MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

December 1, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 1, 2009 at 9:03 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Mary Bolin, Commissioners Robin Fisher, Chuck Nelson, Trudie Infantini, and Andy Anderson, County Manager Howard Tipton, and County Attorney Scott Knox.  

 

 

The Invocation was given by Pastor Mark Ragsdale, The Church at Viera, Viera, Florida.

 

Commissioner Andy Anderson led the assembly in the Pledge of Allegiance. 

 

 

Commissioner Nelson read aloud a resolution proclaiming the month of November 2009 as National Lung Cancer Awareness Month.

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to adopt Resolution No. 09-253 proclaiming November 2009 as National Lung Cancer Awareness Month, bringing public awareness to the severity of this disease and encouraging participation in voluntary activities to support education programs and the funding of research programs to find a cure.  Motion carried and ordered unanimously. 

 

 

Mary Edith Thomas expressed appreciation to the Board for the Resolution.  She stated she represents Moffitt Cancer Center, particularly the LATTE Advocacy Program, which is part of Moffitt; and she is also a three and three-quarter year lung cancer survivor.  She stated she was a non-smoker, so it was a surprise to her to find out she had Stage IV, non-operable, lung cancer; but it happens a lot more than people realize.  She noted lung cancer is one of the silent cancers; typically, by the time lung cancer is discovered it has been there a while; and it is generally fast-growing.  She noted the LATTE stands for Lung and Thoracic Tumor Education Advocacy Program; LATTE was started in 2002 by Dr. Gepler from Moffitt; and the purpose of LATTE was to bring more focus and awareness to lung cancer and thoracic cancer, to get more people diagnosed earlier.  She stated one of the initiatives at LATTE is to get the family and patients more involved in the very beginning with diagnosis, education, research, and clinical trials; and LATTE is going to try to emulate the breast cancer campaigns and make everyone aware. 

 

  

Commissioner Fisher read aloud a resolution congratulating Andrew R. Miller on receiving the Rank of Eagle Scout.

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to adopt Resolution No. 09-254, congratulating Andrew R. Miller on receiving the Rank of Eagle Scout; and offers him best wishes for a successful future in the United States Air Force.  Motion carried and ordered unanimously. 

 

 

Andrew R. Miller expressed appreciation to the Board for the Resolution; and stated if it were not for his dad, he would not be in Scouts.  He stated he enjoys Scouting and he would like to be a Scout Master in the future.  He noted his Scouting experience will help him in the Air Force, in which he is enrolling.

 

 

Chairman Bolin read aloud a resolution recognizing the Military Officers Association of American, Cape Canaveral, Florida Chapter (MOAACC).

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to adopt Resolution No. 09-255 recognizing the Military Officers Association of American, Cape Canaveral, Florida Chapter (MOAACC); and recommends that the citizens of Brevard County also acknowledge their accomplishments in  community support.   Motion  carried and ordered unanimously. 

 

 

Bill Brandon, MOAACC President, expressed appreciation to the Board for the Resolution; and stated MOAACC National has 360,000 members and is located in Alexandria, Virginia.  He stated the Cape Canaveral Chapter of MOAACC has approximately 1,450 members; it is the largest Chapter in Florida; and it is the second largest Chapter in the Nation.  He stated while MOAACC is an Officers Association, it supports all veterans and service members and their dependents; and MOAACC co-chairs the Military Coalition, which has over four million members.  He stated the Cape Canaveral Chapter has two fundraisers each year; one is the scholarship fundraiser in the spring; and the other is the Good Deeds fundraiser in the fall.  He noted the Good Deeds fundraiser is not endowed and almost all of the money is given away; the major benefactor in the Good Deeds fund has been the Operation Warm Heart at Patrick Air Force Base, which is managed by the First Sergeants Council, and benefits servicemen of all five of the military services assigned to Patrick Air Force Base; and MOAACC has been donating $6,000 per year to Operation Warm Heart, which allows MOAACC to keep several thousand dollars for different charitable gifting throughout the year until the next fundraiser. 

 

  

 

Chairman Bolin read aloud a resolution recognizing April 1, 2010 as Census Day.

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to adopt Resolution No. 09-256 recognizing April 1, 2010 as Census Day; and pledges its full support to achieving a complete and accurate census count.  Motion carried and ordered unanimously. 

 

 

Carl Finnerson presented a video to the Board.  Mr. Finnerson expressed appreciation to the Board for the Resolution on behalf of the volunteers of the 2010 Brevard County Census Committee; the vounteers have dedicated themselves to ensure there is an accurate and complete count in Brevard County; and he appreciates the Board’s support and commitment. 

 

 

 

County Manager Howard Tipton, advised he would like to reschedule Item III.B.5., Approval, Re:  Internal Auditing Services Contract, to the December 15, 2009 meeting.  He noted he would like to bring to the Board’s attention, Item III.B.2., Permission to Bid, Re:  Purchase and Installation of Equipment for New Data Center at Harry T. and Harriette V. Moore Justice Center for Information Systems; it is important to note there is going to be a joint data center that will be constructed in the Moore Justice Center; it is a cooperative effort between the Clerk of Courts and the County; and he is looking forward to the Center, as it is a great project.

 

 

 

Commissioner Fisher stated the Board directed him a few months ago to try to negotiate with the West Melbourne Health and Rehabilitation Center; the negotiations have not been going in the direction that he would like it to go; but he wanted to give the Board an update and get its opinion.  He stated Attorney Cliff McClelland represents the West Melbourne Health and Rehabilitation Center; the Center’s CFO indicated that the County owns the facility and they would like to eventually purchase it back from the County, but they are renting it for $32,500 per month; that amount was presented by the Center; and it was determined based on what the Center was paying on its debt services.  He stated Bill Benson did an appraisal for the County; the appraisal was $6.5 million; since then, he has had several conversations with Mr. Benson; at one time, he thought Mr. Benson appraised the facility with the Certificate of Need taken into consideration; but he later found out Mr. Benson did not take that into consideration; and Mr. Benson would like to look at that number again, although it may not be much of a difference.  He stated Mr. McClelland and Guy Spearman have indicated to him that they had an appraisal that indicated the value of the property is approximately $1 million; that value was taking into consideration some nursing homes in Indiana and Michigan, but no recent sales in Florida; the Health and Rehabilitation Center has come to meetings with different numbers in mind, such as $1 million, $1.5 million, and $1.8 million; and there has been some professional conversations, but he was summonsed by the Board to represent the taxpayers in a fair way in making sure Brevard County gets a return for an asset.  He stated the argument from the Health and Rehabilitation  Center’s representatives is that they are saying it is a facility the County inherited and did not pay for, and so if the County can get $1.8 million for it, it should be grateful; the Center has benefitted from the tax revenue over the years; and they knew that in 30 years, the facility would revert back to the County.  He stated the Center also has a concern about how it would look if 150 people would possibly have to relocate to a different facility if the Board does not sell it to them; and they would take their Certificate of Need and move on.  He stated the Center is making the assumption that the County will not be able to rent the facility to another vendor; stated he assured them that moving 150 people is not what the Board wants to do; but that is the Center’s business decision.  He stated the Center is also saying that since it pays the Board rent, it is a lease-to-own agreement, which was never agreed on; and they want to take the money it has paid the Board in rent over the last few months and accommodate them for renting the County’s facility and put it toward the purchase price.  He stated the Center wants him to believe the facility is old and obsolete, with the only real value being the land; and he has a concern about how the Center is driving up the price.  He stated he did some research on past appraisals to see if he was being unrealistic about what he thinks; he still wants to find out the value of the facility; the facility is 50,000 square feet on 5.5 acres, on S.R. 192, which is valuable land; there were some land sales in the area with a land value at $21 per square foot; and he would suggest the facility’s land value is approximately $4 million, without a building.  He stated the rental income of $32,000 equals $380,000 per year; and the rental income alone would put the value at $3.8 million.  He stated when he looked at the Center’s appraisal, it indicated that a skilled nursing facility, such as the Center is, should rent for between $456,000 and $600,000 per year, which told him the County is not even getting a fair market rent.  He stated he could support it if the finance is going to be issued for the Center and if they give the County $2 million in cash, and the County can carry a $2 million note; and he was thinking about an amount of $4 million.  He noted the Center did not like that idea; stated he suggested the Center pay the County closer to a fair market value in rent; and if it did that, the County could at least have a rental income.  He stated it was brought to his attention that the Board would not look good if it tried to sell the facility; and he would like some direction from the Board, because he thinks the other Commissioners are going to be lobbied, if they have not already been.  He stated as taxpayers, the Health and Rehabilitation Center is an asset; if the Board disposes of it, then it should get a fair market value for it; and that could mean that the Board may end up with a vacant building and will not have any income for a while.  He stated he wants the Center to continue operating as a nursing home; but negotiations could get difficult; and he wants to make sure the taxpayers get a fair value share. 

