by the Department. The Department specifically reserves unto itself the right to review the qualifications of any consultant or contractor and to approve or disapprove the employment of the same. 9.02. Compliance with Consultants' Competitive Negotiation Act: It is understood and agreed by the parties hereto that participation by the Department in a project with the Agency, where said project involves a consultant contract for engineering, architecture or surveying services, is contingent on the Agency's complying in ·full with provisions of Section 287 .055, Florida Statutes, Consultants' Competitive Negotiation Act. At the discretion of the Department, the Agency will involve the Department in the consultant selection process for all projects. In all cases, the Agency's attorney shall certify to the Department that selection has been accomplished in compliance with the Consultants' Competitive Negotiation Act. 10.00 Disadvantaged Business Enterprise (DBE) Policy and Obligation: It is the policy of the Department that DBE's, as defined in 49 C.F.R. Part 26, as amended, shall have the opportunity to participate in the performance of contracts financed in whole or in part with Department funds under this Agreement. The DBE requirements of applicable federal and state laws and regulations apply to this Agreement. The Agency and its contractors agree to ensure that DBE's have the opportunity to participate in the performance of this Agreement. In this. regard, all recipients and contractors shall take all necessary and reasonable steps in accordance with applicable federal and state laws and regulations to ensure that the DBE's have the opportunity to compete for a~ 5 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 LOCAL AGENCY PROGRAM AGREEMENT PRODUCTION SUPPORT 02/09 Page9 perform contracts. The Agency and its contractors and subcontractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of contracts, entered pursuant to this Agreement. Furthermore, the Agency agrees that: (a) Each financial assistance agreement signed with a US-DOT operating administration (or a primary recipient) must include the following assurance: "The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 C.F.R. Part 26. The recipient shall take all necessary and reasonable steps under 49 C.F.R. Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 C.F.R. Part 26 and as approved by Department, is incorporated by reference in this Agreement. Implementation of this program is· a legal obligation and failure to carry out its terms shall be treated as a violation of this Agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for .under 49 C.F.R. Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.)." (b) Each contract signed with a contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: ''The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requiremerits of 49 C.F .R. Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination· of this contract or such other remedy as the recipient deems appropriate." 11.00 Compliance with Conditions and Laws: The Agency shall comply and require its contractors and subcontractors to comply with all terms and conditions of this Agreement and all federal, state, and local laws and regulations applicable to this project. Execution of this Agreement constitutes 12.00 Restrictions, Prohibitions, Controls, and Labor Provisions: 12.01 Equal Employment Opportunity: In connection with the carrying out of any project,. the Agency shall not discriminate against any employee or applicant for employment because of race, age, religion, color, sex, national origin, disability or marital status. The Agency will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, age, religion, color, gender, national origin, disability or marital status. Such action shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitm.ent advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Agency shall insert the foregoing provision modified only to show the particular contractual relationship in all its contracts in connection with the development of operation of the project, except coniracts for the standard commercial supplies or raw materials, and shall require all such contractors to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials. When the project involves installation, construction, demolition, removal, site improvement or similar work, the Agency shall post, in conspicuous places available to employees and applicants for employment for project work, notices to be provided by the Department setting forth the provisions of the nondiscrimination clause. 12.02 Title VI - Civil Rights Act of 1964: The Agency will comply with all the requirements imposed by Title VI of the Civil Rights Act of 1964, the regulations of the U.S. Department of Transportation issued thereunder, and the assurance by the Agency pursuant thereto. The Agency shall include provisions in all contracts with third parties that ensure compliance with Title VI of the Civil Rights Act of 1964, 49 C.F.R. Part 21, and related statutes and regulations. 56 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02/09 Page 10 12.03 Americans with Disabilities Act of 1990 (ADA): The Agency will comply with all the requirements as imposed by the ADA, the regulations of the Federal government issued thereunder, and assurance by the Agency pursuant thereto. 12.04 Public Entity Crime: A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity; may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 12.05 Discrimination: In accordance with Section 287.134, Florida Statutes, an entity or.affiliate who has been placed on the Discriminatory Vendor Lisi, kept by the Florida Department of Management Services, may not submtt a bid on a contract to provide goods or services· to a public entity; may no( submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor or consultant under a contract with any public entity; and may not transact business with any public entity. 12.06 Suspension, Revocation, Denial of Qualification or Determination of Contractor Non-Responsibility: An entity or affiliate who has had its Certificate of Qualification suspended, revoked, denied or have further been determined by the Department to be a non-responsible contractor may not submit a bid or perform work for the construction or repair of a public building or public work on a contract with the Agency. 12.07 Prohibited Interests: Neither the Agency nor any of its contractors or their subcontractors shall enter into any contract, subcontract or arrangement in connection with the project or any property included or planned to be included in the project in which any member, officer or employee of the Agency or the locality during tenure or for 2 years thereafter has any interest, direct or indirect. If any ·such present or former member, officer or employee involuntarily acquires or had acquired prior to the beginning of tenure any such interest, and if such interest is immediately disclosed to the Agency, the Agency, with prior approval of the Department, may waive the prohibition contained in this paragraph provided that any such present member, officer or employee shall not participate in any action by the Agency or the locality relating to such contract, subcontract or arrangement. The Agency shall insert in all contracts entered into in connection with the project or any property included or planned to be included in any project, and shall require its contractors to insert. in each of their subcontracts, the following ·provision: "No member, officer or employee of the Agency or of the locality during. his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof." The provisions of this paragraph shall not be applicable to any agreement between the Agency and its fiscal depositories or to any agreement for utility services the rates for which are fixed or controlled by a governmental agency. 12.08 Interest of Members of, or Delegates to, Congress: No member or delegate to the Corigress of the United States shall be admitted to any share or part.of this Agreement or any benefit arising therefrom. 13.00 Miscellaneous Provisions: 13.01 Environmental Regulations: The Agency will be solely responsible for compliance with all the applicable environmental regulations, for any liabitity arising from non-compliance with these regulations, and will reimburse the Department for any loss incurred in connection therewith. The Agency will be responsible for securing any applicable permits. 13.02 Department Not Obligated to Third Parties: The Department shall not be obligated or liable hereunder to any individual or entity not a party to this Agreement. 13.03 When Rights and Remedies Not Waived: In no event shall the making by the Department of any payment to the Agency constitute or be construed as a waiver by the Department of any breach of covenant or any default which may then exist on the ·part of the Agency and the making of such payment by the Department, while any such breach or default shall exist, shall in no way impair or prejudice any right or remedy available to the Department with respect to such breacs 7 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02109 Page 11 or default. 13.04-How Agreement Is Affected by Provisions Being Held Invalid: If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected. In such an instance, the remainder would then continue to conform to the terms and requirements of applicable law. 13.05 Bonus or Commission: By ·execution of the Agreement, the Agency represents that it has not paid and, also agrees not to pay, any· bonus or commission for the purpose of obtaining an approval of its application for the financing hereunder. 13.06 State Law: Nothing in the Agreement shall require the Agency to observe or enforce compliance with any provision or perform any act or do any other thing in contravention of any applicable state law. If any of the provisions of the Agreement violate any applicable state law, the Agency will at once notify the Department in writing in order that appropriate changes and modifications may be made by the Department and the Agency to the end that the Agency may proceed as soon as possible with the project. 13.07 Plans and Specifications: In the event that this Agreement involves constructing and equipping of facilities on the State Highway System, the Agency shall submit to the Department for approval all appropriate plans and specifications covering the project. The Department will review all plans and specifications and will issue to the Agency a written approval with any approved portions of the project and comments or recommendations covering any remainder of the project. deemed appropriate. After resolution of these comments and recommendations to the Department's satisfaction, the Department will issue to the Agency a written approval with said remainder of the project. Failure to obtain this written approval shall be sufficient cause of nonpayment by the Department. The Agency will physically include Form FHWA- 1273 in all its contracts and subcontracts. 13.08 Right-of-Way Certification: Upon completion of right-of-way activities on the project, the Agency must certify compliance with all applicable· federal and state requirements. Certification is required prior to advertisemeRt for or solicitation of bids for construction 61 the project, including those projects for which no right-of-way is required. 13.09 Agency Certification: The Agency will certify in writing, prior to project closeout that the project was completed in accordance with applicable plans and specifications, is in place on the Agency's facility, adequate title. is in the Agency's name, and the project is accepted by the Agency as suitable for the intended purpose. 13.10 Agreement Format: All words used herein in the singular form shall extend to and include the plural. All words used in the plural form shall extend to and include the singular. All words used in any gender shall extend to and include all genders. · · · 13.11. Execution of Agreement: This Agreement may be simultaneously executed in a minimum of two counterparts, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one in the same instrument. 13.12 Restrictions on Lobbyins: Federal: . The Agency agrees that no federally-appropriated funds have been paid, or will be paid by or on behalf of the Agency, to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. If any funds other than federally-appropriated funds have been paid by the Agency to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of · Congress or an employee of a Member of Congress in connection with this Agreement, the undersigned shall complete . and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. The Agency shall require that the language of this paragraph be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 58 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02109 Page 12 State: No funds received pursuant to this contract may be expended for lobbying the Legislature, the judicial branch or a state agency. 13.13 Maintenance: The Agency agrees to maintain any project not on the State Highway System constructed under this · Agreement. If the Agency constructs any improvement on Department right-of-way, the Agency 1:8] will D will ·not maintain the improvements made for their useful life. 13.14 Vendors Rights: Vendors (in this document Identified as the Agency) providing goods and services to the Department should be aware of the following lime frames. Upon receipt, the Department has 5 working days to ins.peel and approve the goods and services unless the bid specifications, purchase order or contract specifies otherwise. The Department has 20 days to deliver a request for payment (voucher) to the Department of Financial Services. The 20 days are measured from the latter of the date the invoice is received or the goods or services are received, inspected, and approved. If a payment is not available within 40 days after receipt of the invoice and the receipt, inspection, and approval of goods and services, a separate interest penalty in accordance with Section 215.422(3)(b), Florida Statutes, will be due and payable in addition to the invoice amount to the Agency. Interest penalties of less than one $1 will not be enforced unless the Agency requests payment. Invoices which have to be returned to the Agency because of Agency preparation errors will result in a delay in the payment. The invoice payment requirements do not start until a properly completed invoice is provided to the Department. A Vendor Ombudsman has been established within the Department of Financial Services. The duties of this individual include acting as an advocate for Agencies who may be experiencing problems in obtaining timely payment(s) from the Department. The Vendor Ombudsman may be contacted at 850-413-5516 or by calling the State Comptroller's Hotline, 877-693-5236. 13.15 Reimbursement of Federal Funds:· The Agency shall comply with all applicable federal guidelines, procedures, and regulations. If at any time a review conducted by FHWA reveals that the applicable federal guidelines, procedures, and regulations were not followed by the Agency and FHWA requires reimbursement of the.funds, the Agency will be responsible for repayment to the Department of all funds awarded under the terms of this Agreement. Federal Economic Stimulus awards do not exempt the Agency from adherence to federal guidelines, procedures, and regulcitions. 59 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-01040 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 02/09 Page 13 IN WITNESS WHEREOF, the parties have caused these presents to be executed the day and year first above written. AGENCY Indian River County STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: By: Name: Name: GERRY O'REILLY, P.E. Title: Title: Director of Transportation Development · Attest: ______Attest: ------~--- Title: Title: As to form: As to form: illl/J{{)f)i) Attorney District Attorney See attached Encumbrance Form for date of funding approval by Comptroller. 60 . STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION- 525-010.-40 PROJECT MANAGEMENT OFFICE LOCAL AGENCY PROGRAM AGREEMENT 08106 Page EXHIBIT "A" PROJECT DESCRIPTION AND RESPONSIBILITIES FPN: 426383-1-58-01 This exhibit forms an integral part of the Agreement between the .State of Florida, Department of Transportation and Indian River Count Dated ______ PROJECT LOCATION: 58th Ave The project __ is _x __ is not on the National Highway System. The project __ is _x __ is not on the State Highway System. PROJECT DESCRIPTION: · From Oslo Road to 16th Street SPECIAL CONSIDERATIONS BY AGENCY: . The audit report(s) required in .the Agreement shall include a Schedule of Project Assistance that will reflect the Department's contract number, the Fina_ncial Project Number (FPN), the Federal Authorization Number (FAN), where applicable, the amount of state funding action (receipt and disbursement of funds), any federal or local funding action, and the funding action from any other source with respect to the project The Agency is required to provide a copy .of the design plans for the Department's review and approval to coordinate permitting with the Department,. and notify the Department prior to commencement of any right-of-way activities .. The Agency shall commence the project's activities subsequent to the execution of this Agreement and shall perform in accordance wnh the following schedule: a) Study to be completed by N/A . (Phase 18and 28 LAP Agreements) b) Design to be completed by 6/30/2009 . (Phase 38 LAP Agreements) c) Right-of-Way requirements identified and provided to the Department by N/A . (All LAPS requiring R/W) (District will handle all Right of Way activities on LAPS, the date would be set by the necessary timeframe to complete R/W activities. d) Right-of-Way to be certified prior to advertising for Construction. (All Phase 58 LAPS). e) Construction contract to be let by 10/30/2009. (For Phase 58 LAPS). (This date would be prior to the end of the fiscal year that the Phase 58 is programmed in FM) f) Construction to be completed by 12/31/2010. (Phase 58 LAP Agreements) If this schedule cannot be met, the Agency will notify the Department in writing with a revised schedule or !he project is subject to the withdrawal of federal funding. This project is for reimbursement of Construction Only in the year 2008/2009 in the amount of $300,000.00. Upon execution of this agreement by all parties the Department will provide the Agency ONE EXECUTED AGREEMENT and a NOTICE TO PROCEED. The Agency should not start any construction prior to the EXECUTED AGREEMENT and a NOTICE TO PROCEED, The Agency will only be reimbursed for costs incurred after the executed agreement date and prior to .the agreement or time extension (if required by a request for a time extension from the Agency) date. Upon completion of the Project, the Agency is required to notify the Department of the date of the completion .and final invoicing. The Department may require an onsite inspection with the Agency · Refer to Exhibit "8" annexed hereto and made a part hereof SPECIAL CONSIDERATIONS BY DEPARTMENT: 61 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PROJECT MANAGEMENT OFFICE LOCAL AGENCY PROGRAM AGREEMENT 08/06 Page EXHIBIT "8" SCHEDULE OF FUNDING AGENCY NAME & BILLING ADDRESS FPN: 426383-1-58-01 Indian River County Board of County Commissioners 1801 27'" Street Vero Beach, FL 32960 PROJECT DESCRIPTION th Name: 58 Ave Length: 3.050 Miles Termini: Oslo Road to 16th Street ·FUNDING (1) (2) (3) TOTAL AGENCY STATE& TYPE OF WORK By Fiscal Year PROJECT FUNDS FUNDS FEDERAL FUNDS Planning 2006-2007 2007-2008 . 200&-2009 Total Planning Cost Project Development & Environment (PD&E) 2006-2007 2007-2008 2008-2009 Total PD&E Cost Design 2006-2007 2007-2008 2008-2009 Total Design Cost Right-of-Way 2006-2007 2007-2008 2008-2009 Total Right-of-Way Cost Construction 2006-2007 2007-2008 200&-2009 FSSE m300,ooo.oo ;300,000.00 2008-2009 Total Construction Cost $300,000.00 $300,000,00 Construction Engineering and Inspection (CEI) 2006-2007 2007-2008 2008-2009 Total CEI Cost Total Construction and CEI Costs TOTAL COST OF THE PROJECT $300,000.00 $300,000.00 The Department's fiscal year begins on July 1. For this project, funds are not projected to be available until after the 1st of July of each fiscal year. The Department will notify the Agency, in writing, when funds are available. 62 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 LOCAL AGENCY PROGRAM AGREEMENT PRQjECT MANAGEMENT OFFICE 08/06 Page EXHIBIT "1" SINGLE AUDIT ACT Federal Resources Awarded to the Recipient Pursuant to This Agreement Consist of the Following: Federal Agency: Federal Highway Administration · CFDA #: 20.205 Highway Planning and Construction Amount: $ 300,000.00 Compliance Requirement: Allowable Activities: To be eligible, most projects must be located on public roads that are not functionally classified as local. The major exceptions are the Highway Bridge Replacement and Rehabilitation Program, which provides assistance for bridges on and off the federal-aid highways, highway safety activities, bicycle and pedestrian projects, transportation enhancement activities, the recreational trails program, and planning, research, development, and technoldgy transfer. Proposed projects meeting these and other planning, design, environmental, safety, etc., requirements can be approved on the basis of state and local priorities within the limit of the funds apportioned or allocated to each state. Allowable Costs: Eligible activities and allowable costs will be determined in accordance with Title 23 and Title 49 C.F.R. and the 0MB cost principles applicable to the recipient/sub-recipient. · Eligibility: By law, the federal-aid highway program is .a federally assisted state program that requires each state to have a suitably equipped a·nd organized. transportation department. Therefore, most projects are administered by or through State Departments of Transportation (State DOTs). Projects to be funded under the federal-aid highway program are generally selected by state DOTs or Metropolitan Planning Organizations (MPOs), in cooperation with appropriate local officials, as specified in 23 U.S.C. and implementing regulations. Territorial highway projects are funded in the same manner as other federal-aid highway projects, with the territorial transportation agency functioning in a manner similar to a state DOT. Most Florida Land Highway Program (FLHP) projects are administered by the Federal Highway Administration (FHWA) Office of Federal Lands· Highway and its Divisions or by the various Florida Land Management Agencies (FLMAs). Under the FLHP, projects in the Indian Reservation Road (/RR) Program are selected by Tribal Governments and are approved by the Bureau of Indian Affairs {BIA) and the FHWA Due to recent legislation, Tribal Governments meeting certain requirements may now administer various /RR projects on behalf of the BIA and FHWA The Fish and Wildlife Service (FWS) a·nd the National Park Service (NPS) select projects in the Refuge Road and Park Roads and Parkways Programs, respectively. For the Forest Highway Program, the Forest Service, the States and the FHWA jointly select projects. Compliance Requirements Applicable to the Federal Resources Awarded Pursuant to This Agreement Are As Follows: The recipient of Local Agency Program (LAP) funding must comply with the statutory requirements in Sections 112.061, 215.422, 339.12, and 339.135, Florida Statutes, and Title 23 and Title 49, C.F.R. 63 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PROJECT MANAGEMENT OFFICE LOCAL AGENCY PROGRAM AGREEMENT. 08/06 Page EXHIBIT "L" LANDSCAPE MAINTENANCE AGREEMENT (LMA) Paragraph 13.14 is expanded by the following: The Department and the Agency agree as follows: 1. Until such time as the project is removed from the project highway pursuant to paragraphs 3 and 5 of this LMA, the Agency shall, at all times, maintain the project in a reasonable manner and with due care in accordance with all applicable Department guidelines, standards, and procedures hereinafter called "Project Standards." Specifically; the Agency agrees to: a) Properly water and fertilize all plants, keeping them as free as practicable from disease and harmful insects; b) Properly mulch plant beds; c) Keep the premises free of weeds; d) Mow and/or cui the grass to the proper length; e) Properly prune all plants which responsibility includes removing· dead or diseased parts of plants and/or pruning such parts thereof which present a visua.1 hazard for those using the roadway; and f) Remove or replace dead or diseased plants in their entirety, or remove or replace those .plants that fall below original Project Standards. The Agency agrees to repair, remove or replace at its own expense all or part -of the project that falls below Project Standards caused by the Agency's failure to maintain the same in accordance with the provisions of this LMA.. In the event ·any part or parts of the project, including plants, has to be removed and replaced for whatever reason, then they shall be replaced by parts of the same grade, size, and specification as provided in the original plans for the project. Furthermore, the Agency agrees to keep litter removed from the project highway. 2. Maintenance of the project shall be subject to periodic inspections by the Department. In the event that any of the aforementioned responsibilities are not carried out or are otherwise determined by the Department to not be in conformance with the applicable Project Standards, the Department, in addition to its right of termination under paragraph 4(a), · may at its option perform any necessary maintenance without the need of any prior notice and charge the cost thereof to the Agency. 3. It is understood between the parties hereto that any portion of or the entire pwject may be removed, relocated or adjusted at any time in the future as determined to be necessary by the Department in order that the adjacent state road be widened, altered or otherwise changed to meet with the future criteria or planning of the Department. The Agency shall be given notice regarding such removal, relocation or adjustment and shall be allowed 60 days to remove all or part of the project at its own cost. The Agency will own that part of the project it removed. After the 60-day removal period, the Department will become the owner of the unresolved portion of the project, and the Department then may remove, relocate or adjust the project as it deems best, with the Agency being responsible for the cost incurred for the removal of the project. 4. This LMA may be terminated under any one of the following conditions: a) By the Department, if the Agency fails to perform its duties under this LMA following 15 days' written notice; or 64 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-01o-40 PROJECT MANAGEMENT OFFICE LOCAL AGENCY PROGRAM AGREEMENT 08/06 Page EXHIBIT "L" (continued) LANDSCAPE MAINTENANCE AGREEMENT (LMA) b) By either party following 60-calendar days' written notice. 5. In the event this LMA is terminated in accordance with paragraph 4 hereof, the Agency shall have 60 days after the date upon which this LMA is effectively termiriated to remove all or part of the remaining project at its own cost and expense. The Agency will own that part of the project it removed. After the 60-day removal period, the Department then may take any action with the project highway or all or part of the project it deems best, with the Agency being responsible for any removal costs incurred. 6. This LMA embodies the entire agreement and understanding between the ·parties hereto, and there are no other agreements or understandings, oral· or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 7. This LMA may not be assigned or transferred by the Agency, in whole or in part, without .consent of the Department. · 8. This LMA shall be governed by and construed in accordance with the laws of the State of Florida. 9. All notices, demands, requests or other instruments shall be given by depositing the same in the U.S. mail, postage prepaid, registered or certified with return receipt requested: a) If to the Department, addressed to: Barbara Handrahan, District Lap Program Administrator 3400 West Commercial Blvd Fort Lauderdale FL 33309 or at such other address as the Department may from time to time designate by written notice to the Agency; and b) If to the Agency, addressed to: Christo'pher J. Kafer. P.E. 1801 zy!h Street Vero Beach Florida 32960 or at such other address as the Agency may from time to time designate by written notice to the Department. 10. This LMA, if attached as an exhibit to the Agreement, forms an integral part of the Agreement between the parties dated ______ All time limits provided hereunder.shall run from the date of receipt of all such notices, demands, requests, and other instruments. · 65 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-40 PRODUCTION SUPPORT LOCAL AGENCY PROGRAM AGREEMENT 03/99 Page EXHIBIT "X" PROJECT ESTIMATE AND DISBURSEMENT SCHEDULE FPN: 426383-1-58-01 This exhibit forms an integral part of the Agreement between the State of Florida, Department of Transportation (Department) and Indian River County Dated ------ SPECIAL CONSIDERATIONS BY AGENCY: The following paragraph replaces Section 4.00 Project Estimate and Disbursement Schedule of the Local Agency Program Agreement executed between the Department and Indian River County Dated ------~--- Prior to the execution of this Agreement, a project schedule of funding shall be prepared by the Agency and approved by the Department. The Agency shall maintain said schedule of funding, carry out the project, and shall incur obligations against and make disbursements of project funds only iri conformity with the latest approved schedule of funding for the project. The schedule of funding may be revised by execution of a LAP Supplemental Agreement between the Department and the Agency. The Agency acknowledges and agrees that funding for this project may be reduced upon determination of the award amount and execution of a LAP Supplemental Agreement. If a LAP Supplemental Agreement is executed, copies should be forwarded to the Department's Office of Comptroller and Federal-Aid Management Office. 66 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-01()..40 LOCAL AGENCY PROGRAM AGREEMENT PRODUCTION SUPPORT 03/09 Page EXHIBIT "S" 2009 AMERICAN RECOVERY AND REINVESTMENT ACT (ARRA) JOB REPORTING FPN: 426383-1-58-01 This exhibit forms an integral part of the Agreement between the State of Florida, Department of Transportation (Department) and Indian River Count Dated ______ SPECIAL CONSIDERATIONS BY AGENCY: Compliance with the 2009 American Recovery and Reinvestment Act (ARRA) This project is subject to the criteria and conditions of the 2009 American Recovery and Reinvestment Act (ARRA). The Agency will satisfy the Federal reporting requirements for the project(s), such as the monthly employment report; for both the Contractor and Subcontractor. The Agency will provide the required information on form(s) provided by the Department in the timeframe indicated in the instructions. The Agency will ensure that the reporting requirements are included in all ARRA contracts and subcontracts. The Agency will withhold the Contractor's progress payments, project acceptance, and final payment for failure to comply with the requirements of the 2009 ARRA. Authority of the U.S. Comptroller General Section 902 of the 2009 ARRA provides the U.S. Comptroller General and his representatives the authority: 1. To examine any records of the. Contractor or any of its Subcontractors, or any State or Local Agency administering such contract, that directly pertain to, and involve transactions relating to, the contract or subcontract; and 2. To interview any officer or employee of the Contractor or any of its Subcontractors, or of any State or Local Agency administering the contract, regarding such transactions. ·Accordingly, the U.S. Comptroller General and his representatives shall have the authority and rights as provided under Section 902 of the 2009 ARRA with respect to this contract, which is funded with funds made available under the 2009 ARRA. Section 902 further states that nothing in this Section shall be interpreted to limit or restrict, in any way, any existing authority of the U.S. Comptroller General. Authority of the U.S. Inspector General Section 1515(a) of the 2009 ARRA provides authority for any representatives of the Inspector General to examine any records or interview any employee or officers working on this contract. The Contractor is advised that representatives of the U.S. Inspector General have the authority to examine any record and interview any employee or officer of the Contractor, its Subcontractors or other firms working on this contract. Section 1515(b) further provides that nothing in this Section shall be interpreted to limit or restrict, in any way, any existing authority of the Inspector General. 67 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525-010-30 FEDERAL-AID PROJECT FUNDING REQUEST CONSTRUCTION 08/00 Page 1 of 2 DATE ______ AGENCY Indian River County FEDERAL-AID PROJECT NUMBER ARRA 018 B FIN NUMBER 426383-1-58-01 STATE JOB NUMBER _____ TIP PAGE NUMBER ____ PROJECT TITLE 58th Ave Landscape Project 1h PROJECT TERMINI FROM: Oslo Road TO: -'-"-==------16 Street WORK PHASE: • PLANNING • ENVIRONMENTAL • DESIGN • CONSTRUCTION • RIGHTOFWAY .AWARDTYPE: ~LOCAL • LOCAL FORCES ENVIRONMENTAL DOCUMENT: Mark the type of environmental document prepared, indicate the approval date, and the most recent reevaluation date. EIS approved on: N/A , and reevaluated on: ______EA /FONS I approved on: N/A and ·reevaluated on: ______Categorical Exclusion: Programmatic Categorical Exclusion determination on: __.....,_N~/A~------ Type I Categorical Exclusion determination on: ------~6~/9~/2"'0~0"'9'------Type II Categorical Exclusion determination on: ______,_N,,i,:.,Ac______ Categorical Exclusion Reevaluation on: ______,_,N,,_/A~------ TOTAL LOCAL AGENCY STATE FEDERAL FUNDS PERCENT OBLIGATION DATE PHASE ESTIMATED COST FUNDS FUNDING (nearest Dollar) FEDERAL Month/Year Inearest Dollar) ( nearest Dollar) /nearest Dollar\ FUNDS PLANNING PD&E DESIGN R/W CONST. $300,000.00 $300,000.00 100% TOTAL $300,000.00 $300,000.00 100% DESCRIPTION OF EXISTING FACILITY (Existing Design and Present Condition) Roadway Width: Number of Lanes Bridge Number(s) on Project None . DESCRIPTION OF PROPOSED WORK New Construction • 3-R • Enhancement • Congestion Mitigation Landscaping • Roadway Width Number of Lanes Bridoe Numbersls\ on Proiect TITLE: Roadway Engineer LOCAL AGENCY CONTACT PERSON Michael Nixon MAILING ADDRESS: PHONE: (772) 288-5777 1801 2?'h Street Vero Beach, FL 32960 AGENCY ZIP CODE: 32960 Indian River Countv LOCATION AND DESIGN APPROVAL: :?7,___ BY: 4YZ:::A ✓ ,,, ,, " Approving Authority 06 TITLE: Roadway Production Manager DATE: 68 525-010..:30 CONSTRUCTION 08/00 Page2of2 AGENCY: PROJECT TITLE: DATE: Indian River County 58th Ave from Oslo Road to 16th Street ENVIRONMENTAL COMMITMENTS AND CONSIDERATIONS: An Environmental detennination has been completed for this Project. RIGHT OF WAY AND RELOCATION: There is no right of way acquisition associated with this Project. THIS PROJECT HAS BEEN REVIEWED BY THE LEGISLATIVE BODY OF THE ADMINISTRATION AGENCY OR AGENCIES, OR ITS DESIGNEE, AND IS NOT INCONSISTANT WITH THE AGENCY'S COMPREHENSIVE PLAN FOR COMMUNITY DEVELOPMENT. AGENCY: ______ DATE: ______By: ______··· Chairman· APPROVEDAN~LEGAL1W AS TO FORM BYt~-WILLIAM K, DEBRAAL, DEPUTY COUNTY ATTORNEY 69 RESOLUTION NO. 2009-__ A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING EXECUTION OF A LOCAL AGENCY PROGRAM AGREEMENT FOR THE LANDSCAPING ON 58rn AVENUE FROM OSLO ROAD (9rn STREET S.W.) TO 16TH STREET, WITH THE STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, AND PROVIDING FOR AN EFFECTIVE DATE. ' · WHEREAS, the State of Florida, Department of Transportation and Indian River County desire to facilitate the landscape improvements of 58th Avenue from Oslo Road (9th Street S.W.) to 16th Street; and WHEREAS, the State of Florida, Department of Transportation, has requested Indian River County execute and deliver to the State of Florida, Department of Transportation, a Local Agency Program Agreement for the aforementioned project; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Chairman of the Board is hereby authorized to make, execute, and deliver to the State of Florida, Department of Transportation, a Local Agency Program Agreement for the aforementioned project. ·•··· The foregoing resolution was offered by Commissioner ______who moved its adoption. The motion was seconded by Commissioner ______and, upon being put to a vote, the vote was as follows: Chairman WesleyS. Davis Vice-Chairman Joseph E. Fletcher Commissioner Gary C. Wheeler Commissioner Peter D. O'Bryan Commissioner Bob Solari The Chairman thereupon declared the resolution passed and adopted this __ day of ______, 2009. BOARD OF COUNTY COMMISSSIONERS OF INDIAN RIVER COUNTY, FLORIDA By______Wesley S. Davis, Chairman Attest: ------APPROVED AS TO FORM Jeffrey K. Barton, Clerk :Nr;;l!)/(Z}J[l J WILLIAM K. DEBl'.AAL .· DEPUTY COUNTY ATTORNEY F:\Public Works\ENGINEERING DIVISION PROJECTS\09I6-58th Ave Landscaping-Oslo Rd to SR60\Admimlagenda· items\RESOLUTION- 58th Ave Landscape Project.doc 70 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Joseph A. Baird, County Administrator ~ THROUGH: James W. Davis, P.E., Public Works Direct~~ FROM: Christopher J. Kafer, Jr., P.E., County Engine¥ SUBJECT: Amendment No. 3 to Professional Architectural and Engineering Services Agreement with Edlund, Dritenbas, Binkley Architects and Associates, P.A. - IRC Project No. 0701 IRC Parks Maintenance Complex DATE: June 9, 2009 CONSENT AGENDA DESCRJPTION AND CONDITTONS On January 24, 2006 the Board of County Commissioners entered into a Professional Services Agreement with Edlund, Dritenbas, Binkley Architects and Associates, P.A. to provide professional architectural, planning, electrical and mechanical engineering, environmental engineering, construction budgeting project scheduling and related services for the Indian River Parks Maintenance Complex. The contract was for a total lump sum fee of $59,613.00. Amendment No. I was approved on February 2, 2009, extending the duration of the original Agreement and Amendment No. 2 was approved on March 3, 2009 increasing the Agreement by $1,085.00 for a total of$60,698.00. Amendment No. 3 is a request for revision of plans and specifications for designs for phone, data, security and fire alarm systems and coordination of such into bid Addenda for a additional charges of$ 1,995.00, bringing the Agreement total to $62,693.00. RECOMMENDATIONS AND FUNDING Staff recommends approval of the attached Amendment No. 3 to the Professional Architectural and Engineering Services Agreement with Edlund, Dritenbas, Binkley Architects and Associates, P.A. and requests the Board to authorize the Chairman to execute the attached Amendment No. 3 on their behalf. Funding is approved and budgeted from Account No. 31521072-066510-05048, Optional Sales Tax, Parks, Construction in Progress, IRC Parks Maintenance Complex. ATTACHMENTS 1. Amendment No. 3 to the Professional Architectural and Engineering Services Agreement with Edlund, Dritenbas, Binkley Architects and Associates, P.A. 2. Exhibit A - Letter dated 6/5/09 from Edlund, Dritenbas, Binkley Architects and Assoc., P.A. DISTRIBUTION Indian River Coan I. Edlund, Dritenbas, Binkley Architects and Associates, P.A. Administration 2. David Fleetwood, Superintendent Parks Bud et APPROVED AGENDA ITEM Risk Mana ement FOR June 23, 2009 Public Works Engineering BY~Q "'f'biJ&ll/ F:\Engineering\Capital Projects\0701 !RC PARKS COMPLEX\0701 BCC Agenda Amend No. 3 Edlund, Dritenbas 06-09-09.doc 71 AMENDMENT NO. 3 TO THE PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES AGREEMENT BETWEEN EDLUND, DRITENBAS, BINKLEY ARCIDTECTS & ASSOCIATES, P.A. AND INDIAN RIVER COUNTY, FLORIDA. This is a request for additional services under the existing Architectural and Engineering Services Agreement (AGREEMENT) dated January 24, 2006 between Edlund, Dritenbas, Binkley Architects and Associates, P.A. (DESIGNER) and Indian River County (COUNTY). These services are required under section VII-Additional Work of the Agreement and are as noted in the attached Jetter (Exhibit A). All other sections of the agreement shall remain in full force and effect and are incorporated herein. This Amendment No. 3 to the AGREEMENT regardless of where executed; shall be governed by and construed by the Jaws of the State of Florida. In witness whereof the parties have executed this Amendment this ____day of -----' 2009. EDLUND, DRITENBAS, BINKLEY INDIAN RIVER COUNTY, FLORIDA ARCIDTECTS AND ASSOCIATES, P.A. BOARD OF COUNTY COMMISSIONERS 65 ROYALP ALM POINTE, SUITED VERO BEACH, F)~»960 By:~ By: ______7 Paul U. Dritenbas, A.I.A. Wesley S. Davis, Chairman Principal Architect Board of County Commissioners Attest:------Deputy Clerk of the Court Approved as to Fo.= ~;;,:7'fi~y ·---JJj/klf-~----- ..wr-(' , County Attorney C:\Documents and Settings\Jv1ary\Local Settings\Temporary Internet Files\Content.Outlook\B6DF2JWO\0701 BCC Agenda Amend No 3 Edlund 72 Dritenbas 06~09-09.doc ·- ... EDLUND · DRITENBAS •. BINKLEY ARCHITECTS ANO ASSOCIATES, P.A. . ; . - . . .· . :, ...... M~mber~ of the Amer.ica~--lns~itut_e· of,Archite~tS AR# AACOD.OBBS . ,," ·~····. . ,. ,.,, . ·.· .. /· '/ .. ·• 05 June 2009 ~~©!!OWi!@ . JUNO S 2009 TO: Mr. Chris Kafer,•P.Ei · County Engineer, Engineering Division 180127th Street (Bldg. A) ...... Vero Beach, Florida 32960 · FROM:· . EDB Architects andAs~ociates, iA, .. ·. Paul Dritenbas, Architect, , ·. · 65. Royal Palm Poi~te, Sui tee b• ' ··•··•Vero Beacb,,Florida32960 RE:• ..· ~equestforSupple~e~ta1Work Otder{Amendment#3) . ·. Indian River Cimnfy Parks J\1aintenance>Complex .. ; . ,.· , . ' .. _ . . ' .:; . . . . . ·- Dear Chris, As requested by your offic~ and in acc:ordancewith our.current agreemen~ f~r servi~es; .. ' ...... Section IX ~Exti;:t Work, we are here~th requesting apprqval of the f,ollo~gadditional . · · s.ervices: 1. .. . Revise the ~Ians at1d Specifications td r~flecttheinclusion of designsJor . phone; data, scic;urity and fire alarm systems. . . .··· ·.· . .. •·· .... · .·. ·. · , . .·. .· 2; . Provide coordination and exchange ofthe plan and specificati01uevision.s into .• · .. the current bidding process by way of Addenda...... '" . ' ' .- •. ,. . . " Total co~tfor theabove Extra Woridsas folfo~s: . . EDB Architectstiine to coordinate.C ...... :... : . . $ 580.00 * Ft.Pierce Engineering ...... :;...... ,. $1,250.00 Jeripercentfactor p.er Section VIf(B) and (C)..... $ 125.0Q .. ---~--~--~nntmg and Plottmg ...... : .. , ., ; ...... ,.. r-·,nro·.,,...,~---'-c.c.e_~ __.._c_ __ TOTAL . $1,995.00 . •*A copyofFtPierce·Engineering.Proposal dated··June 3, 2009 is att~ch~d to ~is req~est. Page 1. of2 ·. 65 Royal Palm Pointe, Suite D, Vero B;.,ach. FL 32960 Vero Beach 772/569-,4320 . Deerfield Beach 954/4213-0995 •Fax 772/569'920B . Fax 954/421-B269 73 '. · Chris, Please expedite this request at your earliest convenience. Should you have any questions please don't hesitate to call, ...... . ·.- •:· · .. ' : ' ·.... -. _. . ' . .~~··· · .. Paul l)ritenbas, Architect, A.LA., LEED A.P. . . , . .Page2 of2 C:050605VB;doc/paul 74 Fort Pierce Engineering, Inc. Dependable Mechanical, Electrical & Plumbing Design June 3, 2009 Paul Dritenbas, AIA EDB Architects and Associates, P.A. 65 Royal Palm Pointe, Suite D Vero Beach, FL 32960 RE: Proposal for Additional Fee - Indian River County Parks Maintenance Complex Paul: As you know, recent bidder questions on the subject project have required Fort Pierce Engineering to perform work outside the original scope agreed upon. This additional work includes the preparation of a fire alarm system specification as well as a level of detail regarding the phone/data system beyond the customary. We also were encouraged to provide this additional work in a very timely manner, which we have endeavored to do. Our accounting for the additional work is as follows: 1) Fire Alarm Specification, 8 hours of research and customization of our generic fire alarm specification. 2) Phone/Data System plan and specification revisions, 8 hours of research, travel and meeting, correspondence with·county staff, and drafting. Proposed fee for additional professional engineering and drafting services: $1250.00 Our previous proposal under Garrison Engineering covers services for building department comments, shop drawing review, and inspection visits, and remains as is. Sincerely, TERMS & CONDITIONS PER NSPE/ EJCOC NO. 1910-2 (OWNER/ENGINEER) ADDITIONAL SERVICES, IF REQUIRED, TO BE BILLED AT HOURLY RATES OR UNDER AMENDED AGREEMENT PROPOSAL VALID FOR 90 DAYS. 315 South 7'h Street • Fort Pierce, FL 34950 • Phone 772-672-4636 • Fax 772-672-4637 Z:\09 Pmjccis\06004.00 IRC PurksMoinloncuComplll.\'ll'mfl""•lllRCPlll'l.V,loinlch).! TO: Joseph A. Baird, County Administrator . THROUGH: James W. Davis, P.E., Public Works Directorp FROM: Christopher J. Kafer, Jr., P.E., County Engine~ SUBJECT: SUPPLEMENT . No. 3 to WORK ORDER NO. 1 WITH CARTER ASSOCIATES, INC. PROFESSIONAL CIVIL ENGINEERING SERVICES AGREEMENT Indian River County Parks Maintenance Complex - IRC Project No. 0701 DATE: June 10, 2009 CONSENT AGENDA DESCRIPTION AND CONDITIONS On June 5, 2007, the Board of County Commissioners approved Supplemental No. 1 with Carter Associates, Inc. for additional site engineering and permitting services for Indian River County Parks Maintenance Complex for a lump sum of $6,100.00. The original Work Order No. 1 with Carter Associates, Inc., approved by the Board of County Commissioners on January 9, 2007, was for a lump sum of $44,025.00. Supplemental No. 2 was approved on September 9, 2008 by the Board of County Commissioners for a lump sum of 15,740.00, bringing the total of Work Order No. I to $65,865.00. Carter Associates, Inc. has submitted Supplemental No. 3 for additional services to design a fiber optic interconnect plan along 77th Street from 58th Avenue to the proposed Indian River County Parks Maintenance Complex and for construction observation of the installation. The fees will be a Lump Sum of $2,394.00 for design services and hourly not to exceed $562.00 for construction related services for a total of $2,956.00. Fiber Optic Interconnect Conduit: • Revise the Utility Plan sheet (U-1) to add a fiber optic splice vault at the east side of the proposed western driveway onto 77'h Street, and interconnect conduits running to the west. • Revise the Water Details sheet (U-4) to include an interconnect plan showing conduits and pull boxes from the project site to the 58th Avenue connection point. • Add pull box and splice vault details on sheet (U-4). Supplemental No. 3 tasks bring the projects total to $68,821.00. Attached, please find Supplemental No. 3 to Work Order No. 1 for additional design services as requested by the County. F:\Engineering\Capital Projects\070 I IRC PARKS COMPLEX\070 I BCC Agenda SUPPLEMENT AL No.3 to WO # 1 Carter, 06-I0-09.doc 76 PAGE TWO BCC Agenda Item for 6/23/09 June I 0, 2009 RECOMMENDATION AND FUNDING Staff recommends approval ofthe attached Supplemental No. 3 in the amount of $2,956.00, as outlined in the attached Scope of Services (Exhibit A) and requests the Board to authorize the Chairman to execute the attachment. Funding is approved and available from Optional Sales Tax - Parks, Account No. 3155210752-0665 l 0- 05048 - IRC Parks Maintenance Complex. ATTACHMENTS 1. Carter Associates, Inc. Supplemental No. 3 to Work Order No. 1 to the Professional Civil Engineering Services Agreement 2. Carter Associates, Inc. Scope of Services (Exhibit A) DISTRIBUTION 1. Sean McGuire, P .E., Carter Associates, Inc. 2. David Fleetwood, Superintendent, Parks 3. Terry Smith, Manager, Telecommunications APPROVED AGENDA ITEM FOR hme 22', 2QQ9 "~'° o•fh fl. Jb,_,jJ Indian River Coun Administration Bud et Le al Risk Mana ement Public Works F:\Engineering\Capital Projects\0701 IRC PARKS COMPLEX\0701 BCC Agenda SUPPLEMENTAL No.3 to WO #1 Carter, 06-10-09.doc 77 Board of County Commissioners 1801 27th Street Vero Beach, Florida 32960 Telephone: (772) 567-8000 FAX:772-778-9391 INDIAN RIVER COUNTY PARKS MAINTENANCE COMPLEX SUPPLEMENTAL No. 3 to WORK ORDER NO. 1 TO THE PROFESSIONAL CIVIL ENGINEERING SERVICES AGREEMENT WITH CARTER ASSOCIATES, INC. This Supplemental No. 3 to Work Order No. 1 is in accordance with the existing AGREEMENT dated January 9, 2007 and the extension thereof, between Carter Associates, Inc. (ENGINEER) and Indian River County (COUNTY). This Supplemental No. 3 to Work Order No. 1 amends the agreement as follows: SECTION I - PROJECT LIMITS Consultant services are required to design a fiber optic interconnect plan and for observation of the installation of conduits and pull boxes for the new Indian River County Parks Maintenance Complex. SECTION II - SCOPE OF SERVICES The Scope of Services for this Supplemental No. 3 to Work Order No. 1 is to perform the following tasks as requested by the County: ------Fiber-Gptic.Jnte.connect-Condui~·------~---- • Revise the Utility Plan sheet (U-1) to add a fiber optic splice vault at the east side of the proposed western driveway onto 77 th Street, and interconnect conduits running to the west. • Revise the Water Details sheet (U-4) to include an interconnect plan showing conduits and pull boxes from the project site to the 58th Avenue connection point. • Add pull box and splice vanlt details on sheet (U-4). C:\Documents and Settings\SeanM\Local Settings\Temporary Internet Files\OLK.90B\0701 Supplemental No 3 to WO No 1 Carter 06- 78 10-09.doc PAGE TWO Supplemental No. 3 to Work Order No. 1 Carter Associates, Inc. June 10, 2009 SECTION III - TIME FOR COMPLETION Supplemental design tasks shall be completed within 30 calendar days from the date of execution of this Supplemental No. 3 to Work Order No. 1 and construction tasks shall run concurrently with construction work for Indian River County Parks Maintenance Complex. SECTION V - COMPENSATION The COUNTY agrees to pay, and the ENGINEER agrees to accept, a fee for services rendered according to the "Scope of Services" and further identified in all the Sections of this Supplemental No. 3 to Work Order No. 1, a Lump Sum fee of $2,394.00 for design services and hourly not-to-exceed $562.00 for construction related services for a total of $2,956.00. All and/or any additional services not described hereon shall be pre-approved by the COUNTY. Approved additional services shall be invoiced at the rates disclosed in the approved fee schedule with the ENGINEER for the 2008 - 2009 contract year. All invoicing and payments shall be in accordance with the original Professional Civil Engineering Services Agreement with the COUNTY and as stated hereon. Invoices shall include the work order and project number, invoice number related to this work order, original contract amount, current billing amount and retainage amounts. The AGREEMENT is hereby amended as specifically set forth herein. All remaining sections of the AGREEMENT shall remain in full force and effect, and are incorporated herein. C:\Documents and Settings\SeanM\Local Settings\Temporary Internet Files\OLK90B\0701 Supplemental No 3 to WO No 1 Carter 06~ 10-09.doc 79 PAGE THREE Supplemental No. 3 to Work Order No. 1 Carter Associates, Inc. June I 0, 2009 Attachment: Carter Associates Scope of Services (Exhibit A) OWNER Carter Associates, Inc. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA (Signature) /~? Wesley S. Davis, Chairman c,:,eor,_,c,...,0 4. 1/'tOM,, ) ,1&>1P.d>V (Printed name and title) Approved by BCC______ ATTEST: Jeffrey K. Barton, Clerk of Circuit Court Deputy Clerk gal Sufficiency: J ( William seph A. aird, COUNTY 4J{} (: dministrator C:\Documents and Settings\SeanM\Local Settings\Temporary Internet Files\OLK90B\0701 Supplemental No 3 to WO No 1 Carter06- 10-09.doc 80 CARTER ASSOCIATES, INC. CONSULTING ENGINEERS AND LAND SURVEYORS 1708 21st STREET• VERO BEACH, FLORIDA 32960-3472 • 772-562-4191 • 772-562-7180 (FAX) JOHN H. BLUM, P.E., PRINCIPAL FRANKS. CUCCURESE, P.S.M. DAVID E. LUETHJE, P.S.M., PRINCIPAL KENNETH M. GOOD, P.E. GEORGE A. SIMONS, P.E., PRINCIPAL ROGER A. HAGLER, P.S.M. PATRlCK S. WALTHER, P.E., PRINCIPAL G. SEAN MCGUIRE, P.E. STEVE D. SNOBERGER, P.E. MARVIN E. CARTER, P.S.M., Consultant to the Finn DEAN F. LUETHJE. P.E., (FL,l,.l>lCJ Consultant to the Finn June 8, 2009 JUN O9 009 Mr. Christopher J. Kafer, Jr., P.E., County Engineer Indian River County Engineering Division 1801 27th Street Vero Bea Re: Dear Chris: We are pleased to present this proposal for additional services er optic interconnect plan and observing the installation of conduits and pull boxes fr · splice vault at the north-east corner of58th Ave and 77th Street to the project site. . onduit is needed to accommodate the County's fiber optic service installation to Division office building. The fiber optic facilities along 58th Ave were only rec the direction of the County's Telecommunications Division that the proposed o luded in this project's scope of work. All provisions of the original Work Order No. 1 to the Professional ( dated 1/9/07), as well as Supplemental No. 1 ( dated 6/5/07) and Su remain in full force and effect, unless otherwise specifically modifie attached as Exhibit "A" for your use. The following describes our propos agreement between Carter Associates, Inc. (Engineer) and Indian River Coun Fiber Optic Interconnect Conduit: In general, the design plans will be extended and revised to add two 2" PVC con 300-feet, connecting from the existing fiber optic splice vault at the north-east corn Street and ending at a new splice vault at the project frontage on 77th Street. The proje modified as follows: ·- -·------.---R:evise·the-Utihty-Pla:n-sheer(tJ::f),o-a1id··a: ·fi:1Yer-opti:c-'splice·vaulranhe eastsloeof·thepropose_d____ ···---·-·--- western driveway onto 77th Street, and interconnect conduits running to the west. • Revise the Water Details sheet (U-4) to include an interconnect plan showing conduits and pull boxes from the project site to the 58th Ave connection point. • Add pull box and splice vault details on sheet U-4. Assumptions: In developing this proposal, the following assumptions have been made and deviation from these assumptions may require additional expenditures on behalf of the County to the Engineer. Compensation: Supplemental No. 3 fees will be invoiced on a percent complete lump sum basis. The total amount to be billed shall not exceed $2,956.00 unless authorized by an additional written agreement, as follows: Revise Design Plans ...... · ...... $2,394.00 Construction Phase Services ...... · ...... ·.... $562.00 TOTAL PROFESSIONAL SERVICES ...... $2,956.00 Please call on me should you have any questions or concerns regarding our proposed scope of work or terms of agreement. Sincerely, --~/4Al4::J G. Sean McGuire, P.E. Project Manager Attachments - Exhibit "A" (man-hour fee estimate) ¢~Serving Flortda N:\GSMIP\05-60E !RC Parks Complex\Agreements\Proposal6-8-09.doc 1. Since 19ll 82 Exhibit "A" Indian River County Parks Maintenance Complex Supplemental No. 3 (Add interconnect conduit for fiber optic services) Fee Estimate (rate schedule as per CAI continuing services agreement with IRC) 6/8/2009 $140.00 $110.00 $85.00 $57.00 Eng. I,Prin. Eng. II, P .E. End. Tech. Inspector Subtotal Patrick Sean Domenic Bryan Fiber Optic Interconnect Conduit Research existing splice box location 1 2 $224.00 Plan Revisions 5 8 $1,230.00 Coard/Meetings/Incidentals 2 6 $940.00 Construction Phase Services 2 6 $562.00 Total= $2,956.00 ---·-··--·--·---- - . - . -··--·-·-·--·-·---·-··------·--·-- ··--····· --··--· (!}.t. I Serving Florida L4i Since 1911 83 INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Department of General Services Division of Facilities Management Date: June 15, 2009 To: The Honorable Board of Connty Commissioners Thru: Joseph A. Baird, County Administrator Thru: From: Subject: ormance Contract with FPL Energy Services and Revised Energy Sav· BACKGROUND: At the August 19 2008 Board of County Commission meeting the Board approved the Master Agreement with FPL Energy Services to perform Energy Performance Contracting services at County operated facilities. The Board approved the implementation agreement and Energy Savings Guarantee for Phase I of the Energy Savings Project at the December 23, 2008 meeting. We are approaching completion of the lighting and plumbing retrofits in the Phase I group of Facilities and are achieving substantial reduction in the KWH usage, compared to last years usage. In order to take advantage of the savings guarantee for this Phase we asked FPL Energy Services to evaluate options for replacement of HVAC equipment at the North Connty Library. This equipment is in need of replacement due to deterioration of piping, evaporator and condenser coils in both systems. Staff requested FPL Energy Services to evaluate the repair/replacement options, prepare a scope of work and provide a proposal for the replacement of the equipment. Change Order # 1 in the amount of $152,539 is provided for this work and increases the total amonnt of the contract to $839,328 (this includes a $607 rebate from FPL). The annual guaranteed savings will remain unchanged and will extend the term of tbe guarantee from 8 to 10 years and thus provide a greater cumulative savings. Total savings for the ten year term will be $1,044,693. FPLES was instructed by staff to contact local contractors for pricing of this work. Staff provided names of contractors with recent experience in our facilities. The low bidder for the project is a local contractor. The attached project cash flow sheet shows the revised term of 10 years. The Energy Savings Guarantee has been modified to reflect the energy savings to be guaranteed by FPLES and paid by FPLES if they are not achieved. Work included in Change Order# I will be governed by the terms of the master agreement. RECOMMENDATION: Staff recommends approval of Change Order #1 to the Phase I Energy Savings Contract, in the amount of$ 152,539. The revised contract amount will become $839,328, which is to be funded from account# 315-22019-066.490. Staff also recommends that the Chairman be authorized to execute the revised Energy Savings Guarantee. Indian River Co. Approved Date 84 CHANGE ORDER # 1 FORM OF CONTRACT CHANGE CUSTOMER: Indian River County CONTRACTOR: FPL Energy Services Inc PROJECT: Phase I HV AC Improvements DATE OF THIS CHANGE ORDER: 5/12/09 ("Contract Change Effective Date") CHANGE ORDER NUMBER: I This contract change order ("Contract Change") is dated and effective as of the Contract Change Effective Date issued pursuant to the above referenced Release. The Customer hereby authorizes the following modifications and changes to the Contract Documents: (I) ADDITIONAL SERVICES AUTHORIZED. The Customer hereby authorizes Contractor to perform the following additional items of work (in addition to all other Services described in the Contract Documents) and the Contract Price is increased accordingly by the amount set forth in the table made a part of this Contract Change (the "Additional Compensation"): (describe additional work fully). ADD Replace and install (I) 30 ton DX unit and (I) 20 ton DX unit at the North County library. Demo existing 20 ton unit and 30 ton unit, condenser and ahu and dispose of off site. Furnish and install new Trane 20 ton split system and Trane 30 ton spilt system. Condensing to be factory coated coil. New zone dampers and heat strip. Fabricate and install ductwork as needed. Replace expansion valves. Replace drier cores. Evacuate system. Perform start up and check system operation. Disconnect and reconnect to existing electrical. Reuse existing disconnects. Disconnect and reconnect existing controls. Provide crane service. Provide test and balance for both units. Excluded Items: Anything not listed above. No temporary cooling will be provided by FPLES. (the "Additional Services") 85 The Guaranteed Substantial Completion Date and the Guaranteed Final Acceptance Date are hereby extended for a period of -1!llL_ Days in order for the Contractor to perform the Additional Services. The extension applies only to the "Additional Services". The Original Guaranteed Substantial Completion Date and Guaranteed Final Acceptance Date remains in effect for the Original Scope of Services. (1) WORK DELETED FROM CONTRACTOR'S SERVICES. The Customer hereby authorizes the Contractor to delete and remove the following items of work from the Services authorized under the Contract Documents, and the Contractor is no longer authorized to perform such work, and shall not be compensated for such work and the Contract Price is decreased accordingly by the amount set forth in the table made a part of this Contract Change (the "Compensation Reduction"): (describe deleted work fully). DELETE (the "Deleted Services") The Guaranteed Substantial Completion Date and the Guaranteed Final Acceptance Date are hereby reduced by _Q_ Days as a result of the Deleted Services. TIME IS OF THE ESSENCE. ORIGINAL CONTRACT PRICE AMOUNT: $687,396 ' AMOUNT OF PRIOR CONTRACT CHANGES: $0 CONTRACT CHANGE ADDITIONAL COMPENSATION: $152,539 CONTRACT CHANGE COMPENSATION REDUCTION: $0 REVISED CONTRACT PRICE: $839,935 The adjustment in the Guaranteed Substantial Completion Date and the Guaranteed Final Acceptance Date shall apply only to the scope of work outlined by this Contract Change Order. The Original Guaranteed Substantial Completion Date (n/a) and the Original Final Acceptance Date (n/a) shall remain in effect for the Original Scope of Services as defined in the release dated (n/a). It is hereby understood that, upon authorization of this Contract Change by the Customer, the Contractor shall implement the above referenced Change(s). The above adjustments to the Guaranteed Substantial Completion Date, the Guaranteed Final Acceptance Date, and/or Contract Price will constitute a full and complete settlement for the Change(s) and all issues related thereto. Except as set forth in this Contract Change, and in any other contract changes and written amendments signed by the Contractor, the Contract Documents remain in full force and effect. 86 Changes in the Services, Contract Price, Guaranteed Substantial Completion Date or the Guaranteed Final Acceptance Date may be authorized only by a Contract Change duly executed by the Customer Representative. In the event a revised contract price cannot be agreed to by both parties, the changes contained in this change order shall be billed/credited at the time and material rates provided below: Time and Material Rate for Additional Scope Changes (if applicable): N/A Acknowledged by the Contractor: Authorized by the Customer: FPL Energy Services, Inc., INDIAN RIVER COUNTY a Florida Corporation BOARD OF COUNTY COMMISSIONERS BY:------By:______NAME: Gregory T. Hanlon Wesley S. Davis, Chairman TITLE: Vice President & General Manager, Approved by BCC: June 23, 2009 Florida Power & Light Energy Services, Inc. Attest: J. K. Barton, Clerk DATE:------By______Deputy Clerk Approved: seph A. Baird, County Administrator Approved as to form and legal sufficiency: ~Senior Assistant County Attorney 87 ENERGY SAVINGS GUARANTEE FPL ENERGY SERVICES, INC, herein after referred to as "The COMPANY", guarantees that, during each Guarantee Report period during the Savings Guarantee Term, the Equipment shall be capable of producing Annual Energy Cost Savings (defined below) in an amount equal to or greater than Annual Guaranteed Savings (defined below) for such annual period, subject to the OWNER's, herein after referred to as "OWNER", operation of the Equipment per the Operating Plan, adjustments which the COMPANY is entitled to make per the terms of this Savings Guarantee, and all other terms of this Savings Guarantee. This Savings Guarantee only applies to the designated Equipment specified in this Savings Guarantee. Attachments and Exhibits to this Savings Guarantee are incorporated by reference. SECTION 1. BASIC REQUIREMENTS OF THIS SAVINGS GUARANTEE (A) DEFINITIONS. Initially capitalized terms in this Savings Guarantee have the meaning described in Section 2, and in the absence of such definition, as the context reasonably requires. (B) OWNER CONTROLLED VARIABLES AND OPERATING PLAN (1) For purposes of this Savings Guarantee, the OWNER represents, warrants, and agrees to operate the Equipment as required in the Operating Plan, to properly maintain (and replace, when necessary) the Equipment, to protect against and replace in the event of any casualty, and not to undertake any Changes which would adversely affect or reduce the Annual Energy Cost Savings. (2) In the event of any failure of the OWNER to operate per the Operating Plan or in the event of any Changes, the OWNER agrees to notify the COMPANY in writing within five (5) business days of any actual, anticipated, or intended variation from the Operating Plan or other Changes, whether before Substantial Completion or during the Savings Guarantee Term, which could impact any facility or Equipment to which this Savings Guarantee applies. Upon receipt of such a notice, or in any event if the COMPANY independently learns of any such Changes, COMPANY shall be entitled to adjust the Annual Energy Cost Savings to reflect Annual Energy Cost Savings to exclude any adverse impact of any such Changes. (3) Subject to the COMPANY preparing and submitting the annual Guarantee Report to the OWNER (with adjustments as described in this Savings Guarantee), this Savings Guarantee is based upon M&V Option A as detailed in this Guarantee. (C) UNDERSTANDING UTILITY BILLS (1) This Savings Guarantee and the Annual Energy Cost Savings in any Guarantee Report is not a representation, guarantee, or warranty that the actual dollar amount of utility bills of the OWNER will be reduced or lower than before, as so many other factors affect utility bills. This is only a guarantee that the Annual Energy Cost Savings will meet or exceed the Annual Guaranteed Savings during each respective annual measurement period during the Savings Guarantee Term if the Equipment is operated as required by the Operating Plan. As the OWNER has sole custody and control over the Equipment and any Changes, the COMPANY is permitted to adjust the Annual Energy Cost Savings so that the impact of any Changes are not attributed against COMPANY and so that the Annual Energy Cost Savings calculation is not adversely affected by Changes. (2) Cost savings, and actual utility bills, are two completely different concepts. Actual utility bills can be affected by many different reasons in the sole control of the OWNER, such as the OWNER changes in building occupancy, hours or times of day of use, the way that Equipment (or equipment not installed by the COMPANY) is operated (hours, load level, environmental conditions, etc.), and maintenance. Actual utility bills can also be affected by increases in utility rates and government imposed taxes. Indian River County, Florida 1 Indian River County Phase 1 Phase I Rev. 06/09 BB (3) This Savings Guarantee and any achievement of the Annual Guaranteed Savings does not directly represent nor depend upon the OWNER actual utility bills, and is not a guarantee of a lower utility bill in terms of absolute dollars. (D) SAVINGS DETERMINATION METHODOLOGY (1) The 2000 Federal Energy Management Program (FEMP) M&V Guidelines Version 2.2 and 2002 International Performance Measurement and Verification Protocol ("IPMVP") are voluntary consensus documents written by and for technical, procurement and financial personnel in government, commerce, and industry. The FEMP M&V Guideline and IPMVP provide an overview of current measurement & verification (M&V) techniques and set the framework for verifying third-party-financed energy projects for public (including Federal) and private-sector projects. They dictate that energy ( or water) savings are determined by comparing the energy ( or water) use associated with a facility or certain systems within a facility before and after the installation of an energy conservation measure (ECM) or other measure. The "before" case is called the baseline. The "after" case is called the post-installation, or performance, period. Baseline and post-installation energy use measurements or estimates can be constructed using the methods associated with M&V Options as described in these guidelines. The challenge of M&V is to balance M&V costs, accuracy, and repeatability with the value of the ECM(s) or systems being evaluated, and to increase the potential for greater savings by careful monitoring and reporting. Therefore, the Protocol recommends Options A (Partially Measured Retrofit Isolation) for the measured savings portion or non-stipulated/non-calculated portion. Attachment 7 contains a detailed summary of both verification methods. (2) THE ANNUAL GUARANTEE REPORT. Commencing upon the anniversary of the Final Acceptance Date, and upon each anniversary thereafter occurring during the Savings Guarantee Term (subject to a reasonable amount of preparation time for the COMPANY), the COMPANY shall deliver an annual Guarantee Report to the OWNER. Such annual Guarantee Report shall provide the results and supporting information of the COMPANY'S calculation of the Annual Energy Cost Savings and compare the Annual Energy Costs Savings to the Annual Guaranteed Savings. (3) This savings guarantee has been structured to comply with provisions of F.S 1013.23 (2)c2 which provides that the amount of annually guaranteed savings must "... meet or exceed total annual contract payments made by the county ... ". Total annual contract payments, as determined by a separate third party finance agreement, are inclusive of all costs associated with this program to include all development and implementation, financing and interest, bonding, and feasibility study costs. SECTION 2. DEFINITIONS: References in this Savings Guarantee to exhibits or other attachments serves to incorporate by reference such exhibits and other attachments into this Savings Guarantee. The following initial capitalized terms in this Savings Guarantee have the meaning set forth below. "Agreement" means the Energy Services Agreement entered into between INDIAN RIVER COUNTY, FLORIDA and FPL ENERGY SERVICES, INC. "Annual Energy Cost Savings" means, for each respective annual Guarantee Report period, the total of (1) the Measured Load Reduction times the Contract Utility Rates calculated for such period, plus (2) the Measured Load Shift times the difference between the applicable On Peak Rate Categories and Off Peak Rate Categories, calculated for such period, plus (3) any Calculated Savings for such period. "Annual Guaranteed Savings" means such level of Annual Energy Cost Savings to be exactly equal to the amount of the regularly scheduled payments to be made by the OWNER for the Equipment under the Agreement for the respective annual Guarantee Report time period, as calculated by the COMPANY. "Changes" means any deviation, modification, alteration, or change from (1) OWNER operation of the Equipment as required in accordance with the Operating Plan and/or (2) OWNER use or operation of its facilities as observed by the COMPANY at the time of its inspections. Without limitation, changes include any Indian River County, Florida 2 Indian River County Phase 1 Phase I Rev. 06/09 g 8 conditions which may, do, or are reasonably expected to alter the use of any Equipment or to impact the Annual Energy Cost Savings, and include (without limitation) changes in the primary use of any facility covered by this Savings Guarantee, changes to operating hours, levels of use, occupancy, changes to utility suppliers, method of utility billing or utility purchasing, any casualty, loss, destruction of Equipment, any changes to the Equipment or any facility, any failure to adequately or properly maintain Equipment. For purposes of clarity, conditions that are deemed to be Changes need not be specifically identified as an underlying assumption or baseline by COMPANY. "Contract Utility Rates" means the rates set forth in Attachment 2 (applicable for the entire Savings Guarantee Term). The rates shall be the prevailing utility rates plus all surcharges and taxes in effect and applicable to the OWNER as in effect on the date of this Guarantee. "COMPANY" has the meaning in the Agreement, FPL ENERGY SERVICES, INC. "Equipment" means the Load Reduction Equipment and the Load Shift Equipment. "Final Acceptance Date" means the date that the COMPANY and the OWNER designate all work associated with the Equipment/Project is complete. "Guarantee Report" means the respective annual report issued by the COMPANY to the OWNER, during each calendar year anniversary occurring during the Savings Guarantee Term which provides the results and supporting information of the COMPANY'S calculation of the Annual Guaranteed Savings, conducted per the Post Installation Measurement(s), and as adjusted by the COMPANY in accordance with this Savings Guarantee. "Load Reduction Equipment" means those items of Equipment, which are to achieve load reduction as designated by the COMPANY in the Guarantee Report. "Load Shift Equipment" means those items of Equipment, which are to achieve load shift as designated by the COMPANY in the Guarantee Report. "Measured Load Reduction" means the difference between the OWNER electric energy load from (A} the pre-existing equipment which was retrofitted and/or replaced by the COMPANY with the Load Reduction Equipment, and (B) the greater of (1) OWNER actual use of the Load Reduction Equipment or (2) the agreed upon level of use of the Load Reduction Equipment in accordance with the Operating Plan. "Measured Load Shift" means the amount of the OWNER electric energy load shifted from (A) the use of non-Load Shift Equipment (identified at the time of the Pre-Installation Measurement) during the On Peak Rate Categories to (B) the greater of (1) OWNER actual use of the Load Shift Equipment or (2) the agreed upon level of use of the Load Shift Equipment in accordance with the Operating Plan. "Measured Savings" means (1) the Measured Load Reduction times the Contract Utility Rates calculated for such period, plus (2) the Measured Load Shift times the difference between the applicable On Peak Rate Categories and Off Peak Rate Categories, calculated for such period. "Off Peak Rate Categories" means the lower of (1) any applicable off peak rate categories or non prime rate categories of the utility providing service to the OWNER as in effect on the date of the Agreement, or (2) any applicable off peak rate categories or non-prime rate categories of the utility providing service to the OWNER as in effect on the date of the COMPANY'S delivery of the respective annual Guarantee Report to the OWNER. The COMPANY'S calculation of the Off Peak Rate Categories shall include and be based upon a calculated and imputed escalation rate set forth in the Exhibits to this Savings Guarantee, which the COMPANY and the OWNER agree to be a reasonable rate of historic increase for purposes of calculating this Savings Guarantee (and for no other purpose). Indian River County, Florida 3 Indian River County Phase 1 Phase I Rev. 06/09 90 "On Peak Rate Categories" means the greater of (1) any applicable on peak rate categories or prime rate categories of the utility providing service to the OWNER as in effect on the date of the Agreement, plus all surcharges and taxes applicable thereto, or (2) any applicable peak rate categories or prime rate categories of the utility providing service to the OWNER as in effect on the dale of the COMPANY'S delivery of the respective annual Guarantee Report to the OWNER, plus all surcharges and taxes applicable thereto. The COMPANY'S calculation of the On Peak Rate Categories shall include and be based upon a calculated and imputed escalation rate set forth in the Exhibits to this Savings Guarantee, which the COMPANY and the OWNER agree to be a reasonable rate of historic increase for purposes of calculating this Savings Guarantee (and for no other purpose). "Operating Plan" shall mean the OWNER operation of the Equipment in accordance with the operating plan in Attachment 1 which is incorporated by reference, including but not limited to the committed level and hours of use by the OWNER of the Load Reduction Equipment and the Load Shift Equipment as listed in the Operating Plan. "Owner" has the meaning in the agreement, Indian River County, Florida. "Savings Guarantee" means this Savings Guarantee and all of its terms and conditions. "Savings Guarantee Term" means the time period during which the OWNER is making regularly scheduled payments under the Agreement for the Equipment specified in this Savings Guarantee (and not any other equipment which may be covered by the Agreement), provided however, that notwithstanding such longer payment period under the terms of the Agreement, the Savings Guarantee Term shall not exceed eight (8) years from the date of final acceptance by the County. "Stipulated or Calculated Savings" means those additional savings associated with the Equipment which the OWNER and COMPANY have mutually agreed upon as being realized by the OWNER as set forth in the Operating Plan or other exhibits/attachments lo this Savings Guarantee, including but not limited to Attachment 3. Stipulated ( or calculated) Savings do not need to be measured or monitored, and are not subject to verification in the Post Installation Measurement. By example, Calculated Savings may consist of maintenance cost savings or other savings, which are difficult to measure or monitor on an ongoing basis. "Substantial Completion" means the date that the COMPANY designates the Equipment as substantially installed and available for operation and use by the OWNER, excluding minor punch list items which do not affect the use or operation of the Equipment as a whole. SECTION 3. SAVINGS GUARANTEE Subject to all terms of this Savings Guarantee, during the Savings Guarantee Term the COMPANY guarantees that, for each annual Guarantee Report period, the Equipment shall, if operated in accordance with the Operating Plan, produce Annual Energy Cost Savings in an amount equal to or greater than Annual Guaranteed Savings for such annual period. All of the COMPANY'S obligations under this Savings Guarantee, as to each time period covered by each annual Guarantee Report, shall be deemed fully satisfied and performed (A) upon presentation to the OWNER of the annual Guarantee Report which indicates that the Annual Energy Cost Savings meets or exceeds the Annual Guaranteed Savings for such respective annual period, or (B) when payment is made, if required, pursuant to the sole and exclusive remedy described in Section 5(8) of this Savings Guarantee. Thereafter, during any annual measurement period, the COMPANY shall not be further obligated to monitor, measure, extrapolate, or prove any Annual Energy Cost Savings for that or any prior time period. SECTION 4. THE ANNUAL GUARANTEE REPORT PROCEDURE (A) The Annual Energy Cost Savings shall be determined by the COMPANY in an annual Guarantee Report and based upon the COMPANY'S baseline calculations as described in Attachment 6 and Indian River County, Florida 4 Indian River County Phase 1 Phase I Rev. 06/09 91 subject to adjustments by the COMPANY for any Changes. Within ninety (90) days following the first anniversary of the final acceptance and each anniversary thereafter during the Savings Guarantee Term, the COMPANY shall apply current data lb update any necessary baseline calculations for the Changes and provide the OWNER with a copy of the respective annual Guarantee Report for that annual time period. The COMPANY'S updated calculations shall be in accordance with this Savings Guarantee, and to the extent of calculating and adjusting for any Changes, shall be in accordance with trade industry standards and practices, and the COMPANY'S updated calculations (including but not limited to adjustments for Changes) shall be final and conclusive. The OWNER shall retain the right to review and approve, which approval shall not be unreasonably withheld, the data collection process, and the data to be used in updating the baseline calculations. Such review may be conducted by a qualified, independent contractor selected by the OWNER, and approved by the COMPANY. (8) In connection with each annual Guarantee Report, the COMPANY may also conduct a brief energy audit inspection of the OWNER facilities. This shall enable the COMPANY to determine what types of Changes the OWNER has made to its facility, business, or operations (including, but not limited to, Changes). (C) If a Guarantee Report indicates that the respective Annual Energy Cost Savings for the then current annual Guarantee Report period is at least equal to the Annual Guaranteed Savings amount for such annual period, then the COMPANY shall be deemed to have achieved and performed the Savings Guarantee for such annual period and shall not have any further obligation under this Savings Guarantee for such annual period or any prior annual period, and shall not be obligated to take any further action until the next scheduled annual Guarantee Report period. (D) In the event of the OWNER removal, destruction, substitution, modification, or other alteration of the Equipment, any Changes, or the OWNER failure to operate the Equipment for the hours or at the levels set forth in the Agreement or this Savings Guarantee (including, but not limited to, Changes), the COMPANY may adjust the Annual Energy Cost Savings to reflect savings as if the OWNER had not made any such Changes and as if the OWNER had continued to operate the Equipment in accordance with the Operating Plan, and this adjustment shall apply for all purposes of the Guarantee Report and calculation of the Annual Energy Cost Savings and satisfaction of this Savings Guarantee. SECTION 5. EXCLUSIVE REMEDIES OF OWNER (A) Prior to delivery of any annual Guarantee Report, in the event that such Guarantee Report would indicate that the Equipment will otherwise fail to produce Annual Energy Cost Savings in an amount at least equal to the Annual Guaranteed Savings for such annual period (and such situation is not caused by the OWNER failure to operate the Equipment per this Savings Guarantee), the COMPANY may, on one or more occasions, take action to cause the Annual Energy Cost Savings to equal or exceed the Annual Guaranteed Savings, including but not limited to fine tuning of Equipment, the addition of implementation methods, operation methods, or energy conservation measures which increase the Annual Energy Cost Savings. In any such remedy case, the COMPANY shall provide the OWNER with notice of any such activity including an annual Guarantee Report, which will provide the appropriate details. Any such action shall not adversely impact facility operations nor impede on normal facility functionality. (8) The COMPANY may take all other actions to help the Annual Energy Cost Savings equal or exceed the Annual Guaranteed Savings, including but not limited to the addition of implementation methods, operation methods, or energy conservation measures which increase the Annual Energy Cost Savings. The OWNER shall have the right to review and approve, which approval shall not be unreasonably withheld, any such action to ensure that they do not adversely impact facility operations nor impede on normal facility functionality. (C) If, after taking the actions described above {which the COMPANY shall describe to the OWNER in the Guarantee Report) and performing any follow up which the COMPANY deems necessary, such Guarantee Report still indicates that the Annual Energy Cost Savings in such Guarantee Report is not at least Indian River County, Florida 5 Indian River County Phase 1 Phase I Rev. 06/09 g 2 equal to the Annual Guaranteed Savings amount for such annual period, then the COMPANY shall pay to the OWNER an amount equal to the difference for such respective annual period between the Annual Guaranteed Savings amount and the Annual Energy Cost Savings in such annual Guarantee Report. This shall only be for the then current annual Guarantee Report and shall not affect any prior or any future annual Guarantee Report. The OWNER agrees not to offset, deduct, set-off, withhold, or delay any payment due under the Agreement. This is the OWNER sole and exclusive remedy under this Savings Guarantee, and no other rights or remedies are granted. SECTION 6. EXCLUSIONS AND LIMITATIONS (A) THE SOLE AND EXCLUSIVE REMEDY OF INDIAN RIVER COUNTY UNDER THIS SAVINGS GUARANTEE IS SPECIFICALLY STATED ABOVE. EXCEPT AS SET FORTH ABOVE IN THIS SAVINGS GUARANTEE, THE COMPANY HAS NOT MADE AND DOES NOT HEREBY MAKE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY EQUIPMENT OR THE REDUCTION IN THE OWNER ENERGY USAGE AS A RESULT OF THE INSTALLATION AND OPERATION OF ANY EQUIPMENT. (BJ THE COMPANY SHALL NOT BE RESPONSIBLE FOR INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT WITHOUT LIMITATION, PROPERTY DAMAGE RESULTING FROM, OR RELATED TO THE AGREEMENT OR THE EQUIPMENT (INCLUDING BUT NOT LIMITED TO THE MALFUNCTION OR MISOPERATION THEREOF), BODILY INJURY, MENTAL ANGUISH, MENTAL INJURY OR DISEASE, LOSS OF PROFITS, AND GOODWILL, REGARDLESS OF THE CAUSE OR BASIS OF SUCH ACTION, WHETHER IN STRICT LIABILITY, CONTRACT, TORT, OR OTHERWISE. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto subscribe their names to this Contract by their duly authorized officers on the date first above written. FPL ENERGY SERVICES, INC INDIAN RIVER COUNTY By: -::c---=---:------ By:------ Name: Greg T. Hanlon Name: Wesley S. Davis, Chairman Title: Vice President and General Manager Title: Chairman Board of County Conunissiouers Approved by BCC: June 23, 2009 APPROVED: ATTEST: J. K. Barton, Clerk BY:______Deputy Clerk PROVED AS TO FORM AND LEGAL SUFFICIENCY: Title: Senior Assistant County Attorney Indian River County, Florida 6 Indian River County Phase 1 Phase I Rev. 06/09 g 3 ATTACHMENT 1 Multiple copies of this document shall be provided for each facility/area for which different occupancy information applies. ANNUAL LIGHTING HOURS Facility Average Hours of Operation Courthouse 5265 Main Librarv 3463 North Librarv 3490 Sheriff's Office 3628 Road and Bridae 3015 Indian River County, Florida 7 Indian River County Phase 1 Phase I Rev. 06/09 g 4 ATTACHMENT 2 Contract Utility Rates The Contract Utility Rates for first year during the Savings Guarantee Term are set forth below and shall be used for all calculations made under this Agreement. Electrical Data Average 2007-08 Electrical Rates Blended $/kWD Utility Facility $/kWh $/Kwh Courthouse 0.1100 3.81 0.1155 Vero Main Librarv 0.1010 4.16 0.1092 Vero North Library 0.0804 7.36 0.1045 FPL Sheriffs Office- Admin 0.1114 3.81 0.1317 Vero Sheriff's Office- Garaae 0.1031 3.81 0.1196 Road and Bridqe 0.1166 3.81 0.1271 Vero Water & Sewer Data Combined Facility Water/Sewer rate ($/1000 Qal) Courthouse 5.70 Main Librarv 5.70 North Librarv 10.38 Sheriff's Office 5.60 Road and Bridae 4.31 Indian River County, Florida 8 Indian River County Phase 1 Phase I Rev. 06/09 ATTACHMENT 2-A % Utility Rates Escalation Rates (these are historical averages used for developing savings estimates only and are not binding as it pertains to this Guarantee) Year Electricity Water Maintenance 1 0% 0% 0% 2 3% 5% 3.5% 3 3% 5% 3.5% 4 3% 5% 3.5% 5 3% 5% 3.5% 6 3% 5% 3.5% 7 3% 5% 3.5% 8 3% 5% 3.5% 9 3% 5% 3.5% 10 3% 5% 3.5% 11 3% 5% 3.5% 12 3% 5% 3.5% The rates set forth above shall be based upon a compounding of the immediately preceding year's escalated rate (i.e. compounded escalation annually). Indian River County, Florida 9 Indian River County Phase 1 Phase I Rev. 06/09 ATTACHMENT 3 DESCRIPTION OF CALCULATED SAVINGS Lighting Material Savings (ECM-1) Lighting material calculated savings and the associated assumptions are provided for each facility in the report titled, "Indian River County Phase I Feasibility Study". This report is incorporated into this Guarantee Document. HVAC Savings due to Lighting Reduction (ECM-1) HVAC calculated savings due to lighting and the associated assumptions are provided for each facility in the report titled, "Indian River County Phase I Feasibility Study". This report is incorporated into this Guarantee Document. Occupancy Sensors - Savings due to Lighting Reduction (ECM-2) Occupancy Sensor calculated savings due to lighting and the associated assumptions are provided for each facility in the report titled, "Indian River County Phase I Feasibility Study". This report is incorporated into this Guarantee Document. Indian River County, Florida 10 Indian River County Phase 1 Phase I Rev. 06/09 SUMMARY OF CALCULATED SAVINGS The savings identified below shall be Calculated Savings which are mutually agreed by OWNER and the COMPANY, but will not be specifically measured. The Calculated Savings shall be deemed to increase during each year of the Savings Guarantee Term by the annual escalation percentages set forth below, with such escalation being annually compounded upon the immediately preceding year escalated rate. Source of Savings First Year Savings (non - Annual escalated) Escalation LIGHTING MATERIAL SAVINGS (ECM-1) $5,649 0% HVAC SAVINGS DUE TO LIGHTING $8,946 0% (1 51 yr), 3% REDUCTION (ECM-1) (Yrs2-12) OCCUPANCY SENSORS (ECM-2) $4,885 0% (1 51 yr), 3% (Yrs 2 -12) TOTAL CALCULATED SAVINGS $19,480 N/A Indian River County, Florida 11 Indian River County Phase 1 Phase I Rev. 06/09 ATTACHMENT 4 Measure Specific Lighting Savings Per Option A, Pre measurements with annual post spot measurements will be taken to establish energy consumption, for a representative sample of the lights, and pre measurement at full load, with annual post spot measurements for the lighting. These measurements will be accomplished through the use of hand held meters and/or mounting of temporary meters (by FPL ENERGY SERVICES, INC). The results will be used to prorate the calculated savings, thus determining the adjustment(+/-), to be used in the comparison with the Guaranteed Savings. Equations for Calculating Lighting Energy and Demand Savings To determine estimates of energy savings for lighting efficiency projects use the following equation: kWh Savings,= Lu [ (kW/Fixturebase/;ne X Quantitybase/;ne - kW/Fixturepost X QuantityposJ X Hours of Operationl,.u where: KWh Savings = kilowatt-hour savings realized during the post-installation time period t KW/fixturebaseNne = lighting baseline demand per fixture for usage group u kW/fixtu repost = lighting demand per fixture during post-installation period for usage group u QuantitYbasefine:;:: quantity of affected fixtures before the lighting retrofit for usage group u, adjusted for inoperative and nonoperative lighting fixtures Quantilypost = quantity of affected fixtures after the lighting retrofit for usage group u Hours of Operation = number of operating hours during the time period I for the usage group u, assuming operating hours are the same before and after measure installation Demand Demand savings can be calculated as either an average reduction in demand or as a maximum reduction in demand. Average reduction in demand is generally easier to calculate. It is defined as kWh savings during the time period in question (e.g. utility summer peak period) divided by the hours in the time period. Maximum demand reduction with respect to cost savings, is typically the reduction in utility meter maximum demand under the terms and conditions specified by the servicing utility. For peak load reduction, for example, the maximum demand reduction may be defined as the maximum kW reduction averaged over 30-minute intervals during the utility's summer peak period. The maximum demand reduction is usually calculated to determine savings in utility peak demand charges. Annual Reconciliation Indian River County, Florida 12 Indian River County Phase 1 Phase I Rev. 06/09 g g The annual reconciliation is based on the difference between guaranteed savings and measured savings extrapolated from representative measured sampling. Excess savings will be left to OWNER. A shortfall in any given year would be funded by FPL ENERGY SERVICES, INC to the OWNER. Option A will be used for Measurement and Verification. Sample Lighting Savings Calculation Monthly Kilowatt Demand X Monthly Kilowatt Demand Rate X 12 Months = Annual Kilowatt Demand Savings Annual Kilowatt-hours X Kilowatt-hour rate = Annual Kilowatt-hour Savings Annual Kilowatt Demand Savings + Annual Kilowatt-hour Savings = Total Annual Savings Example Calculation (Courthouse): 71.44 kW x $3.81/kW x 12 months= $3,266.24 344564.97 kWh x $0.10995/kWh = $37,884.92 $3,266.24 + $37,884.92 = $41,151 Total Guaranteed Savings $41,151 (Courthouse) Total Lighting Savings for all locations: $65,586 Run hours are hereby stipulated. Measured Adjusted Savings Calculation: Percentage of Measured Values vs. Calculated Values x Total guaranteed Savings = Excess Savings or Shortfall in Savings Indian River County, Florida 13 Indian River County Phase 1 Phase I Rev. 06/0J QQ Measure Specific Water Savings Per Option A, Pre measurements with annual post spot measurements will be taken to establish water consumption, for a representative sample of Water Closets, Urinals and Faucets, and pre measurement, with annual post spot measurements for the Water Conservation Measure. These measurements will be accomplished through the use of a calibrated bucket. The results will be used to prorate the calculated savings, thus determining the adjustment (+/-), to be used in the comparison with the Guaranteed Savings. Equations for Calculating Water Savings To determine estimates of water savings use the following equation: Gallons Savings,= Lu [ (Gal/F/ushbaseJ;ne X QuantitYbaseHne - Ga/lF/ushpost X QuantityposJ X Number of Occupants],.u where: Gallons Savings = gallon savings realized during the post-installation time period I Gal/F/ushbaseHne = Gallons baseline per flush for usage group u Gal/Flushpost = Gallons per flush during post-installation period for usage group u QuantifYbase/ine::::: quantity of affected fixtures before the water conservation retrofit for usage group u and the number of flushes Quantilypost = quantity of affected fixtures post water conservation retrofit for usage group u and the number of flushes Number of Occupants = number of people during the time period I for the usage group u, assuming number of people are the same before and after measure installation The Measured First Year Water Savings for all facilities = $6,185. This savings will be measured/verified as stated above and converted to savings by applying the flow measurements, water and sewer consumption rates, the usage rates and individual facilities' occupancy as stated in the Reports. The usage rates and occupancy are hereby stipulated. Indian River County, Florida 14 Indian River County Phase 1 Phase I Rev. 06/0f Q] ATTACHMENT 5 Annual Guaranteed Savings Allocation Savings Annual Measured Guarantee Calculated Guaranteed Savings Term Year Savings Energy Cost Savings 1 $71,771 $19,480 $91,251 2 $74,048 $19,895 $93,943 3 $76,399 $20,323 $96,722 4 $78,828 $20,763 $99,591 5 $81,336 $21,216 $102,552 6 $83,926 $21,683 $105,609 7 $86,602 $22,164 $108,766 8 $89,365 $22,660 $112,025 9 $92,220 $23,166 $115,386 10 $94,986 $23,862 $118,848 TOTAL $829,481 $215,212 $1,044,693 Indian River County, Florida 15 Indian River County Phase 1 Phase I Rev. 12/08 ATTACHMENT 6 Guarantee Report Within ninety (90) days following the final acceptance and each anniversary thereafter during the Savings Guarantee Term, the COMPANY shall provide the Guarantee Report to OWNER. In the Guarantee Report, the COMPANY shall calculate the Annual Energy Cost Savings and shall report to OWNER such amount (and shall detail any excess savings where the Annual Energy Cost Savings exceed the Annual Guaranteed Savings) during the preceding year. Annual Guaranteed and Excess Savin s Allocation Savings Measured Calculated Actual Savings Annual Excess Guarantee Savings Savings Guaranteed Savings Term Year Energy Cost Savings 1 $19,480 $91,251 % 2 $19,895 $93,943 % 3 $20,323 $96,722 % 4 $20,763 $99,591 % 5 $21,216 $102,552 % 6 $21,683 $105,609 % 7 $22,164 $108,766 % 8 $22,660 $112,025 % 9 $23,166 $115,386 10 $23,862 $118,848 Totals $215,212 $1,044,693 Indian River County, Florida 16 Indian River County Phase 1 Phase I Rev. 12/08 ATTACHMENT 7 Summary of Measurement and Verification Options All the methods in the FEMP/IPMVP Guideline for determining savings are based on the same concept; namely, those energy savings are derived by comparing energy usage after a retrofit to the baseline. It is relatively easy to measure post-retrofit consumption; however, it is impossible to "measure" what the energy usage would be without the retrofit. Therefore, it is impossible to "measure" energy savings. Energy savings can only be determined based on assumptions about the baseline. Four options are provided to determine energy savings. A particular option is chosen based on the on project-specific features of each performance contract. The options differ in their approach to the level and duration of the retrofit verification measurements. For instance, Options A and B both apply at the system or ECM level, while Option C uses measurements taken at the whole-building, or whole-facility, level. Option A involves short-term (if any) measurements, while Options B and C use short term and/or continuous or regular interval measurements during the term of the contract. Option D involves computer simulation techniques. Each option has advantages and disadvantages based on site-specific factors. The four options are described in the table below. Overview of M&V Options (from the FEMP/IPMVP) M&Voption How savings are Typical Applications calculated A. Partially Measured Retrofit Isolation Engineering calculations Lighting retrofit where using short-term or power draw is measured Savings are determined by partial field continuous post-retrofit periodically. Application