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JANUARY 7, 1997 7:00 PM Present were: Mayor Dave Hood, Commissioners Jeffrey J. Boyle, David L. Schecter, Ed Kelley, Carl G. Persis, City Manager Eugene Miller, City Attorney Fred S. Disselkoen, and City Clerk Veronica Patterson. A G E N D A
Item #1 - Call to Order Mayor Hood called the meeting to order at 7:00 PM. Item #2 - Invocation The invocation was given by Reverend Joe Putting, Tomoka Christian Church. Item #3 - Pledge of Allegiance Mayor Hood led in the Pledge of Allegiance. Item #4 - Approval of Minutes Mayor Hood advised the minutes of the December 17, 1996, meeting had been sent to the Commissioners for review and asked if there were any corrections, additions, or omissions. Commissioner Schecter moved, seconded by Commissioner Persis, to approve the minutes as submitted.
Item #5 - Presentation: Home for the Holidays Parade Awards Ms. Janie Sheppard, Holiday Parade Committee Chairman, announced the winners of the Home for the Holidays parade awards and mentioned there were 128 entries with approximately 1500 participants. She expressed appreciation to all of the parade sponsors, especially the City and Chamber of Commerce. Mayor Hood congratulated the winners of the parade awards and stated the parade was "first rate" and thanked the parade committee members for their efforts. Item #6 - Audience Remarks Mr. Stan Rosevear, Volusia County Council District Four Representative, complimented the City for its holiday atmosphere. He stated that, at the request of Commissioner Persis, he investigated the condition of the property located in the County at the southwest corner of Nova Road and Hand Avenue and agreed it was an eyesore with as many as fifty (50) trucks parked on site at one (1) time. He explained the property is under mixed ownership and attempts are being made to contact the proper principals to direct immediate removal of the trucks. Mr. Rosevear stated the site has been found in violation of County ordinances and is scheduled before their Code Enforcement Board on February 5, 1997. Mr. Rosevear thanked Commissioner Persis for bringing this situation to his attention and stated communication is an important tool between cities and the County, and he encouraged individuals to contact him. He asked if there were any other matters the Commission wished to discuss. Commissioner Persis thanked Mr. Rosevear for his report. Commissioner Boyle stated that in the closing of three (3) areas of the beach, poles were erected immediately north of the Granada approach, which eliminates any vehicular access to Oceanfront Park. He stated the owners of the Granada Shopping Center have expressed concern about the parking situation in their lot caused by the lack of alternative beach parking. Commissioner Boyle stated it was his understanding that if a portion of the beach was closed, alternative parking areas would be provided. Mr. Rosevear stated alternative beach parking is an on-going process, and definitive plans have not been approved. He stated improvements are going to be made to the appearance of the poles prohibiting traffic north of the Granada approach. Commissioner Boyle stated he was surprised that the law would be so specific that the County could not allow vehicular access to a few hundred feet fronting the Oceanfront Park, to which Mr. Rosevear responded he would research the matter; however, be believed no change would occur. Mayor Hood asked that Mr. Rosevear stay to discuss the 800 MHz communication system at the end of the agenda due to the length of time necessary for this discussion. Item #7 - Consent Agenda Mayor Hood advised the action proposed to be taken for each item on the Consent Agenda is so stated on the agenda. He asked if any member of the Commission had questions or wished to discuss any one or more of the items separately. Commissioner Schecter asked that Item No. 7(B) be discussed separately. Commissioner Schecter moved, seconded by Commissioner Persis, for approval of the Consent Agenda minus Item No. 7(B).
Item #7(B) - Legislative Policy Statement
Commissioner Kelley moved, seconded by Commissioner Boyle, for approval of Resolution No. 97-2, as read by title only. Commissioner Schecter complimented the City Attorney for preparing the proposed Legislative packet; however, he asked for removal of Item #4, resign-to-run law, and Item #18, regarding the firefighters’ "presumption" bill, stating he did not support the recommendations. Commissioner Persis stated he also had concern with Item #18, and in addition, he asked that the legislative body initiate some type of campaign reform, including campaign finance reform. Commissioner Boyle also expressed concern with Item #18. Mayor Hood stated he was in favor of Item #4 and explained that if an incumbent is able to stay in a political office and run for another office, there is opportunity for people to be less than forthright, and the public has a right to demand that there is no occasion for an appearance of impropriety. Regarding Item #18, Mayor Hood stated this is clear proof of a higher governing body placing mandates on a lower governing body without having any idea what it will cost that municipality. He advised he has expertise in workers’ compensation law, and he explained the standard law that applies to every worker in the State. Mayor Hood stated the firefighters, through their union lobby, were able to obtain legislation that automatically presumes that if a firefighter has a heart attack, tuberculosis, or hypertension, it is because of their being a firefighter and not due to being obese, a cigarette smoker, or having other conditions such as diabetes that cause the diseases. He disagreed with the legislative body that this legislation is just a "rebuttable presumption," as it has been his experience that a doctor will not contradict that rebuttable presumption because it leaves them open to liability. Mayor Hood stated that while he is not advocating that the City not pay benefits to a firefighter who has one of these diseases where the cause can be related to his employment, the same standard should be used as for every other worker in the State of Florida, including police officers. He commented it is a great illusion that firefighters have a high accident and injury rate. Mayor Hood reiterated the cost of this presumption will be tremendous, and he urged the Commission to reconsider deleting Item #18, as well as Item #4. Mr. Fred Disselkoen, City Attorney, advised Item #4 has been included in the legislative packet for the past couple of years. Mayor Hood clarified a "yes" vote is to retain the items in the 1997 Legislative Policy Statement.