 

Chairman Bolin stated she appreciates the work Commissioner Fisher has done on the negotiations; and she does not want to put him in an awkward position.  Commissioner Fisher stated he does not want to put the Board in a bad position.  Chairman Bolin stated she would like to see Commissioner Fisher’s information in a staff report so that the Board can actually crunch the numbers; and it can be brought back to the Board for further discussion at a later date. 

 

Commissioner Infantini inquired if it would be possible to get a copy of the Health and Rehabilitation Center’s financial statements; she would like to know how much the 150 residents are being charged, and how much the Center is bringing in per month; and she would like to do a cost benefit analysis based on that information.  She stated she agrees with Commissioner Fisher;  stated it is  true the  County received a piece  of property it did not pay for;  but that was part of the facts and circumstances disclosed to them when they went into the deal; and for the benefit of the taxpayers, the Board cannot give away the property. 

 

Commissioner Anderson stated he would like to look over the information; and he is leaning towards Commissioner Fisher’s analysis, but he would like to read it over.

 

Chairman Bolin stated she would like an idea of how many open beds there are in Brevard County for nursing homes; and that would give the Board an idea of where it stands as far as if it had to move people to another location.

 

Commissioner Nelson stated it would also be helpful to understand how the County ended up with an interest in the property in the first place, and then what the value of that interest was over the years; stated he knows it was a tax break, but he would like to see that tax break equated to over 30 years of the bonds; and hopefully staff can figure that out. 

 

 

 

Commissioner Anderson stated there is a Workshop scheduled for December 17, 2009, but there is no topic identified for it; and inquired if that Workshop will still be held.  County Manager Howard Tipton advised he is not planning to bring anything to the Board on that date.  Commissioner Anderson stated he has been asked to do something that day for the graduating firefighters; and he would like to cancel the Workshop if the Board agrees.

 

Motion by Commissioner Anderson, seconded by Commissioner Nelson, to cancel the Workshop scheduled on December 17, 2009.  Motion carried and ordered unanimously.

 

 

 

Chairman Bolin she would like to propose giving December 31, 2009 as a holiday to County employees. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve December 31, 2009 as a holiday for County employees.  Motion carried and ordered unanimously.

 

 

 

Chairman Bolin stated every year, the County Commissioners are assigned to different committees to represent the Board; and she has the assignments for 2009-2010.  She stated Commissioner Anderson wanted to discuss Item VII.E.1., Discussion, Re:  Space Coast Growth Management Coalition; and she would like to move that item to her report.

 

Commissioner Anderson stated the Space Coast Growth Management Coalition has not met in a few months due to lack of quorum; 10 members were present at the last meeting to discuss the status of the Committee; a motion was made and accepted that the Coalition feels it has met its obligation that it was originally tasked with; each jurisdiction was asked for input; but there was a 9:1 vote that basically said the tasks that were originally assigned to the Coalition had been completed, unless there was other direction from enabling bodies; and the motion was to sunset, or at least to go to an ad hoc situation. 

 

Commissioner Nelson stated it is an accurate statement because there is no development going on right now; annexations have been reduced; but it also raises the question of what is the vehicle for sharing of information relating to other issues; and in other words, maybe the original purpose has been completed, but is there a need for some vehicle to continue discussions, such as consolidation, or blending, of services.  He stated the Board has had the discussion related to Fire Rescue; there may be opportunities for a group like the Space Coast Growth Management Coalition, maybe not in its current configuration, or a group similar, to continue those kinds of discussions; and a vehicle for communication is not a bad thing, particularly between cities, counties, and school boards in a difficult fiscal time. 

 

Commissioner Anderson stated two suggestions were to make the Coalition an as-needed type of committee, or maybe the Leadership Summit would be another area to handle communication.  Commissioner Nelson stated the Leadership Summit is on a high level with elected officials that it is difficult to have the kinds of discussions that lead to action; and maybe Commissioners and other elected officials do not need to be involved as much as the staff.  He stated he was uncomfortable sitting on the Growth Management Coalition as a Commissioner; a high level staff meeting on a variety of issues is not a bad thing; but it can be on an ad hoc basis.

 

Mel Scott, Assistant County Manager, advised there is a local chapter of the Florida Association of Planners and a Planning Coordination Committee that also meets on an ad hoc basis; the Board has a Resolution that establishes the framework for the discussions that take place, so that if the Board wanted to keep it in place on an ad hoc basis, then the ground rules would already be established for those discussions; and if the Board wanted to reinvent it so that it was more administration based and did not have that blend of staff and elected officials, then that might be an improvement moving forward. 

 

Commissioner Nelson stated the Board does not need to make a decision today; and he would like an opportunity to talk to some of the members of the Coalition and see what their thoughts are, and bring the issue back in January. 

 

Chairman Bolin stated she has not yet assigned anyone to the Growth Management Coalition; and the Board can put it on hold until January.  She advised there are two assignments that require a vote from the Board, which is the Children Services Council and the Value Adjustment Board; and on some of the other committees, she is investigating to find out if they are mandatory or if they can be consolidated into something else.

 

Commissioner Infantini stated she and Commissioner Anderson are on the Value Adjustment Board; one of the recommendations was to allow the current members from the County Commission to serve on the Value Adjustment Board for two consecutive years in order to maintain some continuity; and so far, the Value Adjustment Board has been able to be relocated into a more permanent facility in the Viera Complex, which is more easily accessed. 

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to retain Commissioners Trudie Infantini and Andy Anderson on the Value Adjustment Board for an additional year.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to appoint Commissioner Robin Fisher to the Children’s Services Council.  Motion carried and ordered unanimously.