measurement of the energy use of the measurements and of controls to vary the system(s) to which an ECM was applied; stipulations. load on a constant separate from the energy use of the rest of the speed pump using a facility. Measurements may be either short- variable speed drive. term or continuous. Power draw is measured on a spot basis, while Partial measurement means that some but not varying load. Operating all parameter(s) may be stipulated, if the total hours of are specified/ impact of possible stipulation error(s) is not stipulated. significant to the resultant savings. Careful review of the ECM design and installation will ensure that stipulated values fairly represent the orobable actual value. Indian River County, Florida 17 Indian River County Phase 1 Phase I Rev. 06/0, 04 M&Voption How savings are Typical Applications calculated B. Retrofit Isolation Engineering Application of controls to calculations using short vary the load on a Savings are determined by field term or continuous constant speed pump measurement of the energy use of the measurements. using a variable speed systems to which the ECM was applied; drive. Electricity use is separate from the energy use of the rest of measured by a kWh the facility. Short-term or continuous meter installed on the measurements are taken throughout the electrical supply to the post-retrofit period. pump motor. In the base year this meter is in place for a usually week to verify constant loading. The meter is in place periodically throughout the post retrofit period to track variations in enernv use. C. Whole Facility Analysis of whole Multifaceted energy facility utility meter or management program Savings are determined by measuring energy sub-meter data using affecting many systems use at the whole facility level. Short-term or techniques from simple in a building. Energy continuous measurements are taken billing comparison to use is measured by the throughout the post-retrofit period. regression analysis gas and electric utility meters for a twelve month base year period and throughout the post retrofit oeriod. D. Calibrated Simulation Energy use simulation, Multifaceted energy calibrated with hourly management program Savings are determined through simulation of utility billing data and/or affecting many systems the energy use of components or the whole end-use metering in a building where no facility. Simulation routines must be base year data are demonstrated to adequately model actual available. Post-retrofit energy performance measured in the whole period energy use is facility. This option usually requires measured by the gas considerable skill in calibrated simulation. and electric utility meters or sub-metering. Base year energy use is determined by simulation using a model calibrated bv use of sub-meterina. Indian River County, Florida 18 Indian River County Phase 1 Phase I Rev. 06/!Q 5 Option A-Spot Measured Savings The verification techniques for Option A determine savings by measuring the capacity or efficiency of a system before and after a retrofit and by multiplying the difference by an agreed-upon or "stipulated" factor, such as hours of operation or load on the system. Option A is best applied to individual loads or systems within a building, such as a lighting system or chiller. Option A is an approach designed for projects in which the potential to generate savings must be verified, but the actual savings can be stipulated based on the results of the "potential to generate savings" verification and engineering calculations (and perhaps on short-term data collection). Post-installation energy use is not measured throughout the term of the contract. Post-installation and perhaps baseline energy use is predicted using an engineering or statistical analysis of information that does not involve long-term measurements. Data from the estimates may come from historical data, information from other similar projects, and/or spot or short-term metering before and after ECM or system installation during the first year of operation. Spot savings is the easiest and least expensive method of determining savings. Option A includes procedures for verifying that: • Baseline conditions have been properly defined. • The equipment and/or systems that were contracted to be installed have been installed. • The installed equipment/systems meet contract specifications in terms of quantity, quality, and rating. • The installed equipment is operating and performing in accordance with contract specifications and is meeting all functional tests. • The installed equipment/systems continue, during the term of the contract, to meet contract specifications in terms of quantity, quality, rating, operation, and functional performance. This level of verification is all that is contractually required for certain types of performance contracts. The potential to generate savings may be verified through observation, inspections, and/or spot/short-term metering conducted immediately before and/or immediately after installation. Annual (or some other regular interval) inspections may also be conducted to verify an ECM's or system's continued potential to generate savings. Savings potential are quantified using computational methods. Indian River County, Florida 19 Indian River County Phase 1 Phase I Rev. 06/0f QG Option B-Measured Specific Savings Verification techniques for Option B are designed for projects in which short term or long-term/continuous measurement of performance is desired. Under Option B, individual loads are either measured via short term or continuously monitored after ECM or system installation to determine performance. This measured performance is compared with a baseline model to determine savings. Option B relies on the direct measurement of end uses affected by the retrofit. Option B is for projects in with more complex ECMs (than Option A), which can be isolated. The savings must be verified and the actual energy use during the contract term needs to be measured for comparison with the baseline model for calculating savings. Option B: • Confirms that the proper equipment/systems were installed and that they have the potential to generate predicted savings. • Determines an energy (and cost) savings value using measured data taken throughout the contract term. Methods involve the use of post-installation measurement of one or more variables. The use of periodic or long-term measurement accounts for operating variations and will more closely approximate actual energy savings than the use of Option A. Indian River County, Florida 20 Indian River County Phase 1 Phase I Rev. 06/l Q] Option C· Utility Bill Comparison Methodology Option C may be applied to projects in which {a) the potential to generate savings must be verified and {b) actual energy use during the contract term must be measured for comparison with the baseline model for calculating savings. Option C involves procedures for verifying the same items as Option A plus determining energy savings during the contract term through the use of whole-building metering data. All end-use technologies can be verified with Option C, provided that the reduction in consumption is larger than the associated modeling error and that the ECMs are inter related. This option may be used in cases in which there is a high degree of interaction between installed energy conservation systems and/or the measurement of individual component savings is not cost-effective. Accounting for changes (other than those caused by the ECMs) is the major challenge associated with Option C, particularly for long-term contracts. The following points should be considered when conducting Option C analyses for M&V: 1. All explanatory variables that affect energy consumption as well as possible interactive terms (i.e., combination of variables) must be specified, whether or not they are accounted for in the model. Critical variables can include weather, occupancy patterns, set points, and operating schedules. 2. Independent variable data will need to correspond to the time periods of the billing meter reading dales and intervals. 3. If the energy savings model incorporates weather data, the following issues should be considered: • Use of the building "temperature balance point'' for defining degree-days versus an arbitrary temperature base. • The relationship between temperature and energy use that tends to vary depending upon the time of year. For example, an ambient temperature of 55°F in January has a different implication for energy usage than the same temperature in August. Thus, seasons should be addressed in the model. • The nonlinear response to weather. For example, a 10°F change in temperature results in a very different energy use impact if that change is from 75°F to 85°F rather than 35°F to 45°F. • Matching degree-day data with billing start and end dates. 4. The criteria used for identifying and eliminating outliers must be documented. Outliers are data beyond the expected range of values (or two to three standard deviations away from the average of the data). Outliers should be defined using common sense as well as common statistical practice. 5. Statistical validity of the final regression model must be demonstrated. Validation steps include checks to make sure that: • The model makes intuitive sense; that is, the explanatory variables are reasonable and the coefficients have the expected sign (positive or negative) and are within an expected range (magnitude). • Modeled data are representative of the population. • Model form conforms to standard statistical practice. • The number of coefficients is appropriate for the number of observations (approximately no more than one explanatory variable for every five data observations). • All model data are thoroughly documented, and model limits (range of independent variables for which the model is valid) are specified. Option C usually requires at least 9 to 12 months of continuous data before a retrofit and continuous data after the retrofit; the data can be hourly or monthly whole-building data. Indian River County, Florida 21 Indian River County Phase 1 Phase I Rev. 06/0J QB INDIAN RIVER COUNTY MEMORANDUM TO: Joseph A. Baird, County Administrator ~ THROUGH: James W. Davis, P.E., Public Works Directo And Christopher R. Mora, P.E., Assis t ublic Works Director~ SUBJECT: Right-of-Way Acquisition, 66th Av ue roject #0370 6630 49th Street, Vero Beach, FL 32967 Parcel I.D. # 32-39-19-00001-0080-00001.l Project Parcel #138 Pedestrian Access Easement Project Parcel #838 (Located on the north side of 49th Street west of 66th Avenue) Owner: Richard L. Gallagher, Jr. DATE: June 15, 2009 CONSENT DESCRIPTION AND CONDITIONS The proposed right-of-way is located on the north side of 49th Street, west of 66th Avenue, and is part of the 14.5 acre Gallagher property. Staff has determined that the proposed roadway improvements could be accommodated with acquisition ofa 0.425 acre (38 feet by 486 feet) section of right-of-way and a 0.134 acre (12 feet by 486 feet) pedestrian access easement for a sidewalk. Mr. Gallagher accepted a purchase offer of $25,461 for the 0.425 acres of right-of-way plus the 0.134 acre pedestrian (access) easement. (ROW 0.425 acre@ $45,000 per acre = $19,125 + Access Easement 0.134 acre @ $22,500 per acre = $3,015. $19,125 + $3,015 = $22,140 + $3,321 (15% incentive to sell)= $25,461.) No appraisal fees No attorney fees 1 109 Property Acquisition, 6630 49 th Street June 15, 2009 Page2 RECOMMENDATIONS AND FUNDING The Board's options include the following: Option 1: Approve the transaction, purchasing the needed right-of-way located at 6630 49th Street for $25,461 (0.425 acre @ $45,000 per acre = $19,125 + 0.134 acre @ $22,500 per acre = $3,015. $19,125 + $3,015 = $22,140 + $3,321 (15% incentive) equaling a total of$25,461.) Option 2: Reject the terms of the Agreement and continue negotiations. Staff recommends Option 1: That the Board of County Commissioners approves the purchase of the needed right-of-way at a price of$25,461 and authorizes the Chairman to sign the Purchase and Sale Agreement. Funds for this expenditure are budgeted as part of the 66th A venue Widening Project from State Road 60 to 59th Street. District 2 Traffic Impact Fees (Account# 10215241- 066120-06040) and One Cent Sales Taxes (Account #31521441-066120-06040) are the sources of revenue. For Fiscal Year 2008-2009 $2,906,444 was budgeted for this project. As of the last Board meeting, $1,993,500 has been expended or committed. The total offer for purchase of this parcel is $25,461. It is important to note that all expenses for eminent domain actions will likely not be incurred within this fiscal year. An additional $7,074,000 is budgeted for this phase of 66th A venue widening project in the remaining four (4) years in the CIE. ATTACHMENT Copy of Purchase and Sale Agreement DISTRIBUTION Indian River Approved Date 1) James W. Davis, P.E., Conn Public Works Director 2) Christopher R. Mora, P.E., Administration Assistant Public Works Director 3) Louise Gates, LAS Budget Legal APPROVED AGENDA ITEM Public Works FOR: June 23, 2009 Engineering B~<> ""f'h A.&atd Land Acquisition 2 110 ORIGINAL AGREEMENT TO PURCHASE, SELL, AND LEASE REAL ESTATE BETWEEN INDIAN RIVER COUNTY AND RICHARD L. GALLAGHER, JR. THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement") is made and entered into as of the __ day of ______, 2009, by and between Indian River County, a political subdivision of the State of Florida ("the County"), and Richard L. Gallagher, Jr., (Seller''), who agree as follows: WHEREAS, Richard L. Gallagher, Jr. owns property located at 6630 49th Street, Vero Beach, Florida. A sketch and legal description of the property is attached to this agreement as Exhibit "A" and incorporated by reference herein; and WHEREAS, the County, is scheduled to expand 66th Avenue in the future and the road expansion will impact and affect the Gallagher property; and WHEREAS, in order for the County to proceed with its road expansion plans, the County needs to purchase property to be used as right-of-way from landowners adjacent to 49th Street; and WHEREAS, the County has contacted Richard L. Gallagher, Jr. and has offered to purchase approximately 0.425 acres of property from Richard L. Gallagher, Jr. to be used as right-of-way as depicted on Exhibit "A" (the Property); and has offered to purchase 0.134 acres of property from Richard L. Gallagher, Jr. to be used as an access easement for a sidewalk as depicted on Exhibit "B"; and WHEREAS, the County is prepared to take the Property by using its power of eminent domain; and WHEREAS, Richard L. Gallagher, Jr. and the County wish to avoid the risk, time and expense of litigation by entering into this agreement for sale and purchase of the Property; NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and premises hereinafter, the COUNTY and SELLER agree as follows: 1. Recitals. The above recitals are affirmed as being true and correct and are incorporated herein 1 11 1 UKlUlNAL 2. Agreement to Purchase and Sell. The Seller hereby agrees to sell to the County, and the County hereby agrees to purchase from Seller, upon the terms and conditions set forth in this Agreement that certain parcel of real property located at 6630 49th Street, Vero Beach, Florida and more specifically described in the sketch and legal description attached as Exhibit "A", fee simple, containing approximately 0.425 acres, and an access easement with sketch and legal description, attached as Exhibit "B", containing approximately 0.134 acres, all improvements thereon, together with all easements, rights and uses now or hereafter belonging thereto (collectively, the "Property"). 2.1 Purchase Price. Effective Date. The purchase price ("Purchase Price") for the Property shall be $25,461 (Twenty Five Thousand Four Hundred Sixty-One Dollars). The Purchase Price shall be paid on the Closing Date. The Effective Date of this Agreement shall be the date upon which the County shall have approved the execution of this Agreement, either by approval by the Indian River County Board of County Commissioners at a formal meeting of such Board or by the County Administrator pursuant to his delegated authority. 3. Title. Seller shall convey marketable title to the Property by warranty deed free of claims, liens, easements and encumbrances of record or known to Seller; but subject to property taxes for the year of Closing and covenants, restrictions and public utility easements of record provided (a) there exists at Closing no violation of any of the foregoing; and (b) none ofthe foregoing prevents County's intended use and development of the Property ("Permitted Exceptions"). 3.1 County may order an Ownership and Encumbrance Report or Title Insurance Commitment with respect to the Property. County shall within fifteen (15) days following the Effective Date of this Agreement deliver written notice to Seller of title defects. Title shall be deemed acceptable to County if ( a) County fails to deliver notice of defects within the time Specified, or (b) County delivers notice and Seller cures the defects within thirty (30) days from receipt of notice from County of title defects ("Curative Period"). Seller shall use best efforts to cure the defects within the Curative Period and if the title defects are not cured within the Curative Period, County shall have thirty (30) days from the end of the Curative Peri.ad to elect, by written notice to Seller, to: (i) to terminate this Agreement, whereupon shall be of no further force and effect, or (ii) extend the Curative Period for up to an additional 90 days; or (iii) accept title subject to existing defects and proceed to closing. 4. Representations of the Seller. 4.1 Seller is indefeasibly seized of marketable, fee simple title to the Property, and is the sole owner of and has good right, title, and authority to convey and transfer the Property which is the subject matter of this Agreement, free and clear of all liens and encumbrances. 4.2 From and after the Effective Date of this Agreement, Seller shall take no action which would impair or otherwise affecttitle to any portion of the Property, and shall record no documents in the Public Records which would affect title to the Property, without the prior written consent of the County. 2 112 ORIGINAL 4.3 There are no existing or pending special assessments affecting the Property, which are or may be assessed by any governmental authority, water or sewer authority, school district, drainage district or any other special taxing district. 5. Default. 5.1 In the event the County shall fail to perform any of its obligations hereunder, the Seller shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice delivered to the County ator prior to the Closing Date and thereupon neither the Seller nor any other person or party shall have any claim for specific performance, damages, or ·· · ·-- -- ···---offlerw1se agamstthe County; -or"{11} waive lneCounfy's default and proceedto Closing: ·-- 5.2 In the event the Seller shall fail to perform any of its obligations hereunder, the County shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice delivered to the Seller at or prior to the Closing Date and thereupon neither the County nor any other person or party shall have any claim for specific performance, damages or otherwise against the Seller; or (ii) obtain specific performance of the terms and conditions hereof; or (iii) waive the Seller's default and proceed to Closing: 6. Closing. 6.1 The closing of the transaction contemplated herein ("Closing" and "Closing Date") shall take place within 45 days following the execution of the contract by the Chairman of the Board of County Commissioners. The parties agree that the Closing shall be as follows: (a) The Seller shall execute and deliver to the County a warranty deed conveying marketable title to the Property, free and clear of all liens and encumbrances and in the condition required by paragraph 3. (b) The Seller shall have removed all of its personal property and equipment from the Property and Seller shall deliver possession of the Property to County vacant and in the same or better condition that existed at the Effective Date hereof. (c) If Seller is obligated to discharge any encumbrances at or prior to Closing and fails to do so, County may use a portion of Purchase Price funds to satisfy the encumbrances. (d) If the Seller is a non-resident alien or foreign entity, Seller shall deliver to the County an affidavit, in a form acceptable to the County, certifying that the Seller and any interest holders are not subject to tax under the Foreign Investment and Real Property Tax Act of 1980. (e) The Seller and the County shall each deliver to the other such other documents or instruments as may reasonably be required to close this transaction. 6.2 Taxes. All taxes and special assessments which are a lien upon the property on or prior to the Closing Date (except current taxes which are not yet due and payable) shall be paid by the Seller. 3 113 ORIGINAL 7. Closing Costs: Expenses. County shall be responsible for preparation of all Closing documents. 7.1 County shall pay the following expenses at Closing: 7 .1.1 The cost of recording the warranty deed and any release or satisfaction obtained by Seller pursuant to this Agreement. 7 .1. 3 All costs and premiums for the owner's marketability title insurance commitment and policy, if any. 7.2 Seller shall pay the following expenses at or prior to Closing: 7.2.1 All costs necessary to cure title defect(s) or encumbrances, other than the Permitted Exceptions, and to satisfy or release of record all existing mortgages, liens or encumbrances upon the Property. 8. Miscellaneous. 8.1 Controlling Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. Venue shall be in Indian River County for all state court matters, and in the Southern District of Florida for all federal court matters. 8.2 Condemnation. In the event that all or any part of the Property shall be acquired or condemned for any public or quasi-public use or purpose, or if any acquisition or condemnation proceedings shall be threatened or begun prior to the Closing of this transaction, County shall have the option to either terminate this Agreement, and the obligations of all parties hereunder shall cease, or to proceed, subject to all other terms, covenants, conditions, representations and warranties of this Agreement, to the Closing of the transaction contemplated hereby and receive title to the Property; receiving, however, any and all damages, awards or other compensation arising from or attributable to such acquisition or condemnation proceedings. County shall have the right to participate in any such proceedings. 8.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to this transaction and supersedes all prior agreements, written or oral, between the Seller and the County relating to the subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and executed by each of the parties. 8.4 Assignment and Binding Effect. Neither County nor Seller may assign its rights and obligations under this Agreement without the prior written consent of the other party. The terms hereof shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns. 4 114 UltllJlNAL 8.5 Notices. Any notice shall be deemed duly served if personally served or if mailed by certified mail, return receipt requested, or if sent via "overnight" courier service or facsimile transmission, as follows: If to Seller: Richard L. Gallagher, Jr. 825 Rosebush Terrace . ___ Sebastian, FL 32958 If to County: Indian River County 1801 27th Street Vero Beach, FL. 32960 Attn: Land Acquisition/Louise Gates Either party may change the information above by giving written notice of such change as provided in this paragraph. 8.6 Survival and Benefit. Except as otherwise expressly provided herein, each agreement, representation or warranty made in this Agreement by or on behalf of either party, or in any instruments delivered pursuant hereto or in connection herewith, shall survive the Closing Date and the consummation of the transaction provided for herein. The covenants, agreements and undertakings of each of the parties hereto are made solely for the benefit of, and may be relied on only by the other party hereto, its successors and assigns, and are not made for the benefit of, nor may they be relied upon, by any other person whatsoever. 8.7 Attorney's Fees and Costs. In any claim or controversy arising out of or relating to this Agreement, each party shall bear its own attorney's fees, costs, and expenses. 8.8. Counterparts. This Agreement may be executed in two or more counterparts, each one of which shall constitute an original. 8.9. County Approval Required: This Agreement is subject to approval by the Indian River County as set forth in paragraph 2. 8.10 Beneficial Interest Disclosure: In the event Seller is a partnership, limited partnership, corporation, trust, or any form of representative capacity whatsoever for others, Seller shall provide a fully completed, executed, and sworn beneficial interest disclosure statement in the form attached to this Agreement as an exhibit that complies with all of the provisions of Florida Statutes Section 286.23 prior to approval of this Agreement by the County. However, pursuant to Florida Statutes Section 286.23 (3) (a), the beneficial interest in any entity registered with the Federal Securities and Exchange Commission, or registered pursuant to Chapter 517, Florida Statutes, whose interest is for sale to the general public, is exempt from disclosure; and where the Seller is a non-public entity, that Seller is not required to disclose persons or entities holding less than five (5%) percent of the beneficial interest in Seller. 5 115 UKJ.1.:df'tl\-L 8.11 Fees and Costs: County agrees to pay a reasonable attorney's fee to review the enclosed documents and provide legal advice as to your best interests in the endeavor. 8.12 "Seller acknowledges receipt of the "Notice to Owner" and understands his/her rights granted under Florida Law Chapters 73 and 74." /_fr +- Initials ---·--· -·---·-·-···------·-· -··---·-···-· ·-·------·------·--·------·---·-· ------·-·- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. INDIAN RIVER COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS t1, 'M:;/'.:{< Wesley S. Davis, Chairman Date Approved by BCC ______ ATTEST: Jeffrey K. Barton, Clerk of Circuit Court Deputy Clerk 116 SKETCH TO ACCOMPANY DESCRIPTION. THIS IS NOT A SURVEY! LOCATION MAP: NOT TO SCALE ·! 61st.. • •St. EXHIBIT A OWNER: RICHARD L. GALLAGHER, JR. LEGAL DESCRIPTION: PARCEL 138 A PARCEL OF LANO BEING THE NORTH 38.00 FEET OF THE SOUTH 68.00 FEET, LESS THE EAST 274.00 FEET AND LESS THE WEST 486.93 FEET OF TRACT 8, IND'!AN RIVER FARMS CO, PLAT Of LANDS, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 25, PUBLIC RECORDS, SAINT LUCIE COUNTY, FLORIDA, LYING WITHIN SECTION 19, TOWNSHIP 32 SOUTH, RANGE 39 EAST, IND/AN RIVER COUNTY, FLORIDA. CONtAINING 0.425 ACRES, MORE OR LESS. ALL LYING WITHIN THOSE LANDS AS D€SCRIBED IN OFFICIAL RECORDS BOOK 1328, PAGE 2478, PUBLIC RECORDS, IND/AN RIVER COUNTY, .FLORIDA. . CERTIFICATION: · I HEREBY CERTIFY THAT THE DESCRIPTION AND ATTACHED SKETCH OF DESCRIPTION WERE PREPARED IN ACCORDANCE WITH THE SURVEY.ING STANDARDS, CHAPTER 61 G17-6, FLORIDA ADMINISTRATIVE CODE, AS SET FORJ1, BY THE FLORIDA BOARD OF PROFESSIONAL SURVEYORS & MAPPERS, PURSUANT TO SECTION 472.027, FLORIDA STATUTES, AND JS TRUE . AND CORRECT TO THE BEST OF MY KNOWLEDGE ANO BELIEF. UNLESS IT BEARS THE SIGNATURE AND THE ORIGINAL . RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER, THIS LEGAL DESCRIPTION ANO SKETCH IS FOR INFORMATIONAL PURPOSES ONLY ANO IS NOT VALID. NOTE: THIS IS NOT A SKETCH OF SURVEY, BUT ONLY A GRAPHIC DEPICTION OF THE DESCRIPTION SHOWN HEREON •. ,,?------f---rHERr--R~BEE~r 117 SKETCH TO ACCOMPANY DESCRIPTION. THIS IS NOT A SURVEY! LEGEND: ~ - BASELINE IRFC - INDIAN RIVER FARMS COMPANY L - LEFT O.R.B. - OFFICIAL RECORDS BOOK P.8. - PLAT BOOK I PG. - PAGE I R - RIGHT I · I I Lil R/W - RIGHT-OF-WAY 1::, ~ .. "" ·--··· ···--··------····-~ ····--·· ·-·--··- -·-··-···-·-- - · -':;: -!- --STA -STATION------. - . -- -i-r=-JWa, 1 ,- ~ [ S.LC.R. - ST. LUCIE COUNTY RECORDS II I ;.; ,_ (/) a:: . . . _J '-' ~ ,_ I w I t;~ I _, I i1i ,_ TRACT 8 c} cja:: I Cf) I _; I P.B. 2, PG. 25, S.L.C.R. ui ADDRESS; 49TH STREET I OJ • I I <.5"' VERO BEACH, FL., 32967 I _;. It>~ I PID-32391900001008000001.1 ui ~ci I O.R.B. 2205, PG. 44 I OJ • ,-. o._ I 1-N I C.) '° N[ I ~ci co I · SECTION 19-32-39 I ,- o.. a.: I 0 I c--r I· 0 I 486.9.3' I . "" 0 I ~- I 0 I "- STA: 697+69.68 f;3 Sac + STA: 702+56.04 I--+-:! L · OFFSET: 28.97 L g ~ OFFSET: 24,00 . I r 8 ~ r-- z I ...: w . 0 I .··. . N00"08'5B"E . g ~ i!l g 1-- S00'08' 10"W i 'TI @ : .·· 3800' c--i 1--\-'. ·.... s::; ... ______l-r-- ~~~ __,- __ ~-~~~ I I 1- S89"5314 E ! a ~ tJB 486.93 J 699+00 '° j, 7Dd+oo 101 +oo · q. 102 oo 103+00 N89'53' 14 "W 0 I I 486.94' «:i - I __"'_, __ . · LINDSEYROAD!j49/hSTREET ---'~----'- 1 I[ OF SURVEY 0 / ~ STA: 702+56.02 _1 OFFSET: 14.00 R STA: 697+68.84 rOUTH LINE --- OFFSET: 9.02 R TRACT 8 60' SUB-LATERAL "A-8" CANAL INDIAN RIVER FARMS CO. PLAT OF LANDS ----+------·---p:s:--2;--PG:-Z~S:CC-:R-.------· OWNER: RICHARD L. GALLAGHER, JR. l,l PROJECT MANAGER DEPARIMENT tlANAGER SCM.f: CHECKED BY PCW PCW 1· = 80' PCW "i! ~ SHEEJ 1lTlE DA'JE, . DRAWN BY 03/28/07 JIF -~· g . ADDITIONAL R/W .... tiARCADIS PROJECT NUMBER DRAWING NU~BER ARCADIS U.S., INC. "-' ~. ·2oa1. Vista Parkway Tel: (561) 097-7000 Fax: (561)'007-7751 WP001053 1053SO138 @) West Pafm Beach, Aorlda 33411 www.arcadis-us.com SHEEr 2 OF 2 118 Parcel ID #32-39-19-00001-0080-00001.I - Instrument prepared by and should be returned to the Caunty Attorney's Office 180121'Street, Vero Beach, FL32960-3388 EXHIBIT B EASEMENT •-· _.'.fhfa. .Grant-•<>f-.Easem@nt,-•mad,, .. and-exeGnted .. this-=· day-a£. May,-.2009,by-.Rlchard L..-Gallagher,.J.t.,.. ····--· .···--· .... GRANTOR*, to INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida, whose address is 1801 27th Street, Vero Beach, FL 32960-3388, hereinafter called GRANTEE*, "Whenever used herein the term GRANTOR and GRANTEE include all parties to this instrument and their heirs, legal representatives, successors, and assigns. WITNESSETH: That GRANTOR for and in consideration of the sum of One Dollar and other consideration, receipt of which is hereby acknowledged, does hereby grant, bargain, sell, alien; remise, release, convey, and confirm unto the GRANTEE an easement for ACCESS; PEDESTRIAN SIDEWALK on, over, across, and beneath the following described land, together with the right of reasonable ingress and egress over and actoss the following described land as is necessary to the GRANTEE's use of the right granted herein, situate in Indian River County, Florida, to-wit: · SEE EXHIBIT "B-1" ATTACHED HERETO AND MADE A PART HEREOF And GRANTOR hereby covenants with said GRANTEE that it is lawfully seized of the premises in fee simple, and that it has good right and lawful authority to convey the easement established hereby. IN WI1NESS WHEREOF, the GRANTOR has herein set its hand and seal the day and year first above written. Signed, sealed, and delivered :;:e~oJ}~) Witness printed 'E'e: sign llq__ . printed name: 119 SKETCH TO ACCOMPANY DESCRIPTION. THIS IS NOT A SURVEY! EXHIBIT ''B-1" LOCATION MAP: NOT TO SCALE \§lg 711 : : 61st •St. I J__ 0 _ :::'.:.IL 17 Rin1iiii ,,.. L_c . 15 -o 113 .ul 59th lS:t. ~ . •,~ i JI -·········· ··- g-~·.J.-~L.;~ro\~. :._St?0 ..~·. . ...21...... --··. --··········--- -- . . .. . a::0 • 124 0C I 19 .· •.-:-.••····-······ ..c- ...... ,,, .. --'e a:: 45th S }~ fg LEGAL DESCRIPTION: PARCEL 838 A PARCEL OF LAND BEING THE NORTH 12.00 FEET OF THE SOUTH 80.00 FEET, LESS THE EAST 274.00 FEET AND LESS THE WEST 486.93 FEET OF TRACT 8, INDIAN RIVER FARMS CO. PLAT OF LANOS, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN Pl.AT BOOK 2, PAGE 25, PUBLIC RECORDS, SAINT LUCIE COUNTY, FLORIDA, LYING WITHIN SECTION 19, TOWNSHIP 32 SOUTH, RANGE 39 EAST, INDIAN RIVER COUNTY, FLORIDA. CONTAINING 0.134 ACRES. MORE OR LESS. All LYING WITHIN THOSE LANDS AS DESCRIBED IN OFFICIAL RECORDS BOOK 2205, PAGE 44, PUBLIC RECORDS, INDIAN RIVER COUNTY, FLORIDA. CERTIFICATION: I HEREBY CERTIFY THAT THE DESCRIPTION AND ATTACHED SKETCH OF DESCRIPTION WERE PREPARED IN ACCORDANCE WITH THE SURVEYING STANDARDS, CHAPTER 61G17-6, FLORIDA ADMINISTRATIVE CDDE, /JS SET FORTH BY THE FLORIDA BOARD OF PROFESSIONAL SURVEYORS & MAPPERS, PURSUANT TO SECTION 472.027, FLORIDA STATUTES, AND IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. UNLESS IT BEARS THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER, THIS LEGAL DESCRIPTION AND SKETCH IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT VALID. ,_,,,.,o /rr-· NOTE: THIS IS NOT A SKETCH OF SURVEY, BUT ONLY A ----- LEGEND: ~ - BASELINE !RFC - INDIAN RIVER FARMS COMPANY L - LEFT l O.R.B. - OFFICIAL RECORDS BOOK I I~ P.B. - PlAT BOOK I I I I 0 ___ L__ r=---J · --- . --1 ~a:>-j-- .. i;}_~~~;~~~F~~~'. . ·-- ·------·- .. -·- .. _ ·-. --·--·------. --·-ro--- -- . - ---·---·- - - ~,- ___ -········ ··-·- wco II I t;; ~ I S.L.C.R. - ST. LUCIE COUN1Y RECORDS I ;;:; ,_ '-~ ...I() ~,_ I I t;; ~ I I .:5 ,_ a:: I TRACT 8 c5 P.B. 2; PG, 25, S.L.C.R. _J I I ui . ADDRESS; 49TH STREIT I a:: I I VERO BEACH, FL., 32967 I c5 I ID'° I ~ I t; N I PID-32391900001008000001.1 U) ~0 I O.R.B. 2205, _PG. 44 I "' • I- CL I I t; ~ NJ SECTION 19-32-39 ·· - I ~d o:i I I I- CL a.:. I U) a I N a 1 f:G I- 0 STA: 702+56.04 I c:j I . 486.93' I uz a . OFFSET: 36.00 L . a.. (.) I.LI + ~ STA: 697+69.95 <:::i: a _J I.LI a < OFFSET: 40.96 L r-- z ·• J 21 00" I 0 ~-~ ci O.=: ~ 1 Noo·os'sa"E N U) a- soo·oa'1 o"W -~ . a I 12.00' ts ~-~ 12.00'. . I I sas•s3'14"E J a.. 486.93' 'i· I- . 1 . • 100+00 ·. 101 +oo ·q 102+00 · 1 703+ob ~-~·-_--r-~--=~----;r~~ l ==:i~;;:;~J:/;S~;;n- I . .is OF suRVEY O 1 1 STA, 702+~. ~ ' . "'I ;t --- OFFSET: 24.00 L LSTA: 697+69.68 · OFFSET: 28.97 L . f SOUTH LINE TRACT 8 60' SUB-LATERAL "A-8" CANAL INDIAN RIVER FARMS CO, PLAT OF LANDS . v.s:-z; ·pc,.-zs;---s:cc-:R. OWNER: RICHARD L. GALLAGHER, JR. Q PROJECT MANAGER DEPARlMOO -GER .SCALE, CHECKED BY "' PCW PCW 1'" =. BO·' PCW "~ ~ SHEET 1Tilf DATE: . DRAWN BY m ,._0 04/28/09 Jl,f g filARCADIS PROJECT NUMBER DRAWING NUMBER . '< A-RCADIS U.S., INC. 5 12' ACCESS EASEMENT 2 2081 VlSta Tel: {581) 6il7-7DDD Fax: [6il1) 697-7751 ~ Paoovay· WP001053 1053SD838 @ Wast Palm Beach, Florida 33411 www.arcadis-us.com SHEET 2 OF 2 l 21 Consent Agenda Indian River County Interoffice Memorandum Office of Management & Budget To: From: Jason E. Brown Director, Office of Manage ent Budget Date: June 17, 2009 Subject: Miscellaneous Budget Amendment 016 Descriptions and Conditions The attached budget amendment appropriates funding necessary for the following: 1. The jail is in need of replacement air conditioning units at a cost of $40,000. This expense was not anticipated with the transfer of jail maintenance duties. Funding for this expenditure will be provided by General Fund/Cash Forward. 2. There is currently one year remaining in the scheduled repayment from the Sheriff to the County for the New World Software System. These funds were advanced to the Sheriff at the time of purchase to be repaid over a five year period. This arrangement was made to save on interest costs at the time of purchase. At this time we are requesting authorization to fund the final year's payments from the current fiscal year. This will allow for a reduction in the Sheriff's 2009-2010 budget of $242,871.00. Funding for this expenditure will be provided by General Fund/Cash Forward. Staff Recommendation Staff recommends that the Board of Commissioners approve the attached budget resolution amending the fiscal year 2008/09 budget. Attachments Budget Resolution Indian River Count APPROVED AGENDA ITEM: Administrator Legal Budget Department Risk Management FOR June 23 2009 F:\Budget\Jason\budget amendments 200809\016 msc ba.doc 122 RESOLUTION NO. 2009--- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE FISCAL YEAR 2008-2009 BUDGET. WHEREAS, certain appropriation and expenditure amendments to the adopted Fiscal Year 2008-2009 Budget are to be made by resolution pursuant to section 129.06(2), Florida Statutes; and WHEREAS, the Board of County Commissioners of Indian River County desires to amend the fiscal year 2008-2009 budget, as more specifically set forth in Exhibit "A" attached hereto and by this reference made a part hereof, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Fiscal Year 2008-2009 Budget be and hereby is amended as set forth in Exhibit "A" upon adoption of this Resolution. This Resolution was moved for adoption by Commissioner ______, and the motion was seconded by Commissioner _____ and, upon being put to a vote, the vote was as follows: Chairman Wesley S. Davis Vice Chairman Joseph E. Flescher Commissioner Peter D. O'Bryan Commissioner Bob Solari Commissioner Gary C. Wheeler The Chairman thereupon declared this Resolution duly passed and adopted this __ day of ______, 2009. INDIAN RIVER COUNTY, FLORIDA Attest: J. K. Barton, Clerk Board of County Commissioners By ______By ______Deputy Clerk Wesley S. Davis, Chairman APPROVED AS TO FORM A LE AL SUFFICIENCY F:\BudgetVason\budget amendments 200809\budget amendment resolution.doc Resolution No. 2009- ~,-,{E~~ Budget Office Approval: Budget Amendment: 016 Jason E. Browr , Budget Director J Entry Number Fund/ Department/Account Name Account Number Increase Decrease 1. Revenues General Fund/Cash Forward-Oct 1st 001039-389040 $40,000 $0 Expenses General Fund//Sheriff/Law Enforcement 00160086-099040 $40,000 $0 2. Revenues General Fund/Cash Forward-Oct 1st 001039-389040 $242,871 $0 Expenses General Fund/Sheriff/Law Enforcement 00160086-099040 $242,871 $0 F:\Budget\Jason\Budge1Amendments0809\BA 016 6/17/2009 12 4 Office ef ConsentAgenda 6/23/09 INDIAN RIVER COUNTY ATTORNEY INTEROFFICE MEMORANDUM To: Board of County Commissioners From: ~nE. Fell, Senior Assistant County Attorney Date: June 17, 2009 Re: Request Permission to Advertise for a Public Hearing to amend sections i 305.13 and 305.14 of The 'Code! · In November 1998, Florida voters approved Revision 7 to Article V of the Florida Constitution, allocating state court system funding among state, counties, and users of courts. Starting in 2003, the Florida Legislature enacted a series of statutes to implement the Article V court cost shift and to allow the County to adopt, by ordinance, certain mandatory court costs, fees, and fines to be imposed for certain specified purposes. The County enacted the Amended and Restated Court Cost Ordinance, codified in Chapter 305 of The Code, in 2004, and thereafter has amended certain provisions to be consistent with current Florida law. The most recent legislation, contained in Senate Bill 2108 was presented to the Governor on June 8, 2009; the Governor has until midnight on June 23, 2009 to sign or veto the Senate Bill 2108. If Senate Bill 2108 is not vetoed and not signed, it will still become law and will be effective July 1, 2009. Senate Bill 2108 allows the County to increase an existing surcharge of $15 to $30 on two types of traffic infractions: non-criminal traffic infractions issued in accordance with Florida Statutes section 318.14; and the criminal offenses listed in Florida statutes section 318.17. Staff projects that doubling this fee will provide an additional $56,878 that may be used to support local law libraries, as set forth in Senate Bill 2108. The foregoing figure represents 25% of the projected revenue increase; the remaining 75%, estimated as $170,634, will go into the County's Facilities Surcharge Fund to fund court facilities. Due to the timing of the Governor's action on Senate Bill 2108, staff requests permission to advertise for a public hearing to adopt an Ordinance to amend sections 305.13 and 305.14 of The Code to be held on July 7, 2009. Note that staff will not place the advertisement, and thus there will be no scheduled public hearing, if the Governor vetoes Senate Bill 2108. The Ordinance, if presented, will be effective on July 10, 2009. Recommended action: Authorize staff to advertise for a public hearing to be held on July 7, 2009, to amend sections 305.13 and 305.14 of The Code. See Funding analysis attached. Ap.proved BCC Consent Agenda 6/23/09 Indian River Co, Admin. Co. Atty. By~~ William G. cllins ll,County Attorney Budget Depl. Risk Mgr. - 125 Court Facilities Fee Increase Analysis Proposed Ordinance to Chage Fee from $15 to $30 Allocation Projected Revenue Projected Revenue Estimated Revenue Item Description Percentage FY 2008/09 w/ $30 Fee Increase Law Library - General Fund 25.0% $56,878 $113,756 $56,878 Court Facilities - Fund 140 75.0% $170,634 $341,268 $170,634 Grand Total 100.0% $227,512 $455,024 $227,512 Law Library Funding Impact Analysis Current Fee ($15) Proposed Fee ($30) - Item Description Estimated Budget % of Budget Estimated Budget % of Budget Revenues Court Facilities Fee 111 $56,878 44.8% $84,374 66.5% Local Options Court Fee $42,500 33.5% $42,500 33.5% Total Revenues $99,378 78.3% $126,874 100.0% -,,;,_/- . - -..,, • ; i' ____ - ; .__ ., ·•. i"' ·,, 1·. _.- __ -·:/:>?·'>'.-C .. ·.<;'.}'.:ii.:' .·,' . -- • ,' • ,, _,/·;· 'Oc ,. ··,_; ":",,':,-,_;·- ---· .. :_.·,. ,-. _:'· Total Expenses $126,874 $126,874 . _,, , ·•,_ , __ , . X'.', "-·'):·z.--: < - __,,_:,::<:., ,,.-_-. ,j. <:---.•:_ ---_._._.-- --, •:·. -_. ,-.'·"··- ,, -- l\'/-•\;••<•,·,.o;•{; -, _::, _-._. '·_; '· ,_'.·_-,·{·: '. -':/"\',' Net Revenue (Shortfall) ($27,496) -21.7% $0 0.0% (1) This amount is capped at the level of 100% of law library costs. Any excess from the 25% law library a/location will be redirected to the court facility fund for use in accordance with Florida Statutes. Court Facility Fee Increase Analysis $30 6/17/2009 126 Office ef ConsentAgenda6/23/2009 INDIAN RIVER COUNTY ATTORNEY MEMORANDUM TO: Board of County Commissioners FROM:~-f Fell, Senior Assistant County Attorney DATE: June 17, 2009 RE: Permission to Advertise for Public Hearing on July 14, 2009, to adopt Ordinance to amend Chapter 105 of The Code to implement Local Bidding Preference On June 2, 2009, the Board directed staff to gather certain bidding information from October 1, 2008 and to prepare a local preference ordinance. Staff request permission to advertise for a public hearing to be held on July 14, 2009 to amend certain provisions of Chapter 105 of The Code to implement local bidding preference guidelines. Requested Action: Authorize staff to proceed with the required advertisement to hold a public hearing on July 14, 2009 to adopt the proposed ordinance. Approved for BCC Meeting Consent Agenda 6/23/2009 By_~----'-~~if,__M--4.~ William G. Collins 11 County Attorney / Admin. L ega! I 8udg-et I 1·-----1------.J / Dept [ RiS!i Mgr. 127 ~beriff DERYL LOAR • INDIAN RIVER COUNTY MEMBER FLORIDA SHERIFFS' ASSOCIATION MEMBER OF NATIONAL SHERIFFS' ASSOCIATION 4055 41 st AVENUE VERO BEACH, FLORIDA 32960-1802 PHONE (772) 569-6700 June 8, 2009 Mr. Joseph A. Baird, County Administrator Indian River County 1840 25th Street Vero Beach, Florida 32960 Dear Mr. Baird: Indian River County and the Sheriffs Office have the opportunity to request grant dollars for the purchase ofreplacement hulletproofvests through the U.S. Department of Justice, Bureau ofJustice Assistance Bulletproof Vest Partnership Program. The grant will reimburse up to 50% of the total cost of approved body armor. Unlike many previous grants, the county can supplant local dollars and provide the required safety equipment for our law enforcement officers at a substantial saving to the taxpayers of Indian River County. The manufacturers of bulletproof vests guarantee their product for a service life of five years. Currently, the Sheriff's Office replaces approximately one fifth (1/5) of the agencies vest annually, through the normal budget process. The Sheriffs Office has 206 positions for which bulletproof vests am issued at a net replacement cost of $611.00 per vest. In 2009, the Indian River County Sheriff's Office will purchase twenty (20) bulletproof vests, which will be utilized as replacement of vests with expiration dates for a total cost of$12,220.00. By the close of this grant, the Indian River County citizens could realize a potential savings of $6,110.00. Again, I reiterate, these funds can be used to supplant local funds and the reimbursement would be paid directly to Indian River County for budgeted expenses incurred through the normal ongoing replacement of bulletproof vests. This grants deadline is June 24, 2009. We request to be placed on the agenda for the Board of County Commissioners meeting scheduled for June 23, 2009, under the Constitutional Officers and Governmental Agencies. Should you have any questions, feel free to contact Kimberly Poole at 772-978-6214. Thank you for your assistance. Sincerely, Dery! Loar, Sheriff DL/kmp The 173rd Internationally Accredited Law Enforcement Agency Accredited by the Commission on Accreditation for Law Enforcement Agencies, Incorporated 128 Submit Application for Funding for BVP Approval Page 1 of2 0MB #1121-0235 Section Application > Submit Application > Submit Application for Funding for BVP Approval (Exprres: 10/31/2006) PLEASE NOTE: Applications for funding may be submitted for the purchase of any armor that meets the established NIJ ballistic or stab standards ordered on or after April 1, 2009. Once the open application period closes, funding levels will be established and all applicants will be notified. Jurisdiction: INDIAN RIVER COUNTY Open Application (Not Status(Last Submission Date): Submitted) Jurisdiction's VYJst ReJ!]acement 5 Years Cycle: Upd<'l_te PmApplication Un~entBVP Funds Remaining $276.06 Unspent BVP Funds Obligatill! for $0.00 Vest Purchases: Emerg§JlQ'. Reptacem~nt Ne~ds: 0 Submit Application for Funding for BVP Approval Application for Funding Name Quantity Extended Cost Tax, S&H* Total Cost INDIAN RIVER 20 $12,220.00 $0.00 $12,220.00 COUNTY Grand Totals 20 $12,220.00 $0.00 $12,220.00 Requested BVP Portion of Total Cost, up to: $6,110.00 * Total Taxes, Shipping and Handling Cost for each Application Customer Satisfaction Survey Please indicate your customer satisfaction regarding how easy this form was Easy to understand and use: Please indicate your customer experience using the Internet to conduct Extremely Experienced business: CERTIFICATION Chief Executive Certification: As chief executive officer (or authorized designee) of this jurisdiction, my submission of this Application for Funding Form under the Bulletproof Vest Partnership Grant Act; represents my legally binding acceptance of the terms set forth on this form; and the program's statutory and programmatic requirements, restrictions, and conditions, including the following: In the case of any equipment or products that may be authorized to be purchased with financial assistance provided, using funds appropriated or otherwise made available by this Act, it is the sense of the Congress that entities receiving the assistance should, in expending the assistance, purchase only American - made equipment and products. The recipient acknowledges that this grant is for Federal preparedness assistance. Therefore, the recipient agrees that it will implement and comply with the National Incident Management System (NIMS) as required by Homeland Security Presidential Directive 5 (HSPD-5). http://www.fema.gov/nims. The recipient acknowledges that the Secretary of Homeland Security will develop standards and guidelines for determining whether a State or local entity has adopted the NIMS. Finally, the recipient further acknowledges that the Secretary of Homeland Security will determine compliance with the NIMS and the recipient agrees to abide by the Secretary's decision on compliance. The applicant will give the sponsoring agency or the Comptroller General, through any authorized 129 Submit Application for Funding for BVP Approval Page 2 of2 representative, access to and the right to examine all records, books, papers or documents related to this application and any subsequent payments received as a result of this application. Ii'] J acknowledge and accept the Chief Executive Certification. Funding Limits Certification: If the submission of this application for funding is in conjunction with transactions for the purchase of vests, J understand and agree to abide by the following: I understand that all funding awards will be subject to the availability of funds and J acknowledge that there is no guaranteed level of funding associated with the submission of this application to the BVP program. I agree to meet my financial and contractual obligations associated with any purchase transactions, regardless of the amount of funding received through this application. Ii'] I acknowledge and accept the Funding Limits Certification. 