Commissioner Boyle yes motion, incorporating the Commissioner Schecter yes two previous votes and the Commissioner Kelley yes campaign reform item: Commissioner Persis yes Mayor Hood yes carried.
Item #8 - Relative to Traffic Impact Reports Commissioner Schecter moved, seconded by Commissioner Boyle, to close the public hearing on Item #8. The motion passed unanimously.
Commissioner Schecter moved, seconded by Commissioner Kelley, for approval of Ordinance No. 96-92, on second reading, as read by title only.
Item #9(A) - Pawnbrokers/Secondhand Dealers/Secondary Metal Recyclers
Commissioner Kelley moved, seconded by Commissioner Schecter, for approval of Ordinance No. 97-1, on first reading, as read by title only.
Item #9 (B) - Repealing Chapter 8.1, Fair Housing, of the Code of Ordinances
Commissioner Schecter moved, seconded by Commissioner Kelley, for approval of Ordinance No. 97-2, on first reading, as read by title only.
Item #10 - Penalty Clause for Service Contracts Mr. Eugene Miller, City Manager, advised the City Commission directed staff to review the pros and cons of a termination or penalty clause for service contracts. He stated the recommendation is to 1) include an assignment fee clause in service contracts; and, 2) to continue to exclude termination, cancellation, or penalty clauses in service contracts. Commissioner Schecter questioned the sentence in the City Manager’s memorandum which reads "Rather, the City should continue to not allow contractors to cancel or terminate their contract," and asked how many contractors have canceled or terminated their contracts to date. Mr. Robert Bentkofsky, Budget Manager, stated historically he could not give a total number, but recently there had been one (1) contractor who had the ability to terminate their contract, and an assignment was given to another contractor. Commissioner Schecter stated his concern is that the City’s current practice does not stop a contractor from canceling a contract and "walking away" from their contract without penalty; whereby, Mr. Disselkoen advised the contractor is at risk of action for damages if he fails to honor a contract a City contract. Commissioner Schecter stated that staff makes an argument that an assignment fee is rational and asked that the same logic be applied to include an early termination fee. Mr. Disselkoen advised that, in the event of a breech of contract, the courts will uphold a liquidated damage clause if it is hard to prove what the actual damage is going to be. He stated if a party terminates a contract, it is fairly easy to establish what the actual damages will be; then the liquidated damage clause will be held to be a penalty and will be stricken, or if actual damages are $10,000 and the liquidated damage clause states $500.00, that $500.00 is all that the City will be granted. He advised this is the logic for not having a termination clause and being able to sue for actual damages if a contract is breached. Mr. Disselkoen advised there is time invested in evaluating new contract providers, and that is the logic for including an assignment clause. Commissioner Schecter reiterated his request for an early termination fee since, as shown in the past, the City has no recourse when a contractor walks away from a contract after serving one (1) year of a five (5) year contract. Mayor Hood stated that is a misstatement of what occurs, and the contractor does not walk away without having potential liability. He advised the early termination clause as described by Commissioner Schecter is illegal and unenforceable. He explained that if a contractor terminates a contract before its expiration, the City has the ability to sue for damages. Commissioner Schecter asked if an early termination fee could be included as part of liquidated damages. Mr. Disselkoen responded it could not since the early termination fee would, in fact, be liquidated damages, because the City would be establishing, in advance, what the damages are going to be. Mayor Hood explained if the City goes to court on a liquidated damage clause, it has to prove by factual evidence that there is a basis for the calculation included within the clause; and if the judge finds there is not a rational basis for the calculation, then it becomes a penalty, and the City loses the potential money from liquidated damages. Mr. Disselkoen advised that, in practicality, if a contractor quits without reason, it is usually because he is out of money; therefore, no matter what the damages, the City will end up with a judgment which is hard to collect. Commissioner Schecter moved, seconded by Commissioner Persis, to accept the recommendation as set forth in the City Manager memorandum dated January 2, 1997.