 

 

 

Commissioner Nelson advised he will be voting nay on Item III.B.4., Award of Proposal P-2-09-22 and Permission for Chairman to Execute Agreement and County Manager or Designee to Execute Renewals, Extensions, and Amendments, Re:  Concession Services at Titusville Veterans Memorial Fishing Pier.  He stated when the Referendum was being discussed, it was not going to be the type of facility that it has evolved into; a Committee was put together and came up with an agreed-to format; and that format has never been implemented.  He stated he is compelled to vote no, because he would have preferred to try the original commitment, which was the County running the facility for more of a recreational-type use; it is being converted to more of a commercial use; and he hopes it is successful, but it will change the character, and he will be voting no.

 

 

 

Chairman Bolin advised Item III.C.1., Confirmation of Appointment, Re:  Animal Services and Enforcement Department Director, will be pulled for discussion. 

 

Commissioner Infantini stated she would like to pull for discussion, Items III.A.3., Contract for Sale and Purchase with Murrell Barnes One, Inc., Re:  Barnes Boulevard Widening Project Parcels 144 & 729 – FY 09-10; III.B.2., Permission to Bid, Re:  Purchase and Installation of Equipment for New Data Center at Harry T. and Harriette V. Moore Justice Center for Information Systems; III.B.3., Approval of Policy BCC-28, Re:  Pre-Qualification of Construction Bidders Prior to Award; and III.C.4., Approval, Re:  Bills and Budget Changes. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution No. 09-257, releasing Contract with The Viera Company dated July 7, 2009, for Breslay Commons, Phase I.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve and grant permission for the Chairman to execute a Right-of-Way Use Agreement with the Viera East Community Association, Inc. for installation and maintenance of landscaping and irrigation improvements within the public right-of-way of Viera Boulevard between Murrell Road and the Interstate 95 (I-95) overpass.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve a two-year contract renewal with Communications Concepts, Inc. for the www.Space-Coast.com Internet site design, management, and maintenance at the current fee schedule of $2,000.00 per month.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve the recommended award of Proposal #P-2-09-22 to Capital Seas, Inc., for concession services at Titusville Veterans’ Memorial Fishing Pier; authorize the Chairman of the Board to execute the Agreement; and authorize the County Manager or designee to execute Agreement renewals, extensions, and amendments.  Motion carried and ordered; Commissioner Nelson voted nay.  

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to reschedule the Award of Contract for Internal Auditing Services RFP #P-3-10-04, to the December 15, 2009 Board meeting.  Motion carried and ordered unanimously.

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve the write-off of various uncollectible receivables identified by Board Departments.  Motion carried and ordered unanimously.

 

 

Anna Brown stated she is speaking on behalf of Space Coast No More Homeless Pets, which fully supports County Manager Howard Tipton in his decision to recommend Michael McFarland as the Animal Services and Enforcement Department Director; and stated Space Coast No More Homeless Pets is excited about reaching its goal of no-kill shelters.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to confirm the appointment of Michael McFarland as the new Brevard County Animal Services and Enforcement Department Director.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Commissioner Infantini stated she has expressed some reservations regarding Mr. McFarland’s employment history; and at this point in time, she has to vote in opposition of the appointment.

 

 

 

John Denninghoff, Public Works Director, advised the Barnes Boulevard Project is a road widening project; the length of the project is from Murrell Road to Fiske Boulevard and I-95 Interchange; the transaction is associated with the taper that is going to be on the east side of Murrell Road that harmonizes the project from a four-lane future project to the existing two lanes east of the location of the project; and in order to accomplish that taper, staff has to acquire some property in the area to allow for those tapers.  He stated the subject property is in that area on the south side, located to the east of the convenience store at the corner of Murrell Road and Barnes Boulevard; the requirement is for a strip of property approximately 11 feet wide and also for a Temporary Construction Easement (TCE) from the remainder property; the parcel the County is acquiring the land from is part of a master planned, small development project with the convenient store and several other pieces of property involved; and there is a master site plan with a master drainage system, a master access, unified driveways on Barnes Boulevard, and parking areas along Barnes Boulevard.  He stated the acquisition will cause the property owner of the remainder property to alter their site plan and change their parking and driveway access configuration; the appraisal included the value of the land, the damages associated with having to make those changes; and it also accounts for site plan revisions that have to be implemented.  He noted the value is approximately $62,000.

 

Commissioner Infantini inquired how much footage has the County already acquired, and how much will staff be coming back to the Board for to purchase.  Mr. Denninghoff replied he does not have the  exact  numbers, but   there  is approximately  30  percent  of the  frontage  that   is required; two retention ponds have been acquired, which was a substantial acquisition; most of it has been acquired either through donation or impact fee credit arrangements; and staff is actively working on the remainder at this point, which is the other two-thirds.

 

Commissioner Infantini inquired what fund will the money be coming out of; with Mr. Denninghoff responding the overall project is paid for with a combination of impact fees that have been collected over the years and LOGT bond proceeds; the County has also been approved for a grant from FDOT through a Trip Grant, which is for $8 million; however, that has been delayed because of State budget issues, and it is approximately two and a half years out if it does not get delayed further in the upcoming Legislative session. 

 

Commissioner Infantini stated her concern with this project is, assuming the Board had not already received 30 percent, it looks like it will cost the County approximately $2.7 million, since it will cost $62,000 for every 11 feet that has to be purchased; and she does not want to be hit with $62,000 today and then in three weeks another $62,000 for every 11-foot parcel.  She stated even the appraiser came back with a value of $49,000; the owner came back with an offer of $62,000; and if the Board is going to bump up the appraisals an extra 20 percent or 30 percent, it is going to break the County.  She stated in the interest of the taxpayers, she cannot vote for paying this astronomical price for 11 feet; and inquired if it is just a driveway that is being impacted.  Mr. Denninghoff replied it is the driveway and the parking area associated with that driveway; it is not 11 feet of frontage, but 11 feet of depth on property over the length of the property; the real impacts are compensable under State law; and if the County were to go after it in a different manner, it would have to pay for experts, as there are no experts in the County except for the Attorney review.  He stated staff is compensating for the site plan modification that will be required as a result of the taking; essentially, the alternative way of acquiring property would be to seek it through eminent domain, which would cost more than what is being proposed currently. 

 

Commissioner Infantini stated rather than going through a quick-take process, could the Board go through it with a slow-take process, because the expansion is not going to be done tomorrow; and she would like to see staff negotiate a better price with the landowners.

 

Chairman Bolin stated the project is one the County has been working on for quite some time, similar to the widening of Hollywood Boulevard; the $1,733 for the site plan revision is a fair price the Board has to pay because of the changes being made; and as for the $1,750 for the Attorney review, it is a very fair value for the overall project that the Board is going to be doing.  She noted it is a joint project with the State and the City of Rockledge; and she is in favor of acquiring the land so that the project can be completed. 

 

Commissioner Fisher inquired what a temporary construction easement is.  Mr. Denninghoff replied a temporary construction easement is needed in order to be able to construct the improvements in the road right-of-way, but it does not need to be acquired permanently; once the construction is completed, it can revert back to the property owner; and it is a temporary encumbrance on the property, and use of the property.  He  stated in  effect, what the  County is paying for is the opportunity to rent the property for a period of time; and the property owner cannot build anything on that property until the temporary construction easement expires.

 

Commissioner Anderson inquired if County Attorney Scott Knox knows what the claim will be if the property went to an eminent domain procedure on the property owner’s behalf.  Attorney Knox replied the Board can take the County’s appraised value and add to it the cost of an engineer, and an appraiser that both sides of the County would have to pay for, which will be $5,000 each at a minimum; and the Board would be looking at a cost of $20,000 off the top.  He stated there would also be attorneys that would be involved in a trial if it goes to trial; and the total could go as high as $30,000, in addition to the appraised value.  Chairman Bolin stated the Board would be paying fees equal to half the value of the land to do eminent domain.