0 I certify to the best of my knowledge and belief, all information in this application is true and correct. Signature: As the jurisdiction's chief executive officer (or designee), authorized to submit this application, I hereby enter my full name in the space provided below: Submit Application for BVP Approval Paperwork Reduction Act Notice Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a currently valid 0MB control number. We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with information. The estimated average time for all components of a jurisdiction to complete and file this Application for Funding form is two hours. If you have comments regarding the accuracy of this estimate, or suggestions for making this form simpler, you may use the Suggestions e-mail option on this BVP web site, or you may write to the BVP, c/o Bureau of Justice Assistance, 810 Seventh Street NW, Washington, DC, 20531. 130 GRANT NAME: Bureau of Justice Assistance BulletproofVestPartn.ership GRANT# Applying for AMOUNT OF GRANT: Generally applying for 50% of total cost of20 Bulletproof Vests- $12,220 DEPARTMENT RECEIVING GRANT: ....!!;ln,,,dt::::'an::...c,R.it.:·v.=,erc.:.C:::O:.::u::,nty:,,·.a:S::,he:::,ri,,,ff'c:s:.,O.,ffi,c•··:::,Ce'---'---~-~------ CONTACT PERSON: _£K~im!lL!P~o~ol~e~;Pul~a1111.w,a~..______TELEPHONE: 772-978-6214 I. How long is the grant for?__ l,_(,.,o::,n::,e.,_),_ye::•::.r ______Starting Date: Aft~ April I 2. Does the grant require you to fund this function after the grant is over? X Yes No 3. Does the grant require a match? X Y•-• No If yes, does the grant allow the match to be In-Kind services? Yes X No 4. Percentage ofmatch to grant ___...... ,_50,c______0,s¼ S. Grant match amount required..;$::.6.;;;,c:1::.10:::·.:c·0c:0______ 6. Where are. the matching funds coming from (Le. In-kind Services; Reserve for Confingency)? Budgeted grant requires agency to pay for vests prior to reimbursement, granttelmburses 500/o ofcosts, 7. Does the grant cover capital costs or start-up costs? ---~Yes -'x,.. __N,o If no, how much do you think will.be needed in capital costs orstart-up.costs: $ (Attach a detail listing of costs) 8. Are you adding any additional positions utilizing tho grant funds? ____Yes -'X"-__No Jfyos, please list. (If additional space is needed, please attach a.schedule.} Acct. Descdption Position Position Position Positi9n Position 011.12 Regular Salaries -- 611.13 Other Saliil'ies & Wages (PT) - -- .-,-- - 012.11 Social Security ------012.12 Retirement~ Contributions ------012.13 ~ --- Insurance Life & !J:ealth ------012.14 Worker's CompehS:ation ------~ ------012.17 S/Sec; Medicare Matching ------TOTAL 0.00.------0-00---- 0.00------0.00 0.00 - 9. What is the total cost of each position including benefits, capital, start-up, auto expense, travel and operating? Salary andBenefits Operating Costs Capital Total Costs $12,220.00 $12,220;00 IO. What is the estimated cost of the grant to the county over five years? ~$~2~9;.c,9c.,0::,0,_,.0::,0______ Grant Amount Other Match Costs Not Covered Match Total . $6,110.00 $ $. 6,ll0.00 12,220.00 $ $ $ $ Fourth Year Fifth Year Date, __J:..:un:::e::_;8::,•c::· 2c::00:..:9'---- 131 Public Hearing /Olil (Legislative) INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Joseph A. Baird, County Administrator Robert M. Keating, Com Development Director THROUGH: Sasan Rohani, AICP; Chief, Long-Range Planning ~ · ;'{ FROM: Steven Deardeuff; Senior Planner, Long-Range Planning ¥ DATE: June 2, 2009 RE: William Gregory Construction Inc's Request to Amend the Future Land Use Map to Redesignate ±.32 Acres, Located at the Northwest Corner of Indian River Boulevard and 37th Street,From M-1, Medium-Density Residential-1 (up to 8 units/acre), to C/1, Commercial/Industrial District; and to Rezone that ±.32 Acres From RM-8, Multiple-Family Residential-1 District (up to 8 units/acre),to OCR, Office, Commercial, Residential District (LUDA/RZON-2005070271-55266) It is requested that the following information be given formal consideration by the Board of County Commissioners at its regular meeting of June 23, 2009. DESCRIPTION AND CONDITIONS This is a small scale comprehensive plan land use amendment request to redesignate ±.32 acres from M-1, Medium-Density Residential-I (up to 8 units/acre), to C/I, Commercial/Industrial, and to rezone that ±.32 acres from RM-8, Multiple-Family Residential-I District (up to 8 units/acre), to OCR, Office, Commercial, Residential District. As depicted in the location map below, the subject property is located at the northwest comer oflndian River Boulevard and 3 7th Street. The purpose of the request is to secure the land use designation and zoning necessary to allow the property to be developed with commercial uses. I 132 Location and Zoning of Subject Property Comprehensive Plan Amendment Review Procedures Although the number of standard plan amendments that a local government may consider is not limited, the frequency with which local governments can amend their comprehensive plans is regulated by state law. According to Florida Statutes, standard plan amendments are limited to twice per calendar year. For that reason, the county accepts standard plan amendment applications only during the two window months of January and July. All requests submitted during each window month are processed simultaneously. That method ensures that standard plan amendments will be adopted no more than twice per calendar year. State law, however, provides several exceptions to the twice per calendar year limitation. One of those exceptions is for small-scale plan amendments. Consequently, a local government may adopt small-scale amendments, such as the subject plan amendment, without regard for the twice per calendar year limitation. For that reason, the proposed amendment is exempt from the twice per calendar year adoption limit. Because small scale plan amendments are deemed to have fewer impacts than typical plan amendments, small scale amendments are eligible for a streamlined adoption process. In contrast to typical plan amendments which require review and approval by the Florida Department of Community Affairs (DCA), local governments may adopt small scale plan amendments without review or approval by DCA. 2 133 Section 163 .3187( 1)( c) of the Florida Statutes sets the following criteria for small scale amendments: 1. The proposed amendment involves 10 or fewer acres; 2. The cumulative effect of the acreage for all small scale amendments in the jurisdiction does not exceed 80 acres in a calendar year; 3. The proposed amendment does not involve the same property granted a land use designation change within the prior 12 months; 4. The proposed amendment does not involve the same owner's property within 200 feet of property granted a land use designation change within the prior 12 months; 5. The proposed amendment does not involve a change to the comprehensive plan's text; 6. The subject property is not within an area of critical state concern; and 7. The proposed amendment does not involve increasing residential density above 10 units/acre. In this case, the procedures for reviewing the subject comprehensive plan amendment will be as follows. First, the Planning and Zoning Commission conducts a public hearing to review the request. The Commission has the option to recommend approval or denial of the comprehensive plan amendment request to the Board of County Commissioners. Following Planning and Zoning Commission action, the Board takes final action to approve or deny the land use amendment request. The proposed Future Land Use Map amendment for this site encompasses ±.32 acres, a size which qualifies it for a small scale amendment per Florida Statutes. PZCACTION The subject Comprehensive Plan Amendment was considered by the Planning and Zoning Commission (PZC) at its regular scheduled meeting of May 14, 2009. At that time, the PZC voted 7- 0 to recommend that the Board of County Commissioners approve the proposed Future Land Use Map amendment to change the site's land use designation from M-1 to C/I and to rezone the subject property from RM-8 to OCR. Background The subject ±.32 acre property is an undeveloped site, triangular in shape, bordered by 37th Street to the south and Indian River Boulevard to the east, and zoned RM-8. To the west, there are several developed properties with OCR zoning. 3 134 With the exception of the subject property, all of the properties along 37th Street, between Indian River Boulevard and U.S. Highway 1, have a Future Land Use designation of Commercial/Industrial, and the majority of these properties are zoned MED, Medical District. In this case, the subject parcel was created when right-of-way was purchased for Indian River Boulevard and the subject parcel was separated from the parent parcel to the east. During the right of-way acquisition process, the county did offer to purchase the .32 acre subject property along with the portion of the parent parcel that the county did purchase for Indian River Boulevard right-of-way. At that time, however, the owner chose not to sell the property to the county. After completion of Indian River Boulevard, the county established a drainage easement over the south 35 feet of the subject property. This drainage easement still exists on the property; thus, any development that takes place on the subject property may not encroach into the easement. Existing Land Use Pattern North and east of the subject property, across Indian River Boulevard, is a large undeveloped parcel zoned RM-8. To the south, across 37th Street, is another large undeveloped parcel ofland which is zoned MED. To the west of the subject property, there are five developed parcels which are zoned Office, Commercial, Residential District (OCR). Future Land Use Pattern As depicted in the land use map below, the subject property and the properties to the north and east of the subject property are designated M-1, Multiple-Family Residential-I District, on the county's future land use map. The M-1 designation permits residential uses with densities up to 8 units/acre. Immediately to the west and south of the subject ±.32 acres, the property is designated C/I, Commercial/Industrial, on the county's future land use map. The C/I designation permits various commercial and industrial zoning districts. Location and Land Use of Subject Property 4 135 Environment The subject property is not designated as environmentally important or environmentally sensitive by the comprehensive plan. According to Flood Insurance Rating Maps, the subject property lies in flood zone AE. Utilities and Services The site is within the Urban Service Area of the County. Wastewater service is available to the site from the Central Wastewater Treatment Plant, while potable water service is available to the site from the north county reverse osmosis plant. Transportation System The subject ±.32 acres has approximately 165 feet of frontage on 3 7th Street and 235 feet of frontage on Indian River Boulevard. This segment oflndian River Boulevard is a four lane paved road and is classified as a Principal Arterial on the future roadway thoroughfare plan map. At this location, 37th Street is paved with single lanes in each direction and a center left turn lane. On the future roadway thoroughfare plan map, 37'h Street is classified as a Major Collector. ANALYSIS In this section, an analysis of the reasonableness of the land use amendment request will be presented. Specifically, this analysis will address: • The request's impact on public facilities; • The request's consistency with the county's comprehensive plan; • The request's compatibility with the surrounding area; and • The request's potential impact on environmental quality. Concurrency of Public Facilities This site is located within the county Urban Service Area, an area deemed suited for urban scale development. The Comprehensive Plan establishes minimum development standards for: Transportation, Potable Water, Wastewater, Solid Waste, Stormwater Management and Recreation (Future Land Use Policy 3.1). The adequate provision of these services is necessary to ensure the continued quality of life enjoyed by the community. For that reason, the Comprehensive Plan and Land Development Regulations (LDRs) require that new development be reviewed to ensure that the minimum acceptable standards for these services and facilities are maintained. Policy 3.2 of the Future Land Use Element states that no development shall be approved unless it is consistent with the concurrency management system component of the Capital Improvements Element. For Comprehensive Plan amendment requests, conditional concurrency review is required. 5 136 Conditional concurrency review examines the available capacity of each facility with respect to a proposed project. Since Comprehensive Plan amendment requests are not projects, county regulations call for the concurrency review to be based upon the most intense use of the subject property based upon the requested land use designation and zoning district. For the proposed C/I land use designation and OCR zoning district, the most intense use according to the County's Land Development Regulations is retail commercial with 10,000 square feet of gross floor area per acre of land proposed for rezoning. The site information used for the concurrency analysis is as follows: I. Size of Area: .32 acres 2. Existing Land Use Designation: M-1, Medium-Density Residential-! 3. Existing Zoning District: RM-8, Multiple-Family Residential-! District 4. Proposed Land Use Designation: C/I, Commercial Industrial 5. Proposed Zoning District: OCR, Office, Commercial, Residential District 6. Most Intense Use of Subject Property 2 Multi-Family Residential Units under Existing Land Use Designation with RM-8 Zoning: 7. Number of Daily Trips Generated under Existing Zoning District: (6.1 X 2) = 12.20 8. Most Intense Use of Subject Property 3,200 Square Feet of Retail under Proposed Land Use Designation with Proposed OCR zoning: 9. Number of Daily Trips Generated under Proposed Zoning District: (42.81 X 3,200) / 1000 = 137 Transportation As part of the concurrency review process, the applicant submitted a Traffic Impact Analysis (TIA). A TIA reports the number of peak hour/peak season/peak direction trips that would be generated by the most intense use of the subject property under the proposed zoning district, and it assigns those trips on the County's thoroughfare roadway network within the project's area ofinfluence. That area of influence is defined in section 910.09(4)(b)3(a) of the County's LDRs as roadway segments that receive eight (8) or more peak season/peak hour/peak direction project trips for two-lane roadways or fifteen (15) or more peak season/peak hour/peak direction project trips for four-lane (or wider) 6 137 roadways. For this rezoning request, the County's Traffic Engineering Division reviewed and approved the TIA. According to the approved TIA, the existing level of service on impacted roadways would not be lowered by the traffic generated by development of3,200 square feet of general commercial use on the subject property. A summary of the Traffic Impact Analysis is provided in Attachment 7. Water With the proposed zoning, the most intense use of the subject property will result in water consumption at a rate of2 Equivalent Residential Units (ERUs), or 500 gallons/day. This is based upon a level of service of250 gallons/ERV/day. Development on the subject property will be served by the North County Reverse Osmosis Plant, a facility which currently has sufficient capacity to accommodate the additional demand generated by the proposed rezoning. Wastewater Based upon the most intense use allowed under the proposed zoning, development of the property will have a wastewater generation rate of approximately 2 Equivalent Residential Units (ERU), or 500 gallons/day. This is based upon the level of service standard of250 gallons/ERV/day. County wastewater service is available to the site from the Central Wastewater Treatment Plant, a facility which currently has sufficient capacity to accommodate the additional wastewater generated by the subject request. Solid Waste Solid waste service includes pick-up by private operators and disposal at the county landfill. For a 3,200 square foot commercial development on the subject site, solid waste generation will be approximately 11.5 waste generation units (WGU) annually. A WGU is a Waste Generation Unit measurement equivalent to one ton (2,000 pounds) of solid waste. Using the accepted conversion rate of one cubic yard for every 1,200 pounds of compacted solid waste generated, the 3,200 square feet of commercial development would be expected to generate 19.7 cubic yards of waste/year. A review of the solid waste capacity for the active segment of the county landfill indicates that the county landfill can accommodate the additional solid waste generated by the site under the proposed zoning district. Stormwater Management All developments are reviewed for compliance with county stormwater regulations, which require on-site retention, preservation of floodplain storage and minimum finished floor elevations. In addition, development proposals must meet the discharge requirements of the county Stormwater Management Ordinance. As required by the county's comprehensive plan, development on the 7 138 subject site will be prohibited from discharging any runoff in excess of the pre-development rate. In this case, the minimum floor elevation level of service standard does apply, since the property lies within an "AE" flood zone. Also, both the on-site retention and discharge standards apply. In this case, the stormwater management level of service standard will be met by limiting off-site discharge to the existing predevelopment rate and maintaining on-site retention ofthe stormwater runoff for the most intense use of the property. As with all development, a more detailed stormwater review will be conducted during the development approval process. Recreation Recreation concurrency requirements apply only to residential development. Therefore, this rezoning request is not required to satisfy recreation concurrency requirements. Concurrency Summary Based upon the analysis conducted, staff has determined that all concurrency-mandated facilities, including stormwater management, roads, solid waste, water, and wastewater, have adequate capacity to accommodate the most intense use of the subject property under the proposed zoning district. Therefore, the concurrency test has been satisfied for the subject request. When new development is proposed for the subject property, a more detailed concurrency analysis will be conducted during the development approval process. Consistency with Comprehensive Plan Land use amendment requests are reviewed for consistency with all policies of the comprehensive plan. As per section 800.07(1) of the county code, the comprehensive plan may be amended only in such a way as to preserve the internal consistency of the plan pursuant to Section 163.3177(2), FS. Amendments must also show consistency with the overall designation ofland uses as depicted on the Future Land Use Map, which includes agricultural, residential, recreational, conservation, and commercial and industrial land uses and their densities. The goals, objectives and policies are the most important parts of the comprehensive plan. Policies are statements in the plan which identify actions which the cotmty will take in order to direct the community's development. As courses of action committed to by the county, policies provide the basis for all county land development related decisions including plan amendment decisions. While all comprehensive plan objectives and policies are important, some have more applicability than others in reviewing plan amendment requests. Of particular applicability for this request are the following policies. 8 139 Future Land Use Element Policy 1.22 Comprehensive Plan Policy 1.22 of the Future Land Use Element (FLUE) states that no commercial node shall be expanded unless 70% of the subject node's land area (less rights-of-way) is developed. The existing node, containing approximately 428.70 acres, is currently developed at 23.91 % or I 02.5 acres. There are, however, some exceptions to the 70% development threshold. One of those exceptions is when the expansion of a node is necessary to correct an oversight or a mistake in the plan affecting property that meets the following criteria: • the property is residentially designated; • the property was given a residential designation as a result of an oversight or a mistake; • the property is unsuitable for residential use; • the property is adjacent to a node; and • the property is no more than 10 acres in size. In this case, the property is residentially designated; it is adjacent to a node, and it is less than 10 acres in size. Given the property's size, configuration, and characteristics, the property is also unsuitable for residential use. As to the residential designation being the result of a mistake or oversight, that criterion is also applicable to the subject property. While the site's M-1 land designation was appropriate when the county's comprehensive plan was adopted in 1990, subsequent actions occurred which warranted a change in land designation for the subject property. Those actions relate to Indian River Boulevard right-of-way acquisition. In the early 1990' s, Indian River County initiated the process of constructing Indian River Boulevard Phase IV. That phase of Indian River Boulevard construction extended from 37th Street to 53 rd Street/US Highway I. Because the county had no right-of-way along the Indian River Boulevard Phase IV alignment, the county had to acquire the entire 200 foot right-of-way from property owners along the boulevard's alignment. One such property from which right-of-way was acquired was the Martin/Gregory parcel. That parcel is the parent parcel of the .32 acre subject property. To acquire Indian River Boulevard right-of-way from the Martin/Gregory property, the county had to use its eminent domain powers. Because Martin/Gregory were unwilling sellers, the county followed eminent domain procedures and initiated court action to obtain the land needed for right-of-way. During the eminent domain process, the county attempted to acquire the subject property as part of its right-of-way acquisition. Even though the county felt that the subject property would be virtually unbuildable, the county agreed to sever the subject property from its right-of-way acquisition because the owners were unwilling to sell the subject property and because the county could not demonstrate that the subject property was necessary to construct Indian River Boulevard. 9 140 In November, 1993, the court issued a stipulated final judgment that created the subject property as a separate parcel. Although the property owners did not apply to change the land use designation of the subject property at that time, it was an oversight on the county's part not to redesignate the subject property to C/1. For the reasons identified above, the proposed amendment meets the above referenced criteria and is therefore consistent with the exception to Policy 1.22. Future Land Use Element Policy 14.3 In evaluating a land use amendment request, the most important consideration is Future Land Use Element Policy 14.3. This policy requires that one of four criteria be met in order to approve a land use amendment request. These criteria are: 1. The proposed amendment will correct a mistake in the approved plan; 2. The proposed amendment will correct an oversight in the approved plan; 3. The proposed amendment is warranted based on a substantial change in circumstances affecting the subject property; or 4. The proposed amendment involves a swap or reconfiguration ofland use designations at separate sites and, that swap or reconfiguration will not increase the overall land use density or intensity depicted on the Future Land Use Map. Because the subject property was established as a separate parcel when Indian River Boulevard right of-way acquisition severed it from the parent parcel (change in circumstances) and because the property's land use designation should have been changed at that time (mistake and oversight), this proposed land use amendment meets the policy's first, second, and third criteria and is consistent with Future Land Use Element Policy 14.3. Summary of Consistency with the Comprehensive Plan While the referenced policies are particularly applicable to this request, other Comprehensive Plan policies and objectives also have relevance. For that reason, staff evaluated the subject request for consistency with all plan policies and objectives. Based upon that analysis, staff determined that the request is consistent with the Comprehensive Plan. Compatibility with the Surrounding Area At .32 acres, the subject property is small is size. For that reason, any impacts associated with changing the land use designation will be minimal. 10 141 Because redesignation of the subject property to C/I will result in a continuation of the existing land use designation to the west, there will be no compatibility issues between the redesignated subject property and the properties to the west. Since the subject property is separated from properties to the north and east by the four lane divided Indian River Boulevard, there is sufficient separation between the subject property and adjacent residential properties to ensure that no incompatibilities will occur. Consequently, changing the subject ±.32 acre property to C/I and rezoning the property to OCR will not create any incompatibilities between the subject property and abutting properties. Notwithstanding the compatibility finding, the subject property is a difficult to develop site. Given its small size, its triangular shape, and the existence of a 3 5 foot drainage easement along the county property line, as well as standard building setbacks applicable to the site, there is only a small envelope available for constructing a commercial structure. Providing access drives, parking, and stormwater improvements will further constrain site development. Despite the challenges associated with developing the subject property, staff supports the request. Potential Impact on Environmental Quality At this time, there are no native plant communities on the subject property; thus, no adverse environmental impacts associated with this request are anticipated. Regardless, an environmental assessment will be done prior to issuance of any development permits for the subject property. CONCLUSION Based on the analysis, staff has determined that the requested land use designation and zoning district are compatible with the surrounding area, consistent with the goals, objectives, and policies of the Comprehensive Plan, and meet concurrency requirements. The analysis also determined that there will be no negative environmental impacts with the land use change and rezoning. For these reasons, staff supports the request. RECOMMENDATION Based on the analysis, the Plauning and Zoning Commission and staff recommend that the Board of County Commissioners approve the proposed Future Land Use Map Amendment and Rezoning to change the site's land use designation from M-1 to C/I and to rezone the subject property from RM-8 to OCR by approving the attached ordinances. ATTACHMENTS I . Summary Page 2. Land Use Designation Amendment Application 3. Rezoning Application 4. Future Land Use Map Amendment Ordinance 11 142 5. Zoning Ordinance 6. Approved minutes ofMay14, 2009 Planning and Zoning Commission meeting 7. Traffic Summary APPROVED AGENDA ITEM: Indian River Approved Date Coun 12 143 SUMMARY PAGE GENERAL Location: Northwest comer Indian River Boulevard and 37th Street Acreage: ±.32 acre Existing Land Use Designations: M-1 Medium-Density Residential- I (up to 8 units/acre) Requested Land Use Designation: C/I, Commercial/Industrial Existing Zoning: RM-8, Multiple-Family Residential District (up to 8 units/acre) Requested Zoning: OCR, Office, Commercial, Residential District Existing Land Use: Wooded lot ADJACENT LAND North: Indian River Boulevard; Wooded Lot; Zoned RM-8 (up to 8 units/acre) South: 37th Street; Wooded Lot; Zoned Medical East: Indian River Boulevard; Wooded Lot; Zoned RM-8 (up to 8 units/acre) West Developed Lots; Zoned OCR, Office, Commercial, Residential District PUBLIC NOTIFICATION Planning and Board of Zoning County Commission Commissioners Staff Steven Steven Contact: Deardeuff Deardeuff Date April 29, 2009 June Advertised: 8, 2009 # of Surrounding Property 15 Owner 15 Notifications Date' April 29, Notit'ication June 10, 2009 2009 Mailed: Date Sign April 29, June 10, 2009 Posted: 2009 STAFF RECOMMENDATION Approval Attachment 1 13 144 0 09/07/2006 15:02 17729f ' 806 . INDIAN RIVER ,"J;)UNTY PAGE 02/04 1 , , APPLICATION FORM -, LAND USE DESIGNATION AMENDMENT'(LUDA) 0..A ..J+. t A( INDIAN RIVER COUNTY Ct )T+i' - 2. T Planning Division accepts Land Use Designation Amendment applications only · · , _ e month~ of January and July of each year. Each 1Ipplication must be c .. ~ ~-- .,,, submitted and must include all required attachments. An incomplete app ion ~ not , be processed and will be returned to the applicant. .::;? SEP 2000 - !"•/ coMMUH 11 -, Assigned Project NuIIJber: LUDA - 11 O"''"'i;_ J~.i, 0PME~ Current Owner Applicant (Contract Purchaser Nam. e: William Gregory N/A Complete Mailing 3111 Cardinal Drive 3111 Cardinal Drive Address: Vero Beach FL 32963 Vero Beach FL 32963' Phone # (including area (772) 231-6900 (772) 231-6900 code ];lax# including area code 772 231-9729 E-Mail: [email protected] Contact Person: SitcAddrcss: __N_o_rth_w_e_s_t_c_·o_rn_e_r_o_f_In_d_1_·an __ Ri_'v_er __ Bo_u_l_e_var_d_an_d_37_th __ s_tr_ee_t ____ _:______ Site Tax Parcel I.D. #s: 25323900000700000002.1 Subdivision Name, Unit Number, Block and Lot Number (if applicable) --"=A~-~------ Existing Land Use Designation: _ _:.M:..--=1----'--- Existing Zoning District: _-RM_-_s______ R.equested Land Use Designation: __c_;_·r_· _____ Requested Zoning District ,....OCR______ Total (gross) Acreage of Parcel: _ _,0c.:·.:::3.:::.2 ______Acreage (net) to be Amended: _o_._32____ _ Existing Use on Site: __v._a_can_t ______~--- Proposed Use on Site: Office _ APPLICANT(S) MUST ATTEND A PRE-APPLlCATION CONFERENCE WITH LONG-RANGE PLANNING SECTION STAFF PlUOR TO APPL YING. Attachment 145 \ ,7 ?3 , .••. .. I(,, " (1 (J,:,;--· APPLICATION FORM •• ,- <;)°' REZONING REQUEST (RZON) "I> ,;:?> '!-,:,'. . t~ ~ ~ Current Owner Applicant (Contract Agent Purchaser) Name: Vim. Gregory W. Pierce Gregory Construction, Inc. c/o Michael O'Haire 'lichael O' Haire Complete Mailing §{~ M6c~rii 2'~:j_re 3111 Cardinal Drive 3111.Cardinal Drive Address: fr;;;;;~ =ar .• am ive Vero Beach, FL 32963 Vero Beach. FL 32963 Phone #: (including area code) 772-231-6900 772-231-6900 772-231-6900 Fax #: (including area 772-231-97129 772-231-9729 772-231-9729 code) E-Mail: --~@:}nc law. c.orn moh6bqc-law. com · moh<'lbqc-law. can Contact Person: '" " -IU.-.-j·,=- l\,f4 -"'t-----..1 ("\ITT-_: __ ~ 'Uchael O'Haire Signature of Owner or Agent: ( \(, \.....- ' -~ ProEe nformation Site Address: NW corner Indian River Blvd. & 37th Street (Barber Ave. )y Vero Beach, FL Site Tax Parcel I.D. #s: 32-39-25-00000-7000-00002. 2 Subdivision Name, Unit Number, Block and Lot Number (if applicable) N/ A - See Attached Existing Zoning District: _Rh_.._18 ______Existing Land Use Designation: Carmercial/Industrial Requested Zoning District: _OCR~~----- Total (gross) Acreage of Parcel: ,~,':>'~ Acreage (net) to be Amended: Existing Use on Site: __V-'a'-"c-'an=t ______ Proposed Use on Site: As permitted in OCR District Attachment 3 146 ORDINANCE NO. 2009-___ AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE FUTURE LAND USE ELEMENT OF THE COMPREHENSIVE PLAN BY CHANGING THELANDUSEDESIGNATIONFOR±.32ACRESLOCATEDATTHENORTHWEST CORNER OF INDIAN RIVER BOULEVARD AND 37TH STREETFROMM-1, MEDTTJM DENSITY RESIDENTIAL-I (UP TO 8 UNITS PER ACRE), TO C/I, COMMERCIAL/INDUSTRIAL; AND PROVIDING CODIFICATION, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, the Board of County Commissioners adopted the Indian River County ,/ ' Comprehe11Sive Plan on February 13, 1990, and WHEREAS, the Board of County Commissioners substantially revised and updated the Indian River County Comprehensive Plan on March 17, 1998, based on the recommendations of the county's Evaluation and Appraisal Report, and WHEREAS, the Local Planning Agency held a public hearing on this comprehensive plan amendment request on May 14, 2009 after due public notice, and ' WHEREAS, the Local Planning Agency voted 7 to Oto recommend approval of this comprehensive plan amendment to the Board of County Commissioners, and WHEREAS, this Comprehensive Plan Amendment meets the criteria established in Chapter 163.3187(1)(c), FS, for small scale development amendments, and WHEREAS, the Board of County Commissioners of Indian River County held a Comprehensive Plan Amendment Adoption Public Hearing on June 23, 2009 after advertising pursuant to Chapter 163.3187(l)(c), FS and Chapter 125.66(4), FS; NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Indian River County, Florida that: F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance LUDA.doc Page 1 of 4 Attachment 4 147 ORDINANCE NO. 2009---- SECTION I. Comprehensive Plan Amendment Adoption and Transmittal The amendment to the Indian River County Comprehensive Plan identified in Section 2 is hereby adopted as a small scale development amendment, and the Board of County Commissioners directs staff to transmit one (I) copy ofthe amendment to the State of Florida Department of Community Affairs and one (I) copy to the Treasure Coast Regional Planning Council. SECTION 2. Amendments to the Comprehensive Plan The land use designation of the following described property situated in Indian River County, Florida to wit: COMMENCE AT A RAILROAD SPIKE REPORTED TO BE THE SOUTH 1/4 CORNER OF SECTION 25, TOWNSHIP 32 SOUTH, RANGE 39 EAST, AND RUN ALONG THE SECTION LINEN 89 44' 30" E 686.49 FEET TO A POINT; THEN RUN N 0003' 30" W PARALLEL WITH THE WEST LINE OF THE SE 1/4 OF SAID SECTION 55.00 FEET TO THE NORTH LINE OF BARBER STREET (37TH STREET) AND POINT OF BEGINNING; THENRUNN00 03' 30" W 167.10 FEET TO A POINT; THEN RUNS 44 56' 05" E 234.99 FEET TO A POINT IN THE NORTH LINE OF BARBER STREET; THEN RUN ALONG THE NORTH LINES 89 44' 30" W 165.81 FEET TO THE POINT OF BEGINNING. SUBJECT TO ALL EASEMENTS, RIGHTS OF WAY, RESERVATIONS AND RESTRICTIONS, IF ANY. SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA is changed from M-1, Medium Density Residential-I (up to 8 units/acre), to C/I, Commercial Industrial, and the Future Land _Use Map is hereby revised accordingly. SECTION 3. Repeal of Conflicting Provisions All previous ordinances, resolutions, or motions of the Board of County Commissioners oflndian River County, Florida, which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict. F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregoiy Construction\Ordinance LUDA.doc Page 2 of 4 148 ORDINANCE NO. 2009---- SECTION 4. Severability It is declared to be the intent of the Board of County Commissioners that if any provision of this ordinance and therefore, the Indian River County Comprehensive Plan Amendment is for any reason finally held invalid or unconstitutional by any court of competent jurisdiction, such provision shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining provisions. Approved and adopted by the Board of County Commissioners of Indian River County, Florida, on this __ day of June, 2009. This ordinance was advertised in the Press-Journal on the 8th day of June, 2009 for a public hearing to be held on the __ day of June, 2009 at which time it was moved for adoption by Commissioner ------~ seconded by Commissioner --~ and adopted by the following vote: Wesley S. Davis, Chairman Joseph E. Flescher, Vice Chairman Gary C. Wheeler, Commissioner Peter D. O'Bryan, Commissioner Bob Solari, Commissioner BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY BY:. ______Wesley S. Davis, Chairman ATTEST BY: ______Jeffrey K. Barton, Clerk This ordinance was filed with the Department of State on the following date: ------F: \Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance LUDAdoc Page 3 of 4 149 ORDINANCE NO. 2009----- APPROVED AS TO FORM AND LEGAL SUFFICIENCY APPROVED AS TO PLANNING MATTERS velopment Director F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance LUDA.doc Page 4 of 4 150 ORDINANCE NO. 2009-__ AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE ZONING ORDINANCE AND ZONING MAP FOR± .32 ACRES LOCATED AT THE NORTHWEST CORNER OF INDIAN RIVER BOULEVARD AND 37TH STREET FROM RM-8, MULTI FAMILY RESIDENTIAL DISTRICT-I (UP TO 8 UNITS PER ACRE), TO OCR, OFFICE, COMMERCIAL, RESIDENTIAL DISTRICT; AND PROVIDING CODIFICATION, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, the Planning and Zoning Commission, sitting as the local planning agency on such matters, held.k public hearing and subsequently made a recommendation regarding this rezoning request; and WHEREAS, the Board of County Commissioners of Indian River County, Florida, did publish and send its Notice oflntent to rezone the hereinafter described property; and WHEREAS, the Board of County Commissioners has determined that this rezoning is in conformance with the Comprehensive Plan oflndian River County; and, , WHEREAS, the Board of County Commissioners held a public hearing pursuant to this rezoning request, at which parties in interest and citizens were heard; NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Indian River County, Florida that the zoning of the following described property situated in Indian River County, Florida, to-wit: COMMENCE AT A RAILROAD SPIKE REPORTED TO BE THE SOUTH 1/4 CORNER OF SECTION 25, TOWNSHIP 32 SOUTH, RANGE 39 EAST, AND RUN ALONG THE SECTION LINEN 8944' 30"E686.49FEETTOAPOINT; THENRUNN0003' 30" WPARALLEL WITH THE WEST LINE OF THE SE 1/4 OF SAID SECTION 55.00 FEET TO THE NORTH LINE OF BARBER STREET (37TH STREET) AND POINT OF BEGINNING; THEN RUNN 00 03' 30" W 167.10 FEET TO A POINT; THEN RUNS 44 56' 05" E 234.99 FEET TO A POINT IN THE NORTH LINE OF BARBER STREET; THEN RUN ALONG THE NORTH LINES 89 44' 30" W 165.81 FEET TO THE POINT OF BEGINNING. SUBJECT TO ALL EASEMENTS, RIGHTS OF WAY, RESERVATIONS AND RESTRICTIONS, IF ANY. F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance REZONE.docPage I of 3 Attachment 5 151 ORDINANCE NO. 2009-__ is changed from RM-8, Multi Family Residential District-I (up to 8 units/acre), to OCR, Office, Commercial, Residential District. All with the meaning and intent and as set forth and described in said Land Development Regulations. Approved and adopted by the Board of County Commissioners of Indian River County, Florida, on this __ day of June, 2009. This ordinance was advertised in the Press-Journal on the 8th day of June, 2009 for a public hearing to be held on the_ day of June, 2009, at which time it was moved for adoption by Commissioner ______seconded by Commissioner______~ and adopted by the following vote: Wesley S. Davis, Chairman Joseph E. Flescher, Vice Chairman Gary C. Wheeler, Commissioner Peter D. O'Bryan, Commissioner Bob Solari, Commissioner BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY BY: ______Wesley S. Davis, Chairman ATTEST BY: ______Jeffrey K. Barton, Clerk This ordinance was filed with the Department of State on the following date: ______ APPROVED AS TO FORM AND LEGAL SUFFICIENCY r;c[ -~~---William G. Collins II, County Attorney • F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance REZONE.docPage 2 of 3 152 ORDINANCE NO. 2009---- APPROVED AS TO PLANNING MATTERS Development Director F:\Community Development\Users\LONG RANGE\CompPlan Amendments\Small Scale Amendments\WM Gregory Construction\Ordinance REZONE.docPage 3 of3 153 PLANNING AND ZONING COMMISSION There was a meeting of the Indian River County (IRC) Planning and Zoning Commission (P&Z) on Thursday, May 14, 2009 at 7:00 p.m. in the Commission Chambers of the County Administration Building, 1801 2yth Street, Vero Beach, Florida. You may hear an audio of the meeting; review the meeting agenda, backup material and the minutes on Indian River County website www.ircgov.com/Boards/PZC/2009. Present were members: Chairman George Hamner, Member-at Large; Donna Keys, District 1 Appointee; Sam Zimmerman, District 2 Appointee; Jens Tripson, District 3 Appointee; Greg Smith, District 4 Appointee; Pilar Turner, District 5 Appointee; and Dr. David Cox, Member-at-Large. Absent was Carol Johnson, non-voting School Board Liaison (excused). Also present was IRC staff: George Glenn, Assistant County Attorney; Bob Keating, Community Development Director; Stan Boling, Planning Director; Steven Deardeuff, Senior Planner; and Reta Smith, Recording Secretary. ' Call to Order and Pledge of Allegiance (5: 12:34) Chairman Hamner called the meeting to order and led all in the Pledge of Allegiance. Approval of Minutes (5:13:10) ON MOTION BY Dr. Cox, SECONDED BY Ms. Keys, the members voted unanimously (7-0) to approve the minutes of the meeting of April 23, 2009, as presented. Public Hearing (5: 13:27) Chairman Hamner read the following into the record: A. William Gregory Construction Inc's Request to Amend the Future Land Use Map to Redesignate ±.32 Acres From M-1, Medium-Density Residential-1 (up to 8 units/acre) to C/1, PZC/Approved 1 May 14, 2009 F:/BCC/AII Committees/P&Z/2009Agendas & Minutes/PZC051409.doc Attachment 6 154 Commercial/Industrial District; and to Rezone the ±.32 Acres From RM-8, Multiple-Family Residential-1 District (up to 8 units/acre),to OCR, Office, Commercial, Residential District. The subject property is located on the northwest corner of Indian River Blvd and 3yth Street. (LUDA/RZON-2005070271- 55266) [Legislative] Mr. Steven Deardeuff, IRC Senior Planner (5:13:52), reviewed the information contained in his memorandum dated April 27, 2009, a copy of which is on file in the County Commission Office. Mr. Tripson inquired if the 2,800 square foot footprint included the building, parking and stormwater. Mr. Bob Keating, IRC Community Development Director, acknowledged there would be a significant design challenge regardless of how the property was zoned. He related parking and stormwater could conceivably go in a portion of the setbacks, but there was insufficient area to accommodate everything and the southern setback was constrained by the 35 foot drainage easement. He thought parking would have to go under the building and he was not sure how the stormwater would be handled. Mr. Keating felt this was an example of one of the drawbacks of the State's eminent domain requirements. He explained because the County could not prove a necessity for this remaining small parcel during the Indian River Boulevard extension it had to stay with the land owner, even though it was virtually unbuildable. Chairman Hamner opened the public hearing at 7:09 p.m. Mr. Victor Demattia, 29 Sailfish Road, Vero Beach, Florida (5:22:01 ), pointed out the traffic constraints at the location and felt sure the Florida Department of Transportation would not allow a driveway in or out of the property because of safety issues. Discussion followed. Chairman Hamner closed the public hearing at 7:15 p.m. 5:27:33 ON MOTION BY Dr. Cox, SECONDED BY Mr. Tripson, the member voted unanimously (7-0) to approve staff's recommendation. PZC/Approved 2 May 14, 2009 F:/BCC/AII Committees/P&Z/2009Agendas & Minutes/PZC051409.doc 155 Commissioners Matters (5:27:53) None. Planning Matters (5:27:57) Mr. Stan Boling, IRC Planning Director, advised on Tuesday, May 9, 2009 the Board of County Commissioners would be considering two Land Development Regulation amendments involving corridor sign regulations and the temporary suspension issue, which were addressed by the P&Z on April 23, 2009. He requested the members coordinate with him regarding dates they would be absent from meetings due to upcoming summer vacations. Attorney's Matters (5:30:53) None. There being no further business, the meeting was adjourned at 7:17 p.m. George Hamner, Chairman Date Reta Smith, Recording Secretary Date PZC/Approved 3 May 14, 2009 F:/BCC/AII Committees/P&Z/2009Agendas & Minutes/PZC051409.doc 156 . I,. • Kimley-Hom and Associates, Inc. GREGORY REZONING- EXECUTfVE TRAFFIC IMPACT SUMMARY (October 2008) Su!e300" 1. Location: Westside ofindian River Boulevard north of 37"' Street 601 21s1 Street Vero Beach, Florida 2. Size: 0.32 acres Q.lM-8 to CG), 3,200 square-feet of Shopping Center 321160 3. Trip Gen~tion: Net New Daily Trip Volume= 67 vehicula.t trips Net New A.M. Peak-Hour Volume= 1 vehicular trips / Net New P.M. Peak-Hour Volume= 6 vehicular trips 4. Area of Influence Boundaries: • none (de minimis on all roadway links) 5. Significant Roads: • none 6. Significant Intersections: • none 7. Trip Distribution: See Appendix A ; 8. Intcmal Capture: none 9. Pass-by Capture: Shopping Center 51% 10. A.M. Peak Hour Directional % (ingress/ egress): Shopping Center 61% entering /39% exiting 11. P.M. Peak Hour Directional% (1ngress/egrcss): Shopping Center 48% entering /52% exiting 12. Traffic Count Factors Applied: none 13. Off-Site Itnprovcrncnts: • None requited 14. Roadway Capacities (IRC Link Sheets): See Appendix B 15. Assume roadway and/ or intersection itnprovernents: • none ,· Al'PROVEDB / INDIAN RIVER COU T ., ~ENGINEERING TEL m 562 7981 ~ FAX m 562 9689 .s/,,/49 ASSISTANT- PUBLIC WORKS DIRECTOR Attachment 7 Kimley-Horn and Associates, Inc. 16. Significant Dates a) Pre-study conference: September 2006 b) Traffic counts: • none c) Study approval: / /J 0/d. 0.D 1 17. SR 60 Interest Share Special Fee The applicant will be required to contribute to the SR 60 ·Interest Share Special Fee. Final contribution detettoination will be determined based upon a site specific traffic impact analysis. H:\47884001\Grcgory Rezoning~ Traffic Impact Executive Summary.doc 158 GREGORY REZONING - 3,200 sf RETAIL Traffic counts In the EXISTING column were collected In 2007 Trips lrntrcated In the VESTED column are as of 9/3/2008 %of LOS REMAINING UNK ONSTREEr FROM STREET TO STREET CAPACllY EXIST. VESTED PROJECT ·o· WI PROJECT 1010N S.R.A1A 5. COUNTY LINE S. VBCITYL 9S0 244 21 ... 28% 1010$ S.R.A1A s .. COUNTY LINE S. VBCITYL 950 322 11 0 617 35% 1020N S.R,A1A S. VBCITYL t7THSTREET 930 13 ·22 102% 1020s S.R.A1A S. VBCllYL 17THSTREET 930 1,014"' 3 0 .., 109% 1030N S.R. A1A 17THSTR~ S.A.60 860 956 so 0 ·146 117% 10:aos S.R.A1A 17THSTA~ S.R. 60 960 '34 4 0 122 1040N S.A.A1A S.R.60 N. VBCITYL 960 912 29 0 -81 1119% 1040S S.FI.A1A S.R.60 N. VB CITYL 14 0 21 - 860 1050N S.A.A1A N. VBCITYL FRED TUERK RD. BllO 782'" 20 0 58 .....""' 1050S S.R.A1A N. VBCITYL FRED TUERK RO. B60 981 10 0 ·131 115"h 1060N S.A.A1A FRED TUERK AD. OLD WINTER BEACH RD 960 462 :,0 0 368 67% 1060$ S.R. A1A FRED TUERK AD. OLD WINTER BEACH RD . 860 514 14 0 332 61% 1070N S.R. A1A OLD WINTER BEACH AD N.lRSL 860 566 41 0 2S3 71% 10708 S.RA1A OLD WINTER BEACH RD N.IRSL 860 486 20 0 371 51% 1"'1JN S.R. A1A N. IRSLN. C.R. 510 860 566 64 0 230 73% 1080S S.FL A1A N.IRSLN. C.R. 510 860 469 74 0 317 63% 1090N S.R.AIA C.A.510 N, COUNTY LINE 998 343 5S 0 596 1090S S.R.A1A C.R. 510 N. COUNTY LINE 998 536 0 383 62% 1110N !NOIAN R!VEA BLVD. 4THST.@ US1 12THSTREET 1860 27" 0 1044 -44% 1110S JNO!AN RJVEA BLVD. 4THST.@ USI 12THSTREET 1960 1,184"" 61 0 615 67% 1120N INDIAN RIVER BLVD. 12TH STREET S. VBCITYL 1860 1.024 11 0 B25 55% 1120S INOIAN RIVER BLVD. 12THSTREET S. VBCJTYL 1860 1,541 51 0 268 1130N JNDIAN A!VEA BLVO S. VB CJTYL 17THS1REET 1860 1,024 5 0 631 55%'"" 11305 !NOIAN RIVER BLVD. s. VBC!TYL 17THSTREET 1660 1,541 0 260 1140N IND)AN RIVER BLVO 17nl STREET 21STSTAEET 1860 1,002 "19 0 639 ""55% 1140S !NDIAN ANER BLVD. 17THSTAEET 21STSTAEET 1940 1,392 ,. 0 470 76% 1150N INDIAN RIVER BLVD. 21STSTREET S.R.60 1860 1,458 94 0 306 63% 11SOS !NDIAN RIVER BLVD. 215TSTREET S.R.60 2242 1,706 106 0 426 81'% 1160N lNDIAN RIVER BLVD. S.R. GO W.VSCINL 1860 1.= 46 0 592 66% 1160S INO!AN RIVER BLVD. S.R.60 W. VBCITYL 2240 1,119 10 0 1111 50% 1170N INOIAN RIVER BLVD. W. VBGllYL US 1 @ 53RD ST. 1B60 518 56 0 1264 31% 1170S INDIAN RIVER BLVD. W. VB CITY L US 1 @ 53RD ST. 1937 419 21 0 1497 1210N /-95 N.COUNTY LINE C.A.512 2740 1,504 0 0 1236 "'"55% 12105 1-95 N. COUNTY UNE C.R. 512 2740 1"09 10 0 1221 55% 1220N !-95 C.R. 512 S.R. 60 2740 1,510 20 0 1210 56% 1220S 1·95 C.R. 512 S.R.60 2740 1,519 23 0 1198 56% 1230N 1-95 S.R.60 OSLO ROAD 2890 1,726 48 0 1116 61% 1230$ l-95 S.R. 60 OSLOADAD 2690 1,712 35 0 1143 60% 1240N 1-95 OSLO ROAD S. COUNTY LINE 2690 1,7i6 37 0 1137 61% 1240S 1-95 OSLO ROAD S. COUNTY LINE 2690 1,707 27 0 1156 60% 1305N U.$.1 S. COUNTY LINE OSlOROAO 1860 1,202 60 0 576 69% 1305S U.S.1 S. COUNTY LINE OSLO ROAD 1860 1,561 66 213 89% 1310N U.S.1 OSLO ROAD 4TH ST.@ JR BLVD. 2790 1,383 67 0 1'40 52% 13105 U.S.1 OSLO ROAD 4TH ST. @ lA BLVD. 2790 1,820 91 0 819 66% 1315N U.S.1 4TH ST. @ IA BLVD. BTHSTREET 1860 881 34 0 945 1315S U.S.1 4TH ST. @ 1F1 BLVD. 61H STREET 1860 1.236 40 0 582 ""69% 1320N U.S.1 SIHSTREET 12nismeer 1860 1,046 36 0 778 56% 1320S U.S.1 STHSTREET 12TH STRES: 186Q 1.220 51 0 569- 68% ·1325:N o.s., 12THSTREET S. VSCITYL 1710 1,226 36 0 446 74% 1:l25S u.s.1 12THSTREET S. VB CITY L 1710 1,572 54 0 84 95% 159 GREGORY REZONING· 3,200 sf RETAIL Traffic counts Jn the EXISTING column were collected in 2007 Trips lndlcateci rn the VESTED column are as cf9/3J'lOOB %of LOS REMAINING LINK ON STREET FROM STREET TO STREET CAPACITY EXIST. VESTED PROJECT ·o· W/PROJECT .. - 1330N u.s.1 S, VBCITYL 17THSTREET 1710 1,228 37 0 4<6 74% 1330S U.S.1 S. VBC!TYL 17THSTREET 1710 1'72 54 0 .... 