Item #11 - Reports, Suggestions, Requests School "N" Commissioner Boyle stated the school board zoning hearings went well and questioned Commissioner Persis if the construction of School "N" would eliminate the need for portable classrooms in area elementary schools. Commissioner Persis stated the portables at Pine Trail will no longer be necessary, and that School "N" will have no effect on Ormond Beach Elementary portables. He stated Tomoka Elementary will experience a slight change, however, it is premature to make a determination. Labor Relations Counsel Commissioner Schecter requested an update on the contract with Hogg, Allen, and Blue, and asked when it expires. He noted there has been a change at the union level and perhaps it is time to review the City’s counsel. Mr. Disselkoen advised that the contract is an on-going contract subject to a termination clause of sixty (60) days notice without cause, or immediately with cause. Commissioner Schecter asked to be provided with a copy of the terms. Appreciation Commissioner Schecter expressed appreciation to staff on the projects that have been completed recently, specifically the Wilmette Avenue project, as well as the Bosarvey/ Seton project. Mr. Miller commented that the short agenda was not representative of staff effort in the past few weeks. He stated many items are scheduled for the City Commission in the next few weeks and reported that staff has been working on major projects such as the stormwater master plan, pavement management program, feasibility study for Police and Fire Departments moving from their existing site to the Orchard Street site, refurbishing Fire Station No. 91, and Fortunato Park. Mr. Miller stated the Commission can expect to have very lengthy agendas for the next few meetings. Project Cost Estimates Mayor Hood stated there has been a recent problem with engineer project cost estimates that have come in substantially higher that estimated, and gave McKim and Creed’s estimate on Fire Station No. 91 as an example. He suggested that any engineering company that comes in five (5%) percent to ten (10%) percent above their estimate, on one (1) or two (2) projects be removed from the list of firms on continuing contract. He emphasized the importance of project costs being estimated as accurately as possible in order to give the Commission correct information so the right policy decisions can be made for allocating resources. Mayor Hood requested a list of the engineering companies that have miscalculated their project estimates in the last six (6) months, and he requested this issue be placed on the second agenda form this meeting to formulate a policy for dealing with this. Mr. Miller stated review of companies has been underway, and staff will submit a report recommending how the City can proactively deal with this matter. 800 MHz Communication System Mayor Hood stated the County purchased an 800 MHz communication system on the theory that Volusia County clearly needs a communication system that is seamless so that in the event of a catastrophe, communication is available countywide to handle situations in a much quicker way. He stated, to that effect, the County bought the 800 MHz system from Ericsson-GE Mobile Communications, Inc. (Ericsson), over two (2) years ago, and the City has experienced consistent problems with the system. Mayor Hood stated the Volusia Council of Governments in April, 1996, stated this is an untenable situation and needed change. He stated Ericsson representatives originally stated the system would be fixed by June, 1996, with requests for extension until November, and the City was told their problems would be resolved by December 23, 1996. Mayor Hood stated he received a letter from the police union requesting his involvement in this matter because there were concerns regarding safety. He discovered the problems have not been resolved and, in fact, have become worse. He advised an incident occurred on January 3, 1997, where an arrest was not made due to the communication system not being operational. Mayor Hood expressed his concern that two (2) years after the purchase of the system, emergency personnel and the people of this community are at risk when the communication system fails. He asked the Commission to follow actions taken by the City of DeLand and return the equipment, request a refund, contact other cities if the County refuses to take the lead, and purchase a reliable 800 MHz communication system. Mayor Hood stated two (2) years is far too long for this system to continue not to work; and when that fact is combined with the fact that this same system has not worked for any other city, it is time to admit a mistake has been made. He stated the County needs to become aggressive in getting their money back and needs to buy a system that works. Mayor Hood agreed with the premise of having a seamless communication system; however, the current system is a mistake and something must be done to stop endangering lives. Mayor Hood moved, seconded by Commissioner Schecter, to return the 800 MHz system, request the County to refund the City’s money, and move forward in obtaining a reliable 800 MHz system. Commissioner Schecter asked for a financial summary of the amount the City has expended on this system. Commander Michael Longfellow responded $75,861.00 has been spent to date, which is approximately twenty-five (25%) percent of the City’s total obligation. Commissioner Schecter fully supported the motion and stated Ericsson has been given more than enough time to resolve the problems. Commissioner Kelley stated the County made the wrong decision by selecting Ericsson based on the information presented on system failure, and he strongly endorsed this action. Mayor Hood stated he did not support the County’s decision to spend $60,000 for an expert to review the system when this has already been demonstrated. Mr. Stan Rosevear, Volusia County Council District Four Representative, stated he is not qualified to respond to the technical problems of the system; however, he has the system in his car and is familiar with the situation. He stated there are always problems which occur with today’s technologies; however, the County will continue to develop the existing system. He stated the County has made progress, and the County acted appropriately by hiring a consultant to perform an analysis of the system. He emphasized a countywide communication system is necessary. Mayor Hood stated there is not one (1) place in the entire world, that Ericsson has installed an eight (8) channel simulcast system that has worked. He stated this information has been provided to the County Council during public meetings since April, 1996, and he questioned at what point in time the County Council will act on this. Mr. Miller stated the intended action will mandate staff to initiate, with urgency, the exploration of alternatives, and he related this is not a small project. He stated there has been excellent verbal communication between the City and County and an effort has been made to cooperate; however, there are still problems. Therefore, he advised, he concurs with the Commission and will initiate the exploration of acquiring an alternate modern system. Commissioner Boyle fully supported the Commission’s action.
Item #12 - Close the Meeting The meeting was adjourned at 7:53 PM. |
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