 

Chairman Bolin passed the gavel to Vice Chairman Fisher.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Contract for Sale and Purchase and Addendum with Murrell Barnes One, Inc. and waive the Phase I Environmental Assessments and survey requirements, for property needed for the Barnes Boulevard Widening Project.  Motion carried and ordered; Commissioner Infantini voted nay. 

 

 

Vice Chairman Fisher passed the gavel back to Chairman Bolin.

 

 

Commissioner Infantini inquired if there was any way the project could have been included in the original build-out of the courthouse.  Steve Quickel, Facilities Director, replied he does not believe the project was thought about at that particular time; staff has had plans to put that room in other locations, but now it just makes sense to put it in the Justice Center; with the build-out and the Clerk’s area, there is plenty of room for the project; and the project combines responsibilities in one area.  Commissioner Infantini stated going forward, when there is a big project, she would like staff to look at all the factors.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to authorize permission to bid the purchase and installation of equipment for a new data center for Information Systems at the Harry T. and Harriette V. Moore Justice Center; and authorized the Chairman to sign the contract. 

 

 

 

Commissioner Infantini stated she does not have any documentation that the County requires that the contractors be bonded or insured; and inquired if that language could be added into the Policy.  She stated one contractor who is building a facility for the County is not bonded; and she does not want to see that happen in the future.

 

Steve Quickel, Facilities Director, advised staff has no objections to adding that language to the Policy; the intent of the Policy is to meet the needs of the Board; and if it is the Board’s desire, that language can be added.

 

Commissioner Nelson stated he recalls that the Board previously reduced the language in the Policy because the construction industry came to it and said it is driving up the cost of its projects for the bonding requirement; and it was also reducing the pool of contractors available to do the work.  He stated the Board can require bonds on everything, but it is going to have an impact fiscally, as well as to the number of contractors available to do the work. 

 

Stockton Whitten, Assistant County Manager, advised the bonding requirement is covered under the procurement policy; and it is also referenced as an attachment.  He stated the reduced requirement Commissioner Nelson spoke of is also in the procurement requirement; but the overall requirement to have a bond is also in the procurement policy. 

 

Commissioner Infantini inquired if that means the County will not have contractors who are not bonded; states she realizes it may save the Board some money up front, but on the back end, if the contractor does not complete the project, the Board is left with it; and she would rather have the contractors bonded, as it would be guarantee on the project.  Mr. Whitten stated he does not know the particulars on that issue, but there is a requirement to be bonded.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Policy BCC-28 establishing a uniform system for the pre-qualification of bidders prior to award of projects exceeding $50,000.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Infantini stated the bill folder reflects $139,000 to go toward legal fees for RKT Contractors’ litigation expenses; the Board has already paid RKT Contractors $216,000 to litigate; the Board has already paid an outside legal firm based out of Tampa and Atlanta; and now the Board is paying them another $139,000.  She stated at that rate, the Board could have in-house attorneys handle the litigation; and if the litigation cannot be handled in-house, it could at least be done locally so the Board is not paying transportation costs.

 

Scott Knox, County Attorney, advised the Mills Firm from Tampa is handling the litigation; the Mills Firm has represented the County in the past, primarily on the Space Coast Stadium construction issues that arose a few years ago, and was successful; it is a $1 million litigation case;  and  it is one that requires expertise in construction law cases.   He  noted  if  the  County succeeds in the case it will recover all of the attorney’s fees and costs; and Mr. Mills is confident that he will prevail.

 

Commissioner Infantini stated the next item she has a problem with is to approve $8,500 in costs that were already expended for a trip by the Tourist Development Commission; when originally budgeted it was approximately $3,500; and now the Board is being asked to spend $8,500.  She noted frequently, the Board is asked to approve things that were already spent; and inquired if it is already been spent, then why is the Board giving approval. 

 

Commissioner Fisher inquired if most of the travel by the Tourist Development Council budgeted.  Assistant County Manager Stockton Whitten advised the Administrative Order says if there is a budgeted trip and it exceeds what was budgeted by 20 percent, then it goes in the bill folder; and this item could have been a budgeted trip, but could have exceeded the expenditures by 20 percent. 

 

Assistant County Manager, Mel Scott, advised the trip was budgeted for one person; the sales directors wanted to go on the trip as a co-op; the show was expanded, because originally it was supposed to be just one staff person; and it was opened up to more of the industry in order to get more participation, therefore, the cost was increased.

 

Commissioner Nelson stated the trip is paid for by the Tourist Development Tax, as opposed to property tax; and the industry that collects money was actually the industry that paid for it.

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to approve the Bills and Budget Changes.   Motion carried and ordered;  Commissioner Infantini voted nay.  

 

 

 

Steven Cross stated he is the Public Relations Officer with ATM Recycling; two years ago there was an issue of working outdoors in BU-2 Zoning; ATM Recycling is located at 2151 Lois Lane in Cocoa; and the business is on a flag stem piece of property.  He stated ATM Recycling constructed a 10-foot wall on the property; unless someone visits the facility, no work can be observed from the outside; and several years ago there was an issue about what kind of work could be done outside.  He stated ATM Recycling came into compliance at a cost of $500,000; a 7,200 square foot shed was built in order to unload customers inside; the shed turned into a standard package of the building for Brevard County; it has a state of the art septic system, handicapped restrooms, 118 pieces of shrubbery, trees, and bushes; ATM Recycling had to go before the Special Magistrate many times asking for extensions because of the delay in the building; and once in compliance, the Board was kind enough to reduce fines that accrued over the course of two years, to the point there was a lien on the property that has since been lifted.  He stated ATM Recycling is in full compliance; but there is another recycler that has repeat violations; the recycler is still unloading outside, he is still open for business; he stated the recycler he is referring to is Cocoa Recycling; and Cocoa Recycling is not following the same rules as ATM Recycling, also located in District 2.  He stated ATM Recycling is looking for some kind of resolution for making everyone follow the rules, which was a decision made by the Board two years ago; and inquired at what point does everyone have to follow the rules.

 

Commissioner Nelson stated numerous complaints have been issued on Cocoa Recycling; Code Enforcement is going through the due process; and he would like to get a staff report on where Code Enforcement is in that process. 

 

 

Chairman Bolin called for the public hearing to consider resolution vacating right-of-way – London Boulevard fka Roosevelt Avenue Map of Kelly Park/Fatima Phillips & Space Coast Petro Distributor, Inc.

 

Commissioner Nelson stated the Homeowners Association has been a little slow in getting together; and inquired if staff has any additional information on when the Homeowners Association is going to meet.

 

John Denninghoff, Public Works Director, advised he believes the Homeowners Association intends to meet this week; however, they are concerned they will not have sufficient attendance; and the Homeowners Association would like some more opportunities to hold that meeting in order to get the issue resolved.  He stated the leadership of the Homeowners Association has been diligent; but they are asking for more time; and the petitioner and the HOA President have agreed to the concept of a continuance to February 9, 2010, which would allow the HOA ample time to meet and decide if they like the idea or not. 

 

Commissioner Fisher inquired if the continuance is holding up the applicant.  Mr. Denninghoff replied it is holding up the decision, but the applicant has not indicated that they have anything hinging on the decision.