1335N u.S.1 17THSTREET S.R. GO 1510 1,177 45 0 288" 61% 1335S U.S.1 17THSTREET S.R.00 1510 1,125 0 359 ,. .. 1340N u.s.1 S.R. 60 AOYALPALMPL 1620 1,.287 "'60 0 473 74% 1340S u.s.1 S,R. 60 ROYAL PALM PL 1610 895 15 0 600 1345N U.S,1 ROYALPAlMPL A11ANTIC·BLVD. 2116 998 50 0 1068 50%'"' 1345S U.S.l ROYAL PALM Pl ATLANTIC BLVD. 1710 906 24 0 780 1350N u.s.1 All.ANTIC BLVD. N.VBCITY L 2322 1,039 50 0 12'3 '"'471' 1asos u.s., ATI..ANTIC BLVD. N. VBCITYL 2010 1,596 73 0 341 83% 1355N u.s.1 N. VBCITYL OLD DIXIE HWY 2320 2,019 98 0 203 91% 13556 U.S.1 N. VBCITYL OLD DIXIE HWY 2010 1,039 47 0 '24 ... 1360N u.s.1 OLD DIXIE HWY 41STSTREET 2586 1,214 101- 0 1271 51% 1360S U.s.1 OLD DIXIE HWY 41STSTREET 2010 843 45 0 1122 44% 1365N U.S.1 41STSTREET 45THSTREET 2352 1,093 80 0 1179 1365S U.S.1 41STSTREET 45THSTReET 2010 790 38 0 1184 41% 1370N U.S.1 45Tl:'STREET 49THSTREET 2384 1,281 1008 - 1"70S U.S.1 45TH-STREET 49THSTREET 2010 747 "32 1231 "'"39% f37SN U.S.1 49Tii STREET 65THSTREET 2568 1,604 147 0 817 137SS u.s.1 49Tii STREET 65THSTREET 2010 1,094 127 789 "" 13BON U.S.1 65lHSTREET 89TI-ISTAEET 2631 1,565 134 0 932 ""'5% 1360S u.s.1 65THSTREET 69THSTREET 1860 863 898 52% 1355N U.S.1 69THSTREET OLOOIXlE!fNY 2648 1,453 165" 0 1030 ., .. 1385S U.S.1 69THSTAEET OLD DIXIE HWY 1860 831 113 0 51% 1390N u.S.1 OLD DIXIE HWY SCHUMANN DR. 2210 1,701 125 '" 83% 1300S U.S.1 OLODIXIEH\'VY SCHUMANN DR. 1860 1,350 132 0 378"" 1395N U.S.1 SCHUMANN DA. C.R.512 18SO 971 94 0 79S ""'57% 1395S u.s.1 SCHUMANN DR. C.R.512 186() 114 0 748 1400N U.S.1 C.R512 N.SEB. CJTYL 1710 1.142"' 50 0 S18 '°"711% 1400S U.S.1 C.A.S12 N. SEB. CfTY L 1710 1,179 64 0 '67 1405N U.S.1 N. SEB. CllY L ROSELAND RD. 1860 1,089 127 0 644 ""65% 1405S U.S.f N. SEEi. CITY L ROSELAND AD. 1880 1,124 159 0 377 1410N u.s.1 ROSELAND RO. N. COUNTY UNE 1860 1,150 96 0 614 ""67% 1410S U.S.1 ROSEl.ANORD. N. COUNTY LINE 1860 "" 133 0 783 58% 1510N SCHUMANN DA. C.R . .510@ £6l"HAVE. S. SEB. CITY L 1377 853 ' 0 615 "" 1510S SCHUMANN DR. C.R.510@66THAVE. S. SEB. CITY L ,m 477 14 0 ... 1520N SCHUMANN DA. S. SEB. CITY L U.S.1 8SO 142 7 0 711 ""'17% 1520S SCHUMANN DA. S. SES. CITY L u.s.1 860 138 19 0 703 111% 1610E ROS.ELAND RO. S.R.512 N.SEB.CITYL 860 337 23 0 500 42% 1610W ROSEl.ANORD. S.R. 512 N. SEB. CITY L 8SO 361 23 0 476 45% 1620E ROSELAND RD. N. SEB. CITY L U.S.1 860 42 0 429 501' 1620W ROSELAND RD. N. SEB. CJTY L U.S.1 860 ''"4SS 41 0 ,.. ,~.. 1710E C.R.512 S.R60 ,.. , 860 448 40 0 372 S7% 1710W C.R. 512 S.R. SO 1-95 860 S45 11 0 284 76% 1720E C.R. 512 ,.. , C.R. 510 1860 823 92 0 945 49% 1720W C.R. 512 1'5 C.R. 510 1860 729 25 0 1106 41% 1730E C.R. 512 C.R.510 W.SES,C!TYL 1860 737 60 0 1083 43% 1730W C.ft 512 C.R. 510 W, SEB. CITY L 1SSO 721 66 0 1073 42% 1740E C.R. 512 W. SEB. CITY L Al?~!=~r;? RQ. 1860. 553 . 43 0 1264 32',<· "'1740W C.Rs·12· W. SEB. CITYL ROSELAND RD. 1860 542 49 0 1269 32% 160 GREGORY REZONING • 3,200 sf RETAIL Traffic counts In t~e EXISTING column were coUected In 2007 Trips Indicated ln the VESTED column am as of 9/312008 % of LOS REMAINING LINK ON STREET FROM STREET TOSTAEEr CAPACITY EXIST. VESTED PROJECT 'D' WI PROJECT 1750E C.R. 512 ROSELAND RO. U.S.1 1860 584 48 12211 34% 1750W C.R. 512 ROSELAND RD. U.S,1 1860 6!15 41 0 112.4 1810E C.R.510 C,A,512 66THAVE. 1860 272 165 0 25% 1810W C.R. 510 C.R.512 66THAVE. 6frr 106 0 1087 - 1860 "" '2% 1820E 0.A.510 66THAVE. 58THAVE. 1860 321 109 0 1430 23% 18'0W C.R. 510 66THAVE. SSTHAVE. 1860 667 116 0 1077 '2% t830E C.R.510 58TH AVE. U.S.1 1860 396 117 0 1347 .... 1860W C,R.510 5BTHAVE. U.S.1 1860 717 145 0 ... 46% 1840E C.R.510 u:s.1 S.R.A1A 1900 656 239 0 1005 47% 1840W C.R. 510 U.S.1 S.R. A1A 1900 172 0 1302 1905E S.R,60 W. COUNTY LINE C.A.512 1810 "'201 9 0 1600 "" 1905W S.R.60 W. COUNTY LINE C.R. 512 1810 206 0 15'5 12%"" t907E &R. 60 C.R. 512 100THAVE. 1810 230 0 1S79 13% 1907W S.R.60 G.R.512 100THAVE. 1810 230 0 1580 131' 1910E S.R. 60 100THAVE. 1·95 1860 435 114 0 1311 30% 1910W S.R,60 100THAVE. 1·95 1860 336 191 0 1333 1915E S.R.60 1-es 62NDAVE. 1860 1,146 155 0 559 ""70% 1915W S.R. so 1·95 82NOAVE. 2000 1.609 190 0 301 85% 1920E S.A.60 82NDAVE. 66THAVE. 2790 1.226 316 0 55% 1920W S.R. 60 82NDAVE. 66THAVE. 2790 1,890 ,as 0 ""615 78% f925E S.R.60 66THAVE. 58TH AVE. 2790 1,351 163 0 1256 55% 1925W S.A.60 66THAVE. 58THAVE 2790 1,792 261 0 = 74% 1930E S.R. 60 58THAVE. 43RDAVE. 2790 1,339 216 0 1233 1930W S.R. 60 58TI-IAVE. 43RDAVE. 27ll0 1,651 356 0 781 ""'72% 1"'5E S.R.60 4SRDAVE.. 27THAVE. 2790 1,390 1'l3 0 1"'7 '7% 1935W S.R.60 43RDAVE. 2TTHAVE. 2790 1,656 288 0 846 70% 1940E S.R. 60 27THAVE. 20TH AVE. 2790 1,225 146 0 1419 49% 1"40W S.R. 60 27THAVE. 20THAVE. 2790 1,285 291 1214 S6% 1945E S.R. 60 20THAVE. OLD DIXIE HWY 3252 1,201 130 0 1921 41% 1945W S.R. 60 20THAVE. OLD DIXIE H'NY 3252 1.281 200 1763 46% Hl50E S.R.60 OLD DlX!E HWY tOTI-tAVE. 3252 1,057 51 0 2144 34% 1950W S.R. 60 OLD DIXIE HWY 10THAVE. 3252 959 136 2117 35% 1955E S.R. 60' 10THAVE. U.S.1 3252 1,099 42 0 2111 35% 1955W S.R. 60 lOTHAVE. U.S.1 3252 639 104 0 2509 1950E S.R. 60 U.S.1 !NDlAN AJVEA BLVD. 3252 784 8 0 2480 '"'24% 1960W S.R.60 U.S.1 INDIAN RIVER BLVD. 3252 452 50 2720 16% 1965E S.R. 60 INDIAN RIVER BLVD. ICWW 1860 980 7 0 "73 1965W S.R. 60 INOJAN RIVER BLVD. ICWW 1860 1,436 0 423 ""77% 1970E S.fl. 60 ICWW S.A. AlA 1860 956 9 0 1971lW SA60 JCWW S.R. A1A 1860 1,017 7 0 '" '"'56% 2020E 16THSTAEET SSTHAVE. 43ROAVE. 860 150 52 0 ""658 23% 2020W 16THSTREET 581H AVE. 43ROAVE 860 252 43 0 34% 2030E 16THSTREET 43RDAVE. 27THAVE. 860 367 43 0 "' 48% 2030W 16THSTREET 43RDAVE. 27THAVE. 860 538 36 0 ""286 67% 2040E 16THSTREET 2TTHAVE. 20THAVE. 860 597 29 0 234 2040W 16THSTREET 27THAVE. 20TH('-.VE. 860 sn 45 0 ,,,. 2050E 161HSTREET ~AVE. OlD0l)OEHW'l' 1260 6'0 19 0 "'711 -44% 16THSTREET 20THAVE. OLOO!XIEHWY 1260 ns ,. 0 449 '4% """"'2060E 16TH/17TH STREET OLO OJXIE HWY U.S.1 37 .. ,0 1089. .36%...... -----·-·· 1.7.10, .. . SM 2o60W ·1 t'rtHifrri-i STRE{er OLDO!XIEl-mY U.S.1 1710 698 34 0 9711 "" 161 GREGORY REZONING• 3,200 sf RETAIL Ttafflc counts In the EXISTING column were collected In 2007 Trii>S indicated In the VESTED column are as of 9/312008 %ofLOS AEMA1NING LINK ON STREET FROM STREET TO STREET CAPACm' EXIST, VESTED PROJECT ·o· WI PROJECT 2110E 17THSTREET U.S.1 INDIAN R!V!"iR BLVD. 1710 25 0 1190 30% 2110W 17THSTREET U.S.1 INOIAN RIVER BLVD. 1710 "'744 18 0 ... 45% 2120E 17TH STREET INOIAN RIVER BLVD. S,R.A1A 1860 944 18 0 .... .:n~ow 17TH STREET INDIAN RIVER BLVD. S,R.A1A 1860 1,040 9 0 "'811 56% 2210E t2Tfl STREET S2NDAVE. 58THAVE. 870 18 2 0 850 2% 2210W 12THSTREET 82.NOAVE. SSTHAVE. 870 102 0 0 12% 2220E 12THSTREET 5STHAVE. 43RD AVE. 860 188 0 "'624 27% 2220W 12TI-l STREET 56THAVE. 43RDAVE. 860 254 "'39 0 567 34% 2230E 12THSTREET 43ROAVE. 2nHAVE. 860 78' 22 0 55 94% 2230W 12TH STREET 43ADAVE. 27TH AVE. 880 433 19 0 4SB 53% 2240E 12THSTREET 27THAVE. 20THAVE. 860 48' 17 0 380 .... 2240W 12TH STREET 27THAVE. 2011iAVE. 860 514 16 0 ... 2250E 12TH:sTREET 20TI-IAVE. OLODIXIEl-flNY 860 461 21 0 '"378 56% 22£UN 12THSTAEET 20THAVE. OLD DIXIE HV1Y 860 674 18 0 ,.. 80% 2260E 1ZTHSTREET OLD DIXIE HWY U.S.1 1368 564 16 0 788 42% 22WM 12THSTREET OLD DIXIE HWY U.S.1 1368 782 18 0 568 58% 2305N OLD DIXIE HWY S. COUNTY LINE OSLO ROAD 860 325 0 512 2305S OLD DIXIE tfNY 5. COUNTY LINE OSLO ROAD 860 48' " 0 362 56% 2310N OLD DIXIE HWY OSLO ROAD 4THSTREET 880 349 49 0 462 -48% 2310$ OLD DIXIE: HWY OSLOAOAD 4THSTREET 860 40 0 3'1 2315N OLD DIXIE HWY 4IBSTAEET BTHSTREET 810 "'440 47 0 6-0%'"' 231SS OLD DIXIE HWY 4THSTREET 81H STREET 810 46 0 "'218 73% 2320N OLD DIXIE HWY BTHSTREET 12THSTREET 810 '"535 25 0 250 '9% 2320$ OLD DIXIE HWY 8THSTREET 12THSTREET 810 683 27 0 100 88% 2325N OLD D!XIE HWY 12THSTAEET S. V8CHYL 810 383 0 418 2325S OLD O!XIE HWY 12THSTREET S. VBCITYL 810 391 13' 0 40& ""50% 2330N OLD DIXIE HWY S. VBCITYL 16THSTREET 850 383 0 458 46% 2.330S OLDOOOEHWY S. VBC!l'YL 16TH SlREET 850 391 10 0 449 47% 2335N OLD OJXIE HWY 16TH STREET SR.SO 850 2'6 17 0 547 ,,... 2335S OLD DIXIE HWY 16THSTREET S.R.60 850 214 16 0 620 2345N OLD DIXIE HWY 41STSTREET 45THSTfiEET 860 214 38 0 608 ""29% 2345S OLD DIXIE HWY 41STSTREET 4STHSTREET 860 182 27 0 &51 ,... 2350N OLD DJXIE HWY 45THSTREET 49THSTAEET 880 12ll 52 0 660 21% 2350S OLD DIXIE HWY 45THSTAEET 49THSTREET 860 134 32 0 694 19% 2355N OLD DIXIE HWY 49THSTAEET 65THS1REET 860 162 85 0 613 29% 2355S OLD DJXIE HWY 4!JJH STREET 65TH STREET 860 136 70 0 6S4 24% 2360N OLD •!XIE HWY 65THSTREET 69THSTREET 860 215 20 0 '25 27"/4 23605 OLD DIXIE tfNY 65THSTREET 69THSTREEf 860 ll6 13 0 751 13% OLD DIXIE HWY rum-1 STREET C.R. 510 860 205 20 0 635 23655 01.D DIXIE HWY 69THSTREET C.A. 510 860 ,, 0 7SO """ -·2410N 27THAVENUE S. COUNTY LINE OSLO ROAD 1268 645 243' 0 m "'"56% 24108 2TTHAVENUE S. COUNTY LINE OSLO ROAD 1268 624 416 0 D 100% 24200 27THAVENUE OSLO ROAD 4THSiREET 1268 506 157 0 405 "'% 2420S 27THAVENUE OSLO ROAD 41HSTREET 1268 551 252 0 0 11!0% 2430« 27THAVENUE 4THSmEET B1HSTFIEET 1020 534 102 0 354 62% 2430S 27THAVENUE 4THSTREET BlHSTREET 1020 m 151 0 0 100% 2440N 27THAVENUE STHSTREET 121ri STREET 1020 473 75 0 472 94% 2440$ 27THAVENUE" BTHSTREET 12.THSTREET 1020 765 131 0 124 88% 2450N 27THAVENUE 12THSmEET S. VBCITYL 1020 825 66 0 129 ~- 24si:is 27THAVENuE 12TH ·smE·ET $, VBC!TYL 1020 n8 114 0 128 57% 162 GREGORY REZONING• 3,200 sf RETAIL 'fraffic counts In the EXISTING column were collected in 2007 Trips lndlcated In the VESTED column are as of9/3/2008 % of LOS REMAINING LINK ON STREET FROM STREET TO STREET CAPACITY EXIST. VESTED PROJECT "D" W/PROJECT 2460N 27THAVENUE S. VB"C!TYL 1STHSTREET 1020 825 61 0 134 87% 2~60S 271HAVENUE S. VB CITY L 16THSTREET 1020 778 112 0 130 87% 2470N 27THAVENUE 16TH~ET S.R.80 1020 792 36 • 190 81% 2470$ 27THAVENUE 16THSTREET S,A.60 1020 694 62 0 264 74% "'80N 27TI-iAVENUE SR.SO ATLANTIC BLVD. 810 254 18 0 .,. 34% 2'80S 2711-f AVENUE s.R. sa ATIANTIC BLVD. 810 416 28 0 366 55% 2510N 27THAVENUE ATLANTIC BLVD, AVIATION BLVD. 810 389 2 0 41• 2510S 27THAVENUE All.ANTIC BLVD, AVIATION BLVD, 810 5B9 6 0 235 -71% 2530E OSLO ROAD 62NDAVE. SBTHAVE. 870 561 59 0 250 71% 2580W OSLO ROAD 82NDAVE. 58THAVE. 870 184 64 0 622 29% 2540E OSLO ROAD 55THAVE. 43FIDAVE, 1953 561 187 0 1205 2540W OSLO MAD SSTHAVE. 43FIDAVE. 1953 493 6S 0 1394 ....'"' 2550E OSLO ROAD 43ROAVE. 2TTHAVE 1953 792 156 0 1005 '9% 2550W OSLO ROAD 43RDAVE. 27THAVE. 1953 711 128 0 1114 43% 2560E OSLO ROAD 27THAVE. 20THAVE. 1953 480 94 0 1379 29% 2560W OSLO ROAD 271rlAVE. 20THAVE. 1953 618 65 0 1270 2570E OSLO ROAD 20THAVE. OLD DIXIE HWY 1953 7B9 159 0 1031 ""47%. 2570W OSLO ROAD 20THAVE. OLD DIXIE HNY 1953 665 140 0 1148 41% 2SSOE DSLOAOAO OLD DIXIE HW'Y U.S.1 1953 51)4 BO 0 1369 30% 2580W OSLO ROAD OLD DIXIE HWY u.s.1 1953 .... 95 0 1174 40% 2610E 6THAVENUE 17THSTAEET S.VBCITYL 660 335 5 0 520 40% 2610N 6TH AVENUE 17THSTREET S. VBCIITL 650 335 0 524 39% 2610S 6THAVENUE 17THSTREET S. VBCJTYL 660 421 4 • 435 49% 2620N 6THAVENUE S. VBC!TYL S.R. 60 650 315 2 0 533 37% 2620S 6THAVENUE S. VBCllYL S.A. 60 650 421 0 ,,. 2710N fOTHAVENUE S.R. 60 ROYAL PALM BLVD. 610 131 0 0 679 -18% 2710$ 1011-lAVENUE S.R. 60 ROYAL PALM BLVD. 610 184 0 0 626 23% 2720N 10THAVENUE ROYAL.PALM BLVD. 17THSTAEET 810 218 0 0 592 27% :mos 10THAVENUE ROYALPALMBLVO. 17THSTREET 810 184 0 0 23% 2810N 20THAVENUE OSLO ROAD 4THSTREET 860 310 66 0 "'484 28108 20THAVENUE OSLO ROAD 4THSTREET 860 321 11B 0 420 '"'51% 2820N 20THAVENUE 4n-1.STREET 8THSTREET 610 338 34 0 438 .... 2820S 20THAVENUE 4THSTREET STHSTREET 810 572 56 0 182 78% 2830N 20THAVENUE 81HSTTIEET 12THSTREET 810 325 25 0 43% 2830S 20THAVENUE 8THSTAEET 12THSTREET 810 532 40 0 "'= 71% 2840N 20THAVENUE 12THSTREET S. VBCITYL 1710 317 15 0 13711 19% 2840S 20THAVENUE 12THSTREET S. VB C11i' L 1710 473 13 0 1224 2S% 2850N 20THAVENUE S. VB CITY L 16THsmeer 1800 317 7 0 1476 18% 2850S 2CTTH AVENUE S. VBCITYL 16THSTAEET 1800 473 13 0 1314 27% 2860N 20THAVENUE 16THSTREET S.R. 60 1800 326 11 0 1483 19% 25608 20THAVENUE 16THS7REET S.R. 60 1B00 225 13 0 1561 13% 2870N 20THAVENUE S.RSO A11..ANTIC BLVD. 650· 163 8 0 579 20% 2870S 20THAVENUE S.A.60 ATLANTIC BLVD. 650 72 12 0 ,.. 10% 2805N 43RDAVENUE S. COUNTY LINE OSLO ROAD 950 348 136 0 464 51% 2.905S 43RDAVENUE S. COUNTY LINE OSLO ROAD 950 314 218 0 418 56% 2910N 43RDAVENUE OSLO ROAD 4THSTREET 1068 483 124 0 461 57% 2910S 43RDAVENUE OSLO ROAD 4THSTREET 1068 462 175 0 431 60% 2915N 43RDAVENUE 4THSTREET 811-lS'JREET 1020 105 0 416 59% 2915S 43RDAVENUE 4THS7REET ST~ -~lfl.~ey_ 1020. .®1"' 151 . .0. 202 80'k 2920N 43RDAVENUE STHSTl=IEET 12THSTREET 1071 923 99 0 " 95% 163 GREGORY REZONING- 3,200 sf RETAIL Traffic counts In the EXISTING column were collected In 2007 Trips Indicated In the VESTED colur:rm are as of9/al2008 %of LOS REMAINING LINK ON STREET FROM STREET TO STREET CAPACITY EXIST. VESTED PROJECT -o· WI PROJECT 2920$ 43RDAVENUE STHSTREET 12THSTREET 1071 645 148 0 276 74% 2925N 4SADAVENUE 12TH STREET 16THSTREET 1071 '99 74 0 496 54% 2925S 43RDAVENUE 12THS'TREET 16TH STiiEET 1071 627 1l3 0 331 69% "SON 43RDAVENUE 16lHSTREET S,A,60 1786 650 76 0 1162 35% 2930S 43AOAVENUE 15THSTAEET SJ=t. 60 1786 675 107 0 1014 44% 2935N 43RDAVENUE S.R.60 26THSTREET 1795 386 67 0 1343 35% 2935$ 43ADAVENUE S,R, 60 26THSTAEET 1796 576 24 0 1198 ,,.. 294oN 43ADAVENUE 26THSTREET 41-STSTREET 860 361 94 0 4'15 53% 2940S 43ADAVENUE 26THSTREET 41STSTREET 860 362 36 0 462 "" 2945N 43ADAVENUE 41STSTREET 45THSTREET 860 305 69 0 ... 2'45S 43ADAVENUE 41STSTREET 45THSTAEET 860 294 38 0 538 ""31% 2950N 43ROAVENUE 45TH STI'IEET 49i'HSTREET 860 208 120 0 S32 3S"k 2950S 43RD AVENUE 45THSTAEET '19THSTREET 860 148 52 0 23% 3005N SSTHAVENUE OSLO ROAD 4THSTAEET 1860 361 73 0 14(16"" 24% 30055 58THAVENUE OSLO.ROAD 4THSTREET 1860 512 0 1240 .,.. 3010N 56lHAVENUE 4THSTREET STHSTREET 1710 672 "'"57 0 981 43% 3010S 58THAVENUE 4THSTREET BTHSTREET 1710 752 84 0 874 .,.. 3015N 58TH-AVENUE aTHSTREET 12THSTAEET 1710 743 0 878 49"• 3015S 581HAVENUE Olli Sll'l£ET 121HSTAEET 1710 952 ""69 D 689 60% 3020N 58TH AVENUE 1ZfHSTAEET 16THSTREET 1710 1,229 136 0 343 ... 3020S 58THAVENUE 12THSTREET 16THSTAEET 1710 1,055 113 0 542 611'¾ 2025N 58THAVENUE 16THSTAEET S.R.60 1710 1,139 210 0 361 7S% 3025S SBTHAVENUE 16THSTREET S.R.60 1710 981 194 D 535 69% 3030N 581HAVENUE S.R. 60 41STSTREET 1850 520 123 0 817 56% 30309 SBTHAVENUE S.R.60 41STS1'FIEET 1860 97 0 900 ..,. 3035N SBTHAVENUE 41STSTREET 45THSTREET 860 545"" 176 0 139 84% 3035S 5BTHAVENUE 41STSTREET 4STHSTREET 860 484 107 0 269 .... 3040N 58THAVENUE 45THSTREET 491HSTREET 860 489 200 0 171 60% 3040S 58THAVE~UE 45THSTREET 49THSTREET 860 418 116 324 62% 3045N 58THAVENUE 49THSTREET 65THSTAEET 860 545 265 0 50 94% 30456 S8THAVENUE 49THSTREET 65THSTREET 860 402 0 324 52% :l050N 58THAVENUE 65THSTREET 69THSTREET 860 412 ""105 0 343 60% 3050S 58THAVENUE 651HSTAEET 69rn STREET 860 330 117 0 413 52% 3055N SBTHAVENUE 69TH STREET C.R,510 860 399 102 0 359 3055S 5BTHAVENUE 691HSTREET C.R.510 860 266 91 0 S03 "" 3120N 66THAVENUE S.A. 60 26THSTREET 860 426 144 290 "'"66% 3120S 66THAVENUE sJtso 26TI--f STREET 860 529 85 0 246 71% 3130N 6fITTi AVENUE 26THSTAEET 41STSTAEET 860 469 151 0 240 72% 31309 66THAVENUE 26THSTREET 41STSTREET 860 398 0 363 58% 3140N 66THAVENUE 41STSTREET 45THSTREET 950 700 " 0 178 81% 3140S 66THAVENUE 41STSTAEET 45THSTREET 950 441 "54 0 455 52% 3150N 66THAVENUE 45THSTAEET 65THSTTIEET 870 878 71 0 121 86% 31505 66THAVl=.NUE 45THSlREET 65TH STREET 870 376 55 0 439 3160N 66THAVENUE 651liSffiEET 69THSTREET 870 661 44 0 145 ""' 3160S 66THAVENUE 65'THSTREET 69THSTREET 870 350 42 0 478 45%"" 3170N 66THAVENUE 69THSTREET C.R.510 1860 723 60 0 1077 42% 9170S 6STHAVENUE 69THSTREET C.R. 510 1860 360 50 0 1450 3210N 74THAVENUE 16TT-lSTREET SR60 860 ., 0 0 787 11%""" .~,.?.~ M!~:~YE:N~~ 1~.l:t§_TRs~ $.1:i®. .860- 118 0 0 742 -14% 3310N 82NDAVENUE OSLO ROAD 4THSTREET 950 161 16 0 771 19% 3310S 82NOAVENUE OSLO ROAD 4THSTREET 950 220 22 0 708 25% 3'20N 82NDAVENUE 4THSTAEET 12TH STFIEET 950 194 82 0 874 29% 164 GREGORY REZONING - 3,200 sf RETAIL Traffic counts In the EXISTING column were collected in 2007 Trips indicated In the VESTED.column are as of 9f3l20Q8 %of LOS REMA1NJNG LINK ON STREET FROM STREET TO STREET CAPACITY EXIST. VESTED PROJECT 'D" W/PROJECT 39208 82NDAVENUE 4THSTREET 12TH STfiEET 950 208 140 0 602 37% 3330N 82NDAVENUE t2THSTREET S.R. 60 ..0 235 195 0 430 50% = 82NDAVENUE 12Tli STREET S.A.60 660 224 2SO 0 406 53% 3'40N 82NDAVENUE S.R.60 65THSTAEET 410 52 15 0 343 16% 3'40S 82NDAVENUE S.A.60 65THSTREET 410 43 16 0 351 14% 3350N 82NDAVENUE S5THSTREET 69THSTREET 410 21 15 0 374 9% 3350S 82NDAVENUE 6STHSTREET 69THSTREET 410 18 15 0 377 .. 3360N SSTHAVENUE BTHSTREET 12THSTREET 660 134 42 0 684 3'00S 98THAVENUE 8TH STREEIT 12THSTREET 660 168 76 0 "'4 ""'31% 3S70N 9BTHAVENUE 12THSlREET 16Jl-lSTREET 860 92 106 0 662 23% 3370$ SBTHAVENUE 12THSiREET 16lliSTAEET 860 54 194 0 612 29% 98TI-i AVENUE 16THSTFIEET SR60 6£0 26 106 0 726 16% 3380S""°" 98THAVENUE f6THSTREET SR60 660 25 194 0 641 25% 3390N 98THAVENUE sR·so 26THSTREET .. , 12 0 0 .... 3390S 981HAVENUE SR60 26THSTREET 060 11 0 0 ... "' 3610E 7TTHSTREET 66THAVE. U.S.1 820 60 6 0 7S4 "'8% 3610W mHSTAEET 66THAVE. U.S.1 820 150 2 0 668 3710E 69THSTAEET 82NDAVE. 66TI-/ AVE. 410 37 33 0 340 17""" :,:111ow 691HSTREET 82NOAVE, 66THAVE. 410 24 33 0 353 14% 3720E 69THSTAEET 66TH AVE. 58THAVE. 870 33 17 0 820 6% mow 69THSTREET 68TI-IAVE. 58THAVE. 870 78 22 0 770 11% 3730E 69THSTREET SSTHAVE. OLD DIXIE HWY 870 48 14 0 ,os 1% 69THSTREET 58THAVE. OLD DIXIE HWY 870 78 14 0 778 11% "'"""3740E 69THSTREET OLD DIXIE HWY U.$.1 870 49 0 '17 6% 3740W 69THSTAEET OLD DIXIE HWY U.S.1 870 78 4 0 78'< 3620E 65THSTREET 66THAVE. 58TH AVE. 870 36 20 0 '14 '" .,.,.,, 65THSTREET 66TH AVE. 58THAVE. 870 76 19 0 775 11%"' 3830E 65THSTREET 58THAVE OLO DIXIE HWY 870 74 17 0 779 10% "'30W 6511-\ STAEET 58TH AVE. 9LO OJX!E lfMY 870 110 16 0 744 14% 3940E 65THSTREET OLD DIXIE HWY U.S,1 870 SB 0 811 3840W SSTHSTREET OLD DIXIE HWY U.S.1 870 68 4 0 798 "' <220E 49THSTREET SSTHAVE, 5STHAVE, 860 28 31 0 1%'"' 4220W 4!.lTHSTREET 66THAVE. 5Hll-l AVE. 860 33 19 0 '" 6% <230E 49TH STREET 58THAVE. 43ADAVE, 860 137 17 0 706'" 4230W 49THSTREET 58TH AVE. 43RDAYE. 880 166 28 0 23%"'"' 4240E 49'THSTREET 43ROA.VE Ot.D DIXIE HWY 810 167 66 0 '"577 4240W 49THSTREET 43ROAVE. OlD DIXIE HWY 810 33 71 0 71l6 ""'13% '250E 49TH STREET OLD DIXIE HWY U.S.1 810 .. 5 0 707 13% 4250W 49THSTREET OLD DIXIE HWY U.S.1 810 119 21 0 670 17% 4320E 45THSTREET 66THAVE, 58THAVE. 860 97 9 0 754 12% 4320W 45TH STREET 66THAVE. 58TH AVE. 860 126 5 0 726 4330E 45TH STREET 56TiiAVE. 43RD AVE. 860 15< 15 0 691 20%"" 4330W 45THSTFiEET 58THAVE. 43RD AVE, 860 208 40 0 612 2e,, 4340E 45THSTREET 43ROAVE. OLD DIXIE HWY B60 243 22 0 595 31% 4340W 45TI-l STA~ET 43ADAVE. OLD DIXIE HWY 860 303 26 0 532 38% 43S0E 45TH smeET OlDD!XIEHWY INOIAN·AIVEA BLVD. 860 153 9 0 698 19'% 4350W 45TH STREET OLD DIXIE HWY IND!AN AIVCA Bl.VO, 860 225 20 0 615 28% 4420E 41STSTREET 66THAVE. 58THAVE. 870 78 1 0 785 10% 4420W 41STSTREET 66THAVE. ~.A\'.E. '70 126 .6 0 "15% ·4430e ·;;:iSTsTAfu 58THAVE. 43RDAVE. 860 198 21 0 ""'641 25% 165 • GREGORY REZONING • 3,200 sf RETAIL Traffic eounts In ttu:! EXISTING colOmn were·coffecb!d in 2007 Trips Indicated In the VESTED tclumn are as Of 91312008 %ofl0S ReMAINING LINK ON STREET FAOMSTREET TO STREET CAPACITY EXIST. VESTED PROJECT ·o· W/PROJECT 4430W 41STSTREET 5811-1 AVE. 43RDAVE. 860 233 41 0 586 32% 4440E 41STSTREET 43AOAVE. OLD DIXIE HWY 860 218 32 0 610 _,, 4fSTSTReET 43RDAVE, OLD O!XIE 1-M'Y 860 229 20 0 611 ""29% 4'50E 41STSTAEET OLD DIXIE HWY INDIAN RIVER BLVD. 860 157 5 0 ... 19% 4'50W 41STSTREET OLD DIXIE HWY INDIAN RIVER BLVD. 860 160 1B 0 682 4460E 37THSTAEET U.S.1 INOIAN RIVER BLVD, 860 9 0 490 "''49% 44SOW 3m-f STREET U.S.1 INO!AN RIVER BLVD. 860 ''"651 16 0 177 79% 4720E 26TH STREET 66THAVE. 58THAVE, 860 264 48 0 528 39% 472!NI 26THSTAEET 6SrnAVE. SSTHAVE. 860 479 0 3'2 47"JE 26THS1REET 58THAVE. 43RDAVE. 860 375 "29 0 456 47%"" 473 166 PUBLIC HEARING: June 23, 2009 /()Ad,.__ Offeeof INDIAN RIVER COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Senior Assistant County Attorney George A Glenn, Assistant County Attorney MEMORANDUM TO: The Board of County Commissioners FROM: v,?V William G. Collins II - County Attorney DATE: June 3, 2009 SUBJECT: Public Hearing on Proposed Ordinance Amending Section 207.05 of the Indian River County Code to Change the Beginning Sale Date of Business Tax Receipts from August 1 to July 1 of Each Year · At its meeting of June 2, 2009, the Board authorized the County Attorney to draft a revision to Section 207.05 of the Indian River County Code to make ii consistent with the Florida Legislature's 2007 amendment to Florida Statute 205.053. Currently Code Section 207.05 "Term of business tax receipt; due dates; and penalties" provides that all business tax receipts shall be sold by the Tax Collector beginning August 1 of each year. The Florida Legislature amended the statute with respect to business tax receipts (F.S. 205.053) in 2007 to change the beginning sale dale of business tax receipts from August 1 to July 1 of each year. Our local ordinance has a savings clause (Section 207 .13) which provides that "The provisions of F.S. Ch. 205, as amended from time to time, shall control where there is ... conflict with ... Chapter 207 of the Code." ln~iin Riv« CII. Approved ' _Da. \e Admln. nl l/JJ'/0' APPROVED FOR b - 2... Legal v~' l RECOMMENDATION Open the public hearing, take input, close public hearing and move approval of the attached ordinance and authorize the Chairman to execute the ordinance amendment. nhm attachment: Draft Ordinance amending Indian River County Code Section 207.05 cc: Carole Jean Jordan - Tax Collector Debbie Gee - Director, Current and Delinquent Taxes and Licenses 2 168 ORDINANCE NO. 2009-__ AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA AMENDING INDIAN RIVER COUNTY CODE SECTION 207.05 "TERM OF BUSINESS TAX RECEIPT; DUE DATES; AND PENALTIES" TO CHANGE THE BEGINNING SALE DATE OF BUSINESS TAX RECEIPTS FROM AUGUST 1ST TO JULY 1ST OF EACH YEAR; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; AND PROVIDING EFFECTIVE DATE. BE IT ORDAINED by the Board of County Commissioners of Indian River County, Florida that: SECTION ONE: Section 207.05. Term of business tax receipt; due dates; and penalties, is hereby amended to read as follows: (1) All business tax receipts shall be sold by the tax collector beginning /\u§lust July 1 of each year, are due and payable on or before September 30 of each year, and expire on September 30 of the succeeding year. If September 30 falls on a weekend or holiday, the business tax is due and payable on or before the first working day following September 30. There are no partial receipts. Receipts that are not renewed when due and payable are delinquent and subject to a delinquency penalty of ten (10) percent for the month of October, plus an additional five (5) percent penalty for each subsequent month of delinquency until paid. However, the total delinquency penalty shall not exceed twenty-five (25) percent of the business tax for the delinquent establishment. (2) Any person who engages in or manages any business, occupation, or profession without first obtaining a local business tax receipt, if required, is subject to a penalty of twenty-five (25) percent of the tax due, in addition to any other penalty provided by law or ordinance. (3) Any person who engages in any business, occupation, or profession covered by this chapter, who does not pay the required business tax within one hundred fifty (150) days after the initial notice of tax due, and who does not obtain the required receipt is subject to civil actions and penalties, including court costs, reasonable attorneys' fees, additional administrative costs incurred as a result of collection efforts, and a penalty of up to two hundred fifty dollars ($250.00). 1 Coding: Words/letters/numbers underscored are additions to text; words sl,uch 11'\rnu@hare deletions. 169 ORDINANCE NO. 2009-__ SECTION TWO: CODIFICATION. It is the intention of the Board of County Commissioners that the provision of this ordinance shall become and be made part of the Indian River County Code, and that the sections of this ordinance may be renumbered or re-lettered and the word ordinance may be changed to section, article or such other appropriate word or phrase in order to accomplish such intention. SECTION THREE: SEVERABILITY. If any section, sentence, clause, or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. SECTION FOUR: EFFECTIVE DATE. This ordinance shall take effect immediately upon filing with the Secretary of State. This ordinance was advertised in the Vero Beach Press-Journal on the 12th day of June, 2009, for a public hearing to be held on the 23rd day of June, 2009, at which time it was moved for adoption by Commissioner ______, seconded by Commissioner ______, and adopted by the following vote: Wesley S. Davis, Chairman Joseph E. Flescher, Vice Chairman Commissioner Gary C. Wheeler Commissioner Peter D. O'Bryan Commissioner Bob Solari The Chairman thereupon declared the ordinance duly passed and adopted this 23rd day of June, 2009. 2 Coding: Words/letters/numbers underscored are ad.ditions to text; words sl,.,sk l;irn"@R are deletions. 170 ORDINANCE NO. 2009-__ BOARD OF COUNTY COMMISSION INDIAN RIVER COUNTY, FLORIDA By: ______~--- Wesley S. Davis, Chairman ATTEST: Jeffrey K. Barton, Clerk By:------Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY !.t ,~ ucuez WILLIAM G. COLLINS II COUNTY ATTORNEY ACKNOWLEDGMENT by the Department of State of the State of Florida, this .__ day of ______, 2009. 3 Coding: Words/letters/numbers underscored are additions to text; words sl.wcl, 11¥SU§h are deletions. 171 ~~; l.l~ llJUU 11: ?4 J<'AX ts50Jl29708 FOSTER ENTERPRISES i4J002 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION /0131 REQUEST TO BE SCHEDULED FOR PUBLIC DISCUSSION Any organization or individual wisWng to address the no111·d of County Commission shall complete this form and submit it to the Indian River County Administrator's Office. PUBLIC DISCUSSION INFORMATJON Indian River County Code Section 102.04(9)(b): as a general rule, public discussiou items should be limited to matters on which the commission may take action lndi•.n River County Code Section 102.07(2): limit remarks to three minutes uul NAMBOF1NDIVIDUALORORGANIZAl'ION: MA(J,tC. fos~R.- tb,;,-ff!(\. r. KC. {..LC., 1 ADDRESS: )e,ito ~A-1 bR_ J/O!l~l'Jr,A,.,.,._ 0,9¼>4PHONE: (ir;,:,) ~'2--9100 SUBJECT MATTER FOR DISCUSSION: J.lu~-rll--ll\-Co.-J Pt...\C1t LQ"f Fi L-\.. rs A PRESENTATION PLANNED? I v;vEs E]No IS BACK,UP BEING PROV1DED ~ES • NO JS THIS AN APPEAL OF A DECISION • YES ~l\O WHAT RESOLUTION ARE YOU ,ff REQUESTING OFTJ:J.E coMMlSSION? Rt:LfA'it 1>1" Grnm of U£b1-r o'F !t /. 1 MM ARE PUBLIC FUNDS OR ACTIVITIES REQUIRED'? D YES WHAT FUNDS OR ACTlV1TlES ARE REQlJIRED TO MEET THIS REQUEST? _.:_N.:...o.:...f-lc.:c..;:______ ==::::::-~:::-=:-=-====:::==~-,=-=--==~==~===-=====-·-=- Transmitted to Administrator Via: Interactive Web Fonn E,Mail COUNTY ADMINISTRATOR; .. W!U.~!..i.l-J:,-..;;~J::!•.-,.~S.L.!·LCMM..l!cJC'.- __ Fax oseph A. Baird ~ Mail !land Delivered MEETING OATE: :!dt.J1 Phone 172 !IA Office of the INDIAN RIVER COUNTY ADMINISTRATOR Joseph A. Baird, County Administrator Michael C. Zito, Assistant County Administrator MEMORANDUM TO: Members of the Board of County Commissioners FROM: Joseph A. Baird County Administrator DATE: June 15, 2009 SUBJECT: Dollars for Scholars Request for Use of Equipment DESCRIPTIONS AND CONDITIONS: A request has been made by E. Michael Stutzke for the donation of bleachers for the Dollars for Scholars Kick-Off Classic scheduled for August 28, 2009. RECOMMENDATION: Staff requests direction from the Board of County Commission regarding waiving the standard rental fees for the use of County equipment. Attachment: Request Letter APPROVED AGENDA ITEM ByI" .. F /J dio,,;,q FO ~ June 23, 2009 173 SEBASTIAN R.lvER HIGH SCHOOL ATHLETIC DEPARTMENT 9001. . Shark. Boulevard• Sebastian, Florida 32958. E. Michael Stu/#le, CMAA (772) 564-4235 · Athletic Director Fax: (772) 564-4259 Cell: (772) 473-0314 Mr. Mike Redstone Parks and Recreation, Asst. Director 1801 27t11 Street, Building "B" Vero Beach, FL 32960-3365 Via Fal< Transmission Dear Mike, Good to speak with you again regarding the "Dollars for Scholars Kick-Off Classic" scheduled for August 28, 2009, h~re in Sebastian~ The annual football galTle between.Sebastian River and Vero Beach has turned into a great Indian River County event enjoyed by all who attend. As discussed we are seeking permission to once again borrow the county's three sets of bleachers. If we are able to use them we will need them in place by August 26, 2009. We expect approximately 5500 in attendance. Thank you in advance for the consideration. MNLJRrURING MIND, BODY AND. . SPIRIT THROUGH. AC MIC AND ATHLETIC ACHIEVEMENT" "You Can't Hide That Shark Pride" School District of lndien River Covnty www.Go-Sharks.org 174 COMMUNITY ' INDIAN RIVER COUNTY, FLORIDA DEVELOPMENT MEMORANDUM TO: Joseph A Baird; County Administrator FROM: Stan Boling, AICP Planning Director DATE: June 12, 2009 SUBJECT: Consideration of PSAC's (Professional Services Advisory Committee) Recommendation to Amend the Land Development Regulations (LDRs) to Provide for Permanent Exceptions to the LDRs for Individual Development Projects It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of June 23, 2009. BACKGROUND At its March, April, and May meetings, the PSAC (Professional Services Advisory Committee) discussed an initiative related to the temporary suspension of compliance with county land development regulations for development projects (see attachments #1 and #2). On May 19, 2009, that initial temporary suspension initiative was adopted by the Board of County Commissioners (BCC) and is in effect. Besides the initial temporary suspension provision, another initiative, which involves granting permanent exceptions to LDRs for individual development projects, was discussed by the PSAC. At its May 21, 2009 meeting, the PSAC voted 7-0 to recommend that the BCC direct staff to initiate a formal amendment to the LDRs to provide for permanent exceptions under certain conditions (see attachment #2). At this time, the Board of County Commissioners needs to consider staffs analysis as well as the PSAC's recommendation, and provide staff with direction. ANALYSIS The recently adopted temporary suspension of compliance LDR amendment addressed the BCC's intent to allow certificates of occupancy (C.O.s) to be issued for development projects with minor non-safety related discrepancies that get corrected a short time after C.O. In staff's opinion, that initiative will provide the flexibility and "relief' needed to address C.O. timing problems. The second initiative is intended to provide a flexible, "common sense" application of the LDRs on a project-by-project basis. The initiative is seen as a way to address problems with the strict application of regulations. During discussions of the initiative, most examples cited involved current landscaping requirements that are perceived as excessive. F:\Community Development\Users\CurDev\BCC\2009 BCaPem1anent Exceptions.rtf Staff has found this initiative, which involves granting permanent exceptions or deviations from LDR requirements for individual development projects, to be challenging. This initiative will be difficult to implement because it requires creation of an LDR provision that must properly balance flexibility with objective standards and fairness, while upholding the integrity of the LDRs. • Existing Flexibility The existing LDRs already provide some degree of flexibility. For example, some LDRs are structured to provide developers with options ( e.g. vehicle tum-around designs, varying buffer widths, and planting densities). Also, the existing P .D. process allows flexibility for residential, mixed use, commercial, and industrial projects. In addition, the recently adopted temporary suspension of compliance ordinance allows flexibility with respect to issuing C.O.s and C.C.s ( certificates of completion) while ensuring full compliance with the LDRs within 90 days ofC.O. or C.C. issuance. Lastly, the existing LDRs provide for setback and technical variances to be granted by the Board of Adjustment (BOA) if strict, objective criteria and special conditions are met (see attachment #3). Though rarely used, the variance process allows a limited degree of "relief' for special circumstances. • Review of Staff Decisions & Interpretations In addition to providing greater flexibility for individual projects, the permanent exception initiative is intended to provide an alternative or "relief' from staff interpretations and decisions regarding how LDRs are applied to a specific project. With respect to such staff decisions, the existing LDRs already provide oversight and appeal mechanisms. For example, all residential projects and large non-residential projects require review and approval by the Planning & Zoning Commission (PZC). For such projects the PZC, not staff, has interpretation and approval authority. In addition, the existing LDRs (Chapter 902) provide that all staff interpretations and decisions are appealable to the PZC. Likewise, all PZC decisions are appealable to the BCC. Therefore, a process is already in place to correct staff errors, mis-interpretations, and mis-applications of the LDRs. • LDR Evaluation and Amendment Process In addition to flexibility under the existing LDRs, there is an existing process in place for identifying LDR problems and changing the LDRs themselves. That process involves a variety of parties, including individual citizens and citizen groups, staff, the PSAC, PZC, other committees, and the BCC itself. Generally, the process involves discussion by the BCC, resulting in direction to staff to initiate a change to the LDRs. In 1992, the BCC established the PSAC to identify LDR problems and review all proposed LDR changes. Thus, there is an existing committee in place to address "problem LDRs". Recent examples of county-initiated items include changes to mining regulations, sign regulations, and C.O./C.C. related regulations. In addition, private parties can file applications to amend the LDRs. The most recent example of such an application resulted in an LDR amendment that created a retail nursery and accessory retail sales use category within the agricultural zoning districts. • PSAC Recommendation At its recent meetings, the PSAC discussed many aspects of the permanent exception initiative and formed a consensus on a concept that still needs further development and details to be worked-out through the formal LDR amendment process. The concept is summarized below. Based on that concept, the PSAC voted 7-0 at its May 21 st meeting to recommend that the county establish a process through which the BCC could grant permanent LDR exceptions to individual projects (see attachment #2). Such exceptions would apply in one of two situations: 1. Where special circumstances and conditions that warrant a limited deviation from a quantitative LDR standard exist on a project site, and those circumstances/conditions are not a result of actions of the applicant. Such deviation is not to exceed I 0% and is to be the minimum deviation necessary to reasonably develop the site. F:\Community Development\Users\CurDev\BCC\2009 BCC\Pem1anent Exceptions.rtf 176 2. Where an alternative design or improvement is proposed that would provide a "functionally equivalent" result when compared to the result that would occur under the LDR provision. The PSAC's recommendation includes a recognition that no exceptions should be granted under any circumstances for certain types ofLDRs such as: building heights, allowable uses, and specific land use criteria for administrative permits and special exceptions. To implement the PSAC's recommendation, several LDR issues need to be addressed. Among those issues are defining "functional equivalency" and defining "special circumstances and conditions". "Functional equivalency" will be difficult to define since it involves comparing an alternative proposal to an existing objectively measured regulation. Such a comparison will require development of a common standard that can be used to evaluate both the alternative and the existing standard. If the common standard used is as vague as the "purpose and intent" of the existing regulation, then each functional equivalency evaluation will be too open-ended to maintain consistency from application to application and will have less public input than the LDR process that was used to establish the existing regulation. The difficulty of defining functional equivalency can be illustrated in the following example. An applicant has a project that requires 100 canopy trees with a height at planting of 12 feet. As a functionally equivalent alternative, the applicant proposes 200 canopy trees with a height at planting of 6 feet. Although both approaches result in 1,200 feet of combined canopy tree height at planting, the proposed alternative would not achieve one objective of the landscape ordinance which is to have an acceptable minimum degree of tree maturity up-front for aesthetic purposes. The alternative proposal used in the above example will be difficult to evaluate for functional equivalency unless some other standards, such as appropriate tree maturity and proper tree spacing, are used in the evaluation. Rather than creating and using new standards on a case by case basis, it is more effective to re-evaluate the underlying regulation through the LDR amendment process and make any necessary changes on a "global" basis. Similar to "functional equivalency", the term "special circumstances and conditions" is difficult to define. If the term is defined too broadly, it will be difficult to maintain consistency from application to application. A lack of consistency then makes it difficult to maintain the fairness and predictability that applicants and affected parties deserve. If the term is defined narrowly, it will essentially replicate 2 of the 8 existing variance criteria (see attachment #3) and may result in simply duplicating the existing variance process. Consequently, the permanent exception provision will need to be properly differentiated from the existing process whereby the Board of Zoning Adjustments considers setback and technical variances (see attachment #3). One other issue with the permanent exception provision is whether such an exception can be granted at any point in the development process. If exceptions can be granted early in the site plan or subdivision design process, then the BCC could approve an exception before the project is reviewed by the PZC. This procedure will "short-circuit" the usual development review flow whereby the PZC makes a recommendation on a proposed project prior to BCC consideration. Finally, the permanent exception provision will need to be structured to ensure that any exception granted will apply to any other similarly-situated project or similarly proposed alternative design/improvement. To provide consistency and predictability for future applicants and affected parties, the allowances granted by exceptions will need to be incorporated into the LDRs. For example, a functional equivalent permanent exception to allow an applicant to plant more trees that are shorter than required by current code would need to be incorporated into current code through an LDR amendment. As a result, the BCC will ultimately consider an LDR amendment to codify any new allowance created by a granted exception. 177 F:\Community Development\Users\CurDev\BCC\2009 BCC\Permanent Exceptions.rtf 3 • Alternatives In considering the PSAC's reconnnendation, the Board has alternatives, including the following: I. No action. With this option, the Board could opt to make no LDR changes at this time and instead wait to see if the recently adopted temporary suspension ordinance provides sufficient flexibility to address concerns. 2. Direct the PSAC and staff to identify "problem LDRs" and develop proposed amendments to resolve the problems identified. Such a process is likely to involve a re-evaluation of certain landscaping requirements. 3. Direct staff to initiate the formal LDR amendment process to develop a permanent exception ordinance that builds on the PSAC's recommendation. During discussions of the permanent exception initiative, staff observed that the only persistent complaints about the existing LDRs involve certain aspects of the landscaping ordinance. Consequently, it is staffs opinion that pursuing alterative #2 would probably result in proposed adjustments to landscaping requirements, and is the most direct approach to addressing development complaints. RECOMMENDATION: Staffreconnnends that the BCC: 1. Direct the PSAC and staff to identify "problem LDRs" and develop proposed amendments to resolve problems identified, or 2. Direct staff to initiate the formal LDR amendment process to develop a permanent exception ordinance that builds on the PSAC's recommendation. ATTACHMENTS: 1. April 16, 2009 PSAC: Staff Report and Minutes 2. May 21, 2009 PSAC: Staff Report and Minutes 3. Existing Variance Criteria: 902.09(6) Indian River Co, APPROVED AGENDA ITEM: Admin. Legal Budget Dept. Risk Mgr. F:\Community Development\Users\CurDev\BCC\2009 BCC\Pennanent Exceptions.rtf 178 4 LDR AMENDMENT [LEGISLATIVE] INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Honorable Members of the Professional Services Advisoty Committee THROUGH: Robert M. Keating, AICP Mk._ Community Development Director 413 FROM: Stan Boling, AICP Planning Director DATE: April 9, 2009 SUBJECT: Consideration ofExpanding the Board ofAdjustments' Authority to Grant Variances Relating to Disputed Development Requirements It is requested that the data herein presented be given formal consideration by the Professional Services Advisory Committee at its regular meeting of April 16, 2009. BACKGROUND At its March 19, 2009 meeting, the PSAC considered an LDR amendment (proposed ordinance) authorizing the county administrator and Board of Adjustments (BOA) to temporarily suspend ce1tain development regulations at the time that a developer seeks a project C.O. (certificate of occupancy). The proposed amendment was drafted by staff as directed by the Board of County Commissioners (BCC) and is intended to allow businesses to get into operation more quickly than under the current C.O. process. As proposed, the temporary suspension ordinance would allow issuance of a C.O. for a project J;Vith minor, non-safety related deficiencies, subject to a condition that those deficiencies be resolved within 90 days of C.O. At the March 19th meeting, the PSAC voted to recommend that the proposed temporary suspension ordinance be adopted with a change that would apply the temporary suspension allowance to certificates of completion for subdivisions and planned developments. The temporaiy suspension ordinance is scheduled to be heard by the Planning & Zoning Commission (PZC) on April 23 rd and is to be scheduled for a BCC hearing in May. Toward the end of the March 19th PSAC discussion on the temporary suspension ordinance, interested party Charlie Wilson stated that the PSAC should consider going further. Specifically, Mr. Wilson urged PSAC members to consider broadening the BOA's authority to grant permanent variances for matters disputed at the time ofC.O. After discussion, the PSAC voted 5-3 to direct staff to bring back an ordinance " ... wherein the Board of Zoning Adjustments has authority to make variances on specific disputed issues between staff and owner.." (see attachment#!). Since that last PSAC meeting, staff has analyzed the issue of the BOA granting permanent variances from various CO requirements and has prepared this staff repott. F:\Communitr Deve\opmen1\Users\CurOev\PSAC\2009 PSAC\expandingBOAauthority.rtf ATTACHM!ftT ""1 1 17 9 . ANALYSIS • Existing BOA Variance Authority Under existing Chapter 902 regulations (see attachment #2), the BOA is allowed to grant variances from yard area requirements ( e.g. setbacks, widths, size, lot coverage, and open space) and technical requirements (e.g. quantitative standards). Chapter 902 also specifically prnhibits the BOA from granting variances which would: • Permit a use in a zoning district contrary to zoning regulations. • Permit or expand a special exception or administrative permit use without going through the respective special exception or administrative permit process. • Affect a non-conforming use. • Modify a te1m defined in the LDRs. • Increase density above that permitted in the zoning regulations. Thus, the BOA already has the authority to grant "technical variances", but is precluded from granting use or density variances. • Existing Variance Criteria and Procedures Chapter 902 also provides eight variance criteria. These criteria are nan-owly structnred and severely reshictive to ensure that the BOA acts in an equitable, not legislative, manner. Under these provisions, no variance may be granted unless all eight criteria are met. These criteria ensure fair and consistent application of regulations countywide, while allowing consideration of truly unique conditions and circumstances not created by the applicant. In addition, certain criteria and a procedural requirement to notify adjacent property owners are intended to protect surrounding property owners from negative impacts or unfair treatment that could result from a granted variance. The current variance process takes about 3 weeks from submittal of a complete application (including $800 application fee) to the BOA hearing. • Legal Issues As mentioned during the March 19th PSAC discussion, there are legal constraints on BOA authority and the granting of variances. According to the County Attorney, the BOA cannot be given broad discretion to modify regulations enacted by the BCC (see attachment #3). In addition, arbitrary and capricious application of the regulations must be avoided. Therefore, it is appropriate to keep the BOA's current authority to grant technical variances subject to the eight existing variance criteria unchanged. • Alternatives for Resolving C.O. Disputed Issues The proposed temporary suspension ordinance considered by the PSAC in March addresses the timing aspect of the CO process. As proposed, that ordinance would allow development projects to be CO'd when substantially complete but not 100% in compliance with regulations, while ensuring I 00% compliance within 90 days of CO. Another, separate aspect of the C.O. process not yet addressed is the appropriateness of certain requirements.· Examples cited of"unreasonable" requirements include minimum canopy tree height (currently 12')and tree quality (cun-ently Florida No. I). These standards are minimums that can be modified in various ways through the LDR amendment process. In staffs opinion, changing requirements found to be unreasonable is a more predictable, efficient, fair, and legally defensible approach to resolving disputed C.0. issues than creating a more open-ended BOA variance process. F:\Community Development\Users\CurDev\PSAC\2009 PSAC\expnndingBOAauthority.rtf ATTACMMl!flT . 