 

*Commissioner Infantini’s absence is noted.

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Nelson, to continue the public hearing to consider a resolution vacating a portion of London Boulevard fka Roosevelt Avenue Map of Kelly Park as petitioned by Fatima Phillips & Space Coast Petro Distributor, Inc., to the February 9, 2010 Board meeting.  Motion carried and ordered unanimously.  Commissioner Infantini absent from vote.

 

 

Chairman Bolin called for the public hearing to consider an ordinance amending Ad Valorem Tax Abatement Ordinance.

 

There being no objection heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Ordinance No. 09-32, amending Section 102-185 of the Code of Ordinances of Brevard County, Florida; providing for voiding of the Grant of Economic Development Tax Exemption upon receipt of Notice of Intent not to undertake activity qualifying as a new business or expansion of an existing business; providing for severability; providing for an effective date.  Motion carried and ordered unanimously.  Commissioner Infantini not present for vote. 

 

 

Chairman Bolin called for the public hearing to consider an ordinance amending Harris Corporation Ad Valorem Tax Abatement Ordinance.

 

There being no objection heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Ordinance No. 09-33, amending Ordinance 2009-69, granting an Economic Development Ad Valorem Exemption to Harris Corporation, Palm Bay, Florida; creating a new subsection 1(g) providing that the ad valorem tax exemption granted under this Ordinance shall not take effect or be implemented after receipt of notice from the company; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of Section 196.012, Florida Statutes; providing for proof of eligibility for exemption; providing for an annual report by Harris Corporation; providing an effective date.  Motion carried and ordered unanimously. Commissioner Infantini not present for vote. 

 

 

*Commissioner Infantini’s presence is noted.

 

Lisa Smith stated she served on the Florida Native Plant Society for the Landscaping, Land Clearing, and Tree Protection Task Force, dedicated her time once per month for almost three years; and she accepted the volunteer role because she agreed with the design of the Task Force, which reflected the County’s clear understanding of the broad cross section of businesses, organizations, and individual property owners that would be directly affected by the re-writing of the County’s pre-2006 Landscaping, Land Clearing, and Tree Protection Ordinance.  She stated the Task Force’s assignment as volunteers was to develop a fair and balanced Code that considered all of the community’s interests in an open, public forum; the Ordinance the Board approved on September 15^th is the consensus product completed after long hours of debate and compromise by the broad-based Task Force; and the proposed amendments to the consensus document that the Board is considering today, are the views of one of the 16 community interests, including citizenry that were represented by the Task Force.  She stated the amendments are a substantial modification to the consensus Ordinance; and the Board’s  approval  of the  amendments  today clearly devalues  the Task Force process and  the thoughtful time that was contributed by each of the participating members.  She stated the benefits of an effective landscape ordinance requires a long-term commitment by the community; and by changing the Ordinance with each incoming Commission, the community is losing the opportunity to create an community that each person can be proud of and that each can enjoy conducting business and recreation.  She stated she would like to bring to the Board’s attention, Attachment C, from the October 20^th staff report; Attachment C shows each of the categories the Task Force was tasked to evaluate; and in each category there has been a reduction in the regulation of that Code.  She stated there is concern that the current Landscape Code burdens development in the currently depressed economy; but she disagrees; the development community and the community as a whole directly benefits from an effective Landscape Code; stated people flock to commercial and residential areas that are well-landscaped; and additionally, trees add value to property taxes.  She stated she would request the Board allow the Ordinance to be put to the test for at least one year before approving the single-interest  amendments; and if concerns remain after one year, then the Board can allow the amendments to be subject of several public workshops so that the community at large can debate the long and short-term benefits of the impacts.

 

Franck Kaiser stated he supports the proposed amendments for the Landscaping, Land Clearing, and Tree Protection Ordinance; as an appointed member of the Public Construction Advisory Committee, the amendments have been reviewed numerous times in detail; and the Committee’s last report to the Board recommended that there either be a users manual to understand the Ordinance, or it had to be simplified and streamlined so that both staff, citizens, and developers could understand and implement the Ordinance.  He stated the amendments are at the request of the Building Construction Advisory Committee, in agreement with staff that the amendments were needed; the amendments are not going to significantly reduce any of the original intention of the Ordinance; the Ordinance replaces three Ordinances that were difficult to comply with; and through the collaboration process, which was thorough and comprehensive, but unfortunately, it was so technical that technical experts could not understand it.  He stated all that is being looked at is a simplication; it is not perfect; it could still be a little more user friendly; but the BCAC is satisfied with the proposed amendment to move it forward and get it into place.

 

Susan Hall stated she is a Landscape Architect and served as an alternate on both past Task Forces, representing the American Society of Landscape Architects (ASLA).  She stated she would like to bring to the Board’s attention the letter that Brad Smith sent to it on behalf of ASLA; the Ordinance submitted by the Task Force to the Board addressed a number of concerns and challenges; and the Task Force returned to the Board with a consensus document.  She stated she asks that the Board consider the points outlined in Mr. Smith’s letter and allow the Ordinance be tested in the field for a period of one year before approving the proposed substantial changes.

 

Raphael Hanley stated The Viera Company is in favor of some of the proposed amendments; the amendments make the Ordinance more user friendly; he is not objecting to the changes as they are proposed; but he does think there should be a one year moratorium to consider it and keep it as  it is  currently.    He   stated  there   were two  sections  of  the  Ordinance  that  were discussed at the last LPA (Local Planning Agency) meeting that also needed to be amended; and he is not sure if those sections are incorporated in the changes the Board is considering today.

 

Ernie Brown, Natural Resources Management Director, advised the recommendations Mr. Hanley is referring to is in Attachment E; staff did not make any modifications that deviated from the specific Board direction that was provided on October 20, 2009; the recommendations of the LPA were not incorporated into the draft amendments proposed today; and if the Board chooses to take action on that, staff will modify it at that point. 

 

Mr. Hanley stated the two Sections, 62-4343 and 62-4345, both create what he thinks was intended to be done away with by the Board, which is putting a permanent restriction on property if there is a tree on it; if a tree dies, there is now a piece of property with a conservation easement on it forever that has encumbrance on the property; instead, the language has been re-written to where there is now it is going to be subject to being platted in the public record; but there is still a conservation easement effect based on the current language, that forever, the property is encumbered even though there is not a tree, with an inability to be able to develop that property because there is a cloud on the title based on either plats or other language. 

 

Commissioner Fisher stated he thought the Board agreed to remove the conservation easement portion of the Ordinance.  Mr. Brown stated that is correct; when the Board adopted the full recommendations of the Landscaping, Land Clearing Task Force on September 15, 2009, the one omission was to remove the conservation easement requirement; it was completely removed from the Ordinance; the requirements for conservation easements, which is a complex cloud-on-title criteria, is no longer in there; the major point of conversation during the October 20, 2009 meeting was putting conservation easements over the preservation criteria; but that is no longer a requirement; this only applies to less than five percent to all of the plans that come in to the County; and it is not an encumbrance as it relates to a conservation easement.  He stated the only thing this particular element says is that somewhere in the public record it has to be noted; for future owners’ due diligence when researching property, they are aware of the Alternative Landscape Enhancement Plan that has been put in force; but it is not a conservation easement. 