1 Since the PSAC has expertise with the county's LDRs and has members with ample experience in the C.O. process and related issues, the PSAC is the appropriate committee to identify any unreasonable requirements and make recommendations to the BCC to con-ect or modify such requirements. RECOMMENDATION: Staff recommends that the PSAC: • Recommend that the BCC not change the BOA's authority to grant permanent variances; and • Identify any unreasonable county requirements; and • Recommend that the BCC direct staff to initiate LDR amendments to con-ect or modify any unreasonable requirements identified. ATTACHMENTS: I. Draft Minute Excerpts from March 19, 2009 PSAC Meeting 2. Chapter 902 Variance Regulations 3. E-mail from County Attorney Will Collins ATTACHM!tlT ' 1 F:\Community Development\Users\CurDev\PSAC\2009 PSAC\cxpandingBOAautl1ority.rtf For commercial business, the changeable portion of electronic message copy area does not exceed 40% and the changeable portion of a ,al message copy area does not exceed 50% of the overall sign copy are ON MOTION BY Mr. Gaskill, SECON Mr. Robinson, the members voted una · ously (8-0) to amend the proposed LDR am ments related to special corridor regulations fo ectronic message and changeable copy signs commercial business to indicate the changeab portion of electronic message copy area does n exceed 40% and the changeable portion of a ma message copy area does not exceed 50% of the o all sign copy area. ON BY Mr. Gill, SECONDED BY Mr. Gaskill the me ers voted unanimously (8-0) to direct staff to · vestigate the brightness of the LED lights to set regulations and to include theaters where eighty (80) percent of actual sign area for display were allowed. (1 :15 p.m.) B. Consideration of Amendments to Board of Adjustment and ~ Variance Regulations Providing for Temporary Suspensions of Compliance, LOR Chapter 902 Mr. Boling outlined the memorandum dated March 13, 2009, with attachments, and presented a Powerpoint, copies of which are on file with the Commission Office. He reminded the Committee it was the Board of County Commissioners intent to allow businesses to get into operation more quickly than under the current Certificate of Occupancy (CO) process. A lengthy discussion ensued regarding CO compliance process for development projects. Chairman Smith commented if the developers were given a break by this new ordinance, then take advantage of the break by walking away from the punch list and the matter goes before the Code Enforcement Board (CEB), as an expense to the taxpayers, he would like to see a letter of acknowledgement indicating if the matter would go before the CEB on any of the issues on the punch list, it would be considered blatant disregard and the CEB had the authority to affix a fine. Mr. William Collins, County Attorney, informed the Committee the CEB has the discretion as to what fines were set and usually a first violation may be minimal, e.g., $100 per day; however, with a blatant disregard the CEB would have the power to fine as much as $500 a day. PSAC/Unapproved 3 March 19, 2009 C:\Documents and Settings\stan\Local Settings\Temporary Internet Files\OLK27\Min03 19 09 (2).doc ATTACHMfNT 118 2 Mr. Charlie Wilson revealed experiences with the difficulties having matters tied up at the end of a project. He relayed Commissioner Davis was requesting to empower the Board of Zoning Adjustment (BZA} with the authority to intervene on some of the codes by means of applying good common sense into some of the decisions. Mr. Wilson pointed out safeguards within the original ordinances for the BZA which included meetings were called by the Chairman within seven (7) days of a complaint or appeal and just because someone makes an appeal does not mean the BZA will actually convene; only if the Chairman finds probable cause or legitimacy. He indicated this was the reason for adding the County Administrator's ability to intervene with regard to changes to ordinances, hence making it easier for the developers in assisting with delays. Mr. Moler expressed his understanding as follows: if the matter became a compliance issue, and the Code Enforcement Board (CEB) could recognize the County Administrator's or the BZA had authorized a "special privilege" and compliance had been ignored, then the CEB could assess a maximum fine. Mr. Dill remarked staff did a great job on drafting the ordinance amendment with it being a very difficult subject to regulate and Mr. Wilson agreed. A discussion ensued regarding standard landscape issues i.e., the size of trees designated as Florida Number 1 and whether the BZA had authority to grant waivers. ·· Mr. Bob Keating, Community Development Director, reminded the Committee the temporary suspension was predicated on minor deficiencies not directly related to public safety and when standards, rules and criteria are written out specifically, the public would then have those expectations for every circumstance. He further remarked staff had no problem with changing any of the code standards thought to be inappropriate. Attorney Collins advised the BZA did not have the authority to grant waivers; however, they can grant variances only if the variance was the minimum necessary to grant relief and met the eight (8) stringent variance criteria in the code. Small group discussions ensued at the same time. Mr. Moler revealed a circumstance that brought the question of whether this amendment resolved the issue regarding a residential planned development wherein a building permit was required before a land development permit was issued. Mr. Boling replied the subdivision language needed to be added in the ordinance amendment if the same temporary suspension allowance was to be applied to subdivision and planned development certificates of completion. PSAC/Unapproved 4 March 19, 2009 C:\Documents and Settings\stan\Local Settings\Temporary Internet Files\OLK27\Min03 19 09 (2).doc ATTACHM£NT t83 ON MOTION BY Mr. Moler, SECONDED BY Mr. Blum, the members voted unanimously (8-0) to adopt the ordinance to include being applicable to subdivision and certificate of completion permit issuance. (1:43 p.m.) Discussion ensued regarding the criteria regarding the standards of a temporary suspension of compliance and possible revisions to landscaping codes. Mr. Wilson reported it was Commissioner Davis' intention to have it be permanent using the BZA language, which has the ability to give variances and has specific criteria; however, some of the Commissioners wanted to ensure these things were all temporary, for a period of time. Chairman Smith opined when permanency was implemented, it began to undermine the intent of the codes. He further stated if specific issues caused problems at the CO process, then those specific items should be readdressed in the Land Development Regulations and any tolerances allowed should be in the ordinance, not a permanent variance. ON MOTION BY Mr. Robinson, SECONDED BY Mr. Gaskill, the members voted (5-3) to direct staff to formulate an ordinance wherein the Board of Zoning Adjustments has the authority to make variances on specific disputed issues between staff and owner. Messrs. Day, Dill and Smith were in opposition. (2:10 p.m.) Matters by Members Chairman Smith would like to establish a cutoff time for Committee Members to submit agenda items to Mr. Boling. Mr. Boling suggested receiving the item(s) 10 days prior to the committee meeting date. Matters by Staff None Adjournment There being no further business, the meeting adjourned at 2:15 p.m. PSAC/Unapproved 5 March 19, 2009 C:\Documents and Settings\stan\Local Settings\Temporary Internet Files\OLK27\Min03 19 09 (2).doc ATTACHM-£MT Section 902.08. Role of board of adjustment. (I) The board of adjustment shall receive and consider applications for variances from the terms of the county's land development regulations and shall grant such variances as will not be contrary to tbe public interest, pursuant to the procedures and requirements of the variance section of the land development regulations, section 902.09. (2) The board shall have and exercise the powers specified in F .S. § 333 .I 0, relating to airport zoning regulations, under rules consistent with said section and with the Code of Indian River County. (Ord. No. 90-16, § I, 9-11-90; Ord. No. 92-11, § 16, 4-22-92) Section 902.09. Variances. ( 1) Purpose and intent. This section is established to provide procedures for reviewing variances by the board of adjustment. A variance runs with the land and is a departure from the dimensional or numerical or other technical requirements of the land development regulations where such variance will not be contrary to the public interest and where owing to conditions peculiar to the property and not the result of the actions of the applicant or his predecessors in title, a literal enforcement of the land development regulations would result in an unnecessary and undue hardship. (2) Approving authority. The board of adjustment is hereby authorized to grant variances in accordance with the provisions of this section and can attach conditions to variances granted. (3) Type of variance to be allowed. The board of adjustment shall have the authority to grant the following variances: (a) A variance from the yard area requirements of any zoning district where there are unusual and practical difficulties in carrying out these provisions due to an irregular shape of the lot, topography, or other conditions, provided such variation will not seriously impact any adjoining property or the general welfare. (b) Other technical variances that occur when an owner or authorized agent can show that a strict application of the terms of the land development regulations relating to the use of the land will impose unusual and unique difficulties, but not loss of monetary value alone. (c) De-mini mus setback variance. A de-minimus setback variance can be granted automatically at tbe staff level, under certain circumstances, without board approval. This applies in the following circumstances where the setback variance: 1. Is for a structure properly permitted where no fonn-board survey was required; 2. Is for 0.5 feet or less from the setback required at the time the structure was constructed or erected on the site; and 3. Is from property line( s) which have not been altered so as to cause or increase the nonconformity. ATTACHMENT F:\Community Dcvelopment\Users\CurDev\PSAC\2009 PSAC\902.08 and 902.09.rtf j_ 1 185 ( 4) When variances are not allowed. (a) No variance shall be granted which would permit the establishment or expansion of a use in a zone or district in which such use is not permitted by these land development regulations, or any use expressly or by implication prohibited by the te1ms of these land development regulations for said district. (b) No variances shall be granted which would permit the establishment or expansion of a special exception use in any zoning district without the approval required in the special exception section, and including specific land use criteiia. (c) No variance shall be granted which would permit the establishment or expansion ofa use requiring an administrative permit in any zoning district without the approval required in the administrative permit section, and including specific land use criteria. (d) No variance shall be granted which relates in any way to a nonconforming use, except as allowed in the nonconformities section. (e) No variance shall be granted which modifies any definitions contained within these land development regulations. (f) No variance shall be granted which would in any way result in any increase in density above that permitted in the applicable zoning district regulations. (5) Procedures. (a) Any property owner may apply for a variance after a decision by the community development director that an existing property condition or a development proposal of such property owner does not comply with the provisions of these land development regulations. (b) The applicant must file an application for a variance along with the appropriate fee payable to Indian River County with the planning division. The application shall be in a form approved by the community development director and shall contain the following information: 1. Identification of the specific provisions of these land development regulations from which a variance is sought. 2. The nature and extent of the variance sought; an explanation why it is necessary; and the basis for the variance under section 902.09(3)(a) or (b). 3. The grounds relied upon to justify the proposed variance. 4. A legal description of the property, a copy of the wairnnty deed for the property, and a detailed plot plan of the property. ( c) On all proceedings held before the board of adjustment, the staff of the planning division shall review the application and file a recommendation on each item. Such recommendation shall be transmitted to the board of adjustment prior to final action on any item before the board of adjustment, and shall be part of the record of the application. A'fTACHMENT F:\Community Development\Users\CurDev\PSAC\2009 PSAC\902.08 and 902.09.rtf ;t (d) Notice of the variance, in writing, shall be mailed by the planning division to the owners of all land which abuts the property upon which a variance is sought, at least seven (7) days prior to the hearing. The prope1iy appraiser's address for said owners shall be used in sending all such notices. The notice shall contain the name of the applicant for the variance, a description of the land sufficient to identify it, a description of the variance requested, as well as the date, time and place of the hearing. ( 6) Review by the board ofadjustment. (a) In order to authorize any variance from the terms of these land development regulations, the board of adjustment shall detennine that the application for variance is complete, that the public hearing has been held with the required notice and that the opportunity has been given for the aggrieved parties to appear and be heard in person or be represented by an attorney at law, or other authorized representatives. The board of adjustment shall also find that all of the following facts exist before granting a variance: 1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, structures, or buildings in the same zoning district. 2. That the special conditions and circumstances do not result from the actions of the applicant or illegal acts of previous prope1iy owners. 3. That granting the variance requested will not confer on the applicant any special privilege that is denied by the regulation to other lands, buildings, or structures in the same zoning district. 4. That literal interpretation of the provisions of the regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the tem1s of the regulations and would constitute an unnecessary and undue hardship upon the applicant. 5. That the variance granted is the minimum necessary in order to make possible the reasonable use of the land, building, or structure. 6. That the granting of the variance will be in harmony with the general purpose and intent of the land development regulations, and the Indian River County Comprehensive Plan. 7. That such variance will not be injurious to the surrounding area or otherwise be detrimental to public welfare. 8. That the property cannot be put to a reasonable use in a manner which fully complies with the requirements of these land development regulations. ATTACHM£NT P:\Commun!ly Development\Users\CurDev\PSAC\2009 PSAC\902.08 and 902.09.rtf 3187' (b) The following regulations also apply to the authorization of a variance: I. No nonconforming use of neighboring lands, strnctures, or buildings in the same zoning district and non-permitted use oflands, strnctures, or buildings in other zoning districts shall be considered grounds for the authorization of a variance. 2. No application or request may be reheard or reconsidered unless otherwise directed by a court of competent jurisdiction, or unless new circumstances or information can be presented with a new application. (c) In granting any variance, the board of adjustment may make the authorization of the variance conditional upon such alternate and additional restrictions, stipulations and safeguards as it may deem necessary to ensure compliance with the purpose and intent of this chapter and consistency with the Indian River County Comprehensive Plan. Violation of such conditions, when made a paii of the terms under which the variance is granted, shall be deemed a violation of this chapter. Such conditions restrictions, stipulations, and safeguards may include, but are not limited to, time within which the action for which the variance is sought shall be begun or completed or both; the establishment of screening and/or buffering techniques; and provision for extensions or renewals. (7) Decision. The board of adjustment shall approve, approve with conditions, or deny the application, furnishing the applicant a written statement of the reasons for any denial. (Ord. No. 90-16, § 1, 9-11-90) ATTACHMENT 1- F:\Community Development\Users\CurDev\PSAC\2009 PSAC\902.08 and 902.09.rtf Page 1 of 1 Stan Boling From: Stan Boling Sent: Thursday, April 09, 2009 9:25 AM To: Stan Boling Subject: FW: Board of zoning adjustment ------·-·····---··-·-···---·------From: Will Collins Sent: Wednesday, April 08, 2009 5:48 PM To: Stan Boling Subject: Board of zoning adjustment At last month's PSAC meeting there was discussion of granting the board of adjustment the authority to grant waivers to LOR requirements. This goes beyond the authority of the board of adjustment. The directive from the County Commission was for the administrator or the board of adjustment to allow certificates of occupancy/certificates of completion to be issued prior to non-safety punch list items being completed. Any deviations from ordinance requirements (waivers) would be an unlawful delegation of the police powers of the County Commission, and could undercut the ordinance in question through arbitrary and capricious application. To avoid arbitrary and capricious application such waivers would have to meet objective standards and criteria. If objective standards and criteria can be established as the basis for any ordinance waivers, it would be far preferable to incorporate such standards and criteria into the ordinance itself. This would have the added benefit of avoiding the time needed to schedule and hear such applications for waivers. I think the better approach is to follow the County Commission directive and let the administrator and/or the board of zoning adjustment approve issuance of certificates of occupancy/certificates of completion on the condition that non-safety punch list items are completed within a specified time post CO. Will Collins, County Atty. Indian River County, Fl 1801 27th Street Vero Beach, Fl 32960 772-226-1425 [email protected] 4/9/2009 ATTACH'1fEffT j. 18 g PROFESSIONAL SERVICES ADVISORY COMMITTEE There was a meeting of the Indian River County (IRC) Professional Services Advisory Committee (PSAC) on Thursday, April 16, 2009 at 12:15 p.m. in the First Floor Conference Room "B1-501" of the County Administration Building "B", 1800 2th Street, Vero Beach, Florida. Present were Peter Robinson (arrived at 12:25 p.m.), Development Appointee; Todd Smith, Engineer Appointee; Stephen Moler, Engineer Appointee; Linda Schlitt Gonzales, Real Estate Broker Appointee; Warren Dill, Law Appointee; George Kulczycki, Forester, Biologist, Botanist, Horticulturalist, or Arborist Appointee; John Blum, Civil Engineer Appointee; Robert Gaskill, Architect Appointee; Robert Poore, Alternate; and Jon Day, Environmental Issues Appointee. Absent were Alan Schommer, General Contractor Appointee; Robert Brackett, Finance and Business Appointee; Frank Johnson and Mark Scott, Alternates (unexcused). Also present were IRC staff: Stan Boling, Planning Director; Bob Keating, Community Development Director; Will Collins, County Attorney; Wesley S. Davis, Commissioner, District 1; and Misty L. Horton, Commissioner Assistant, District 1. Others present: Charlie Wilson, Interested Party. Please note: You may hear an audio of the meeting; review the agenda and the minutes on the IRC website - www.ircgov.com/Boards/PSAC/2009. Please note listed at the end of each agenda item refers to time location of these items on the audio recorded of the meeting. Any residents interested in serving on a board or committee, an educational tool to gain an understanding of State of Florida laws regarding government in the sunshine, public records, and ethics is available for review on the IRC website - http://www.ircgov.com/Boards/Sunshine Presentation.pdf. Call To Order Chairman Smith called the meeting to order at 12:17 p.m. Approval of Minutes of the March 19, 2009 Meeting ON MOTION BY Mrs. Gonzalez, SECONDED BY Mr. Gaskill, the members voted unanimously (9-0) to approve the March 19, 2009 minutes, as presented. Old Business None PSAC/Approved 1 April 16, 2009 C:\Documents and Settingslmbowdren\Local Settings\Temporary Internet Files\OLK27\Min04 16 09.doc ATTACHM£1T ..,.190 New Business A. Consideration of Expanding the Board of Adjustments' Authority to Grant Variances Relating to Disputed Development Requirements Mr. Stan Boling, Planning Director, summarized the memorandum dated April 9, 2009, with attachments, a copy of which is on file with the Commission Office. He advised the temporary suspension ordinance proposed at the March 19th PSAC meeting was scheduled to be heard by the Planning & Zoning Commission (PZC) on April 23rd and then scheduled for a Board of County Commissioners (BCC) hearing in May. Commissioner Davis identified the issue as being how to craft the ordinance to apply to everyone uniformly; however, prevent someone from gaining advantage of the system. He suggested the ordinance language provide something quantitative; with a percentage; not to include zoning issues, wherein the Administrator, the Board of Adjustments (BOA), or even the BCC was provided a mechanism to waive certain requirements that screamed common sense. Attorney Will Collins suggested using the approach for variances found in the Florida Building Code (Code). He indicated a second approach, if waivers to the ordinance would be granted, that provides parameters or criteria to apply to granting those waivers of the ordinance; alleviating the ordinance from becoming arbitrary, capricious and indefensible. Attorney Collins added should the process broach the point where BOA was waiving the application of the ordinance in every case, it would lead to an ordinance amendment anyway, which would specify the particular ordinance that was waived, could be exempted, if the conditions were met that gave rise to the waiver from the BOA. His position on the matter was if an exemption from the ordinance was granted, it would be necessary to amend the ordinance to avoid continual variances on the same thing. He continued should an ordinance be waived without looking at any parameters or criteria, or attempt to generalize those situations as an exemption to the waived ordinance, the ordinance would not be enforceable. Lengthy discussions ensued regarding possible criteria for special conditions, exceptions, restrictions, obtaining variances prior to PZC or BCC development project review, and provisions in broadening the role/authority of the BOA in granting variances from various development design certificate of occupancy requirements. PSAC/Approved 2 April 16, 2009 C:\Documents and Settingslmbowdren\Local Settings\Temporary Internet Files\OLK27\Min04 16 09.doc ATTACHMEftT 11.91 ON MOTION BY Mr. Robinson, SECONDED BY Mr. Moler to direct staff to add under the role of the Board of Adjustments to include having the authority to hold "Code Interpretation Hearings" wherein the ruling to include the work completed meets the intent and spirit of the Land Development Regulations providing such variation that would not seriously impact any adjoining property or the general public welfare. (1 :10 p.m.) UNDER DISCUSSION, Chairman Smith communicated the motion should direct staff to bring back to this Committee a draft ordinance with potential standard criteria wherein the burden would be upon the applicant to prove the alternative proposal/design adjustment has met the spirit of the standards of the Code. Attorney Collins mentioned incorporating similar language from Florida Statutes, Chapter 553 which included unique alternate methods of construction so long as it does not jeopardize life, safety, etc. THE CHAIRMAN CALLED FOR THE QUESTION and the vote was unanimously (9-0) in favor of the Motion. Matters by Members None Matters by Staff None Adjournment There being no further business, the meeting adjourned at 1:25 p.m. PSAC/Approved 3 April 16, 2009 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\Min04 16 09.doc ATTACHMENT 11} 2 LDR AMENDMENT INDIAN RIVER COUNTY, FLORIDA [LEGISLATIVE) MEMORANDUM TO: Honorable Members of the Professional Services Advisory Committee THROUGH: Robert M. Keating, AICP /lflA. lC Community Development Director 413 FROM: Stan Boling, AICP Planning Director DATE: May 13, 2009 SUBJECT: Consideration of Expanding the Board of Adjustment's Authority to Interpret and Grant Permanent Exceptions to Land Development Regulations It is requested that the data herein presented be given formal consideration by the Professional Services Advisory Committee at its regular meeting of May 21, 2009. BACKGROUND Over the last few months, the PSAC has considered two related initiatives intended to promote economic development by either speeding up the county's development process or making it less stringent. The first initiative was considered by the PSAC at its March 19, 2009 meeting. At that meeting, the PSAC considered an LDR amendment authorizing the county administrator and the Board of Adjustment (BOA) to grant requests for temporary suspension ofminor, non-safety related county development regulations at the time of CO (certificate of occupancy) and CC (certificate of completion). The PSAC voted 8-0 to recommend that the Board of County Commissioners (BCC) adopt the amendment (see attachment #1). Since that meeting, the Planning & Zoning Commission (PZC) considered the amendment and at its April 23, 2009 meeting voted 7-0 to recommend that the BCC adopt the amendment. The BCC is scheduled to consider adoption of the "temporary suspension" amendment at its May 19, 2009 meeting. A second and related initiative was discussed at the March 19th and April 16th PSAC meetings (see attachments #1 and #2). That initiative involves giving the BOA, as a "conunon sense" board, authority to grant permanent exceptions or waivers to LDRs for individual projects without following the 8 stringent criteria currently applied to variance requests (see attachment #3). During the April 16th meeting, several alternatives were discussed regarding variances, exceptions and waivers, use of objective standards, consideration ofunique circumstances and alternative designs, and code interpretation as a means to alter the conventional application ofLDRs to individual projects. At the end ofthe discussion, the PSAC directed staff to draft an amendment that would provide authority to the BOA to interpret the development code and determine that a given aspect of an individual project meets the "spirit and intent" of the code. Based on that directive, the County Attorney has drafted a potential code change (see attachment #4). For discussion purposes, planning staff provides the analysis below. F:\Community Development\Users\CurDev\PSAC\2009 PSAaS-21-09 Consideration ofBOA.rtf ATTACH ME-NT The PSAC is now to consider whether or not to recommend that the BCC direct staff to initiate an LDR amendment that expands the BOA' s authority to grant permanent exceptions to, and make interpretations of, the LDRs as applied to individual projects. ANALYSIS At the last two PSAC meetings, there were three reasons given as to why the proposed initiative was needed. The first reason was to provide needed flexibility in the development process, allowing the county to adjust the way the LDRs are applied to individual projects. The second reason was to provide a needed "appeal" mechanism to staff decisions, providing developers a higher level review that can correct staff errors or provide "relief' from staff decisions. The final reason was to provide a means of identifying problem LDRs or mis applied development policies that will lead to revised ( corrected and better) LDRs and policies. To some degree, the existing LDRs and the proposed temporary suspension amendment already address the three reasons that the proposed initiative is needed. With respect to flexibility, many LDRs are already structnred to provide developers options ( e.g. vehicle tum-around designs, varying buffer sizes and planting densities), while the planned development (P .D.) process is in place and successfully provides flexibility for residential, mixed use, commercial, and industrial projects. In addition, the proposed temporary suspension ordinance will provide added flexibility with respect to issuing CO's (and CC's) and providing more flexibility in the amount of time allowed for correcting minor deficiencies. As structured, the BOA is already empowered to grant setback and technical variances under strict criteria and appropriate procedures (see attachment #3). With respect to appeals, the existing LDRs provide that all staff decisions, including development approval conditions, are appealable to the PZC. Likewise, all PZC decisions are appealable to the BCC. Therefore, a process is already in place to provide for review of and correction of staff errors and mis-interpretations. As structured, the current process provides for that review to be conducted by the boards that have familiarity and expertise in such matters. In terms of identifying LDR problems and needed LDR amendments, that is the purview of existing county committees. Those committees, particularly the PSAC and PZC, have been responsible for identifying needed LDR amendments in the past. As proposed, the initiative under discussion is intended to go further than the existing allowances for development flexibility, review of staff decisions, and development code changes. The challenge in "going further" is to properly balance flexibility with objective standards that uphold the integrity of the LDRs and ensure fairness, consistency, and a legally defensible decision-making process. At the March and April PSAC meetings, several types of "going further" approaches were discussed. In particular, the following two general approaches were considered: 1. Grant exceptions or variances based on unique circumstances and project site characteristics. This approach was discussed along with possible criteria such as: • Require a finding of conditions and circumstances that are unique to the project site and that did not result from actions of the applicant to justify the variance or exception. • Limit the amount of variance or exception to a certain percentage of the nonnal requirement (e.g. 10%). F:\Community Development\Users\CurDev\PSAC\2009 PSAC\5-21-09 Consideration ofBOA.rtf ATTACHMENT 2 2194 • Limit the variance or exception to specific types of LDRs or exclude certain types of exceptions (e.g. no variances for height, use, specific land use criteria). 2. Grant exceptions based on a functionally equivalent alternative development design that meets the spirit and intent of the LDRs while protecting adjacent property owners and the general public. This approach was discussed along with possible criteria such as: • Report to the BCC each instance of an exception granted. • Require that the BCC consider an LDR amendment for each exception granted to incorporate the exception criteria into the LDRs. In addition to these two general approaches, other issues were discussed involving fees and procedures. Currently, the fee for a variance request is $800. This fee was set in 2004 (increased from previous $500 fee) and was calculated to cover the 2004 costs of staff time, mailing notices, and preparing/delivering meeting packets. With respect to procedures, issues discussed included notification of affected property owners and whether to require the BOA to hear all exception requests or to give the BOA chairman the discretion to tum down a request by deciding to not call a BOA meeting. As directed by the PSAC at its April meeting, the County Attorney has drafted a potential ordinance change that follows the second approach. In planning staffs opinion, the proposed changes need additions and modifications that borrow from the first approach to make the draft proposal more objective, to better uphold the integrity of the LDRs, and to provide greater consistency and fairness in the decision-making process. Additions and modifications to the draft proposal.should include the following: • Add objective criteria limiting the extent or degree of an exception, requiring the applicant to demonstrate the functional equivalency of any proposed alternative development approach, and requiring findings that an exception is warranted by unique project conditions that are not the result of actions of the applicant. Criteria should include the following: That the extent or degree of variation from a quantitatively measured LDR provision shall not exceed 10%. This criterion does not apply to requests involving functionally equivalent alternative designs or improvements (see below). - That, where an alternative design or improvement is proposed in lieu of an LDR provision, the applicant shall demonstrate that the alternative will provide a functionally equivalent result when compared to the result that would occur under the subject LDR provision. That special conditions and circumstances exist which are peculiar to the project site and do not result from the actions of the applicant or illegal acts of previous property owners, and that the special conditions and circumstances warrant an exception. (Note: criteria for dete1mining functional equivalency will need to be developed) That the exception granted is the minimum necessaiy to reasonably develop the site. • Add limits to the types ofLDRs that are allowed to be varied or excepted. For instance, no variance or exception should be granted for height, use, or specific land use criteria regulations. Limitations are needed to provide a guarantee to land owners and the general public that certain types of development regulations will not be waived or varied. ATTACHMENT 2 F:\Community Development\Users\CurDev\PSAC\2009 PSAC\5~21·09 BOA alt page 3.rtf • Add procedures that require an appropriate fee ( discussed above) and a requirement that all properly submitted requests will be scheduled for BOA consideration and not left to the discretion of the BOA chairman. These items are needed to fairly and consistently follow the county's application fee policies and to guarantee that all requests are treated the same procedurally and that every applicant will get his chance to be heard by the BOA. • Add authority for the BOA to attach conditions, restrictions, and safeguards to any exception granted. Currently, the BOA has authority to impose conditions on variances granted. Such authority will be needed from time to time to ensure compliance with exception criteria or reasonably limit aspects of a granted exception. • Modify the proposal to retain the current process of appealing staff decisions and LDR interpretations to the PZC and BCC, leaving the BCC as the ultimate authority for LDR interpretations. If the BOA is granted the authority to interpret staff decisions and LDR interpretations, then the role of the PZC and BCC in such matters will be eliminated, since BOA decisions can be appealed only to a court. Therefore, this modification to the proposal is necessary to retain the PZC and BCC important role in these matters. RECOMMENDATION: Staff recommends that the PSAC either: I. Determine not to pursue the subject initiative, or 2. Make additions and modifications to the proposed ordinance as provided above prior to recommending BCC consideration of the initiative. ATTACHMENTS: I. Minutes from the March 19, 2009 PSAC Meeting 2. Draft Minutes from the April 19, 2009 PSAC Meeting 3. LDR Section 902.09(6) 4. Draft Ordinance from County Attorney F:\Community Development\Users\CurDev\PSAC\2009 PSAC\5-21-09 Consideration ofBOA.rlf ATTACHMENT 2 PROFESSIONAL SERVICES ADVISORY COMMITTEE There was a meeting of the Indian River County (IRC) Professional Services Advisory Committee (PSAC) on Thursday, March 19, 2009 at 12:15 p.m. in the First Floor Conference Room "B1-501" of the County Administration Building "B'', 1800 2?1h Street, Vero Beach, Florida. Present were Peter Robinson (arrived at 12:25 p.m.), Development Appointee; Todd Smith, Engineer Appointee; Stephen Moler (arrived at 12:36 p.m.), Engineer Appointee; Linda Schlitt Gonzales, Real Estate Broker Appointee; Warren Dill, Law Appointee; John Blum, Civil Engineer Appointee; Robert Gaskill, Architect Appointee; and Jon Day, Environmental Issues Appointee. Absent were Alan Schommer, General Contractor Appointee; Robert Poore, Alternate; George Kulczycki, Forester, Biologist, Botanist, Horticulturalist, or Arborist Appointee (all excused); Robert Brackett, Finance and Business Appointee; Frank Johnson and Mark Scott, Alternates (unexcused). Also present were IRC staff: Stan Boling, Planning Director; Bob Keating, Community Development Director; Will Collins, County Attorney; and Misty L. Horton, Commissioner Assistant, District 1. Others present: Charlie Wilson, Interested Party. Please note: You may hear an audio of the meeting; review the agenda and the minutes on the IRC website - www.ircgov.com/Boards/PSAC/2008. Please note listed at the end of each agenda item refers to time location of these items on the audio recorded of the meeting. Any residents interested in serving on a board or committee, an educational tool to gain an understanding of State of Florida laws regarding government in the sunshine, public records, and ethics is available for review on the IRC website - http://www.ircgov.com/Boards/Sunshine Presentation.pdf. Call To Order Chairman Smith called the meeting to order at 12:15 p.m. A discussion followed on the efficiency and effectiveness of the protocol this Committee was operating under, specifically communication from members to staff and the formation of subcommittees. Mr. Peter Robinson arrived at 12:25 p.m. PSAC/Approved 1 March 19, 2009 C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\OCJ1QWGU\Min03 19 09.doc ATTACffM£ffT .2, g? Election of 2009 Chairman and Vice-Chairman (12:30 p.m.) ON MOTION BY Mr. Blum, SECONDED BY Mrs. Gonzalez, the members voted unanimously (7-0) to re elect Mr. Smith as Chairman of the Professional Services Advisory Committee for 2009. ON MOTION BY Mr. Gaskill, SECONDED BY Mr. Day, the members voted unanimously (7-0) to re-elect Mr. Dill as Vice Chairman of the Professional Services Resources Advisory Committee for 2009. Approval of Minutes of the October 23, 2008 Meeting (12:32 p.m.) ON MOTION BY Mr. Robinson, SECONDED BY Mrs. Gonzalez, the members voted unanimously (7-0) to approve the October 23, 2008 minutes, as presented. Mr. Stephen Moler arrived at 12:36 p.m. Old Business None New Business · A. Consideration of Amendments to Regulations Affecting Changeable Copy and Electronic Signs within Special Corridors, LDR Chapter 911 Mr. Stan Boling, Planning Director summarized the memorandum dated March 12, 2009 , with attachments, and presented a Powerpoint, copies of which are on file with the Commission Office. Mr. Boling read an email statement in opposition from Mr. Gene Waddell, Chairman of the State Road 60 Corridor Taskforce, who could not attend this meeting, a copy of which is on file with the Commission Office. Mrs. Gonzalez expressed her preference of ordinance language to reflect the spirit of being more user friendly, by replacing the word "limited" with "allow". Mrs. Gonzalez pointed out theaters should be included where eighty (80) percent of actual sign area for display are allowed. PSAC/Approved 2 March 19, 2009 C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\OCJ1QWGU\Min03 19 09.doc ATTACHt.t~NT 'l 198 For commercial business, the changeable portion of electronic message copy area does not exceed 40% and the changeable portion of a manual message copy area does not exceed 50% of the overall sign copy area ON MOTION BY Mr. Gaskill, SECONDED BY Mr. Robinson, the members voted unanimously (8-0) to amend the proposed LOR amendments related to special corridor regulations for electronic message and changeable copy signs for commercial business to indicate the changeable portion of electronic message copy area does not exceed 40% and the changeable portion of a manual message copy area does not exceed 50% of the overall sign copy area. ON MOTION BY Mr. Gill, SECONDED BY Mr. Gaskill the members voted unanimously (8-0) to direct staff to investigate the brightness of the LED lights to set regulations and to include theaters where eighty (80) percent of actual sign area for display were allowed. (1:15 p.m.) B. Consideration of Amendments to Board of Adjustment and Variance Regulations Providing for Temporary Suspensions of Compliance, LOR Chapter 902 Mr. Boling outlined the memorandum dated March 13, 2009, with attachments, and presented a Powerpoint, copies of which are on file with the Commission Office. He reminded the Committee it was the Board of County Commissioners intent to allow businesses to get into operation more quickly than under the current Certificate of Occupancy (CO) process. A lengthy discussion ensued regarding CO compliance process for development projects. Chairman Smith commented if the developers were given a break by this new ordinance, then take advantage of the break by walking away from the punch list and the matter goes before the Code Enforcement Board (CEB), as an expense to the taxpayers, he would like to see a letter of acknowledgement indicating if the matter would go before the CEB on any of the issues on the punch list, it would be considered blatant disregard and the CEB had the authority to affix a fine. Mr. William Collins, County Attorney, informed the Committee the CEB has the discretion as to what fines were set and usually a first violation may be minimal, e.g., $100 per day; however, with a blatant disregard the CEB would have the power to fine as much as $500 a day. PSAC/Approved 3 March 19, 2009 C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Con!ent.Oullook\OCJ1 QWGU\Min03 19 09.doc ATTACHM£NT 2- 199 Mr. Charlie Wilson revealed experiences with the difficulties having matters tied up at the end of a project. He relayed Commissioner Davis was requesting to empower the Board of Zoning Adjustment (BZA) with the authority to intervene on some of the codes by means of applying good common sense into some of the decisions. Mr. Wilson pointed out safeguards within the original ordinances for the BZA which included meetings were called by the Chairman within seven (7) days of a complaint or appeal and just because someone makes an appeal does not mean the BZA will actually convene; only if the Chairman finds probable cause or legitimacy. He indicated this was the reason for adding the County Administrator's ability to intervene with regard to changes to ordinances, hence making it easier for the developers in assisting with delays. Mr. Moler expressed his understanding as follows: if the matter became a compliance issue, and the Code Enforcement Board (CEB) could recognize the County Administrator's or the BZA had authorized a "special privilege" and compliance had been ignored, then the CEB could assess a maximum fine. Mr. Dill remarked staff did a great job on drafting the ordinance amendment with it being a very difficult subject to regulate and Mr. Wilson agreed. A discussion ensued regarding standard landscape issues i.e., the size of trees designated as Florida Number 1 and whether the BZA had authority to grant waivers. Mr. Bob Keating, Community Development Director, reminded the Committee the temporary suspension was predicated on minor deficiencies not directly related to public safety and when standards, rules and criteria are written out specifically, the public would then have those expectations for every circumstance. He further remarked staff had no problem with changing any of the code standards thought to be inappropriate. Attorney Collins advised the BZA did not have the authority to grant waivers; however, they can grant variances only if the variance was the minimum necessary to grant relief and met the eight (8) stringent variance criteria in the code. Small group discussions ensued at the same time. Mr. Moler revealed a circumstance that brought the question of whether this amendment resolved the issue regarding a residential planned development wherein a building permit was required before a land development permit was issued. Mr. Boling replied the subdivision language needed to be added in the ordinance amendment if the same temporary suspension allowance was to be applied to subdivision and planned development certificates of completion. PSAC/Approved 4 March 19, 2009 C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\OCJ1 QWGU\Min03 19 09.doc AffACHM£flT Z, 200 ON MOTION BY Mr. Moler, SECONDED BY Mr. Blum, the members voted unanimously (8-0) to adopt the ordinance to include being applicable to subdivision and certificate of completion permit issuance. (1 :43 p.m.) Discussion ensued regarding the criteria regarding the standards of a temporary suspension of compliance and possible revisions to landscaping codes. Mr. Wilson reported it was Commissioner Davis' intention to have it be permanent using the BZA language, which has the ability to give variances and has specific criteria; however, some of the Commissioners wanted to ensure these things were all temporary, for a period of time. · Chairman Smith opined when permanency was implemented, it began to undermine the intent of the codes. He further stated if specific issues caused problems at the CO process, then those specific items should be readdressed in the Land Development Regulations and any tolerances allowed should be in the ordinance, not a permanent variance. ON MOTION BY Mr. Robinson, SECONDED BY Mr. Gaskill, the members voted (5-3) to direct staff to formulate an ordinance wherein the Board of Zoning Adjustments has the authority to make variances on specific disputed issues between staff and owner. Messrs. Day, Dill and Smith were in opposition. (2:10 p.m.) Matters by Members Chairman Smith would like to establish a cutoff time for Committee Members to submit agenda items to Mr. Boling. Mr. Boling suggested receiving the item(s) 10 days prior to the committee meeting date. Matters by Staff None Adjournment There being no further business, the meeting adjourned at 2: 15 p.m. PSAC/Approved 5 March 19, 2009 C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\OCJ1 QWGU\Min03 19 09.doc AffACHM!ffT 'J,.. 201 PROFESSIONAL SERVICES ADVISORY COMMITTEE There was a meeting of the Indian River County (IRC) Professional Services Advisory Committee (PSAC) on Thursday, April 16, 2009 at 12:15 p.m. in the First Floor Conference Room "B1-501" of the County Administration Building "B", 1800 2ylh Street, Vero Beach, Florida. Present were Peter Robinson (arrived at 12:25 p.m.), Development Appointee; Todd Smith, Engineer Appointee; Stephen Moler, Engineer Appointee; Linda Schlitt Gonzales, Real Estate Broker Appointee; Warren Dill, Law Appointee; George Kulczycki, Forester, Biologist, Botanist, Horticulturalist, or Arborist Appointee; John Blum, Civil Engineer Appointee; Robert Gaskill, Architect Appointee; Robert Poore, Alternate; and Jon Day, Environmental Issues Appointee. Absent were Alan Schommer, General Contractor Appointee; Robert Brackett, Finance and Business Appointee; Frank Johnson and Mark Scott, Alternates (unexcused). Also present were IRC staff: Stan Boling, Planning Director; Bob Keating, Community Development Director; Will Collins, County Attorney; Wesley S. Davis, Commissioner, District 1; and Misty L. Horton, Commissioner Assistant, District 1. Others present: Charlie Wilson, Interested Party. Please note: You may hear an audio of the meeting; review the agenda and the minutes on the IRC website - www.ircgov.com/Boards/PSAC/2009. Please note listed at the end of each agenda item refers to time location of these items on the audio recorded of the meeting. Any residents interested in serving on a board or committee, an educational tool to gain an understanding of State of Florida laws regarding government in the sunshine, public records, and ethics is available for review on the IRC website - http://www.ircgov.com/Boards/Sunshine Presentation.pdf. Call To Order Chairman Smith called the meeting to order at 12:17 p.m. Approval of Minutes of the March 19, 2009 Meeting ON MOTION BY Mrs. Gonzalez, SECONDED BY Mr. Gaskill, the members voted unanimously (9-0) to approve the March 19, 2009 minutes, as presented. Old Business None PSAC/Unapproved 1 April 16, 2009 C:\Documents and Settings\s!anllocal Settings\Temporary Internet Files\OLK27\Min04 16 09 (3).doc AffA-Cff MfNT ' 22Q 2 New Business A. Consideration of Expanding the Board of Adjustments' Authority to Grant Variances Relating to Disputed Development Requirements Mr. Stan Boling, Planning Director, summarized the memorandum dated April 9, 2009, with attachments, a copy of which is on file with the Commission Office. He advised the temporary suspension ordinance proposed at the March 19th PSAC meeting was scheduled to be heard by the Planning & Zoning Commission (PZC) on April 23rd and then scheduled for a Board of County Commissioners (BCC) hearing in May. Commissioner Davis identified the issue as being how to craft the ordinance to apply to everyone uniformly; however, prevent someone from gaining advantage of the system. He suggested the ordinance language provide something quantitative; with a percentage; not to include zoning issues, wherein the Administrator, the Board of Adjustments (BOA), or even the BCC was provided a mechanism to waive certain requirements that screamed common sense. Attorney Will Collins suggested using the approach for variances found in the Florida Building Code (Code). He indicated a second approach, if waivers to the ordinance would be granted, that provides parameters or criteria to apply to granting those waivers of the ordinance; alleviating the ordinance from becoming arbitrary, capricious and indefensible. Attorney Collins added should the process broach the point where BOA was waiving the application of the ordinance in every case, it would lead to an . ordinance amendment anyway, which would specify the particular ordinance that was waived, could be exempted, if the conditions were met that gave rise to the waiver from the BOA. His position on the matter was if an exemption from the ordinance was granted, it would be necessary to amend the ordinance to avoid continual variances on the same thing. He continued should an ordinance be waived without looking at any parameters or criteria, or attempt to generalize those situations as an exemption to the waived ordinance, the ordinance would not be enforceable. Lengthy discussions ensued regarding possible criteria for special conditions, exceptions, restrictions, obtaining variances prior to PZC or BCC development project review, and provisions in broadening the role/authority of the BOA in granting variances from various development design certificate of occupancy requirements. PSAC/Unapproved 2 April 16, 2009 C:\Documents and Settings\stan\Local Settings\Temporary Internet Files\OLK27\Min04 16 09 (3).doc ATTACHMENT •2 203 ON MOTION BY Mr. Robinson, SECONDED BY Mr. Moler to direct staff to add under the role of the Board of Adjustments to include having the authority to hold "Code Interpretation Hearings" wherein the ruling to include the work completed meets the intent and spirit of the Land Development Regulations providing such variation that would not seriously impact any adjoining property or the general public welfare. (1 :10 p.m.) UNDER DISCUSSION, Chairman Smith communicated the motion should direct staff to bring back to this Committee a draft ordinance with potential standard criteria wherein the burden would be upon the applicant to prove the alternative proposal/design adjustment has met the spirit of the standards of the Code. Attorney Collins mentioned incorporating similar language from Florida Statutes, Chapter 553 which included unique alternate methods of construction so long as it does not jeopardize life, safety, etc. THE CHAIRMAN CALLED FOR THE QUESTION and the vote was unanimously (9-0) in favor of the Motion. Matters by Members None Matters by Staff None Adiournment There being no further business, the meeting adjourned at 1 :25 p.m. PSAC/Unapproved 3 April 16, 2009 C:\Documents and Settingslstan\Local Settings\Temporary Internet Files\OLK271Min04 16 09 (3).doc ATTACHMENT- . 2 . 2 04 Section 902.09. Variances. ( 6) Review by the board ofadjustment. (a) In order to authorize any variance from the terms of these land development regulations, the board of adjustment shall determine that the application for variance is complete, that the public hearing has been held with the required notice and that the opportunity has been given for the aggrieved parties to appear and be heard in person or be represented by an attorney at law, or other authorized representatives. The board of adjustment shall also find that all of the following facts exist before granting a variance: l. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, structures, or buildings in the same zoning district. 2. That the special conditions and circumstances do not result from the actions of the applicant or illegal acts of previous property owners. 3. That granting the variance requested will not confer on the applicant any special privilege that is denied by the regulation to other lands, buildings, or structures in the same zoning district. 4. That literal interpretation of the provisions of the regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the regulations and would constitute an unnecessary and undue hardship upon the applicant. 5. That the variance granted is the minimum necessary in order to make possible the reasonable use of the land, building, or structure. 6. That the granting of the variance will be in harmony with the general purpose and intent of the land development regulations, and the Indian River County Comprehensive Plan. 7. That such variance will not be injurious to the smTounding area or otherwise be detrimental to public welfare. 8. That the property cannot be put to a reasonable use in a manner which fully complies with the requirements of these land development regulations. (b) The following regulations also apply to the authorization of a variance: l. No nonconforming use of neighboring lands, structures, or buildings in the same zoning district and non-permitted use of lands, structures, or buildings in other zoning districts shall be considered grounds for the authorization of a variance. 2. No application or request may be reheard or reconsidered unless otherwise directed by a court of competent jurisdiction, or unless new circumstances or information can be presented with a new application. F':\Community Development\Users\CurDev\pSAC\2009 PSAC\5-21-09 Consideratiot.1 of BOA.rtf ATTACHMENT ~ 2Q 5 ( c) In granting any variance, the board of adjustment may make the authorization of the variance conditional upon such alternate and additional restrictions, stipulations and safeguards as it may deem necessary to ensure compliance with the purpose and intent of this chapter and consistency with the Indian River County Comprehensive Plan. Violation of such conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter. Such conditions restrictions, stipulations, and safeguards may include, but are not limited to, time within which the action for which the variance is sought shall be begun or completed or both; the establishment of screening and/or buffering techniques; and provision for extensions or renewals. (7) Decision. The board of adjustment shall approve, approve with conditions, or deny the application, furnishing the applicant a written statement of the reasons for any denial. (Ord. No. 90-16, § 1, 9-11-90) ATTACHMENT ''2. ~:\Community Development\Users\CurDev\PSAC\2009 PSAC\5-21-09 Consideration of BOA.rtf 206 ORDINANCE NO. 2009-_ AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA AMENDING INDIAN RIVER COUNTY CODE SECTION 902.08 "ROLE OF BOARD OF ADJUSTMENT" TO AUTHORIZE THE GRANT OF EXEMPTIONS FROM LAND DEVELOPMENT REGULATIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; AND PROVIDING EFFECTIVE DATE. BE IT ORDAINED by the Board of County Commissioners of Indian River County, Florida that: SECTION ONE: Section 902.08. Role of board of adjustment, is hereby amended to read as follows: (1) The board of adjustment shall receive and consider applications for variances and temporary suspensions of compliance from the terms of the county's land development regulations and shall grant such variances and temporary suspensions as will not be contrary to the public interest, pursuant to the procedures and requirements of the variance section of the land development regulations, section 902.09. (2) The board shall have and exercise the powers specified in F.S. Section 333.10, relating to airport zoning regulations, under rules consistent wit11 said section and with the Code of Indian River County. (3) The chairman of the board of adjustment is authorized to call meetings of the board in order to hold code interpretation hearings, giving seven days' written notice to adjoining property owners. The board is authorized to grant exemptions to the land development regulations if the board determines that an application and/or project meets the intent and spirit of the land development regulations and that the exemption granted causes no adverse impact to adjoining property. The grant of an exemption from any land development regulations may be conditioned on an alternate development approach or construction approach that provides an equivalent degree of development or construction consistency with the intent and spirit of the regulation from which the project is being granted an exemption. 1 DRAFT Coding: Words/letters/numbers underscored are additions to text. -----·--·--·-········----•-··-.-., ___J ....., ...... ~""''" ·~-.,~ .. ·-•··· - -- ATTACHM!IT 1--207 ORDINANCE NO. 2009·__ Any exemption granted from a land development regulation shall be reported by the board of adjustment to the board of county commissioners along with a recommendation for. amendment to the exempted land development regulation, including any conditions or criteria imposed prior to the grant of an exemption. SECTION TWO: CODIFICATION. It is the intention of the Board of County Commissioners that the provision of this ordinance shall become and be made part of the Indian River County Code, and that the sections of this ordinance may be renumbered or re-lettered and the word ordinance may be changed to section, article or such other appropriate word or phrase in order to accomplisl1 such intention. SECTION THREE: SEVERABILITY. If any section, sentence, clause, or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. SECTION FOUR: EFFECTIVE DATE. This ordinance shall take effect on ______ This ordinance was advertised in the Vero Beach Press-Journal on the day of ----.,.---c-,--' 2009, for a public hearing to be held on the __ day of ----, 2009, at which time it was moved for adoption by Commissioner ------' seconded by Commissioner ______, and adopted by the following vote: Wesley S. Davis, Chairman Joseph E. Flescher, Vice Chairman Commissioner Gary C. Wheeler Commissioner Peter D. O'Bryan Commissioner Bob Solari 2 Coding: Words/letters/mrmbers underscored are additions to text. ATTACHME'IIT '1- 2 Q8 ORDINANCE NO. 2009-__ The Chairman thereupon declared the ordinance duly passed and adopted this __ day of ____, 2009. BOARD OF COUNTY COMMISSION INDIAN RIVER COUNTY, FLORIDA By: ______Wesley S. Davis, Chairman ATTEST: Jeffrey K. Barton, Clerk By: ______APPHOVED i\S TO FOHM Deputy Clerk AND bF.{VU, SUFflG!ENCV EFFECTIVE DATE: ______ ACKNOWLEDGMENT by the Department of State of the State of Florida, this __ day of ______, 2009. ,,.-1· --.'--~.· .. ·. :: ·.. '. 3 l,. D~AFT \ Coding: Words/letters/numbers underscored are additions to text. ATTACHM!NT 2. 209 PROFESSIONAL SERVICES ADVISORY COMMITTEE There was a meeting of the Indian River County (IRC) Professional Services Advisory Committee (PSAC) on Thursday, May 21, 2009 at 12:15 p.m. in the First Floor Conference Room "B1-501" of the County Administration Building "B", 1800 2ylh Street, Vero Beach, Florida. Present were Robert Brackett, Finance and Business Appointee; Linda Schlitt Gonzales, Real Estate Broker Appointee; George Kulczycki, Forester, Biologist, Botanist, Horticulturalist, or Arborist Appointee; John Blum, Civil Engine~F/,il,ppointee; Robert Gaskill, Architect Appointee; Robert Poore, Alternate; arlcl Jqri Day, Environmental Issues Appointee. · · ··· Absent were Chairman Todd Smith, Engineer Appointe\?; Vice Chairman Warren Dill, Law Appointee; Peter Robinson, Developmen£,,Apppintee; Alan Schommer, General Contractor Appointee; Stephen Moler, Engin~er'Appointee (all excused); Frank Johnson and Mark Scott, Alternates (unexsused). Also present were IRC staff: Stan Boling, PIBhning Director; Bob Keating, Community Development Director; George Glenn, A~sistant.County Attorney; Wesley S. Davis, Commissioner, District 1; and Darcy Vasilas, CCJmmissioner Assistant, District 3. Others present: Charlie Wilson, Chuck Mechling, Honey Minuse and Brian Carman, Interested Parties. Please note: You may hear an audio of the meeting; review the agenda and the minutes on the IRC website - www:ircgov.com/Boards/PSAC/2009. Please note listed at the end of each agenda item refers to lime location of these items on the audio recorded of the meeting. Any residents interest~d· i.n serving on a board or committee, an educational tool to gain an understanding of State of Florida laws regarding government in the sunshine, public records, and .ethics is available for review on the IRC website - http://www.ircqov:com/Boards/Sunshine Presentation.pdf. CalLTo Order Attorney Glenn announced since a quorum was present but the Chairman and Vice Chairman were absent, the members could nominate a Chairman for this meeting from those members present. ON MOTION BY Mr. Gaskill, SECONDED BY Ms. Schlitt Gonzales, Mr. Robert Brackett was elected to run the May 21, 2009 Professional Services Advisory Committee meeting. PSAC/Unapproved 1 May 21, 2009 C:\Documents and Settingslmbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHM£MT Acting Chairman Brackett called the meeting to order at 12:22 p.m. Approval of Minutes of the April 16, 2009 Meeting ON MOTION BY Mr. Blum, SECONDED BY Mr. Kulczycki, the members voted unanimously (7-0) to approve the April 16, 2009 minutes, as presented. Old Business Consideration of Expanding the Board of Adjustment's Authority to Interpret and Grant Permanent Exceptions to Land Development Regulations Mr. Stan Boling, Planning Director, provided an update from the May· 19, 2009 Board of County Commissioners (BCC) meeting reporting the BCQ act eel, on two Land Development Regulation (LOR) amendments the PSAC had previously looked at as follows: 1. The sign regulation changes that were propdseq in the corridors to allow changeable copy and electronic message signs for t~e types of commercial and industrial uses where they are not currently allowed. The BCC voted to deny that ordinance. 2. For the LOR amendment authorizing the County Administrator and the Board of Adjustment to grant requests for temporary suspension of minor, non-safety related county development regulations at the time of Certificate of Occupancy or Certificate of Completion. The BCC apprnved the temporary suspension with the change of adding the authority of the County Administrator or the Board to add to any granted temporary suspension request a condition of collecting a security deposit, depending on what therequest involved. The biggest modification was rather than having temporary suspensions go to the County Administrator or his designee and then if appealed or referred, up to the Board of Adjustment (BOA), to have the suspensions go to the County Administrator or his designee then on to the BCC. Mr. Boling added if the temporary suspension allowance, which was dealing with eventually coming into full compliance of minor items, had to go to the BCC and they wanted review of that, he felt it would also apply to the discussion regarding the expansion of the Board of Adjustment's authority, whereby permanent exception requests would go to the BCC and not the BOA. Mr. Boling reported the County Attorney's office drafted an Ordinance, included in the agenda packet (which is on file in the Commission office), which addresses the items discussed in the April 16, 2009 PSAC meeting. In staff's opinion, there were more items that needed to be addressed to move the matter forward. The following are the additions and modifications to the draft proposal staff recommended: PSAC/Unapproved 2 May 21, 2009 C:\Documents and Settingslmbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHMENT 211 • Add objective criteria limiting the extent or degree of an exception, requiring the applicant to demonstrate the functional equivalency of any proposed alternative development approach, and requiring findings that an exception is warranted by unique project conditions that are not the result of actions of the applicant. Criteria should include the following: That the extent or degree of variation from a quantitatively measured LOR provision shall not exceed 10%. This criterion does not apply .to requests involving functionally equivalent alternative designs or improvetnE!.nts (see below). That, where an alternative design or improvement is proposed.in lieu of an LOR provision, the applicant shall demonstrate that the alternative will provide a functionally equivalent result when compared to the result thatwoul.d occur under the subject LOR provision. ·· That special conditions and circumstances exist which are peculiar to the project site and do not result from the actions of tl;l~ applicant or illegal acts of previous property owners, and that the special conditions and circumstances warrant an exception. (Note: criteria for determining functional equivalency will need to be developed). That the exception granted is the minimum necessary to reasonably develop the site. • Add limits to the types of LORs that are allowed to be varied or excepted. For instance, no variance or exception should be granted for height, use, or specific land use criteria reg1.1lc1\ions .. Limitations are needed to provide a guarantee to land owners and the general public that certain types of development regulations will not be waived or varied. • Add procedures that require an appropriate fee (discussed above) and a requirement that all properly submitted requests will be scheduled for BOA consideration and not left to the discretion of the BOA chairman. These items are needed to fairly and consistently follow the county's application fee policies and to guarantee that all requests are treated the same procedurally and that every applicant will get his chance to be heard by the BOA. • Add authority for the BOA to attach conditions, restrictions, and safeguards to any exception granted. Currently, the BOA has authority to impose conditions on variances granted. Such authority will be needed from time to time to ensure compliance with exception criteria or reasonably limit aspects of a granted exception. PSAC/Unapproved 3 May 21, 2009 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHMENT £ 12 • Modify the proposal to retain the current process of appealing staff decisions and LOR interpretations to the Planning and Zoning Commission (PZC) and BCC, leaving the BCC as the ultimate authority for LOR interpretations. If the BOA is granted authority to interpret staff decisions and LOR interpretations, then the role of the PZC and BCC in such matters will be eliminated, since BOA decisions can be appealed only to a court. Therefore, this modification to the proposal is necessary to retain the PZC and BCC important role in these matters. Mr. Gaskill asked for clarification of the action taken by the BCC regarding the sign regulation changes. Mr. Boling stated everything remained "as is" with't~e existing corridor regulations. Mr. Blum asked what avenues would someone need a variance, ... Hecpoinfed out there were already specific procedures in place to make alterations to pa'rkihg (PZC: parking studies}, and setbacks (BOA: variances). There were,.no;p(Ocecjdres currently in place to adjust landscaping requirements so landscaping requirertreritS should be a category for exceptions. Mr. Blum also indicated that no .eiq::eptibns should be possible for building heights, uses, and specific land use criteria. · Attorney Glenn asked for examples of situations where one would want to grant a variance involving landscaping. Mr. Blum resp6ricjed situations such as widths, compatibility with adjacent neighbors, quantity and quality of landscaping were a few examples. Discussion ensued regarding landscaping requirements and the actuality of plantings in some areas. Commissioner Wesley Davis explained calls he had received started the process of making amendments to current LQRs, one matter was landscaping. While he does not want to reduce the requirements of landscaping county-wide, he would like a way to address particular problems developers have when meeting the requirements, the plants and/or trees are. affected• due to having to be planted too close, not in the right planting location, etc . . Mr. Day interjected while there were plenty of examples given, how would the changes to the LDRs in the form of exceptions being discussed help solve those problems. Mr. Boling responded criteria providing a functional equivalent, which would need to be met, needed to be developed to make any exception process fair and objective. Mr. Charlie Wilson related there was a continuous need for an Adjustment Board to hear variance requests otherwise they would have to have numerous Special Call BCC meetings to hear all the cases. It was his opinion to have a very high standard to meet with a few exceptions than a very low standard. PSAC/Unapproved 4 May 21, 2009 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHM£MT 2213 Mr. Bob Keating, Community Development Director, reported the problem of getting a Certificate of Occupancy expeditiously was solved resulting from the action taken by the BCC on May 19, 2009 which set up an allowance for a temporary suspension. Even if there were something the owner or contractor did not like, he would have 90 days to resolve the issue. Mr. Chuck Mechling opined the current Landscape Ordinance was too restrictive, and there should be more opportunity for deviation (exceptions) in certain circumstances. Attorney Glenn pointed out the codes and requirements were not just in place to hold a developer accountable, they were also there to ensure rights for a third(party, such as neighbors. He continued when discussions begin about waivingtesponsibilities for a developer, the neighbors could potentially be affected. Commissioner Davis responded while he respected Attorney Glenn's comments, it was spoken as it had to be "inside the box" but in the real world most of these problems needing exceptions meant money. He addedhe wc1s>nqr talking about hurting someone in relation to a health, safety or welfare issue; otdoing something sensitive as relating to a school, but a commonsense issue thal'as a C6mmissioner his hands were tied and there was nothing he could do. Commissioner Davis recommended sending all those requesting exceptions the BCC for a determination. Mr. Boling was asking the PSAC to send a recommendation to the BCC with a decision on the draft ordinance; determining how they wanted it structured; what were the criterici. they wante.d included; and the minimum exception necessary to allow the site to functiOn, which would be different than a functional equivalency test. ON MOTION BY Mr. Blum, SECONDED BY Mr. Kulczycki, the members; voted unanimously (7-0) to recommend moving forward with drafting the ordinance with the ultimate decision being made by the Board of County Commissioners incorporating both the functionally equivalent approach and a quantitative 10-percent rule of-thumb deviation standard; allowing for the concept there were certain things that could not be considered for. an exception (eg building heights); and that special conditions and circumstances exist which are peculiar to the project site not resulting from the actions of the applicant, that warrant an exception. Matters by Members None PSAC/Unapproved 5 May 21. 2009 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHM!ftl ~ 14 Matters by Staff None Adjournment There being no further business, the meeting adjourned at 1 :45 p.m. PSAC/Unapproved 6 May 21, 2009 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\PSAC Min05 21 09.doc ATTACHMENT 2 i5 Section 902.09. Variances. ( 6) Review by the board ofadjustment. (a) In order to authorize any variance from the terms of these land development regulations, the board of adjustment shall determine that the application for variance is complete, that the public hearing has been held with the required notice and that the opportunity has been given for the aggrieved parties to appear and be heard in person or be represented by an attorney at law, or other authorized representatives. The board of adjustment shall also find that all of the following facts exist before granting a variance: I. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, structures, or buildings in the same zoning district. 2. That the special conditions and circumstances do not result from the actions of the applicant or illegal acts of previous property owners. 3. That granting the variance requested will not confer on the applicant any special privilege that is denied by the regulation to other lands, buildings, or structures in the same zoning district. 4. That literal interpretation of the provisions of the regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the regulations and would constitute an unnecessary and undue hardship upon the applicant. 5. That the variance granted is the minimum necessary in order to make possible the reasonable use of the land, building, or structure. 6. That the granting of the variance will be in harmony with the general purpose and intent of the land development regulations, and the Indian River County Comprehensive Plan. 7. That such variance will not be injurious to the surrounding area or otherwise be detrimental to public welfare. 8. That the property cannot be put to a reasonable use in a manner which fully complies with the requirements of these land development regulations. (b) The following regulations also apply to the authorization of a variance: 1. No nonconforming use of neighboring lands, structures, or buildings in the same zoning district and non-permitted use of lands, structures, or buildings in other zoning districts shall be considered grounds for the authorization of a variance. 2. No application or request may be reheard or reconsidered unless otherwise directed by a court of competent jurisdiction, or unless new circumstances or information can be presented with a new application. ATTACHMENT 3 216 F;\Community Development\Users\CurDev\BCC\2009 BCC\902.09(6) 6-16-09 item att.rtf 1 (c) In granting any variance, the board of adjustment may make the authorization of the variance conditional upon such alternate and additional restrictions, stipulations and safeguards as it may deem necessary to ensure compliance with the purpose and intent of this chapter and consistency with the Indian River County Comprehensive Plan. Violation of such conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter. Such conditions restrictions, stipulations, and safeguards may include, but are not limited to, time within which the action for which the variance is sought shall be begun or completed or both; the establishment of screening and/or buffering techniques; and provision for extensions or renewals. ATTACHMENT F:\Community Development\Users\CurDev\BCa2009 BCC\902.09(6) 6-16-09 item att.rtf ATTORNEY'S MATTERS: 6/23/09 /3A Cffe:e of INDIAN RIVER COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Senior Assistant County Attorney George A Glenn, Assistant County Attorney MEMORANDUM TO: The Board of County Commissioners FROM: v,e_,,,William Collins, County Atty. DATE: June 16, 2009 SUBJECT: Extension to Contract for Lot Fill relating to Huntington Place Subdivision On January 6, 2009 the developer of Huntington Place, Foster I. R. C., LLC., requested a 2-year extension of its contract to fill lots within the Huntington Place subdivision, consistent with its land development permit. At that time the Board conceptually approved the extension, conditioned upon an amendment to the deed restrictions which granted any lot owner within the subdivision the same 2-year extension on their obligations to fill their lots as the Commission granted the developer. The second condition to the lot fill extension was an extension of the letter of credit securing the obligation. The contract provides for a 120-day cure period after the date of any default. The letter of credit was to have an expiration date no earlier than 60 days following the cure period (or 180 days after the date of default under the contract). Approximately one month ago Mr. Foster requested the opportunity to appear before the Board on June 23, 2009. At the same time I provided a draft "Modification To Contract For Lot Fill" to Mr. Foster's attorney, J. Atwood Taylor, Esquire. The current letter of credit has an expiration date of August 9, 2009. RECOMMENDATION: Hear Mr. Foster's presentation, and give such further direction as the Board feels is appropriate. Attachments: transcript of January 6, 2009 proceedings Draft "Modification to Contract For Lot Fill" Indian Alv« Co. Admln. APPROVED FOR ~- lo -<=1 ,1• o q Legal B.C.C. MEETING -ARE;W.· LAij AGENDA Budget . lif"0.. ta'--tt' {,{,vj - COUNTY ATTORNEY RossWAY MOORE & TAYLOR ATTORNEYS AND COUNSELORS AT LAW THE OAl< POINT PROFESSIONAL CENTER JOHN E. MOORE, TU' 5070 NORTH HIOHWAYA-1,A SHANNON M. BAN!TT BRADLEY W. ROSS WAY SUITE 200 LOUISJ, LUPIN ... HELEN E, SCOTT VERO BEACH, FLORIDA 32963 DEBORAH MARTIN-LEE J.ATWOOOTAYLOR, !IJ• TELEPHONE (172) 231-4440 STEPH~ L. VELASQUEZ THOMAS W. TIERNEY'" FACSIMILE (772) 231-4'130 M!CHAELJ, S\l:W>I •,1LSO AD1!ITTIO IN OF COUNSEL TIIEDISTI\ICTOf CDLUf.lDM "Al.SO,1.D/1\IITEDIN C,\LIFOIUHA ...Al.5O ADMITTED IN LOIJISIANA MEMORANDUM VIA EMAIL TO: WILLIAM COLLINS, SENIOR COUNTY ATTORNEY FROM: J.ATWOODTAYLOR,III ~· DATE: MAY 20, 2009 ~ RE: HUNTINGTON PLACE SUBDIVISION In regard to the above, please find encl6sed·pages 1, 3, 4, 5, 14, and' I 5 of tl1e transcript of the January 6, 2008 County Commission Meeting. Please advise of the status of the modincation documents discussed at the meeting and described on pages 14 and 15, I look forward to hearing from you. JAT :sms \ r~\ Toyfor\Sl,erri\Doc,u11cn1S211U9B•41H2· \1+lJGG,duc 219 1 1 2 BOARD OF COUNTY COMMISSIONERS 3 INDIAN RIVER COUNTY, FLORIDA • 5 REQUEST BY FOSTER I.R:C., LLC FOR AN EXTENSION TD CONTRACT FOR LOT FILL RELATING TO HUNTINGTON PLACE 6 7 8 9 10 11 12 i 13 TRANSCRIPT OF PROCEEDINGS 14 . 15 DATE: Tuesday, January 6, 2008 16 TIME: 9:00 p.m. 17 PLACE: County Commission Chamber 18 1801 27th Street, Building A Vero Beach, Florida 32960 19 BEFORE: Sharon Northrup, Notary Public in and 20 for the State of Florida at Large. 21 22 ORIGINAL 23 INDIAN RIVER COURT REPORTING, LLC 1925 Old Dixie Highway 24 Vero Beach, Florida 32960 (772) 564-_6761 25 220 3 1 (THEREUPON, proceedings commenced as follows: 2 Mt. DAVIS: Now we have request -- County 3 Attorney Matters. Mr. Collins? 4 MR. COLLINS: Thank you, Mr. Chairman. We 5 received a request last week from Foster I .R.C., 6 Limited Liability Company for extension for a 7 contract that they entered into with the county to 8 place lot fill in a subdivision known as Huntington 9 Trace. The agreement. gave them two years to 10 complete the lot filling to 75 percent of finished 11 grade. The date of expiration will be January 12th, 12 2009, which is two days after now. 13 They came w_i th a timely request for an 14 extension. And I spoke with our engineering 15 department and our planning department about the 16 status of the project. Apparently no fill has been - 17 put in in the past two years. our engineers seem 18 concerned that if the property isn't filled it•s 19 likely to convert into commerging wetlands and we'll 20 have difficulty filling it. 21 Our recommendation has been that no extension 22 be granted in part because the deed restrictions 23 with respect· to the property don't allow any 24 extensions for the fill period be granted by either 25 the developer or the association to the lot owner. 221 4 1 I think one of the good situations here is 2 understanding it's only four lots have been sold. 3 So the deyeloper has substantial control of the 4 project. 5 Since the agenda item was written I've spoken 6 to their attorney, Mr. Taylor, about the possibility 7 of another design option rather than filling the 8 lots above grade; and that would involve concerning 9 culverts to collect the rainwater along side lot 10 lines -- collecting them in pipes and out-falling of 11 the lakes. Such a design has not been put together, 12 submitted or reviewed at this point, And I think we 13 really have a couple of options. 14 The contract, which will be in default next 15 week, allOws a cure period of 120 days to complete 16 the fill. And the way we've structured this agenda 17 item they could also submit a redesign, but would 18 require a re-plat since the necessary drainage 19 easements aren't on the current plat. 20 They may need more than 120 days to do that. 21 We haven't heard exactly how long an extension they 22 want, but the applicant is here with their attorney. 23 They may be able to address what kind of a time 24 frame they see as being necessary to re-engineer the 25 project design, re-plat it with the necessary 222 5 1 drainage easements to accommodate that, and get the 2 system in place. So I think we need to hear from 3 them. 4 MR. DAVIS: Mr. O'Brien, do you have any 5 questions before we turn it over? G MR. O'BRIEN: Yeah. I think this is some -- we 7 need to find a good solution for it here. I went 8 out and drove through the subdivision and walked a 9 lot of it. There 1 s a lot of nice vegetation out 10 there. There's a lot of pine flatlands, a lot of 11 palmetto scrub. I saw all kinds of animal tracks. 12 It's a shame we'll eventually have to fill that at 13 some point down the road for homes. But I can 1 t see 14 any reason why we would want to destroy that habitat 15 just for the sake of fill. 16 It is the native, natural vegetation that's 17 been there for years. I 1 m not sure there's a real 18 threat of it becoming wetlands. It is all sandy 19 pine habitat. There are no homes there so by not 20 moving forward it would not impact any of the 21 residents, I just think this is where government 22 needs to come together and find a reasonable 23 solution and work forward with the applicant. 24 So that 1 s kind of just where I'd like to see us 25 go with this and hopefully we can work something 223 14 1· 1 don't have to go out and do the entire - 2 MR. TAYLOR: Precisely. 3 MR. DAVIS: Mr. Collins, the only thing I still 4 have a concern with what Commissioner Wheeler said. 5 Are you comfortable with those -- that little line 6 that Commissioner Wheeler has 7 MR. COLLINS: Well, what I 1 m hearing is we 8 could do a modification to extend the contract; and 9 the terms would be that they would get a two-year 10 extension; that the security supporting that 11 extension would remain in place for three months 12 beyond the contract default date or perhaps six 13 months because of this -- period. We'd have to work • 14 that out. 15 And that they would have the ability to modify 16 the design to avoid filling in the interim comii-lg up 17 with some design solution that could be implemented 18 through a re-plat. And that whatever extension the 19 commission afforded to the developer would be passed 20 through to individual lot owners through an 21 amendment to the deed restrictions to have a 22 commensurate extension for each lot owner to 23 complete their fill obligation. 24 I think if those are the terms we can come back 25 with a contract and implement that agreement within 224 15 1 a week or two. 2 MR. 0 1 BRIEN: Chairman, I'll move what Attorney 3 Collins just reiterated, 4 MR. FLESCHER: And I'll second that. 5 MR. DAVIS: We've got a motion to approve the 6 points that Commissioner -- that Attorney Collins 7 had delineated. It was made by Commissioner 8 O'Brien. Seconded by Commissioner Flescher. Any 9 further di5cussion? 10 MR. WHEELER: Is that two years? 11 MR. DAVIS: Yes. Two years plus the six months 12 for the cure. Any further discues~on? 13 MR. SOLARI: Just to clarify that the extension 14 is for two years. 15 MR. DAVIS: Yes. 16 MR. SOLARI: The letter of credit goes two 17 years and six months. 18 MR. DAVIS: That is correct. 19 MR. O'BRIEN: I guess actually, Will, we 1 ll 20 just have you bring this back to us for final 21 approval. 22 MR. COLLINS; Right. We' 11 bring it. back and 23 look at it again. 24 MR. O'BRIEN: Then you can just give me 25 direction to put this into the plats and come back 225 Huntington Place D--."' MODIFICATION TO ,:,s,_A-;_"' CONTRACT FOR LOT FILL . '.._l ~;"N, NO. SD-04-06-41-CFCFILLLOC (93030071-56302) ~// THIS MODIFICATION, made and entered into this __ day of ,------' 2009, by and between FOSTER I.R.C., LLC, a California limited liability company, hereinafter referred to as "Developer", and INDIAN RIVER COUNTY, a political subdivision of the State of Florida, by and through its Board of County Commissioners, hereinafter referred to as "County". WITNESSETH: WHEREAS, Developer entered into a Contract for Lot Fill No. SD-04-06- 41-CFCFILLLOC (93030071-56302) guaranteeing the clearing and filling of each lot within Huntington Place to at least 75% finish grade on or before 24 months from the date of recordation of the plat (by January 12, 2009), with a 120 consecutive day period following the 24-month period to cure any default of any owner of any lot in connection with the failure to fill a lot as required by the governing documents of the subdivision; and WHEREAS, Developer posted a Fifth Third Bank Irrevocable Letter of Credit No. CIS405983 in the amount of $1,762,500.00 as a guaranty; and WHEREAS, on January 6, 2009 Developer's attorney appeared before the Board of County Commissioners to request a 2-year extension to the contract due to the current condition of the economy, NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES HEREIN CONTAINED, the parties agree as follows: 1. The date for completion of the clearing and filling of each lot within Huntington Place to at least 75% finish grade is extended to January 12, 2011. Redesign of the drainage system and any attendant replat of the subdivision to eliminate the need for fill is expressly contemplated by this Modification, so long as accomplished by January 12, 2011. 2. The $1,762,500.00 Fifth Third Bank Irrevocable Letter of Credit No. CIS405983 posted as guaranty is to be amended to (1) extend its expiration date to 180 days beyond the newly extended date, that is, extended to July 12, 2011, and (2) change the address of the beneficiary to 1801 2y!h Street, Vero Beach, Florida 32960. The amendment, in acceptable form, must be received by the County Attorney's Office no later than 5:00 p.m. on July 7, 2009 or this Modification will be deemed null and void, the Developer will be in default, and the letter of credit will be called. 226 3. Developer shall amend Article XIV, Section 14 of the Declaration of Covenants, Conditions and Restrictions for Huntington Place that is recorded in Official Record Book 2123 at Page 1336 of the Public Records of Indian River County, Florida to afford identical time extensions to the Owners as afforded to the Developer by Indian River County in regard to the Fill Period in paragraph 1 above. The amendment, in acceptable form, must be subsequently recorded in the Public Records of Indian River County, Florida and provided to the County Attorney's Office no later than 5:00 p.m. on July 7, 2009 or this Modification will be deemed null and void, the Developer will be in default, and the letter of credit will be called. 4. All other terms set out in the Contract for Lot Fill No. SD-04-06-41- CFCFILLLOC (93030071-56302) remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day and year first above written. FOSTER I.R.C., LLC, a California Signed in the presence of: limited liability company DEVELOPER Sign: ______Print: By: ------Mark Foster, Manager Sign: ______Print: ------ Sign: ______Print: By: -=---=------ ------Todd Foster, Manager Sign: ______Print: ------ INDIAN RIVER COUNTY, FLORIDA By:------ Wesley S. Davis, Chairman ATTEST: J.K. Barton, Clerk By: ______APPROVED AS TO FORM ANO LEGAL SUFFICIENCY Deputy Clerk evts.;., ______WILLIAM G. COLLINS II COUNTY ATTORNEY 2 F:\Attorney\Nancy\DOCS\PLAN\huntington place lot fill modification.doc 227 ATTORNEY'S MATTERS: 6/23/09 J3B 0/foecf INDIAN RIVER COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Senior Assistant County Attorney George A Glenn, Assistant County Attorney MEMORANDUM TO: Board of County Commissioners FROM: tl./L. William Collins - County Attorney DATE: June 16, 2009 SUBJECT: Florida Association of Counties' Inquiry of Interest in Joining Suit to Challenge House Bill 227 - Impact Fees On June 5, 2009 Florida Association of Counties General Counsel Ginger Delegal made inquiry as to whether any counties would be interested in participating as a named plaintiff in a suit to challenge recently enacted House Bill 227 with respect to impact fees. This is merely a solicitation of potential interest without a request for joinder in the funding of the suit. If there is substantial interest in challenging this recently enacted law, a recommendation to make the challenge may be presented to the Florida Association of Counties at its annual meeting in Collier County at the end of this month. Potential additional plaintiffs include the Florida League of Cities and the Florida Association of School Boards. On May 20, 2009 the Florida Association of Counties sent a letter to Governor Crist requesting veto of the bill (copy attached). The Governor signed the bill into law on May 21, 2009. The two primary bases for challenging the law are set out on the attached briefing paper dated June 5, 2009: 1. The bill was not passed by a two-thirds vote of the Senate despite a constitutional requirement for two-thirds passage if the law "reduces the authority that municipalities or counties have to raise revenues in the aggregate, as such authority exists on February 1, 1989." lndian Riv-er C!l Approved Date Admln APPROVED FOR~. {o-}Ji._q-Qtj Legal B.C.C. MEETING -~~ENDA 1 Budget ~ ··~ Dept. COUNTY ATTORNEY Risk Mgr. 228 2. The bill removes the presumption of correctness for legislative acts by prohibiting the judiciary from giving deference to legislative findings in ordinances. This allows the judiciary to substitute their own judgment for that of the legislative body and make law from the bench. This may constitute a violation of the separation of powers between the legislative and judicial branches of government. REQUEST: Please advise if Indian River County is interested in being a named plaintiff in a suit challenging HB 227. wgc/nhm Attachments: F.A.C. veto request letter to Governor Crist dated May 20, 2009 HB 227 Briefing Paper dated June 5, 2009 2 229 May 20, 2009 FLORIDA ASSOCIATION OF The Honorable Charlie Crist ·coUNTIES Governor, State of Florida PL 05 Capitol All About Florida 400 S. Monroe Street Tallahassee, Florida 32399-0001 Dear Governor Crist: RODNEY J. LONG l'Rl:..SIDENT ALACHUA As a follow up to our previous meeting on May 6, 2009, I am writing to express the Florida Association of Counties' (FAC) opposition to HB ILENE LrEBERMAN 227 and respectfully request that you exercise your discretion to not rRESIDENT ELECT [~ROW/\RD allow this legislation to become law. HB 227 would shift the burden of proof to local governments when an impact fee. ordinance is DOUG SMITH challenged. More importantly, the proposed legislation also FIHS-1" VICE PRESIDENT /v\ART!N eliminates the deferential standard or presumption of correctness afforded local government legislative decisions when those decisions SUSAN LATVALA lMMl:DIAl"E PAST PIU:SIDEt--rr are judicially challenged. l"'INl'.t.LA.S Impact fees are a valuable tool and financial resource for the CI-!RISTOPI-!ER L HOLLEY EXECUTIVE DIRECTOR implementation of growth management regulations at the local level. They are one of the primary mechanisms used for determining the allocation of financial commitment of residential and commercial development when creating nevir demand on infrastructure. During the past thirty years, impact fees have been a point of contention and have become an almost annual discussion in the legislative process. Since 1999, revenues from impact fees have been on the rise for a variety of reasons. Most notable, is the evolution of impact fees as a funding mechanism to provide facilities for public education. A lack of PECo funding, passage of the class-size amendment, and concurrency for schools have all played significant roles. Qn a. · broader scale, speculative investment in Florida'~biesideotial.. ,,-,,,r:;·.,,f;"\t.-f:•.·~~{,~l'->: - \-· and· , commercial real estate market, combined with resurging population growth fueled the need for expanded infrastructure. As part of the Growth Management Act of 2006, the Legislature adopted a policy of 'financial feasibility" for local government comprehensive plans requiring each local government to identify and validate financial resources necessary to fund the capital improvement element of their comprehensive plans. That same year, ---- the ~egislature adopted prescribed guidelines for local governments to follow when considering the adoption of impact fees. Previously, so ·--···--- ·------·------·---- YEARS ---·---·------P.O. llox 549 · TALLAHASSEE, FL 32302 · PHONE (850) 922-4300 · FAX (850) 488 7501 1929-2009 WWW.FL-COUNTIES.COM 230 The Honorable Charlie Crist May 20, 2009 Page Two impact fees had been governed by the courts as a home rule revenue source. This enactment marked the first time the Legislature intervened to provide codification and uniformity on a statewide basis. As the real estate market has cooled and begun to correct itself through basic economic conditions of supply and demand, many local governments have made similar adjustments to reduce impact fees. Some have suspended them, while others have discounted them in some form. Despite these initiatives, many business and development interests have continued to attack impact fees through a variety of legislative proposals, HB 227 being the most recent. FAG believes this legislation is flawed and establishes. a very serious threat and precedent to Florida's basic governmental structure. America's federalist system is predicated on a separation of powers doctrine. Not so that governing and legislative bodies enjoy some extraordinary authority over the people, but because a deference is afforded the decisions of our elected leaders due to a voluntary selection of them in our electoral process. It is through this election process the people have granted reasonable discretion to a legislative body to establish rules and regulations. The proposed legislation abolishes this deference and allows the judicial branch to be in a position to substitute its judgment for a legislative determination. If allowed to become law, this flawed policy would establish an extremely harmful precedent whereby future legislators would be bombarded with special interest requests to remove or eliminate a local governing body's deferential standard on a variety of issues. Secondly, the proposed legislation creates significant liabilities and implementation uncertainties for local governments as it potentially applies to· existing impact fee ordinances. If allowed to become law, local governments ha_ve no idea what judicial· . remedies might be afforded if an existing impact fee ordinance is invalidated by the courts. As previously mentioned, counties collect millions of dollars from impact fees for public education, transportation, waler and wastewater utill!ies to name a few. If an existing impact fee ordinance is invalidated, is it ·unreasonable lo expect that the courts would suggest that previously collected impact fees should be refunded? If so, in the case of public education who should be responsible for refunding these fees? The county who approved the fee or the school board who spent the revenues for new facilities? School boards do not impose impact fees; counties voluntarily impose them for the school boards. In conclusion, it should be noted that HB 227 has been identified by the Legislature as meeting the constitutional definition of a mandate and failed to receive the 231 The Honorable Charlie Crist May 20, 2009 Page Three constitutionally required two-thirds approval of the membership from both houses. The Senate "roll call" vote was 26 Yeas. (The amended vote count is only 22 Yeas.) In light of the uncertainty surrounding the proposal and the anticipated legal expenses associated with the first local government attempting to amend or adopt an impact fee ordinance, it would be most prudent to save local governments from any unnecessary expense. Again, I thank you for the opportunity to discuss our concerns last week and to share FAC's concerns and position on this proposed legislation. In light of the stated objections, the FAC respectfully asks for your thoughtful attention and consideration and specifically requests that you not allow HB 227 to become law. If you have any questions or need additional information please contact me at your convenience. Willing to Serve, Rodney J. Long Alachua County Commission FAC President RJL/vm 232 HB 227 (2009) Briefing Paper for County Attorneys June 5, 2009 HB 227 (2009) passed during the 2009 legislative session and the Governor signed the bill into law on May 21, 2009. Much of the intent behind the bill came from a Fifth District Court of Appeal decision, issued on January 30, 2009 in St. Johns River Water Management District v. Koontz, holding that a proposed development exaction was invalid in that case, under a heightened level of judicial scrutiny. Proponents for the bill argued that an impact fee is a development exaction and that a higher level of judicial scrutiny would be good policy for the state, following the reasoning of the Koontz decision. The bill's text is as follows: Section 1. Subsections (5) and (6) are added to section 163.31801, Florida Statutes, to read: 163.31801 Impact fees; short title; intent; definitions; ordinances levying impact fees.