 

Commissioner Nelson inquired what is the Alternative Landscape Enhancement Plan, why is it generated, and what does the developer or builder receive as a benefit for doing that.  Mr. Brown advised a developer or builder enters into the Alternative Landscape Enhancement Plan, they are allowed to deviate from the conditions of the standing Ordinance and come up with some creative solutions, which may require reducing buffers, eliminating all the preserve canopy; and in lieu of that, as a mitigation tool, they may plant additional plantings in a separate track or in some other areas; and at that point those are noted they are to be preserved.  He stated what the Plan provides is an offset where they do not meet the conditions of the existing Code; when they do not meet the conditions of the existing Code, they go into the Alternative Landscape Plan; and in order to mitigate, or compensate for that, they may create some other modifications to the site.  He stated those modifications, only under the Alternative Landscape Enhancement Plan, does the restriction apply; it is to the benefit of the developers or builders in the short-term; but in the long-term it is a benefit to any future buyers so that they are aware of that.

 

Commissioner Nelson stated what it does is that because a developer cannot meet the current Code, there has to be an alternative that allows them to meet the Code, but they have received an additional benefit as a result of that decision; and the County has now allowed them to develop substandard landscaping by creating an alternative plan.  Mr. Brown stated that is correct.

 

Mr. Hanley stated if landscaping grows on a piece of property, it can end up having more coverage on that property than there was originally, but it is still set aside forever because when the building was originally built, the trees were not that big; and the property is subject to conservation forever, whether or not it is called a conservation easement. 

 

Mr. Brown stated as with any development project, when a developer desires to make modifications to a building, under the ALEP, they can modify that; since the September 15^th enactment of the Ordinance, staff has reviewed 23 projects; all of the projects are permittable and buildable; only one of the 23 projects may actually enter the ALEP process; during the development boom, there was 15 percent of those projects entering the ALEP process; and the ALEP process is the only time replacement criteria comes into play.  He stated prior to the Ordinance change on September 15, 2009, replacement was required whether in or out of an ALEP; as of September 15, 2009, 23 site plan projects have been reviewed, and all of them are buildable; and only one of them may be an ALEP.  He stated it is a working document as approved by the Board on September 15^th; the site that was used as an example to necessitate the changes being considered today, the small, less than three-acre site that was a heavily wooded commercial site and unbuildable under the current Code; and now it is buildable and does not meet the ALEP criteria in the September 15^th Ordinance. 

 

Commissioner Fisher stated his concern is with getting something recorded on a deed, as it is difficult when there is a title policy with a restriction on it.  Mr. Brown stated it is not being recorded on the deed; there are several ways to accomplish the recordation; it can be put on the declaration of covenants, notes can be put on the approved landscape plan, it can be put on the recorded plat conditions; and a developer can even use the conservation easement if it is their desire to do so.  He stated the primary objective is that it is imperative that staff ensures that the mechanisms placed so that future buyers are aware of the restrictions on a property; it would inappropriate for staff to put a restriction on a property, but then lead a future buyer vulnerable to that because safeguards were not provided for the future buyer.  He stated the problem with conservation easements is that they require a great deal of energy to undo; the amendments proposed are able to be modified, but it puts future owners on notice that it exists; and they are able to be modified should conditions change.

 

Tuck Ferrell inquired if there is an exemption for agricultural pursuits in the Ordinance; and stated occasionally, he has to take out trees in his pasture in order to maintain his agricultural areas.  Mr. Brown stated the Agriculture Committee was heavily involved in the Task Force to ensure there were safeguards  to  protect  the  agricultural  community;  all  bonafide agricultural

activities that are protected under State Statute are fully exempt from the Ordinance; and there are non-bonafide agricultural activities that also have provisions to be exempt as well.

 

Mr. Ferrell inquired if the canopy requirements have changed.  Mr. Brown advised currently, the commercial, institutional, and industrial canopy requirements are identical at 10 percent for preservation canopy, and they would not be changed by the proposed amendment.  Mr. Ferrell inquired what happened to the 25 percent proposal; with Mr. Brown responding the September 15^th changes incorporated a significant reduction in canopy preservation for industrial, commercial, and institutional classifications, and they are now at 10 percent preserved canopy; and it was lowered from the standard 25 percent. 

 

Commissioner Anderson stated the Board needs to streamline the Ordinance as much as possible to ensure it is not competing with municipalities that have less stringent Codes; he is still confused about the LPA’s recommendations; the staff report conflicts with what the LPA recommended; and stated there seems to be some resistance with the LPA recommendations.  Mr. Brown stated staff does not have any resistance to the LPA recommendations; staff will implement and enact the desire of the Board; but there was a great deal of conversation and accusations from the LPA to staff that it had left in the conservation easement language; and staff wanted to make it clear to the Board that the conservation easement language was removed as directed by the Board on September 15^th, and there was no effort by staff to infer otherwise. 

 

Commissioner Fisher inquired if citrus is considered agricultural.  Mr. Brown replied yes, and staff created a definition of fruit and nut crops to ensure, without any question, that if someone has a fruit or nut crop they can either ignore it, or use it to their advantage through the Ordinance.

 

Commissioner Fisher stated he is concerned about clouding the title down the road.  County Attorney Scott Knox advised the Board can add a provision that allows it to grant relief under whatever circumstances it would like to come up with; the way it is structured currently, it is optional with the developers as to how they want to handle the restrictions; there is a way they could do that that would allow them to come back to the Board if it had a provision that allowed them to do that.  Mr. Brown stated recordation is one of the options a developer has; if a developer makes it a note on the approved landscape plan, they can certainly come in and modify it at staff level without having to come back to the Board; and it would only apply to less than 5 percent of the projects that would come in, and it only applies to those projects in the ALEP category. 

 

Commissioner Infantini inquired what is Mr. Hanely’s interpretation of the recording of the non-conservation easement.  Mr. Hanley replied there is no option given; it has to be recorded; it has to be for perpetual preservation; and there is no leeway whatsoever.  He stated if the Board adds something that says a developer can come back to the Board, unless the perpetual requirements are taken away, it is still stuck there; if plat is re-filed that has a restriction on it, it is harder to get that plat released ever than it is to get a conservation released.  He stated he believes the language complicates things unnecessarily; and he would recommend the removal of two paragraphs.  Commissioner Infantini inquired which attachments would Mr. Hanley remove.  Mr. Hanley replied Attachment E, Section 62-4345 and Section 62-4345; and one Section is on restoration and the other is on relocation.

 

Commissioner Nelson stated the simplest thing to do would be to get rid of the ALEP’s, because then it would be out of the Ordinance entirely; but what the Board will have created is the ability for somebody who could not meet the Code, to still develop their property; and to him, that rises to a higher level of responsibility.  He stated five percent does not seem unreasonable; the simple thing would be to get rid of the alternative method of meeting the requirement, and then the Board does not have to worry about it, or if there is going to be an alternative method, the Board is being asked to give a free pass on doing something; and the Board wants to know that whatever it is a developer does is going to persevere.  He stated there is a choice; a developer can meet the Code as it currently exists, or if they want to do an alternative, there is a higher standard that has to be met because that developer is going to be doing things that are not consistent with the Code.  He stated the simple solution is to just follow the Code.