- (5) In any action challenging an impact fee, the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee meets the requirements of state legal precedent or this section. The court may not use a deferential standard. Section 2. This act shall take effect July 1, 2009. The bill passed the Senate with fewer than a 2/3rds vote of its membership despite staff analysis notes that a 2/3rds vote was required. Article VII, section 18(b) of . the Florida Constitution states as follows: Except upon approval of each house of the legislature by two thirds of the membership, the legislature may not enact, amend, or repeal any general law if the anticipated effect of doing so would be to reduce the authority that municipalities or counties that have to raise revenues in the aggregate, as such authority exists on February 1, 1989. See id. (emphasis added). The bill shifts the burden of proof when local government impact fees are challenged in court and heightens the standard of that proof. The bill further prohibits the court from using a deferential standard in reviewing the challenged impact fees. While the FAC Office of the General Counsel disputes the representation that the standard and burden of proof language is a correct statement of the current law, there is unlikely to be a prevailing constitutional argument to be made on that issue. However, two other legal issues could form the basis of a declaratory action, asking the court to declare the law unconstitutional and void. First, the Senate failed to achieve a 2/3rds 233 vote, making the bill a law that cannot be enacted under Article VII, section 18(b) of the state constitution. Second, the last sentence appears to violate the separation of powers provisions of the state constitution by removing the presumption of correctness for legislative acts and by prohibiting the judiciary from given deference to legislative findings in ordinances. The presumption of correctness and judicial deference are key features of the separation of powers; they ensure that legislative power is respected and · that the judiciary does not legislate from the bench. Along with many individual counties and municipalities and other associations, FAC asked the Governor to veto the bill. He, however, signed it into law. The bill becomes effective on July 1, 2009. There may be retroactive application to any litigation challenging impact fees that is already pending on July 1. The options for FAC action include the following: (1) To seek a declaratory action, asking the circuit court to find that HB 227 is unconstitutional as violating the separation of powers provisions of the state constitution and is void because of its failure to achieve a 2/3rds vote in the Senate. (2) To wait until a city or a county's impact fee is challenged and the law is used in the litigation to raise these issues in a defensive posture. (3) To wait until the end of the 201 0 legislative session to see if any future legislative action mitigates the impacts of the bill or eliminates the bill entirely. It is not yet certain what the FAC General Counsel's recommendation will be to the FAC Board of Directors. However, having the express support and participation by other associations and individual named counties and cities in pursuing a legal strategy will be important to the ultimate recommendation. 234 ATTORNEY'S MATTERS: 6/23/09 J3G Offeeof INDIAN RIVER COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Senior Assistant County Attorney George A Glenn, Assistant County Attorney MEMORANDUM TO: Board of County Commissioners FROM: wewilliam Collins - County Attorney DATE: June 16, 2009 SUBJECT: Florida Association of Counties' Inquiry of Interest in Joining Suit to Challenge Senate Bill 216 - Local Government Campaign Finance On June 5, 2009 Florida Association of Counties General Counsel Ginger Delegal made inquiry as to whether any counties would be interested in participating as a named plaintiff in a suit to challenge recently enacted Senate Bill 216 with respect to local government campaign finance. This is merely a solicitation of potential interest without a request for joinder in the funding of the suit. If there is substantial interest in challenging this recently enacted law, a recommendation to make the challenge may be presented to the Florida Association of Counties at its annual meeting in Collier County at the end of this month. Potential additional plaintiffs include the Florida League of Cities and the Florida Association of School Boards. Reasons to challenge the law include: 1. Several years ago there was an active controversy between local governments and the state as to whose responsibility it was to fund the uniform statewide court system. This controversy was settled by an amendment to the Florida Constitution which clarified that the state court system was the state's financial responsibility. Many local governments actively campaigned for passage of a constitutional amendment. Senate Bill 216 will preclude expenditure on any funds for a political advertisement or any paid expression in any "communications media" (which is broadly defined to include .APPROVED FOR- {.o-Ji ~C. ~::~n. ME~~~ 1 1 'COUNTY ATTORNEYi Budg<>t ~n=-~-n7t --+--~=--+--=-.=...;:::.i direct mail or disseminating a message on the computer information systems accessible by more than one person, i.e.,the internet). 2. There is concern that this bill would prohibit local governments from joining organizations such as the Florida Association of Counties because a portion of the membership dues might be allocated by FAC to lobbying efforts, for example mailing a letter to the Governor encouraging veto of some particular legislation. 3. Although the act allows electioneering communication which is limited to factual information, there is a concern that one person's fact may be another person's opinion. For example if the office of management and budget makes a projection as to the economic impact of a tax referendum on ad valorem tax exemptions for economic development, is that projection a fact or an opinion. 4. The United States Supreme Court in a decision rendered February 25, 2009 stated "Government is not restrained by the First Amendment from controlling its own expression. A government entity has the right to "speak for itself". It is entitled to say what it wishes. It is the very business of government to favor and disfavor points of view." Thus, there is a very strong argument that Senate Bill 216 may be violative of a local government's right to speak under the First Amendment with respect to political matters. REQUEST: Please advise if Indian River County is interested in being a named plaintiff in a suit challenging SB 216. wgc/nhm Attachments: Senate Bill 216 The Florida Senate Bill Analysis and Fiscal Impact Statement 2 236 CHAPTER 2009-125 Senate Bill No. 216 An act relating to campaign financing; creating s. 106.113, F.S.; defin ing the terms "local government" and "public funds"; prohibiting a local government from expending, and a person or group from ac cepting, public funds for a political advertisement or electioneering communication concerning an issue, referendum, or amendment that is subject to the vote of the electors; providing an exception for certain electioneering communications; clarifying restrictions with respect to local officials; providing'an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Section 106.113, Florida Statutes, is created to read: 106.113 Expenditures by local governments.- (1) As used in this section, the term: (a) "Local government" means: 1. A county, municipality, school district, or other political subdivision in this state: and 2. Any department, agency, board, bureau, district, commission, author ity, or similar body of a county, municipality, school district, or other politi cal subdivision of this state. (b) "Public funds" means all moneys under the jurisdiction or control of the local government. (2) A local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for a political advertisement or electioneering com munication concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. This subsection does not apply to an electioneering communication from a local government or a person acting on behalf of a local government which is limited to factual information. (3) With the exception of the prohibitions specified in subsection (2), this section does not preclude an elected official of the local government from expressing an opinion on any issue at any time. Section 2. This act shall take effect July 1, 2009. Approved by the Governor June 10, 2009. Filed in Office Secretary of State June 10, 2009. 1 CODING: WordE; striekeB are deletions; words underlined are additions. 237 The Florida Senate BILL ANALYSIS AND FISCAL IMPACT STATEMENT (This document is based on the provisions contained in the legislation as of the latest date listed below.) Prepared By: The Professional Staff of the Judiciary Committee BILL: SB 216 INTRODUCER: Senators Justice and others SUBJECT: Campaign Financing/Local Government Expenditures DATE: April 20, 2009 REVISED: ANALYST STAFF DIRECTOR REFERENCE ACTION I. Fox Rubinas EE Favorable 2. Murphy Yeatman CA Favorable 3. Treadwell Maclure JU Favorable 4. 5. 6. ------ I. Summary: The bill prohibits a local government or person acting on its behalf from spending, and prohibits any person or group from accepting, public money for a political advertisement or electioneering communication in connection with an issne, referendum, or amendment that the public will vote on at an election. This bill creates section 106.I 13, Florida Statutes. II. Present Situation: Currently, local governments are not prohibited from making expenditures 1 to advocate for the passage or defeat of an issue, referendum, or amendment, the outcome of which will be decided at an election. Political Advertisements Existing law defines a political adve1iisement as a paid expression in any communications media,2 whether radio, television, newspaper, magazine, periodical, campaign literature, direct 1 An "expenditure" means "a purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or ce1tificate of deposit, or gift of money or anything of value made for the purpose of influencing the results ofan election or making an electioneering communication." Section l06.01)(4), F.S. There is a specific statutory exemption for certain internal newsletters of pre- existing organizations. Id. . •".'.:_.{, . ·, r.' ·-;,. ..·· . ;, _,,-·- '(,·.-"\--,cl 2 "Comn.... unications media" mean~ "broadcastiri-g stations, ne'iNspapers, 11i.~-gazines, outdoor advertising fac.i!ities, printers, dfrect mail, advertising agencies, the Internet, and telephone companies; but with respect to telephones, an expenditure shall 238 BILL: SB 216 Page 3 The bill provides an effective date of July l, 2009. IV. Constitutional Issues: A. Municipality/County Mandates Restrictions: None. B. Public Records/Open Meetings Issues: None. C. Trust Funds Restrictions: None. D. Other Constitutional Issues: In Broward Coalition ofCondominiums, Homeowners Associations and Community Organizations, Inc. v. Browning, 6 the Federal District Court for the Northern District of Florida recently enjoined the State of Florida from enforcing the electioneering communications provisions of ch. l 06, F.S., as they relate to candidate electioneering ads except for the "functional equivalent of express advocacy, "7 which it held the state may properly regulate. 8 The Broward Condominiums court also enjoined, completely and without exception, the enforcement of all ch. l 06, F.S., regulations of issue-only electioneering ads. The court held: The [U.S.] Supreme Court's explanation of the functional equivalent of express advocacy does not allow for "express advocacy made about ballot issues." The Supreme Court's guidance on the functional equivalent of express advocacy is confined to communication that advocates for a candidate. Therefore, to the extent that a communication only 6 Broward Coalition ofCondominiums, Homeowners Associations and Community Organizations, Inc. v. Browning, 2008 WL 4791004 at *7 (N.D. Fla. 2008), clarified by Broward Coalition ofCondominiums, Homeowners Associations and Community Organizations, Inc. v. Browning, 2008 WL 4878917 (N.D. Fla. 2008). 7 The court characterized the "functional equivalent of express advocacf' as a "very nan·owly drawn category." Id. at *7. In order for speech to fall into this category, it must: I. Be "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,'; and 2. Be a "broadcast, cable, or satellite communication that refers to a clear(y identified candidate within sixty days of a general election or thirty days of a primary election." Jd. The court found that this two-pronged analysis was consistent with the First Amendment's command that "when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to ... a ban ... we give the benefit of the doubt to speech, not censorship." id. (citing Fed. Elec. Comm. v. Wisconsin Right to Life, inc., 127 S. Ct. 2652, 2674 (2007)). s Id. 239 BILL: SB 216 Page 4 ddresses a ballot issue and does not, through the ballot issue, advocate a stener, reader, or hearer to vote for a particular candidate, then that ommuuicatiou is issue advocacy aud it constitutes protected political G'-speec~ that cannot be regulated. 9 --~\\ I V The case is currently on appeal to the federal Eleventh Circuit Court of Appeals. V. Fiscal Impact Statement: A. Tax/Fee Issues: None. B. Private Sector Impact: The prohibition against expenditures for local advertising may result in fewer dollars going to media outlets such as newspapers, radio, and television stations. The precise economic impact cannot be determined at this time and will likely vary on an issue-by issue basis. C. Government Sector Impact: Although the bill would not result in higher local revenues, prohibiting local government expenditures on political issues would mean that more money is available to be spent on other local programs. The precise economic impact on local government cannot be determined at this time and will likely vary on an issue-by-issue basis. VI. Technical Deficiencies: None. VII. Related Issues: The Florida Supreme Court has upheld the use of public funds by local govermnent to advocate with respect to a local referendum. In People Against Tax Revenue Mismanagement, Inc. v. County ofLeon, 10 Leon County voters passed an optional sales tax in a local referendum. After the referendum passed, plaintiffs argued that the sales tax election was invalid because local governmental agencies used public funds and public resources to mount an informational campaign supporting the referendum. Plaintiffs described the agencies' actions as "violat[ing] the 'neutral f01um' of the election."11 In response, the Florida Supreme Comi held: Such a position, however, is tantamount to saying that governmental officials may never use their offices to express an opinion about the best interests of the community simply because the matter is open to debate. 9 Broward Coalition ofCondominiums, Homeowners Associations and Community Organizations, Inc. v. Browning, 2008 WL 4878917, * I (N.D. Fla. 2008) (emphasis added). 10 People Against Tax Revenue Mismanagement, Inc. v. County ofLean, 583 Sc. 2d l 373, l 37t! (Fla. l 991 ). 11 Id. at 1374-1375. 240 BILL: SB 216 Page 5 A rule to that effect would render government feckless. One duty of a democratic government is to lead people to make informed choices through fair persuasion. • * • . . . [L Jocal governments are not bound to keep silent in the face of a controversial vote that will have profound consequences for the community. Leaders have both a duty and a right to say which course of action they think best, and to make fair use of their offices for this purpose. The people elect governmental leaders precisely for this purpose. 1 VIII. Additional Information: A. Committee Substitute - Statement of Substantial Changes: (Summarizing differences between the Committee Substitute and the prior version of the bill.) None. B. Amendments: None. This Senate Bill Analysis does not reflect the intent or official position of the bill's introducer or the Florida Senate. " Id. at 1375 (emphasis added) (footnote omitted). 241 !3D I Office ef Attornry'sMatters 06/23/09 INDIAN RIVER COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Assistant County Attorney George A. Glenn, Assistant County Attorney MEMORANDUM TO: Board of County Commissioners THROUGH: ;vC.-William G. Collins II, County Attorney 0-- FROM: William K. DeBraal, Deputy County Attorney l))k-- DATE: June 17, 2009 SUBJECT: ACQUISITION OF RIGHT-OF-WAY AND PROPERTY EXCHANGE ALONG 66TH AVENUE PARCEL 107 Glen C. Besancon, 6725 66th Avenue Glen Besancon is the owner of a 3.36 acre parcel of property on the west side of 66th Avenue north of 65th Street. Mr. Besancon is represented by Raymer Maguire of the law firm of Fixel, Maguire & Willis. The County has been negotiating with Mr. Besancon for purchase of 0.8729 acres of right-of-way for the 66th Avenue improvement project. The needed right-of-way is made up of 0.31 acres of unencumbered land and a 0.56 acre Murphy reservation. Please refer to the sketch and legal description attached to the Agreement for Purchase and Sale. The parcel is zoned A-1, Agricultural, one unit per five acres and is outside of the urban Service Boundary. The Besancon parcel contains a single family 2,200 square foot, 3 bedroom, 2 bath house built in 1950. Neither the house or the 3 car garage will be impacted by the take. The current right-of-way line is 184 feet from the house. As a result of the road expansion project, the right-of-way line will be approximately 28 feet from the house. Parcel 107 is 244' by 156' with 244' of frontage along 66th Avenue. The County needs to acquire 38,024.3 square feet (0.8729 acres) of right-of-way from Mr. Besancon. A 02/09 appraisal on the parcel established a land value of $83,200, value of the improvements at $32,500, severance damages and a cost to cure of $35,000 for a total appraised value of the take at $150,700.00. Indian Riv-er Co. Adrnln. Legal Budget Oel)I. Risk Mgr. MEMORANDUM - ROW 66th Ave. Board of County Commissioners Page 12 Mr. Besancon has agreed to sell the property at the appraised price. There are appraisal fees of $5,500.00, engineering costs of $6,400.00 and an attorney's fee of $7,911.75 (5.25% of the purchase price) for a total of $170,511.75. The purchase price assigns full value to the TIIF/Murphy reservation. The County owns the 1.05 acre parcel of property directly to the south of the Besancon parcel, which was formerly owned by Robert and Wendy Gardiner. Back in September 2008, the County purchased the entirety of the Gardiner's property located at 6721 661h Avenue. The Gardiner parcel contains a single family home that will lie about 10 feet from the edge of right-of-way when 66th Avenue is constructed. The Gardiner's are currently leasing the property from the County under the terms of a lease back agreement negotiated when the property was purchased. When the County approached Mr. Besancon for purchase of his property, Mr. Besancon indicated he would be interested in acquiring the remainder of the Gardiner property. The parties then reached the following agreement: • Mr. Besancon would sell the 0.8729 acres needed for right-of-way to the County at an appraised value of$150,700.00. • The County would convey the 1.05 acre Gardiner remainder parcel to Mr. Besancon and receive a credit based on the per square foot price ($2.18) set forth in the Besancon appraisal, or $96,923.00 • The Murphy reservation on the Besancon property would be ignored. Mr. Besancon is interested in acquiring the former Gardiner parcel so he can create an additional lot by way of a unity of tile and a one-time lot split. The existing lease with Mr. and Mrs. Gardiner would continue to the termination date in 2010. There will be a lease back provision as to the property purchased from Mr. Besancon. In order to accomplish the property exchange, the County will have to advertize the proposed exchange once a week for two consecutive weeks in the newspaper. If this contract is approved, staff will proceed with advertisement of the exchange and bring the matter back before the Board for final approval. STAFF RECOMMENDATION: Staff recommends the Board approve the attached contract for purchase of the Besancon parcel for a total of $170,511.75, inclusive of appraisal fees of $5,500.00, engineering costs of $6,400.00 and an attorney's fee of $7,911.75 (5.25% of the purchase price). At closing, the County will receive a credit of $96,923.00, making the net due to Mr. Besancon $73,588.75. FUNDING: Funding is budgeted and available from Traffic Impact Fees - District II 66th Avenue/59th Street to 7ih Street, Project account #10215241-066120-07806. WKD c: Raymer F. Maguire Ill, Esq. 243 AGREEMENT TO PURCHASE AND SELL REAL ESTATE BETWEEN GLEN C. BESANCON AND INDIAN RIVER COUNTY THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement") is made and entered into as of the __ day of ____, 2009, by and between Indian River County, a political subdivision of the State of Florida ("THE COUNTY"), and Glen C. Besancon ("SELLER"), who agree as follows: WHEREAS, Glen C. Besancon owns a 3.36 acre parcel of property located at uJkfl. 6725 66th Avenue in Vero Beach, Florida. A sketch and legal description of the property C;,,-is attached to this agreement as Exhibit "A" and incorporated by reference herein; and 4 - "" k W~"--EfR;;t, THE COUNTY, is scheduled to expand 66th Avenue in the near future and the road expansion will impact and affect SELLER'S property; and WHEREAS, in order for THE COUNTY to proceed with its road expansion plans, THE COUNTY needs to purchase property to be used as right-of-way from landowners adjacent to 66th Avenue; and WHEREAS, THE COUNTY has contacted SELLER and has offered to purchase a 38,024.3 square foot (0.8729 acre) parcel of property (approximately 156.01' X 243. 73') from SELLER, to be used as right-of-way as depicted on Exhibit "A" (the Property); and WHEREAS, SELLER is represented by Raymer F. Maguire Ill of the law firm of Fixel, Maguire & Willis, 1010 Executive Center Drive, Suite 121, Orlando, Florida; and WHEREAS, THE COUNTY is prepared to take the Property by using its power of eminent domain; and WHEREAS, SELLER and THE COUNTY wish to avoid the risk, time and expense of litigation by entering into this agreement for sale and purchase of the Property; NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and premises hereinafter, THE COUNTY and SELLER agree as follows: 1. Recitals. The above recitals are affirmed as being true and correct and are incorporated herein Page 1 of7 244 2. Agreement to Purchase and Sell. The SELLER hereby agrees to sell to THE COUNTY and THE COUNTY hereby agrees to purchase from SELLER, upon the terms and conditions set forth in this Agreement, that certain parcel of real property located on 66 th Avenue, Vero Beach, Florida and more specifically described in the sketch and legal description attached as Exhibit "A", containing approximately 0.31 acre plus 0.56 acre of Murphy reservation land, and all improvements thereon, together with all easements, rights and uses now or hereafter belonging thereto (collectively, the "Property"). 3. Purchase Price, Effective Date. The purchase price ("Purchase Price") for the Property shall be established by: the appraisal of the 0.8729 acres illustrated in the Sketch performed by All Real Estate Appraisals ("AREA") mutually agreed upon by the parties pursuant to the terms of the letter dated October 31, 2008 from Robert K. Babcock, MAI to attorney William K. DeBraal attached as Exhibit "B". Pursuant to the Appraiser's Final Report, THE COUNTY shall pay $150,700 for the 0.8729 acres as the Purchase and Sale price of the Property. The per square foot land value determined by AREA shall be multiplied by the square footage of the 90' X 494' (44,460 square foot) remainder of Parcel 106 and treated as a $96,923 credit against the Purchase Price. The Purchase Price shall be paid on the Closing Date. The Effective Date of this Agreement shall be the date upon which THE COUNTY shall have approved the execution of this Agreement, either by approval by the Indian River County Board of County Commissioners at a formal meeting of such Board or by the County Administrator pursuant to his delegated authority. 4. Title. SELLER shall convey marketable title to the Property by warranty deed free of claims, liens, easements and encumbrances of record or known to SELLER except as noted in Exhibit "A"; but subject to property taxes for the year of Closing and covenants, restrictions and public utility easements of record provided (a) there exists at Closing no violation of any of the foregoing; and (b) none of the foregoing prevents THE COUNTY'S intended use and development of the Property ("Permitted Exceptions"). 4.1 THE COUNTY may. order an Ownership and Encumbrance Report or Title Insurance Commitment with respect to the Property. THE COUNTY shall within fifteen (15) days following the Effective Date of this Agreement deliver written notice to SELLER of title defects. Title shall be deemed acceptable to THE COUNTY if (a) THE COUNTY fails to deliver notice of defects within the time specified, or (b) THE COUNTY delivers notice and SELLER cures the defects within thirty (30) days from receipt of notice from THE COUNTY of title defects ("Curative Period"). SELLER shall use best efforts to cure the defects within the Curative Period and if the title defects are not cured within the Curative Period, THE COUNTY shall have thirty (30) days from the end of the Curative Period to elect, by written notice to SELLER, to: (i) to terminate this Agreement, whereupon shall be of no further force and effect, or (ii) extend the Curative Period for up to an additional 90 days; or (iii) accept title subject to existing defects and proceed to closing. Page2of7 245 5. Representations of the SELLER. 5.1 SELLER is indefeasibly seized of marketable, fee simple title to the Property, and is the sole owner of and has good right, title, and authority to convey and transfer the Property which is the subject matter of this Agreement, free and clear of all liens and encumbrances. 5.2 From and after the Effective Date of this Agreement, SELLER shall take no action which would impair or otherwise affect title to any portion of the Property, and shall record no documents in the Public Records which would affect title to the Property, without the prior written consent of THE COUNTY. 5.3 There are no existing or pending special assessments affecting the Property, which are or may be assessed by any governmental authority, water or sewer authority, school district, drainage district or any other special taxing district. 6. Default. 6.1 In the event THE COUNTY shall fail to perform any of its obligations hereunder, the SELLER shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice delivered to THE COUNTY at or prior to the Closing Date and thereupon neither the SELLER nor any other person or party shall have any claim for specific performance, damages, or otherwise against THE COUNTY; or (ii) waive THE COUNTY'S default and proceed to Closing. 6.2 In the event the SELLER shall fail to perform any of its obligations hereunder, THE COUNTY shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice delivered to the SELLER at or prior to the Closing Date and thereupon neither THE COUNTY nor any other person or party shall have any claim for specific performance, damages or otherwise against the SELLER; or (ii) obtain specific performance of the terms and conditions hereof; or (iii) waive the SELLER'S default and proceed to Closing: lt)tJ}, 7. Closing. 7.1 The closing of the transaction contemplated herein ("Closing" and "Closing Date") shall take place within 45 days following the receipt of thejt'!l"iser's Final Repor;t.. The ..If parties agree that the Closing shall be as follows: o..ff''"v 7k. ""-•~ · =.,7'~-- The SELLER shall execute and deliver to THE COUNTY a warranty deed conveying marketable title to the Property, free and clear of all liens and encumbrances and in the condition required by paragraph 4. Page 3 of 7 246 (b) The SELLER shall have removed all of its personal property and equipment from the Property and SELLER shall deliver possession of the Property to THE COUNTY vacant and in the same or better condition that existed at the Effective Date hereof. (c) If SELLER is obligated to discharge any encumbrances at or prior to Closing and fails to do so, THE COUNTY may use a portion of Purchase Price funds to satisfy the encumbrances. (d) If the SELLER is a non-resident alien or foreign entity, SELLER shall deliver to THE COUNTY an affidavit, in a form acceptable to THE COUNTY, certifying that the SELLER and any interest holders are not subject to tax under the Foreign Investment and Real Property Tax Act of 1980. (e) The SELLER and THE COUNTY shall each deliver to the other such other documents or instruments as may reasonably be required to Close this transaction. 8. Taxes. All taxes and special assessments which are a lien upon the property on or prior to the Closing Dale (except current taxes which are not yet due and payable) shall be paid by the SELLER. 9. Closing Costs; Expenses. THE COUNTY shall be responsible for preparation of all Closing documents. 9.1 THE COUNTY shall pay the following expenses at Closing: 9.1.1 The cost of recording the warranty deed and any release or satisfaction obtained by SELLER pursuant to this Agreement. 9.1.2 Documentary Stamps required to be affixed to the warranty deed. 9.1.3 All costs and premiums for the owner's marketability title insurance commitment and policy, if any. 9.1.4 Appraisal costs incurred by SELLER of $5,500. The costs shall be paid directly to AREA. See attached Exhibit "B". 9.1.5 Engineering costs incurred by SELLER of $6,400. The costs shall be paid directly to the engineering firm. See attached Exhibit "C". 9.1.6 Attorney's fees and costs of $7,911.75 which is 5.25% of $150,700, the AREA appraisal amount for Parcel 107. 9.2 SELLER shall pay the following expenses at or prior to Closing: Page 4 of 7 247 9.2.1 All costs necessary to cure title defect(s) or encumbrances, other than the Permitted Exceptions, and to satisfy or release of record all existing mortgages, liens or encumbrances upon the Property. 10. Miscellaneous. 10.1 Controlling Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. Venue shall be in Indian River County for all state court matters, and in the Southern District of Florida for all federal court matters. 10.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to this transaction and supersedes all prior agreements, written or oral, between the SELLER and THE COUNTY relating to the subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and executed by each of the parties. 10.3 Assignment and Binding Effect. Neither TH~ COUNTY nor SELLER may assign its rights and obligations under this Agreement without the prior written consent of the other party. The terms hereof shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns. 10.4 Notices. Any notice shall be deemed duly served if personally served or if mailed by certified mail, return receipt requested, or if sent via "overnight" courier service or facsimile transmission, as follows: If to SELLER: Glen C. Besancon 6725 66th Avenue Vero Beach, Florida 32967 If to SELLER'S Attorney: Raymer F. Maguire Ill Fixel, Maguire & Willis 1O 1 O Executive Center Drive Suite 121 Orlando, Florida 32803 If to THE COUNTY: Indian River County 1801 2th Street Vero Beach, Florida 32960 Attn: Land Acquisition/Pamela Stewart Either party may change the information above by giving written notice of such change as provided in this paragraph. 10.5 Survival and Benefit. Except as otherwise expressly provided herein, each agreement, representation or warranty made in this Agreement by or on behalf of either party, or in any instruments delivered pursuant hereto or in connection herewith, shall Page 5 of 7 248 survive the Closing Date and the consummation of the transaction provided for herein. The covenants, agreements and undertakings of each of the parties hereto are made solely for the benefit of, and may be relied on only by the other party hereto, its successors and assigns, and are not made for the benefit of, nor may they be relied upon, by any other person whatsoever. 10.6 Attorney's Fees and Costs. In any claim or controversy arising out of or relating to this Agreement, each party shall bear its own attorney's fees, costs, and expenses. 10. 7 Counterparts. This Agreement may be executed in two or more counterparts, each one of which shall constitute an original. 10.8 County Approval Required: This Agreement is subject to approval by the Indian River County Board of County Commissioners as set forth in paragraph 2. 10.9 Beneficial Interest Disclosure: In the event SELLER is a partnership, limited partnership, corporation, trust, or any form of representative capacity whatsoever for others, SELLER shall provide a fully completed, executed, and sworn beneficial interest disclosure statement in the form attached to this Agreement as an exhibit that complies with all of the provisions of Florida Statutes Section 286.23 prior to approval of this Agreement by THE COUNTY. However, pursuant to Florida Statutes Section 286.23 (3) (a), the beneficial interest in any entity registered with the Federal Securities and Exchange Commission, or registered pursuant to Chapter 517, Florida Statutes, whose interest is for sale to the general public, is exempt from disclosure; and where the SELLER is a non-public entity, that SELLER is not required to disclose persons or entities holding less than five (5%) percent of the beneficial interest in SELLER. 11. Grandfather Clause: COUNTY shall sell to SELLER the 90' X 494' parcel immediately to the south of SELLER'S property. At SELLER'S expense, SELLER will submit an application to divide the combined remainder into two buildable parcels as illustrated on the sketch that is attached as part of composite Exhibit "D" showing both parcels. The southerly lot would continue to have SELLER'S residence on it and be approximately 30' from the new northerly property line. This transaction would be treated as a property swap with COUNTY. Upon completion of the property swap and drawing of the property lines in accordance with composite Exhibit "D", THE COUNTY shall document in a separate letter or document, SELLER'S right to have one single family residence on each of the two parcels, even though neither parcel is the minimum five acres required by current zoning. THE COUNTY will waive any fees normally charged for replatting lots or lot splits or reimburse SELLER for any such fees charged to SELLER. 12. Wye River Farms. Inc. This Agreement is based on Indian River County's project specifications attached hereto as composite Exhibit "E" and as said plans relate to this project and the remainder being implemented by THE COUNTY. Accordingly, if the project is not sci implemented, SELLER shall have the same remedies as would have been afforded to him had the case been resolved by verdict with said plans and Page 6 of 7 249 specifications having been made a part of the record at trial. Central & Southern Florida Flood Control District v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974); cert. denied 310 So.2d 745 (Fla. 1975). This provision shall survive the closing. 13. Lease-back: THE COUNTY shall execute and deliver to SELLER a lease of the Property at the Closing. The term of the lease shall begin the day of the Closing and end thirty (30) days prior to THE COUNTY'S beginning of construction of 66th Avenue in front of the Property, but in no event sooner than one (1) year after the Closing. The lease payment shall be one dollar ($1.00) per year. 14. Gardiner Property: SELLER shall lease for one dollar ($1.00) per year to THE COUNTY the remainder of Parcel 106 from.the date of closing of this Agreement until the date that Mr. Robert J. Gardiner, the previous owner of said remainder of Parcel 106 vacates the property or sixty (60) days prior to THE COUNTY'S initiation of construction of the portion of the 66 th Avenue improvement project on the Property, whichever is earlier. 15. Right-of-Entry: SELLER grants to THE COUNTY a Right-of-Entry to demolish the portion of the residence located partially on the remainder of Parcel 106. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. SELLER: INDIAN RIVER COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS By:,b:1, f . ~':y{',Y--Y By:------ Glen C. Besancon Wesley S. Davis, Chairman Date Signed: 4£ /2 O/ c? oo 'l Date Signed: ______' fficiency: Attest: J. K. Barton, Clerk By ______William K. De raal Deputy Clerk Deputy County Attorney Date Signed: ______ 52-02-107\32 Page 7 of 7 250 Exhibit "A" · -· 66TH AVENUE ,J+. PARCEL 107 0 I I .;: aRJ?,,.Pmc SCALE 100· I INDIAN RIVER FARMS CO. PLAT BOOK 2, PAGE 25 · (ST. LUCIE) 32390700001001000006.0 GLEN BESANCON ORB 1200, PG 2360 go• SOUTH LINE TRACT 1 I EGA! DESCRIPTION RIGHT OF WAY PARCEL THE EAST 156.00 FEET OF THE FOLLOWING DESCRIBED PARCEL AS RECORDED IN OFFlCIAL RECORDS BOOK 1200. PAGE 2360! THE SOUTH 5 ACRES OF TI-lE EAST 20 ACRES OF SAID TRACT 1, LESS THE SOUTH 90 FEET n-lEREOF, SECTION 7, TOWNSHIP 32 SOUTH, RANGE 39 EAST, AS THE SAME IS DESIGNA lED ON THE LAST GENERAL PLAT OF LANDS OF THE INDIAN RIVER FARMS COMPANY FILED IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF ST•. LUCIE COUNTY! FLORIDA, IN PLAT BOOK 2, PAGE 25, NOW PART OF THE PUBLIC RECORDS OF IND AN RIVER COUNTY, FLORIDA, LESS AND EXCEPT ALL EXISTING RIGHTS OF WAY FOR PUBLIC ROADS, CANALS AND DITCHES. SAID LAND LYING AND BEING IN INDIAN RIVER COUNTY, . FLORIDA. SURVEYORS NOTES 1) TI-HS IS A SKETCH OF LEGAL DESCRIPTION ONLY, NOT A BOUNDARY RETRACEMENT SURVEY. 2) THE BEARING BASE FOR THIS SURVEY, IS THE EAST LINE OF SECTION 7. SAID LINE BEARS NORTH 00"00'25" EAST. 3) THE SCALE OF THIS DRAWING MAY HAVE BEEN DISTORTED DURING REPRODUCTION PROCESSES. 4) THIS. LEGAL DESCRIPTION AND SKETCH IS BASED ON THE PRELIMINARY RIGHT OF WAY MAP FOR 66TI--I AVENUE PREPARED BY BURDETTE AND ASSOCIATES, DATED 10-1• -06, AS DIRECTED BY INDIAN RIVER COUNTY, FLORIDA. LEGEND SECTION LINE EASEMENT LINE PROPERTY LINE PROPOSED RIGHT OF WAY i This c ~ ~==c---,-,__ -,..,oo-·"'CI='cj==c:,=,=--cKiccm-:-le-y-:-H-:-o-m----,---:- 0-:c,..e=--r------~------,--,..-=,.,.c--""-"-""'----t i .,,_,, e= - andAssociates,lnc. s/22/oo LEGAL DESCRIPTION AND SKETCH OF :_ l>Fl"M Indian River County 1840 25th Street Vero Beach, FL 32960-3328 Attn.: Mr. William K. DeBraal, Esquire RE: Fee proposal for Glen C. Besancon, 6725 North 66th Avenue, Vero Beach, FL 32967 Dear Attorney DeBraal: All Real Estate Appraisals is pleased to offer a fee proposal to provide appraisal services relating to the above referenced property. This property is improved with a single family residence and miscellaneous building improvements. Based upon the depth of the proposed acquisition, the residence may suffer a loss of yard utility in the remainder condition. This firm would provide evidence to support the land value and estimated contributory value of improvements within the proposed right of way acquisition. The remainder will be analyzed to ascertain whether it suffers from a loss of yard utility. The fee to provide appraisal services for this property would be $5,500. If you have any questions, please contact me at your convenience. Sincerely, ALL REAL ESTATE APPRAISALS Robert K. Babcock, MAI State-Certified General Appraiser RZ 990 Cc: Raymer F. Maguire, Ill, Esquire EXHIBIT Appraisers • Consultants • Realtors® i O 1 O E _:(ecutive Center Drive, Sui1e -132 01 iar,do, Florida ·32803 73 Phone: ,JD?.895.9999 Fa.x: 407 895 999B ClV!l ENG!NEEmNG end PERlvUTTlf-.J(:;-';. 964 Lake Baldwin Lane, SuHe 200, Orlando, FL 3281~ • (407) 893-6894 • FAX (407) 893-6851 • Viww.meiorlondo.com November 12, 2008 Williarn K, DeBraal,. Esquire Assistant County Attorney Indian River County 1840 25th Street Vero Beach, FL 32960-3328 Re: CR 510, Parcel 107, Besancon Property, Indian River County Dear Mr. DeBraal: Morris Engineering, Inc. (MEI) is providing this agreement for civil enginel9ring servlces for the referenced Parcel as delineated by the lhdian River Coµnty right of way mcips and the property appraiser for the Besancon property. This agreement outlines our Scdpe of Services and fees associated with the following Tasks, Task 1- Analysis of Impacts MEI will review the right of way maps and analyze the roadway construction plans to determine any impacts to the remainder property, Our analysis will include grade change between the proposed roadway improvements and the remainder property, access in the before and after conditions, drainage in the before and after conditions, existing uses and improvements within the area of take for the proposed roadway widening on CR 510, We will also make a site visit to verify existing conditions including the approximate location of the septic tank and drainfield (based on owner information) and the nearest building setback to the existing roadway and the approximate setback in the after conditidns, We will also provide a sketch lo show a proposed lot split line running east-west along the north side of the exiting house. It is our understanding that the lot split lrne heeds to be 30 feet north of the existing house to satisfy the Indian River County side yard setback distance, West of the existing house the lot line will be adjusted back to the south to provide an equivalent land area of 122 feet x 621,63 feet Task II - Engineering Report MEI will prepare a letter report for the Parcel outlining the conclusions of our engineering analysis. This scope of services does not include the preparation of any before or after condition exhibits or any cost to cure_ If exhibits and/or partial cure costs are needed, we will provide these services on an hourly as needed basis, Mr. William K. DeBraal November 12, 2008 Page 2 FEE AND BILLING TASK I Analysis of Impacts $ 3,800.00 II Engineering Report $ 2,600.00 Fees are payable based upon the percentage complete of lump sum tasks. Billing will be due and payable within 25 days. CLOSURE If you concur and wish to direct us to proceed with the aforementioned services please execute the enclosed copy of this letter agreement in the space provided and return one copy to Morris Engineering, Inc. Fees and times slated in this agreement ate valid for thirty (30) days after the date of agreement by Morris Engineering, Inc. Sincerely, MO_,R'f~NGINEERING, INC. jft,µJ/~&:I Daniel L. Morris, P.E. Principal As agreed to this ___day of______, 2008.. Name: Authorization Signature: Title: Billing Address: 254 BOARD OF COUNTY COMMISSIONERS OFFICE OF COUNTY ATTORNEY William G. Collins II, County Attorney William K. DeBraal, Deputy County Attorney Marian E. Fell, Senior ..~ssistant County Attorney George i\. Glenn, Assistant County ..Attorney October 6, 2008 Daniel L. Morris, P.E. Morris Engineering, Inc. 964 Lake Baldwin Lane, Suite, 200 Orlando, FL 32814 Dear Dan: I am receipt of the correspondence dated September 26, 2008, concerning Parcel 107 owned by Glen C. Besancon. As you know, the County would like to acquire right-of way from Mr. Besancon along the eastern border of his property. The County is the owner of the parcel of property on _the southern border of Mr. Besancon's land and he has expressed interest in a property swap with the County. County staff is agreeable with this exchange. I had the opportunity to review the proposed exchange and lot split with our Planning Department. The subject parcels of property are zoned A 1, Agricultural up to one dwelling unit per acre. Most of the parcels in the Besancon area are legal non conforming lots being platted before the County's zoning code was enacted in 1970. The County's code of ordinances does not permit an expansion of non-conforming uses, however in.this case, it appears that the·elimination of a 90' wide lot and the formation of a 122' lot would act as making the northern lot more in conformance with the zoning code as opposed to a narrow 90' lot. In order for the swap to be completed, Mr. Besancon would have to unify the title of the swapped property with his existing lot. The County code requires a 30' setback in the A 1 zoning category. The Besancon residence would have to be at least 30' from the southern lot line of the newly created parcel. This could be accomplished by recreating the north parcel in the shape of the state of Nebraska with a notch in the southeast corner to comply with setback requirements. I hope this information proves helpful to you. ;W£it(!J}f William K. DeBraal Deputy County Attorney c: Raymer Maguire, Esq. EXHIBIT 1801 27 1h Street, Vero Beach, Florida 32960-3365 (772) 226-1424 · F·ax ()72.) 569-4" D 25 ircatrower@ircgov com --- 0 1:. 7 II t "' ' " Oecember4,•""'-"'Farr 2000 I~ I_,...... - PROPQSED ROADWAY _i!l4.2.'..._. ------+1!-1-1- ~ EXISTING R/W NEW R/W LINE I NORTH PARCEL I ~I &; i c, REQUESTED LOCATION WIDTH (24' YIIOE) * I CONSTRUCTION PLAN LOCATIONS a o~ 359.os·__ - 30.0' a -----;O~R~E~ I b' ~i '---.,.\.,.j I t. ! CURRENT PLAN LOCATION OKAY •j b t g u' ~ L 494. -~-~~0 !,c i BESANCON PROPERTY ! GGTHAVENUE INDIAN RIVER COUNTY !! 'sj- 1~ PARCEL 107 i,! l:!Q!g; ORRIS ~ EXIST!NG CONDITIONS & IMPROVEMENTS SHOWN ON THIS Pl.AN HAVE BEEN ~ NG!NEER!NG ASSEMBLED FROM PLANS PREPARED BY ~ ..._ INC. KIMLEY-HORN AND ASSOCIATES, INC. 96, 1.411£ BAI.OWIN LAl N) CJ"1 O'> •' I· I i i h!i~ I! ~: ! i :g ! • 'I ! I l ,I, b: l!~ o_ 0z <( w f- C. 2 :) £o' 111 I- 0 a: w ~ >-- z!.O ,_~ cc~0 . <( WU)a: "',ccn f- LL.=> s: it:a:: >>-<{..J tOw oo LL 0: LL CD ~u <( ; 0 ~ 0~ o..a: .Ca: ICIJ WW f- ©ft .... 0 [> ::c - a: f- ir C!J (0 ~ z er ::; <(. a:0 0 LL ~ 0z w (.'.) w ...J i i ' l l 0 0 EXHIBIT _~_-_-_-_-_ -_-_ -~----~------======------'! -----·-·-·-·--·-·------E 57 i. :~ '': l ,w,~ ''': ,~,:,; o'~· iZ g! •r•w rW J< i,o• ""~"- ,o , ' i 1 0 0 258 COMPONENTS OF CONTRACT P[ANS SET ROAfJNAY PLANS INDIAN RIVER COUNTY SIGNING AND MARKING PLANS SIGNAUZATION PlANS LANDSCAPE: PI..AIJS BOAR.D OF COUNTY COMMISSIONERS STRUCTURE PUPS ROADWAY CONTRACT PLANS INDEX OF ROACMAY PLANS SHEET NO. SHEET DESCRIPTION ROAOHAY SHOP DRAWINGS Kt:r SHEET C.R. 510 ROADWAY WIDENING TO 8£ SUBMITTED TO: 75th COURT TO 2.00' EAST OF 61st DRIVE Z GENERAL NOTES BRIIVI GOOD, P.E, IND/AN RIVER COUNT( C.R. 510 PROJECT No. 06/0 Kll./1..E't-HORH ANO ASSOCIATES, INC, X ··5UIIUAR'f-0F--PAY-fFEUS---- 60f 21:if STRl:ET, SUITE 400 VERO 8£.ACff, FL JZ960 J-II TrPICAL SECTIONS rl7'2J 562.-7981 ---X·-··--S{JUUAf?l'-OF-Q(JAN1'/T.f,E$---- 66th AVENUE ROADWAY WIDENING NORTH OF STREET TO BARBER STREET -----l(---SllJ.1HAfff-(JF-OfUfN~tJRer- 500' 57th Pl.ANS PREPARED Bf: X · HORIZONTAL- &••VER·T-KJAl.--€0N'f-RGE:- IND/AN RNER COUNT( 66th AVENUE PROJECT No. 0370 12-28 C.R. 5/0 Pl.AN & PROFILE ~-n Kimley-Hom i...J-LJ and Assoc/ales, lno. 29 C.R. 5/0 DRAINAIJE STRUCTURE OATA 601 2/sf STREET. SWTE 400 VERO BF:ACH, FL Je950 J0-70 66/h AVENUE Pl.AN & PROF/l£ END 66TH AVE CONSTRUCTION (77Z} 562-1981 STA. 569+90,74 PROJECT NUMBER: 041035041 -·-X-----~64/h-AVENl/£-P/:J,N··&-·PROFII£· CERTIFICATE OF AUTHORIZATION: 00000696 71-TT 6/s/ SrREET Pl.AN & PR0Fll£ BEGIN C.R. 5/0 CONSTRUCTION STA, 192+60.00 78-85 65th STREET Pf.AH Br PROFILE BEGIN 64TH AVE CVNSTRUCTION BEGIN BfST ST. CONSTRUCT/OIi STA, TO BE DETERMINED 86-9J 69/h STREET Pl.AN & PROFILE STA. 200+00,00 ROACWAY PIAHS ENO C,R, 5/0 CONSTRUCTION ENGINEER OF RECORD: ~ ---X----· ···-816t-S.T-fl/5£.J:-CROSS-$EG:r-lOHS------>,roRIJWME~flR&v!iNFION-PWS- ~\::J.M!./) {;(JV£RHI//G 5TNIDMDS AH() SPF.Cl!'ICATIOIISl FtOnlDA DEPNITUE/JT OF TRAIISf'ORTAT/011, Department of Public Works 'D£S/Gfl ST.NIOMOs• OATF.D JA.V//Alrt ?.006, SHEET JANES W. DAVIS, P,E., DIRECTOR ,~ ~110 •STAI/DAROS SPEC/f'JCATIDNS f'OR RtW) N/0 BRIDGF: {XJIISTRUCr/011" DATED 2001, AS JMET DUHi.AP, P.E., PROJECT MANAGER AIIEHDED 6( CO/ITIIN;l fJOCUIIEflTS, .,~,.... ,. 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I •.. i I i ' 262 -%" ~ '"-'cl jl-,-1------~ t· 0 ~' -J---+------, ~ ~< "' !' --.~:-' : ' i-1-~I -·!'"--··'----.-:• : . ,_ -·.7; ' : 'i ~> ' . ----·~·1. f',V 1 · !j· ---;- J j_'t__ T i ' )'-, •-~ ' ·1·· l, :, '. i,. ••,;·~•-1•1~:,• ._)_ • ;_j ';;':' •-rC .l .. \... / ,_L.._; __ [ __J_ •: • i • .L,·- :=.1,L : l .U,J,.L.. -~. -'1',:. ',- ! . l I µI'" . ! j ) I ' i ; ll ~-L- i ! I i ... • i1i 1 ·h·i' -- -~-r t·-·-t·l I- - /'! i 1 I 1 ··: Ll. 1 I , --: ·.. ! / l i i i I,. --;----:- . / . i-- : ; - ·-•-r·-~ _, ~ \-·[- ,.. ' )- i-/-- -: .... i I --i - i7'! \--,--'I \- - 1· L./. ' i / , L : ... ,_,_ L___ __ : I : ; . 1 · I: ·_,' '-i . 'I 263 JUNE 23, 2009 ITEM 14.A.1 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER-OFFICE MEMORANDUM To: Members of the Board of County Commissioners Date: June 23, 2009 Subject: Consideration of Submitted Applications for the Citizen-At-Large Appointee on the Historic Resources Advisory Committee (HRAC) From: Wesley S. Davis, District 1 Commissioner Liaison A vacancy for a Citizen-at-Large Appointee on the Historic Resources Advisory Committee (HRAC) was announced on the agenda of the Board of County Commissioners meeting on April 1, 2009. As per Resolution 2008-112, the 14-day period following the reading of the vacancy has expired. Accordingly, your consideration is requested for the following individuals listed below. The interested individuals have submitted applications along with their resumes, a copy of which is on file in the Commission Office. Leonard J. Kaczynski Paul Kuvshinikov 264