 

Commissioner Fisher stated he agrees with Commissioner Nelson, but he is trying to get to a point where it is an option to have it recorded.  Attorney Knox inquired if it is Mr. Brown’s reading of those two Sections pertaining to where it reference the public recording, that any document set forth in those two paragraphs would have to be recorded.  Mr. Brown stated that is his understanding of it; the intent is to ensure that there is some mechanism to let future buyers be aware of the Alternative Landscape Enhancement Plan; there could be a note on the landscape plan, and if someone wanted to record that, they would just have to go to the Courthouse and have it recorded.  Attorney Knox stated if that is the case, the technology is available to make notes on pieces of property on certain things that have been approved by the Board; and one of they ways this can be handled is make that kind of a note, and when a property owner wants to buy property and does due diligence, they will find that note; and if they want to modify it they have to go to staff or come back before the Board.  He stated he does not read the paragraphs as requiring the recording of a landscape plan that has notes on it that may be recorded in staff records on a piece of property; and it can be made clear that the notes are not included in the recording requirement. 

 

Kathleen Burson stated she is a Landscape Architect; she was on the Task Force, which was composed of a broad diversity of professionals, such as engineers, farming professionals, and realtors, along with each District in the County.  She stated from the very beginning, the Task Force’s consensus was that this was not about keeping wild lands within urban areas; it was conceded that this was about how to make it easier for development to occur in the County; and under that consensus it was determined that if there is going to be green within the urban environment it has to be healthy.  She stated one of the things she provided was the data from the University of Florida on how to keep trees healthy, whether they are preserved, or whether they are planted.  She noted she saved one of her clients over $20,000 in landscape costs because everything they had to meet the landscape requirements was preserved trees; she has not had a client that has had a problem with the County’s landscape Ordinances through her design work and planning, because she thinks of preservation first; and preservation is an incentive for the developer to develop within the County.  She stated the ultimate decision of the Board was a consensus; and anything that has come in since then is not a consensus of the Board.  She stated she supports the letter from Brad Smith; she supports the previous speaker; and she supports the Ordinance without the proposed amendments. 

 

Bruce Moia stated there is language proposed by staff based on discussions from previous Board meetings; based on meetings he has had with the EDC, Chamber of Commerce, and some local builders, they support the language because it puts it more in line with the rest of the community; and he feels the language makes Brevard County more even across-the-board, which is why the language is being proposed.

 

Attorney Knox stated the two paragraphs referenced by Mr. Hanley are basically the same paragraphs in different sections; and he would recommend the Board revise the language as follows:  All restoration or replacement areas shall be permanently protected in a recorded plat condition or declaration of covenants, recorded in the official records of Brevard County, or with sufficient protective language as noted on the approved landscape plan, which shall be noted as condition of approval in property records maintained by Brevard County Government.  He noted there are two different sets of documents; one is the documents maintained by the staff, which is what landscape plan condition of approval would be noted; and the other would be a recorded document in the official records, not the public records.

 

Commissioner Fisher inquired if the Board would still have the ability to come back and modify it if the builders or developers are not meeting the spirit of it.  Attorney Knox advised one would be treated as a condition of approval, meaning they would have to follow it, and the other one is a recorded document, which means it is virtually impossible to change without coming back to the Board in a more arduous process.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to direct staff to revise the language in Chapter 62, Article XIII, Division 2, Entitled Landscaping, Land Clearing & Tree Protection, as follows:  All restoration or replacement areas shall be permanently protected in a recorded plat condition or declaration of covenants, recorded in the official records of Brevard County, or with sufficient protective language as noted on the approved landscape plan, which shall be noted as condition of approval in property records maintained by Brevard County Government.  Motion carried and ordered; Commissioner Nelson voted nay. 

 

 

Commissioner Nelson stated he is okay with the clarification, but he is not okay with the other changes; the Board did an important job of cleaning up the Ordinance to get to this point; and he is concerned it has been taken out of the hands of the people who did the original work.  He stated he believes the Board needs to work with it for a period of time to see if it works; and there has already been an indication in the past two months that the number of alternative plans has dropped dramatically; and he is not in support because the additional changes did not go through the Task Force.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve revised Policy BCC-24, Acquisition or Exchange of Real Property.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to execute Task Order 00-51 with S2L, Inc., for Solid Waste’s continuing engineering consultant, to conduct wildlife habitat surveys at U.S. 192 Site in the amount of $89,107.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini inquired how much has the Board paid Jones, Edmunds & Associates to date. 

 

Dennis Davis, Vice President, Jones, Edmunds & Associates, advised on the construction phase of the project, the original contract amount was approximately $325,000; and JEA has essentially built approximately $300,000 of the project so far, on the construction phase services.

 

Commissioner Infantini inquired if the Board is going to be incurring another $273,000.  Euri Rodriguez advised, this Task Order is different than any other Task Order he has brought to the Board; it is broken up on a weekly basis; and the Notices to Proceed are issued as needed, and not on a general basis for the entire amount.

 

Commissioner Infantini stated there is a provision for an additional 14 weeks, yet a 30-day extension has been given, which is roughly four weeks; and so the Board is projecting out billings for 13 weeks, when it has only granted an extension for four weeks.  She stated when she looked at the engineering schedule of fees, the Board has approximately four levels of supervision over a staff engineer; it appears to be a little top heavy; stated perhaps some of the oversight could be cut back; and inquired how a 14 week schedule was concluded when only having a 30-day extension.  Mr. Rodriguez advised the contractor is already 30 days behind, and has asked for an additional 30 days, which have not been granted up to this point; the reason it has not been granted is because at this point staff does not feel there is sufficient reasons for the contractor to be delayed; but that does not mean that he will not be delayed, it just means that officially the Board has not granted permission for him to be delayed; there are fines that will be incurred if the contractor is delayed beyond what it authorized; and those fines are $500 per day.  He stated  staff  is  trying  to anticipate  how  much  the  contractor  could  be delayed in the future; but staff knows it is going to be 30 days; and that is one of the reasons staff is setting up the Task Order so that it would be approved on a week-to-week basis.

 

Commissioner Infantini stated she does not see where it was the Board’s fault that there were rain delays; and inquired why the Board is going to incur an extra $273,000 because there were rain delays.  She noted Masci Construction should have been budgeting for rain delaysHe ; now the Board is being asked for additional time to complete a project, which is now going to cost extra engineering fees; and inquired why Masci Construction is not paying the costs.  Mr. Rodriguez replied it is not contemplated in the contract for Masci Construction to pay that cost.

 

Commissioner Fisher stated it was his understanding that there was another nine weeks that was needed.  Mr. Rodriguez stated the construction portion of the project was put out to bid; there was two main bidders, one was Masci Construction, and the second lowest bidder was SES Engineering; there was a difference of $1.1 million; SES Engineering protested the apparent low bidder; and the protest extended the time of start in which the contract was anticipated on starting, which in turn, changed the shape of the hill.  He stated part of the construction portion is to put things in the hill, such as pipes; at one time it was estimated that the pipes were going to be five feet deep; and 90 days later, the pipes are going to be 20 feet deep.  He noted there is a huge difference in cost and man power in digging something five feet and 20 feet; and that is one reason additional oversight has had to be provided.

 

Commissioner Anderson inquired, what was the difference between the two main bidders; with Mr. Rodriguez responding $1.1 million.  Commissioner Anderson inquired if that will be reduced because the Board is paying another $273,000; with Mr. Rodriguez responding it will be reduced to approximately $800,000.  Commissioner Anderson stated he has seen people in the past, in city government, shoot low on a bid knowing they can come back with Change Orders that are not far off from the original competition; and inquired if this is the last time the Board will see a Task Order for this contract.  Mr. Rodriguez replied, this is the last time the Board will see a Task Order from the engineers.

 

Dennis Davis stated he can assure the Board that from a contractor’s standpoint, the difference was the $1.1 million, which is a concern; right now, there are no change orders on the table; there was $100,000 of contingency money added to the contract, which JEA is below; and that included money that had to be paid to the contractor because of the change of what has happened on the hill in the interim time of the bid protest.  He stated JEA has been successful in its efforts of trying to manage that construction contract.

 

Commissioner Infantini inquired if the Board has already been billed $300,000 toward the engineering on the Masci Construction project; with Mr. Rodriguez responding yes, approximately.  Commissioner Infantini stated if the Board has already been billed $300,000, and this is an extra $273,000, that equals $573,000, which reduces the $1.1 million by 50 percent.  Mr. Rodriguez stated two separate contracts are being compared; the construction contract is the actual builder,  which is Masci  Construction;  and  then  there is  the  engineering oversight contract.  He noted the $300,000 was for the total cost of the contract; now there is the difference of $1.1 million between bidder No.1 and bidder No.2; and if the request is approved today, it will be reduced down to $100,000.  Commissioner Infantini inquired if the Board would have had to pay the $300,000 regardless of which contractor won the job; with Mr. Rodriguez responding affirmatively.

 

Commissioner Infantini inquired if the layering of management on the contract is able to be addressed.  Mr. Davis stated in terms of the layering, he is the engineering of record for the closure design; there are two phases of the project, the closure of the landfill, and there is also the gas collection system, which Mark Hadlock was the engineer of record for that portion; and as senior project managers they have to spend some amount of time at the site in order to certify the project back to DEP.  He stated at the end of the project, part of his scope is to compile a completion report certification of construction completion that has to be signed and sealed by both he and Mr. Hadlock; and that addresses one aspect of what appears to be the overlapping of management.  He stated Jason Hastler, the Project Engineer, in an engineer intern and is not able to sign and seal those types of documents.

 

Commissioner Infantini inquired if it is a requirement of the State that there be an outside engineering firm as opposed to being able to provide the services in-house.  Mr. Rodriguez replied it has to be an engineer that can seal and sign in, and they have to have the expertise to be able to do it; and that does not mean that it can be inside or outside, it is just a matter of who has the expertise.  He noted the amended Task Order’s original price started in the $300,000 range; through discussions and emails, staff has been able to reduce it to $250,000; and he does not want the perception to be that staff was presented with a dollar amount and accepted it as is.

 

Commissioner Fisher inquired how many weeks of work was the original scope; with Mr. Davis responding it was originally scheduled for 150 days of on-site observation.  Commissioner Fisher stated when that formula is calculated into the next phase, is that in line because there is additional time, or does it seem like it is higher.  Mr. Dennis advised JEA has spent additional effort in trying to keep the lower bidder in line with the work that he was required to do; when JEA went through the bid protest period, one of the things discussed was that if they were going to base selection of the contractor solely on the qualifications of the contractor, then they would have taken the second highest, which was SES Field Engineers, as they are known throughout the world for these types of projects; however, JEA was looking for contractors as required, which was the most responsive low bid; and JEA made it known that there may be some additional oversight required for Masci Construction because they had only one landfill project prior to this one.  He stated there was more of a reliance on JEA to help the contractor go through construction projects to see that things were done as needed to ensure the project was successful.  Commissioner Fisher stated the original contract was for 150 days and $300,000.  Mr. Rodriguez stated the difference is that there is not a direct correlation between the first contract and the second contract as far as time and money is concerned; staff has to put additional manpower into oversight of the  existing contractor;  and he has one of his employees stationed permanently there for 40 hours per week, as that was one of the things staff committed to do in order to bring down the price of the contract.  Mr. Rodriguez stated Masci Construction has made several mistakes that a more seasoned contractor would not have made; for example, a more experienced contractor will try to keep running over the grass to a minimum just in case rain causes erosion; Masci Construction did not do that; and when it rained, a Stop Work Order was placed until all of the erosion was taken care of.

 

Commissioner Fisher stated in the future the Board may want to consider if a contractor is requiring the Board to spend an additional engineering fee, the Board may have some kind of recourse.  Mr. Rodriguez stated he would like to talk to the County Attorney’s Office to see if something like that can be done, and to make the fines stiffer than they are currently.

 

County Manager Howard Tipton stated the services that are being provided, in part, are largely owners-representative services; JEA is essentially looking out for the County’s interests as it deals with the low bidder contractor; the County is saving money, but it does require additional oversight; and that is just what happens when going with a less experienced contractor.  He stated he agrees that staff should go back and look at some of its contract provisions to make sure that there is some additional teeth in them; $500 per day penalties are inconsequential to companies of this size; but he is also a big proponent of incentives; and if a contractor finishes early and under budget, those savings can be shared as well.  He stated there are long-term relationships with a number of engineering vendors; the vendors are familiar with the County’s projects, which are very complex, but because they are long-term and economic conditions change, it may be appropriate for staff to go back periodically and make sure the rates are still competitive, given the changing economic conditions.

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to execute Task Order 07-11 with Jones, Edmunds & Associates, Inc. (JEA) in the amount not to exceed $273,815, to provide additional services during construction of the Central Disposal Facility (CDF) Phase IV South Slope Closure and Landfill Gas System Expansion Project.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Infantini, seconded by Commissioner Nelson, to adopt Resolution No. 09-258 establishing the use of Recovery Zone Economic Development Bonds (RZEDB) and providing for the formal application process for Recovery Zone Facility Bonds (RZFB).  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini stated she is concerned about who will be underwriting the mortgages; specifically, who is going to be qualifying the borrowers.

 

Angela Abbott, Brevard County Housing Finance Authority, advised the loans will be made through local lenders throughout the County; and the borrowers will be instructed on the rules of the Bond program.  Commissioner Infantini inquired if any of the loans will be the no-doc loans that were offered by Fannie Mae for a while, because she watched no-doc loans go to people who said they had income, but did not.  Ms. Abbott replied the loans will be credit qualified, FHA, VA, or conventional.  Commissioner Infantini stated she noticed one of the underwriters would be Fannie Mae, and she did not want the Board to issue $50 million worth of bonds when the borrowers could not pay it back.  She stated it is her understanding that County Attorney Scott Knox is going to be putting in some verbiage, because she would like some type of guarantee that in no way, shape, or form, Brevard County can be held liable for those bonds, or default.  Attorney Knox advised that is usually a standard provision of most of these agreements. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution No. 09-259, approving the issuance by Brevard County Housing Finance Authority of Single-Family Mortgage Revenue Bonds during 2009 and 2010.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to reappoint Maureen Rupe to the North Brevard County Hospital District Board.  Motion carried and ordered unanimously.

 

 

Commissioner Nelson stated the Board was interested in doing an RFP because it wanted to have it to compare its cost of operation to a privatized cost of operation; and he would like to proceed with having the AWWG prepare the RFP.  He stated the AWWG is just doing the preparation of the RFP, but it is the County’s RFP.

 

The Board reached consensus to direct the AWWG to research and develop a model RFP to solicit proposals to privatize the County’s animal shelters.

 

 

Upon motion and vote, the meeting was adjourned at 11:53 a.m.

 

 

 

 

ATTEST:                                                                     ___________________________________

                                                                                    MARY BOLIN, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)